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Surprise! A Cautionary Tale for Out-Of-Network Billing: The No Surprises Act and the Impact on Healthcare Providers

Client Alert

SURPRISE! Congress passed The No Surprises Act at the end of 2020. Providers, particularly those billing as out-of-network providers, should start thinking about strategies to comply with this new law, set to take effect on January 1, 2022. 

In its most basic sense, the new law prohibits providers from billing patients for more than the in-network cost-sharing amount in most situations where surprise bills happen. It specifically applies to non-government payers and the amounts will be set through a process described in the new law. In particular, the established in-network cost-sharing amount must be billed for the following services:

  1. Out-of-network emergency facility and professional services;
  2. Post-stabilization care at out-of-network facilities until the patient can be safely transferred to another facility;
  3. Air ambulance transports;
  4. Out-of-network services delivered at or ordered from an in-network facility unless the provider complies with the notice and consent process set forth in the new law.

In addition to the limitation on what can be billed to patients by out-of-network providers, the following is a list of other key provisions in The No Surprises Act of which out-of-network providers should be particularly aware:

  1. Providers may not hold patients liable for higher amounts or denying treatment to out-of-network patients for emergency services and certain non-emergency services.
  2. There is a required Independent Dispute Resolution (“IDR”) process that insurers and providers will be required to follow in order to settle billing disputes.
  3. For permissible balance billing, providers must comply with the prescribed notice and consent process within 72 hours of the item or service to be provided.
  4. Providers must share good faith estimates of the total expected charges for scheduled items or services, with either the insurer or patient, when the items or services are scheduled at least three days in advance or when requested by the patient.
  5. All health care providers must make publicly available information on patient’s rights with respect to balance billing. Providers will need to make this notice available on their websites too.

Providers should understand that the Act permits states to require providers to adhere to these provisions and enforce compliance. Even if your state does not enforce compliance, the HHS Secretary is able to issue civil penalties up to $10,000 per violation.

Future Updates

By July 1, 2021 the Secretaries of HHS, Labor and Treasury must issue regulations regarding the qualifying cost-sharing amounts. The Secretary of HHS must also issue further guidance regarding the notice and consent process by July 1, 2021.

As of now, the IDR process will be effective January 1, 2022; however, the Secretaries of HHS, Labor and Treasury may change the process and issue the final regulations by December 27, 2021.

Stay tuned as regulations are finalized and more information becomes available.

If you are interested in learning more about The No Surprises Act, policies and forms you can use to comply with The No Surprises Act, or out-of-network billing in general, please contact Healthcare and Hospital Law Member Jeana M. Singleton at jmsingleton@bmdllc.com or 330-253-2001, or any member of the BMD Healthcare and Hospital Law group.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.