Hall Render hosted a webinar on July 29, 2021, Surprise Billing and Price Transparency Update. The following includes a selection of audience questions that our attorneys received during and after the webinar. We revised to avoid duplicate responses and to redact any identifying names/information within these questions and answers. The webinar is available on our website for on-demand viewing. Make sure you are also signed up for our alerts to receive information on future articles and presentations. We encourage you to comment on the Interim Final Rule before the deadline of September 7, 2021 and to reach out to us with further questions.
Will “emergency services” include urgent/emergent inpatient transfers (from one acute care facility to another) for inpatient care when cases do not necessarily enter through the emergency department?
A: For purposes of the No Surprises Act (the “Act”), “emergency services” are defined as (a) an appropriate medical screening examination within the capability of a hospital emergency department, an independent a free-standing emergency department, or an urgent care facility, if permitted by state law to provide emergency services; (b) ancillary services routinely available to evaluate an emergency medical condition; and (c) any further medical examination and treatment required to stabilize the patient, regardless of the what hospital department renders such further treatment. The Interim Final Rule (the “Rule”) does not specifically address situations where a patient is transferred between facilities.
Does the Rule apply to group health plans?
A: The Act will generally apply to both insured and self-insured group health plans and health insurance issuers offering group or individual health insurance coverage beginning on or after January 1, 2022. Group health plans include private employer-based group health plans subject to ERISA, non-federal governmental plans (such as plans sponsored by states and local governments) subject to the Public Health Service Act, and church plans subject to the Internal Revenue Code. Individual health insurance coverage includes coverage offered in the individual market, through or outside of an Exchange, and student health insurance coverage as defined at 45 CFR 147.145.
Does the Rule apply based on actual credentialing (physician office) or how the location is marketed and communicated to the public (walk-in clinic for urgent care)?
A: Whether the Rule applies depends upon how the facility is licensed. An independent urgent care center that is permitted to provide emergency services under state licensure laws falls within the definition of an “independent freestanding emergency department,” and therefore would be subject to cost-sharing and balance billing limitations under the Act. A physician office location (without such licensure) would not.
Is it accurate to say that if your location of service is not either an emergency department of a hospital, an independent freestanding emergency department, or an urgent care facility, that this Rule does not apply?
A: The answer depends on whether the services to be provided are “emergency services” or “non-emergency services.” Emergency services performed at the following health care facilities are within the scope of these surprise billing requirements: (1) emergency departments of hospitals; (2) independent freestanding emergency departments; and (3) urgent care facilities, if permitted by state law to provide emergency services.
However, the Act currently requires non-participating providers (or a participating facility on the non-participating provider’s behalf) to give the requisite notice and obtain written consent in order to balance bill a covered individual for non-emergency services rendered in a participating: (1) hospital; (2) hospital outpatient department; (3) critical access hospital; or (4) ambulatory surgical center. Other types of facilities may be subject to the Act’s requirements through future rulemaking.
Does the Rule apply to only out-of-network providers at an in-network facility?
A: It depends whether “emergency services”, “post-stabilization services” or “non-emergency services” are being provided. In the context of emergency services, the balance billing prohibitions apply to both non-participating providers and non-participating facilities and are unwaivable. In the context of post-stabilization services, the balance billing prohibitions also apply to both non-participating providers and non-participating facilities, but are generally waivable. And finally, in the context of non-emergency (i.e., scheduled) services, the balance billing prohibitions apply only to non-participating providers who render services in a participating facility, and are generally waivable.
How does the Act apply to physician practices?
A: The Act does not apply to non-emergency outpatient professional services rendered in a physician office, clinic or location other than a hospital, a hospital department, a critical access hospital or an ambulatory surgery center.
The Act generally applies to a physician who is a non-participating provider when he or she renders: (i) emergency services; (ii) post-stabilization services; or (iii) non-emergency services at a participating hospital, hospital department, critical access hospital or ambulatory surgery center.
What if an in-network provider sends a specimen to an out-of-network lab for non-emergency testing?
A: If the study was performed in a participating facility (hospital, hospital department, critical access hospital or ambulatory surgery center), then the out-of-network lab would not be able to balance bill the patient unless a waiver is obtained.
Do you anticipate ground ambulance to be covered by the Act in future rulemaking?
