The No Surprises Act regulations –The first two installments

By Sarah Charles Wright

The No Surprises Act or “NSA” which goes into effect January 1, 2022, mandates group health plans and insurers to cover emergency and other hospital-based services furnished by out-of-network (OON) facilities and providers as if they were in-network. Two sets of implementing regulations have now been issued jointly by four federal agencies. More rules are expected later this year and in 2022.

July 2021 Interim Final Rule

The July Interim Final Rule (IFR) covers the NSA balance billing prohibitions, determining patient cost-shares and calculating qualifying payment amounts for OON care, and the content for required patient disclosures and consents to be balance billed. While the scope of the IFR is too broad for this article, the following are a few key takeaways for facilities and providers.

Surprise Billing Patient Disclosures

The Disclosure rule requires providers and facilities to disclose information to patients regarding the balance billing prohibitions and their rights under the NSA. CMS has published a model Surprise Billing Protection form for providers and facilities to use. Using the model form will be considered good faith compliance with the rule.

Facilities and applicable providers must prominently post a sign with the Disclosures at their practice locations and on their web sites. They must also give a copy of the Disclosures to patients no later than when they first ask the patient for payment, such as when asking a patient for their co-pay at the time of service. Patients can choose to receive the Disclosures in paper form or by email.

All healthcare facilities must comply with the Disclosure rule, but the IFR clarifies that the rule doesn’t apply to all providers or patients:

1.   Importantly, the Disclosure rule only applies to providers treating patients at a facility or in connection with a visit to a facility. The rule doesn’t apply to providers who do not practice outside their offices like as most primary care practitioners.

2.   Providers with both an office and facility practice only have to give the Disclosure to patients they treat at the facility.

3.   The Disclosures only need to be given to patients with commercial or self-insured group healthcare coverage – the only patients who could be balance billed by an OON provider.

Patient Consent to Balance Billing

The circumstances under which a patient may waive the NSA balance billing protections and agree to be balance billed by an OON provider or facility are limited. OON facilities and most facility-based physicians cannot ask patients receiving emergency services or certain post-stabilization services to consent. Non-emergency situations where an OON provider can ask a patient to consent to balance billing will typically involve a patient who has chosen to be treated by the OON provider or facility despite the availability of comparable in-network services in the patient’s geographic area.

CMS has published a model “Surprise Billing Protection” form with necessary language for a valid patient consent to balance-billing by an OON provider or facility. The IFR discusses tailoring the form to a facility’s operations, but if it follows the model form, it will be considered compliant.

When comparable care is available at a facility from an in-network provider in the same or similar specialty, the Surprise Billing Protection form mut be read and signed by a patient before an OON facility provider can treat and bill them at OON rates.

September 2021 Proposed Rule

Proposed regulations were issued September 10 covering NSA requirements for air ambulance services, and for collecting and reporting data on air ambulance services by plans and insurers. The proposed regs also cover the Health and Human Services investigation and enforcement process when a plan, insurer, facility or provider violates the balance billing prohibition or another applicable section of the NSA and the State has not taken enforcement action.

Additional rulemaking is expected later this year to implement the independent dispute resolution process for health plans/insurers on the one hand, and OON facilities/providers on the other when they can’t agree on the Qualified Payment Amount due the facility/provider for services rendered. Other regulations will likely not be published before the NSA goes into effect January 1. They include NSA requirements for insurance ID cards, provider directories, price comparison tools, and continuity of care. Until those regulations are final, plans and insurer are expected to implement the corresponding NSA provisions using a good faith, reasonable interpretation of the statutory language.

-Sarah Charles Wright is with Sturgill Turner in Lexington, Kentucky.