What All Providers Need to Know About the No Surprises Act

July 8, 2022 General

Insurance companies engage a network of providers and health care facilities that agree to go “in network”, or accept a specific payment amount for their services. If a provider or facility isn’t “in network,” they usually charge higher amounts than the contracted rates the plans and issuers pay to in-network providers. These “out-of-network” providers may not have insurance contracts for a variety of reasons, including that they aren’t offered contracts by the insurance providers or that they have made the business decision to remain out of network.

The business of in-network versus out-of-network providers sometimes hits a patient right in the bank account.

A patient who receives care from an out-of-network provider will often receive a “balance bill” because their insurance plan doesn’t cover the entire out-of-network cost. After the insurance company is reimbursed the out-of-network rate from the patient’s insurer, it will (and in Florida, it is required to) bill the patient for any balance that remains. If a patient isn’t aware that she is receiving care from an out-of-network provider, the balance bill often comes as a surprise.

The “No Surprises Act” consists of three rules regulating care received from out-of-network providers at in-network facilities.

Requirements Related to Surprise Billing; Part I.

On July 1, 2021, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury, along with the Office of Personnel Management (OPM) released this interim final rule. It applies to out-of-network emergency services, air ambulance services furnished by out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, including hospitals and ambulatory surgical centers.

If a patient’s insurance provides or covers any benefits for emergency services, then the plan also must cover emergency services provided without any prior authorization, regardless of (i) whether the provider or facility is in-network or out-of-network; and (ii) any other term or condition of insurer. There are other limitations, but this requirement covers the majority of circumstances.

Cost sharing is also limited for out-of-network services to a maximum of in-network levels, and any such cost sharing is required to be counted toward any in-network deductibles and out-of-pocket maximums. Written consent must be obtained to patients prior to charging out-of-network rates at in-network facilities. Moreover, balance billing is prohibited.

Requirements Related to Surprise Billing; Part II.

On September 30, 2021, HHS, the Department of Labor, and the Department of the Treasury, along with the OPM released this interim final rule.

A federal independent dispute resolution process was established for out-of-network providers and facilities to determine the out-of-network rate for applicable items or services after an negotiations have been unsuccessful for thirty days. It also establishes an independent dispute resolution processes for insurers with the same goal.

Providers and facilities are required to inquire about a patient’s health insurance when a patient requests to be seen or treated. If the patient is uninsured (or self-pay), the provider or facility must provide a good faith estimate of expected charges for items and services. If the uninsured (or self-pay) patient is billed more than $400 in excess of the good faith estimate, the patient and provider may engage in a select dispute resolution process.

Requirements Related to Surprise Billing; Part III.

OPM released the third interim final rule on November 17, 2021. It sets new requirements for insurers to submit annually to HHS, the Department of Labor, and the Department of the Treasury certain information about prescription drug and health care spending. Thereafter, the Federal government will release biennial public reports on drug reimbursements and pricing trends, and the impact of prescription drug costs on insurance premiums and out-of-pocket costs.

Out-of-network providers and facilities must educate themselves about these new rules in order to avoid scrutiny. Violations can result in penalties up to $10,000. HHS is implementing consumer complaint mechanisms to easily learn of those who aren’t in compliance.

Jacqueline Bain