A: At present, ground ambulance services are not subject to the requirements of the Act. However, Congress has ordered the Secretary of Labor, the Secretary of Health and Human Services (“HHS”), and the Secretary of the Treasury (the “Departments”) to jointly establish an advisory committee for the purpose of reviewing options to improve the disclosure of charges and fees for ground ambulance services, the insurance options for such services and balance billing for the services. Therefore, ground ambulance services may be subject to the Act’s requirements through future rulemaking.
How can organizations comply with surprise billing and EMTALA for urgent or emergent services?
A: Providers subject to EMTALA should continue to comply with EMTALA as usual. This Rule governs only the amount that hospitals and providers will be able to bill and collect for those services.
Regarding post-stabilization services, are physicians now required to make the determination of whether the individual can travel using non-medical transportation? If a physician doesn’t make that determination at the time, is there a lookback period for making that assessment?
A: In order to request a waiver, the attending emergency physician or treating provider must determine that the patient is able to travel using nonmedical transportation or nonemergency medical transportation to an available participating provider or facility located within a reasonable travel distance, taking into consideration the individual’s medical condition. It is generally expected that a treating provider with medical training and experience related to the individual’s specific medical condition will make this determination, and the determination by the attending emergency physician or treating provider is binding on the facility for purposes of this requirement. The Rule does not specifically mention any lookback period for this determination. However, the Rule appears to suggest that notice and consent should not be obtained until this determination has been made.
In the hospital emergency department, after a patient has been determined to be non-emergent, if the emergency department physician group is out-of-network with the patient’s payor, who should get the consent form signed? Can the hospital staff provide the estimated charges to the patient?
A: Under the Rule, a patient may only consent to out-of-network care from an emergency provider or facility after the patient has been examined and stabilized for any emergency medical condition. Once the patient is stabilized, a non-participating provider or hospital must provide notice and obtain proper consent in order to balance bill for any non-emergent or post-stabilization treatment. The hospital may obtain the notice and consent on behalf of an out-of-network physician. This notice and consent must occur: (i) at least 3 hours before the out-of-network service is provided, if scheduled for the same day; (ii) at least 72 hours in advance of the service if time allows; or (iii) when the appointment is booked if scheduled less than 72 hours beforehand. If the hospital obtains the consent on the provider’s behalf, it would need to work with the physician group to develop a good faith estimate for the cost of the proposed services. Non-participating emergency facilities, participating health care facilities (with respect to non-participating providers at such facility) and non-participating providers are required to retain written notice and consent documents for at least a 7-year period after the date on which the item or service is furnished.
Please note that in the case of a non-participating emergency facility providing post-stabilization services, the written notice must include a good faith estimate for items and services reasonably expected to be provided by the non-participating emergency facility and any non-participating providers as part of the visit at such facility.
What would the consent process be for specialist consults for inpatients who are out-of-network with the specialists at the hospital?
A: First, the notice and consent exception does not generally apply to ancillary services, which include professional services related to emergency medicine, anesthesiology, pathology, radiology and neonatology, hospitalists, intensivists. In other words, the billing limitations must apply to these services. However, a patient may elect to receive items and services from other non-participating specialists. In such case, the non-participating specialist (or the facility on the specialist’s behalf) must provide notice and obtain proper consent in order to balance bill for the services. The notice must include a good faith estimate of the cost for the proposed services to be rendered by the non-participating specialist. The same timing and record retention requirements apply, as described in the prior answer.
What do you do if a patient presents for an appointment and cannot wait 3 hours between the disclosure and the non-emergency, out-of-network service?
A: HHS has indicated that the requirement that notice be provided no later than 3 hours prior to furnishing items or services helps to ensure individuals can voluntarily provide informed consent, while not removing the informed consent option entirely in instances where the appointment is made the same day as the date the services are scheduled. Please note that a provider or facility is never required to provide notice and seek consent; it only needs to do so in order to balance bill a plan beneficiary. If the provider is concerned that a 3-hour delay will be detrimental to patient care, the provider or facility can furnish the services, subject to the balance billing protections.
HHS is specifically seeking comments on whether such a time limit is a reasonable approach, as well as whether the 3 hours’ time requirement should be shorter or longer, in order to best ensure that consent is freely given while also facilitating timely access to care. In particular, HHS has indicated that it is interested in understanding if there are situations where this time requirement may unduly delay access to urgently necessary care, including in the post-stabilization care context.
For purposes of a waiver, what is required on the good faith estimate?
