New Patient Protections & Physician Obligations Under the No Surprises Act

In December 2020, Congress passed the No Surprises Act to protect patients from payment disputes between providers and health plans regarding services provided outside of a patient's plan network. This law complements balance billing restrictions already in place for federal health care coverage such as Medicare and Medicaid, as well as many state laws prohibiting balance billing and setting a method for resolving payment disputes.

Generally, the federal law prohibits providers and facilities from balance billing patients for out-of-network care and limits patient financial responsibilities under two scenarios:

• Emergency services (and certain post-stabilization services)
• Non-emergency items and services furnished by an out-of-network provider at an in-network facility

While "surprise billing" is often discussed in the context of emergency and ancillary services, it is important that electrophysiologists understand how these new requirements could affect them and services provided in the facility setting. While there is more rulemaking pending that will impose additional requirements on providers, the provisions discussed below are currently in effect.

Patient Protection Disclosure
Physicians providing care in the facility setting are required to provide patients with disclosures of these new patient protections via 3 methods as applicable:

• If the physician practice maintains a website, the website must include the disclosure. If the physician or physician practice maintains a website, this requirement must be met and cannot be fulfilled simply by disclosures made by the facility or on the facility's website.
• Providers "must display the required disclosure information on a sign posted prominently at the location of the health care provider"
  • Providers without a publicly accessible location are not required to comply with this specific requirement
  • Providers are able to meet this requirement if the facility at which they practice agrees to post the disclosures, and the facility and provider maintain a written agreement outlining this arrangement. If you practice at multiple facilities, this agreement must be in place for each facility.
• Providers must provide a one-page written noticeto patients with commercial insurance no later than the date on which the provider submits a claim for payment to the health plan:
  • The one page notice must be provided in-person or through mail or email (as chosen by the patient)
  • The one page notice must be limited to one (double-sided) page
  • The one page notice must not include print smaller than 12-point font
  • Providers are able to meet this requirement if the facility at which they practice agrees to provide patients with the one-page written notice, and the facility and provider maintain a written agreement outlining this arrangement. If you practice at multiple facilities, this agreement must be in place for each facility.

The federal departments writing and enforcing these rules have created a model disclosure notice that practices are allowed, but not required, to use. A link to the model disclosure notice and additional instructions on the disclosure requirements can be found here.

Obtaining Patient Consent to Waive Balance Billing Protections
For non-emergency services provided at a facility which is in the patient's network, if certain requirements are met, out-of-network providers can provide patients with a notice of their right to waive their balance billing and cost-sharing protections and consent to being balance billed by the out-of-network provider. Providing this notice requires the provider to furnish a good faith estimate of the expected charges for his or her services. When eligible for use, the provider must use the standard notice and consent forms provided by the federal government. Those standard forms and additional information and instructions can be found here.

Providing a Good Faith Estimate of Expected Charges to Uninsured (or Self-Pay) Individuals
In order to provide more price transparency and reduce the chance that uninsured patients receive "surprise bills," the statute and regulation also introduce a new requirement for providers delivering non-emergency, scheduled services to uninsured (or self-pay) individuals. (Note: a self-pay individual can be a patient who has insurance but chooses not to submit a claim to their health plan). Providers must furnish a good faith estimate of reasonably expected charges to all uninsured (or self-pay) patients upon scheduling a service (unless that service is scheduled to be provided in less than 3 days) or upon request from an uninsured (or self-pay) individual. If you are the scheduling provider, this requirement includes reaching out to all other providers and facilities to obtain estimates for any item or service that is reasonably expected to be provided "in conjunction with" the scheduled item or service (although this requirement is not currently being enforced by the Departments). If you will be involved in providing a service to an uninsured (or self-pay) patient, but another provider or facility is responsible for scheduling that service, you should expect to be contacted with requests to provide a GFE for the charges associated with the conjunctive service.  The requirement to provide the GFE was finalized with aggressive timelines, so it is important that electrophysiologists know what is required and when GFEs must be provided (either as coordinated by your practice or upon request by another provider or facility).

• A model GFE notice is available here.
• Guidance from the U.S. Department of Health and Human Services (HHS) is available here.
• FAQs from the Centers from Medicare and Medicaid Services (CMS) Center for Consumer Information and Insurance Oversight (CCIIO):
  • Part 1 (December 1, 2021) is available here.
  • Part 2 (April 5, 2022) is available here.
  • Part 3 (December 2, 2022) is available here.
  • Part 4 (December 27, 2022) is available here.

Interaction with State Law & Regulation
It is important to note that these rules and regulations are designed to defer to state rules where they exist and as long as certain minimum standards are met. Therefore, it is essential to monitor guidance from your state regulatory authorities. If you are interested in learning more about areas in which the federal government has identified state laws that will govern these types of issues, please see the letters sent from CCIIO to individual state regulatory authorities on this website.