New Surprise Billing Restrictions – A Victory for Patients

On Dec. 27, 2020, Congress signed into law new legislation addressing surprise medical bills, titled the No Surprises Act. According to House and Senate committee leaders, this bipartisan and bicameral legislation will “protect patients from surprise medical bills and promote fairness in payment disputes between insurers and providers, without increasing premiums for patients or interfering with strong, state-level solutions already on the books.”

The No Surprises Act will go into effect on Jan. 1, 2022, resulting in a win for patients who will no longer have to face the surprise of a devastating out-of-network medical bill. Some states have already adopted legislation addressing surprise medical bills, but Oklahoma is not one of those states. Even so, states do not have the ability to regulate self-funded health plans and air ambulance providers. This federal legislation will extend protections to patients covered by such self-funded plans and plans sold through individual and group markets.

While the act contains a number of provisions to protect patients, the main surprise medical bill protections establish the following:

  • Emergency services provided by an out-of-network provider must be covered by health plans as if they were considered in-network. Included in these emergency services are post-stabilization services unless certain conditions are met and such emergency services shall be covered without any prior authorization determination.
  • Non-emergency services which are performed by an out-of-network provider at an in-network facility must meet cost-sharing requirements as if the services were performed by in-network providers. There is an exception if the provider satisfies the notice and consent criteria, which consists of providing the patient with written notice and consent within 72 hours of furnishing the services or at the time the appointment is made stating that the patient consents to receiving services from a non-network provider. The notice and consent must be made available in the 15 most common languages in the geographic region of the facility and must contain a good-faith estimate of the charges, a list of in-network providers who are available to provide such services, and information about whether prior authorization is required.
  • Air ambulance services provided by out-of-network helicopter or airplane medical transport services may only bill patients the in-network cost sharing amount. Any cost-sharing amounts shall be counted toward the in-network deductible and out-of-pocket maximum under the plan.

In addition to the protections provided to patients, the No Surprises Act also sets forth an outline for a fair payment dispute process, known as an independent dispute resolution or IDR process. The secretary of health and human services will have until Dec. 27, 2021, to issue regulations which will establish an IDR process; however, such process will, at a minimum, require a 30-day open negotiation period for providers and plans to settle out-of-network claims and a binding arbitration process for those claims that cannot be settled. The IDR process will take patients out of the middle of any payment disputes.

While the act is not set to take effect until Jan. 1, 2022, providers should take this time to review policies and procedures to ensure compliance with the provisions of the No Surprises Act, such as drafting notice and consent documents for out-of-network providers and facilities and establishing processes to address compliance with patient billing requirements and disputes via the IDR process.

This article first appeared in The Journal Record on February 26, 2021, and is reproduced with permission from the publisher.


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