January 5, 2022

Beginning with the first day of 2022, out-of-network (OON) providers are no longer allowed to engage in what is known as balance billing when providing services in an in-network facility.  Balance billing for emergency services is now prohibited in both in-network and OON facilities.  As you will recall, the No Surprises Act (NSA) was passed into law back in December 2020 but wasn’t to become effective until January 1, 2022.  In the meantime, the Department of Health and Human Services (HHS), including the Centers for Medicare and Medicaid Services (CMS), used the intervening year to draft and finalize three sets of regulations that detailed how the NSA would be implemented.  Today’s alert will summarize how these regulations affect hospitals. 

There are essentially two separate tracks to the NSA’s enabling regulations.  The first deals with the OON issue referenced above.  The second addresses self-pay patients or patients with no insurance.  We will review each of these, in turn.

Out-Of-Network Provisions

These provisions center around the main focus of the NSA legislation: the elimination of surprise bills being sent by non-participating providers to insured patients having surgery at an in-network facility.  Cost-sharing for all emergency services, as well as non-emergency services in facilities that participate with patients’ health plans, must be determined on an in-network basis.  For OON cases, the cost-sharing rate is calculated based on either a state All-Payer Model Agreement or specified state law; or, if neither of these apply, the qualifying payment amount (QPA), as determined by the insurance carrier.  The QPA is generally the plan’s median contracted rate for the same or similar service in that geographic area.

If the OON provider does not agree with the plan’s payment, it may initiate a 30-day period during which payment negotiations occur.  This is called the open negotiation period (ONP).  If the parties cannot agree on a payment amount during the ONP, either party may initiate the independent dispute resolution (IDR) process.  The IDR entity will then select one of the parties’ offers as the binding OON payment amount.  Both parties must pay an administrative fee ($50 each for 2022), and the non-prevailing party is responsible for the IDR entity fee for the use of this process

Under the NSA regulations, patients may waive balance billing protections in limited circumstances if a nonparticipating provider (or a participating facility on behalf on a nonparticipating provider) or nonparticipating emergency facility has furnished the individual with notice and consent documents that the individual signs.  The notice and consent forms must be furnished in accordance with the requirements in 45 CFR 149.410 and 149.420, which includes using a standard notice document specified by HHS.

Healthcare facilities must make publicly available, post on a public website of the provider or facility (if applicable), and provide to a covered patient a one-page notice that includes information in clear and understandable language on: (1) the restrictions on providers and facilities regarding balance billing in certain circumstances, (2) any applicable state law protections against balance billing, and (3) information on contacting appropriate state and federal agencies in the case that an individual believes that a provider or facility has violated the restrictions against balance billing.  Go to the following link for more information on the notice requirements: Required Federal Agency Contact Information and Website to List on Certain Documents Related to the No Surprises Act (cms.gov).

Self-Pay Provisions

Facilities will also have to adhere to the new NSA regulations that involve patients who pay for their procedure out of pocket.  Facilities will be required to provide such a patient with a good faith estimate (GFE) when requested or after the service has been scheduled.  The GFE should include expected charges for the primary service, as well as any other items or services that will be provided as part of the same scheduled service. 

If a prospective patient contacts your facility for a GFE, you must provide them a list of all items and services associated with the episode of care.  In 2022, the estimate won’t require the inclusion of items and services provided to you by another provider.  In 2023, however, you will be required to provide co-provider (e.g., anesthesia) or co-facility (e.g., lab) cost information.  Each item or service included in the GFE must contain sufficient details, such as the healthcare code assigned to it and the expected charge.

If the facility’s GFE is under-estimated by more than $400, the patient may initiate the patient-provider dispute resolution process (DRP).  Key components of the DRP can be found at the following link: Requirements Related to Surprise Billing; Part II Interim Final Rule with Comment Period | CMS.

If you have questions about any of the information provided above or if you would like to find out more about our array of hospital business solutions, you can contact us at info@miramedgs.com.   We want to be a part of your success.