Primer on Provider Requirements under the No Surprises Act (Part I)

Effective January 1, 2022 under the No Surprises Act, healthcare providers, facilities, and providers of air ambulance services will be subject to new requirements that generally apply to items and services provided to individuals enrolled in group health plans, group or individual health insurance coverage, and Federal Employees Health Benefit plans. The good faith estimate requirement and the requirements related to the patient-provider dispute resolution process also generally apply to the uninsured. These requirements generally do not apply to beneficiaries or enrollees in federal programs such as Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE.

Below is an overview of some of the provider and facility requirements that will become effective on January 1, 2022. Stay tuned next week for further information.

• No balance billing for out-of-network emergency services: Non-participating providers and emergency facilities will generally be forbidden from billing or holding liable beneficiaries, enrollees, or participants in group health plans or group or individual health insurance coverage who receive emergency services at a hospital or an independent freestanding emergency department for a payment amount greater than the in-network cost-sharing requirement for such services. There are exceptions for certain post-stabilization services if the notice and consent requirements are satisfied. However, the exception is not available for services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished, regardless of whether the notice and consent criteria are satisfied and regardless of whether they are emergency or non-emergency services.
• No balance billing for non-emergency services by non-participating providers at certain participating healthcare facilities, unless notice and consent was given in some circumstances: Non-participating providers of non-emergency services at a participating healthcare facility will generally lose the ability to bill or hold liable beneficiaries, enrollees, or participants in group health plans or group or individual health insurance coverage who received covered non-emergency services with respect to a visit at a participating health care facility by a non-participating provider for a payment amount greater than the in-network cost-sharing requirement for such services, unless notice and consent requirements are met. The notice and consent requirements may not apply to certain ancillary services. Healthcare facilities include: hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgical centers.
• Disclose patient protections against balance billing: A provider or facility generally will be required to disclose to any participant, beneficiary, or enrollee in a group health plan or group or individual health insurance coverage to whom the provider or facility furnishes items and services information regarding federal and state (if applicable) balance billing protections and how to report violations. Providers or facilities must post this information prominently at the location of the facility, post it on a public website (if applicable), and provide it to the participant, beneficiary, or enrollee in a timeframe and manner outlined in regulation.

Under the statute, CMS has signaled that it will only enforce a provision with respect to the applicable regulated parties if CMS determines that a state is not substantially enforcing that provision. This can occur, for example, when a state lacks authority to enforce, or requests that CMS enforce, one or more provisions. That is, CMS may not enforce the No Surprises Act where a state law covers substantially the same issues. Prior to January 1, 2022, CMS will publish a list, by state, of provisions CMS will enforce. Affected healthcare providers and facilities should be mindful of these new rules and requirements going into the New Year.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters. If you or your healthcare entity has any questions pertaining to the No Surprises Act or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.