As of January 1, 2022, providers and facilities must comply with a number of requirements established by the No Surprises Act (the “Act”). CMS recently published several resource documents, as described below, to provide further clarity surrounding implementation of the Act and help providers and facilities better understand their respective compliance obligations.
Background
The Act generally (1) prohibits balance billing for emergency services provided by out-of-network providers, non-emergency services provided by out-of-network providers at in-network facilities, and air ambulance services, and (2) requires providers to issue good faith estimates to certain patients upon scheduling items/services and upon request.
The Department of Health and Human Services (“HHS”), the Department of Labor, the Department of Treasury and the Office of Personnel Management (collectively, the “Departments”) have issued two interim final rules (“IFRs”) on July 13, 2021, and September 30, 2021, implementing certain requirements under the Act. The first round of rulemaking: (i) defined the scope of the Act’s balance billing prohibition; (ii) outlined how a patient’s out-of-network cost share obligation is to be determined; and (iii) created a process for a patient to provide their consent to be balance billed. For a more in-depth review of the requirements of the first IFR, please review our previous article here.
The second IFR addressed (in relevant part): (i) the independent dispute resolution process by which the appropriate out-of-network rate is calculated for services provided by out-of-network providers; (ii) good faith estimate requirements for uninsured/self-pay patients; and (iii) the patient-provider dispute resolution process. For a more in-depth review of the requirements of the second IFR, please review our previous articles here and here.
Other aspects of the Act are not yet effective or are not currently being enforced. For example, HHS has temporarily deferred enforcement of the Act’s: (i) requirement for providers/facilities to provide a good faith estimate for insured patients upon scheduling items/services and upon request; and (ii) the Act’s requirement that a good faith estimate includes expected charges for co-providers and co-facilities. For a full summary of the Act’s requirements whose effective dates have been postponed, please review our previous article here.
CMS Resources
To assist providers and facilities with implementation of the Act, CMS recently published a variety of resources including the following:
- A high-level overview of provider requirements under the Act;
- A detailed discussion of the balance billing rules;
- A summary of provider and facility: (i) balance billing disclosure requirements; (ii) protections for certain continuing care patients whose plan terminates a contract with a provider; and (iii) requirements to protect patients and improve the accuracy of provider directory information;
- A set of FAQs regarding the Balance Billing Notice and Consent Requirements, and the Federal Independent Dispute Resolution System;
- A set of FAQs regarding the good faith estimate requirements for uninsured (or self-pay) individuals;
- Guidance on the Good Faith Estimate Requirements and the Patient-Provider Dispute Resolution Process for providers and uninsured (or self-pay) patients;
- Guidance regarding the administrative fees for certified independent dispute resolution entities utilized for the Federal Independent Dispute Resolution System;
- Guidance regarding how the Qualifying Payment Amount is to be calculated;
- Letters to certain states outlining CMS’s understanding of the state’s collaborative enforcement responsibility with CMS for provisions of the Act. Importantly, these letters provide, based on survey response, CMS research and communications with agencies of each state, whether the state has implemented a “specified state law” for purposes of determining the appropriate out-of-network rate for certain health care services provided by out-of-network providers; and
- Guidance for states with external review processes regarding compliance with the requirements of the Act.
Practical Takeaways
- Providers and facilities should carefully review CMS’s published guidance documents as they continue to implement processes and procedures required to comply with the Act.
- Providers and facilities should also consider developing and implementing written compliance policies and procedures addressing requirements that are currently effective under the Act and preparing policies and procedures for requirements currently subject to a non-enforcement decision.
- Finally, providers and facilities should continue to be on the lookout for future rulemaking/guidance for requirements currently subject to a non-enforcement decision.
For more information on surprise billing, please contact:
- Lisa Lucido at (248) 457-7812 or llucido@wp.hallrender.com;
- Ben Fee at (720) 282-2030 or bfee@wp.hallrender.com;
- Matthew Reed at (317) 429-3609 or mreed@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
