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Part II of the No Surprises Act

Overview

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.[1]

Federal Independent Dispute Resolution

The federal independent dispute resolution process is limited to the services under Part I of the Act for which balance billing is prohibited.

The purpose of the dispute resolution process is for out-of-network providers and facilities to determine the out-of-network rate after a conclusion is not made after a 30-day “open negotiation.” This open negotiation period must be initiated first, and only when it fails can the federal independent dispute resolution process then begin, by first being initiated by either party. The required administrative fee for 2022 is $50 per party.

Both parties then must decide on a “certified independent dispute resolution entity,” which must then certify it has no conflicts of interest with either party. If one of these steps cannot be met, the Department of Health and Human Services will select an entity for the parties. The entity must choose between one of the parties’ offers for an out-of-network amount, which will be binding. The losing party will then be liable for the entity’s fee.

Good Faith Estimates

Good faith estimates must be given to uninsured patients for expected charges, including if the services can be provided by other providers or facilities. HHS uses the example of surgery, and states that the good faith estimate would include the cost of the surgery itself, as well as anesthesia, labs, tests, etc. However, it will not include services that would be scheduled separately even though they may be related, such as a physical therapy or a pre-surgery appointment.

Patient-Provider Dispute Resolution

In addition to the federal independent dispute resolution process, a patient-provider resolution has been added in order to resolve instances where a patient received a good faith estimate and then is billed “substantially in excess,” which has been defined as $400 or more. Essentially, this type of dispute resolution requires the patient to have: (1) received a good faith estimate; (2) the patient initiated the process within 120 days of receiving the bill; and (3) the bill the patient received was $400 or more than the good faith estimate. The fee for this process will be $25, to keep the process accessible to consumers.

External Review

Building on an already established rule – in the case of adverse benefit determinations, the scope of external reviews will also apply to determinations involving compliance with the new surprise billing and cost-sharing provisions under the No Surprises Act. Additionally, otherwise-grandfathered plans will also be subject to these provisions.  

Conclusion

Part II of the No Surprises Act introduced a lot of information for providers and facilities to unpack! If you have any additional questions about a specific topic, or Part II of the Act in general, reach out to Healthcare and Hospital Law Member Amanda Waesch by phone at (330) 253-9185 or by email at alwaesch@bmdllc.com. Additionally, the interim final rule can be found here. Click here for information on Part 1 of the Act, Notice Requirements.

[1] Centers for Medicare and Medicaid Services, Requirements Related to Surprise Billing; Part II Interim Final Rule with Comment Period, (Sep. 30, 2021) https://www.cms.gov/newsroom/fact-sheets/requirements-related-surprise-billing-part-ii-interim-final-rule-comment-period.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.

Banking & Cannabis: The Next Frontier Webinar

On Tuesday, September 21st, BMD’s own Banking and Cannabis Partner, Stephen Lenn, hosted a star-studded cast of panelists in a webinar titled Banking & Cannabis: Cannabis Lending, The Next Frontier. The webinar, which had to suspend registrations when hitting a maximum cap of 500, aimed to explore issues related to cannabis and banking, with a particular emphasis on lending. With the sponsorship and support of the Bankers Associations of Arizona, Colorado, Ohio and Utah, Steve was able to recruit an elite group of bankers, bank regulators, cannabis industry players, and cannabis regulators, who took the topic head on. The discussion kicked off with an opening from the keynote speaker, VP of Congressional Affairs for the American Bankers Association, Tanner Daniel.