By Carl Jean Baptiste, Esq., Alison Lutich, Esq., and Mallory Regenbogen, Esq.
The federal “No Surprises” Act protects patients against unexpected balance billing for emergency and non-emergency care in specific circumstances. It became effective Jan. 1, 2022. Here’s what you need to know.
Who Does the Act Protect?
The balance billing protections apply to patients enrolled in private or commercial health coverage, such as:
- Employment-based group health plans (both self- and fully-insured)
- Individual or group health plans on or outside federal or state-based exchanges
- Federal Employee Health Benefit health plans
- Non-federal governmental plans sponsored by state and local government employers
- Certain church plans with IRS jurisdiction
- Student health insurance coverage
Who Does the Act Not Protect?
Beneficiaries enrolled in Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, TRICARE, Short-term limited duration insurance
What are the Balance Billing Protections?
They apply in three scenarios — only one involves non-emergency services:
- A person receives covered emergency services from an out-of-network provider or out-of-network emergency facility;
- A person receives covered air ambulance services provided by an out-of-network provider of air ambulance services; or
- A person receives covered non-emergency services from an out-of-network provider delivered as part of a visit to an in-network health care facility.
Protected Non-Emergency Services
An out-of-network provider may not balance bill for non-emergency services that are part of a visit to an in-network facility. These services include equipment and devices, imaging, lab, preoperative and post-operative, and telemedicine.
Protected Non-Emergency Ancillary Services
Certain ancillary services are always subject to balance billing protection, and patients may never be balance-billed for the following:
- Items/services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology
- Items and services provided by assistant surgeons, hospitalists, and intensivists
- Diagnostic services, including radiology and lab
- Items and services provided by an out-of-network provider when there is no in-network provider who can provide the service at the in-network facility
Notice and Consent Exception
Out-of-network providers may seek written consent from individuals to voluntarily waive their protections against balance billing for certain post-stabilization services or non-ancillary, non-emergency services. Protections for ancillary services cannot be waived.
Specifically, the exception applies to post-stabilization services when an individual has been stabilized and is receiving outpatient observation services or an inpatient or outpatient stay related to the emergency visit.
Notice and Consent Exception — When Can It Be Used?
- Patient is stable enough to travel to an available in-network provider or facility without using emergency or medical transport;
- Patient is in a condition where they can receive information and give informed consent (as determined by the treating provider);
- Provider/facility provides written notice about the balance billing protections and patient signs consent form waiving such protections; and
- All state laws are satisfied, including those that restrict balance billing
Provider’s Obligations When Balance Billing Protections Apply
When the protections apply and the notice and consent exception does not, an out-of-network provider, emergency facility, or air ambulance provider cannot:
- Bill a patient for any amount that exceeds the patient’s in-network cost-sharing limit; OR
- Hold the patient liable for paying an amount that exceeds in-network limits on cost-sharing
The policy concept is that patients should not be put in the middle of a payment dispute between the insurer and the provider. Note: Providers and facilities that are prohibited from balance billing must also provide balance billing protection disclosures to patients.
Uninsured Patient Protections
The Act also created a new right for uninsured patients to receive a “good faith estimate” (GFE) of charges prior to obtaining an item or service.
“Uninsured” means the patient either (1) has no health coverage (2) the patient’s health plan does not cover the item/service the patient is seeking or (3) the patient elects to be treated as self-pay.
The GFE should include charges for the primary service as well as other services reasonably expected to be provided together with the primary service, and should be an itemized list of services, grouped by provider or facility, with details of the expected charge.
The GFE must be provided to the patient in the following time frames:
- If appointment scheduled at least three business days ahead of time within one business day after scheduling
- If appointment scheduled at least 10 business days ahead of time within three business days after scheduling
- Within three business days of a request by a patient
Complaint Process Under the Act
The Centers for Medicare & Medicaid Services established a complaint process to receive complaints from health plans, providers, and patients regarding consumer protections and balance billing rules under the Act.
The Department of Health and Human Services (HHS) must respond to a complaint within 60 business days, acknowledging receipt and describing next steps, including information gathering.
HHS may refer the complainant to another appropriate state or federal regulatory authority with enforcement jurisdiction or may initiate an investigation directly.
Complaint Drafting — Questions to Ask
(1) Is the patient eligible for NSA protections?
- What health coverage does the patient have?
- Does the patient’s health plan cover the services that the patient received?
(2) Did the patient receive the type of services that are subject to NSA protections?
- Did the patient receive emergency services?
- If non-emergency services were provided, is the facility in-network?
- Was the patient treated by any out-of-network individual providers as part of the services?
(3) Was the amount charged to an eligible patient for eligible services more than the in-network cost-sharing limit of the patient’s plan?
For example scenarios, visit the MSBA Resource & Learning Library.
Carl Jean Baptiste is a partner with Gallagher Evelius & Jones LLP where he is part of the health law, tax exemption, and real estate and business transaction groups. He is also the 2022-23 chair of the MSBA Health Law Section.
Alison Lutich is an associate with Gallagher Evelius & Jones LLP where she is part of the health law group.
Mallory Regenbogen is an associate with Gallagher Evelius & Jones LLP where she focuses her practice on health care law.