A: HHS has acknowledged that that non-participating providers and non-participating emergency facilities generally are unable to calculate what an individual’s final out-of-pocket costs (inclusive of balance bills) will be for items and services partially or wholly covered by the individual’s plan or coverage. Therefore, the good faith estimate should reflect the amount the provider or facility expects to charge for furnishing such items or services (i.e., chargemaster rates), even if the provider or facility intends to bill the plan or coverage directly.
When a patient signs a waiver/consent to be balance billed for out-of-network services, is the provider required to provide the plan or issuer a copy of the signed notice and consent documents, or can we just include the notice and consent documents with the bill sent to the patient / plan participant?
A: The nonparticipating provider, the participating health care facility (on behalf of the nonparticipating provider), or the nonparticipating emergency facility (as applicable) must timely notify the plan or issuer that the notice and consent criteria have been met and provide the plan or issuer with a copy of the signed notice and consent documents. If the nonparticipating provider bills the participant, beneficiary, or enrollee directly (as permitted by the Rule), the provider may satisfy this requirement by including the notice and consent documents with the bill to the participant, beneficiary, or enrollee.
Would you speak to how hospital clinics are going to provide patients with the notice 72 hours prior to appointment? Specifically, does the notice just have to be available (i.e., published on provider’s website) or does the notice have to be signed by the patient 72 hours prior to the appointment?
A: The Act currently applies only to: (a) emergency services provided by an non-participating provider and/or an non-participating hospital emergency department, free-standing emergency department or urgent care center licensed as a free-standing emergency department; (b) post-stabilization services furnished by an non-participating provider and/or an non-participating hospital emergency department, free-standing emergency department or urgent care center licensed as a free-standing emergency department; (c) nonemergency services furnished by nonparticipating providers at a participating hospital, hospital out-patient department, critical access hospital or ambulatory surgery center; and (d) air ambulance services furnished by nonparticipating providers. Generally, this Rule would not apply to physician offices or clinics (unless they are licensed as a participating hospital outpatient department).
If the notice and consent process is applicable, such notice may not simply be posted on the website. Instead, the notice and consent must be written and provided to the patient on paper or electronically and contain patient specific information. The patient or authorized representative must also sign the notice and consent 72 hours prior to the appointment. If the appointment is scheduled less than 72 hours prior to the appointment, the notice must be provided/signed on the day the appointment is booked, but in any event no less than 3 hours prior to the scheduled appointment. We recommend working with your EMR vendor to implement procedures that would allow patients to review and sign notices electronically, where appropriate.
What is the bottom line if the hospital fails to obtain patient consent?
A: If an out-of-network hospital or provider fails to provide notice and obtain consent for post-stabilization services, the out-of-network hospital or provider may not balance bill the patient for the difference between the out-of-network rate and the in-network rate. If an out-of-network provider schedules services to be performed at an in-network facility, and the provider (or the facility on behalf of the provider) fails to give proper notice and obtain written consent to balance bill for the scheduled services, the out-of-network provider may not bill the patient for the difference between the out-of-network rate and the in-network rate. The hospital and/or provider may elect to collect the estimated cost up-front to avoid collection issues following the services. If the out-of-network facility or the out-of-network provider fails to obtain the patient’s consent to balance bill for post-stabilization or scheduled services, then payment will likely be limited to the plan’s median rate unless the plan is willing to negotiate a higher rate or the hospital/provider pursues arbitration. At this time, it is unclear how the dispute resolution process will work, but there are always risks associated with arbitration.
I have seen one interpretation of the Rule suggesting that payors can no longer require prior authorization on emergency procedures for patients that start out in the ER. Could you please comment on impact to physician prior authorization requirements and billing?
A: The Act and the Rule require health plans/issuers that provide coverage of emergency services to do so without the individual, the provider or the emergency facility having to obtain prior authorization and without regard to whether the provider and facility furnishing the emergency services are contracted with the plan/issuer with respect to the services (regardless of the department of the hospital in which such items and services are furnished). In light of this, plans should not require a physician or facility to obtain prior authorization before providing emergency services beginning on January 1, 2022.
Do we have a sense of how health plans will be audited or who will audit them (e.g., HHS, State Division of Insurance)?
