Complying with the No Surprises Act

The No Surprises Act is part of a legislative package passed in December 2020.  Its primary goal is to ensure patients understand the costs of their healthcare services ahead of time, thereby reducing the likelihood of being surprised by a massive bill from their provider.  While the law itself has been around for nearly a year, many of the rules implementing the law have only recently been finalized (and more are yet to come).  This means that there are some actions providers need to begin taking before January 1, 2022 (the effective date for the existing rules), and providers will need to stay alert for additional changes that will be coming in the following year.

Why was the No Surprises Act passed? 

It targeted a practice known as balance billing, where a provider that is not in-network with a patient’s insurance plan would charge the patient the difference between the provider’s cash-pay rate and any payments from the patient’s insurer.  For example, if a provider normally charges $200 for a service and a patient has out-of-network coverage of 50%, the patient’s insurance company would pay $100 to the provider and then the provider would bill the patient for the remaining $100.  Insurance benefits are often hard to understand, and the patient may not have known what they would owe.  The No Surprises Act also requires notice to, and consent from, the patient to receive services from an out-of-network provider at an in-network facility.  Sometimes providers at a larger facility, like a hospital or physician group, may not have a contract with a patient’s insurance plan even though the facility does.  One common example is a scheduled surgery.  The patient may choose a surgeon and a hospital that is in-network with their insurance plan to reduce their out-of-pocket costs.  At the time of surgery, the anesthesiologist (whom the patient does not get to choose) is not participating in their insurance plan.  When the patient receives the bill for services, they would see their expected co-pay for the surgeon and the facility and potentially a massive, unexpected charge for the anesthesiologist’s services.

There are many new rules to follow when it comes to billing a patient for out-of-network services.  Among these new rules is also the opportunity for a patient to appeal medical bills if they feel the rules were not followed.  If a bill is significantly larger than what the patient was led to expect, they can appeal to a third party that will work with the patient and provider to determine what the final cost will be.  So how do you comply with the No Surprises Act?  There are a few steps to take:

1. Post a notice of the protections against surprise billing in your office and on your website, if applicable. You can use the Model Notice from HHS as long as you edit it to meet your specific use case.  You may also need to post about the right to receive a Good Faith Estimate in some circumstances, and you can use the resources from CMS to do so.
2. Ask the patient if they have insurance. This includes commercial plans (like employer-sponsored plans or insurance bought through a health insurance exchange) as well as state or federal insurance programs like Medicare, Medicaid, CHIP, and Tricare.  Also be sure that the patient intends to submit claims to the insurance they have and are not opting out of using their available benefits.
3. If the patient does not have, or is not using, in-network insurance benefits, tell them about the good faith estimate requirements. There are specific requirements pertaining to when you need to provide an estimate of patient costs, such as at the time of scheduling a service or in advance of providing services.  Note that there is no difference between an existing patient and a new patient for these estimate requirements – all patients not using in-network insurance benefits must be given a Good Faith Estimate and information on dispute resolution.  The Good Faith Estimate can include ongoing services for up to 12 months, so long as you estimate the number of services needed during that period.  For example, if you see someone weekly, you may estimate that they would attend 50 sessions in 12 months, giving 2 weeks off for vacations.  You can include multiple services in one estimate as well, so you can document a full treatment episode without having to fill out the form separately for intakes, sessions, and other services.

Download Electronic Forms for the No Surprises Act

We've updated the standard Notice and Consent Form and Good Faith Estimate Form so that they can be sent to your patients and completed electronically. Download the forms below, then be sure to personalize each one as needed per client.

To learn more about the requirements of the No Surprises Act, the APA Services blog and CMS website have more information as well.  Be sure to check the CMS website for new fact sheets and other resources going forward, as rules are continuing to be developed and announced.