A: The HHS Secretary, in consultation with the Secretaries of Labor and Treasury, is required to establish the audit process no later than Oct. 1, 2021. Audits are limited to no more than 25 health plans annually; however, the Secretaries may audit any plan based on a complaint or other information questioning compliance with these provisions. The HHS Secretary must submit annual reports to Congress on the number of plans that were audited. We anticipate learning more about the audit process through future rulemaking.
Will there be any webinars to address the impact the Act will have on provider enrollment and directories?
A: We anticipate hosting another webinar and issuing a publication once the second round of rulemaking is released. As it relates specifically to provider directories, the Act is very vague as to how plans are to verify the provider directory information which includes the name, address, specialty, phone number and digital contact information for each provider or facility under contract with the plan. Unfortunately, the Departments have yet to address this aspect of the Act through any rulemaking or guidance.
What type of plan amendments do you anticipate would come from plans?
A: It is possible that plans may revisit contract rates; however, it is more likely that plans will issue amendments to either the provider agreements or the plan’s provider manual to facilitate compliance with certain aspects of the Act. For example, by 2022 plans must at least every 90 days verify and update provider directories (among other provider directory requirements). Accordingly, plans may issue amendments to require providers to submit verification information to the plan in order for the plan to comply with such provider directory requirements.
Do you anticipate any further definition for emergent services in behavioral health settings?
A: The term “emergency medical condition” is defined under the regulations to include a mental health condition or substance use disorder. However, the protections related to emergency services apply in scope to hospital emergency departments or independent freestanding emergency departments. Nonetheless, the Departments are interested in comments identifying types of facilities in which surprise bills frequently arise. Accordingly, it is possible that the Departments will extend these protections in different care settings based on stakeholder comments.
If the state law sets the rate for out-of-network emergency services, but is silent on post-stabilization services, what out-of-network rate will apply?
A: The out-of-network rate for the emergency service would be determined based on the specified state law, but the out-of-network rate for the post-stabilization services would be determined through the negotiation process or independent dispute resolution procedure. Similarly, the “recognized amount” utilized to determine the total cost-share obligation of the patient for the emergency service would be determined based on the specified state law, but the “recognized amount” for the post-stabilization services would be determined based on the Qualifying Payment Amount (“QPA”) for those services.
How does the out-of-network provider know the QPA?
A: If the plan utilizes the QPA (i.e., the plan’s median rate) to establish the “recognized amount” in determining the total cost-share obligation of the patient for the out-of-network service, the plan is required to disclose the QPA for each item or service provided by the out-of-network provider on the initial payment or denial notice. In addition, the plan must provide a statement that the QPA was determined in accordance with the required methodology. An out-of-network provider or facility that wishes to find out more information regarding how the QPA was established (e.g., whether the QPA was determined using any underlying fee-schedule amounts) can request additional information from the payer.
Can you explain the alternative methodology if the QPA cannot be determined?
A: The Rule provides two basic alternate methodologies for establishing the QPA used to determine the patient’s cost-sharing amount for out-of-network services. First, if the plan or issuer does not have at least three contracted rates for the item or service in question, then the QPA can be established by using negotiated rates included in an eligible third-party database. The third-party database: (1) cannot be affiliated with, owned or controlled by any health insurance issuer or health care provider; (2) must have sufficient information reflecting in-network amounts paid by group health plans for the item or service in question in the relevant geographic region; and (3) must have the ability to distinguish amounts paid to participating providers and facilities by commercial payers, from all other claims data.
The second alternate method for establishing the QPA is to be used when the plan covers a “new service code” that was created or substantially revised in a year after 2019. In such a situation, the plan must identify a reasonably related service code that existed in the immediately preceding year. This related service code will be the benchmark for determining the QPA for the new service code. The plan must then calculate the ratio of the rate that Medicare pays for the new service code compared to the rate that Medicare pays for the related service code, and multiply that ration by the QPA for the related service code during the year in which the new service code was utilized. However, in instances where Medicare has not yet established a payment rate for an item or service, the QPA for a new service code may be established by first calculating the ratio of the rate that the plan reimburses for an item or service billed under the new service code compared to the rate that the plan reimburses for an item or service under the related service code (the “relativity ratio”), and then multiplying this relativity ratio by the QPA for the item or service billed under the related service code.
If the patient’s in-network cost share is a flat dollar amount, then a QPA would be moot, correct?
A: The plan would not need to establish a recognized amount or a QPA for an item or service if the patient’s cost-sharing obligation for the out-of-network services is based on a fixed dollar amount (instead of a percentage of the recognized amount).
