Provided by: Jennifer Kirschenbaum, Esq
January 6, 2022
I am an out-of-network provider and have in-network providers in my practice. What do I need to know about the Federal No Surprise Law?
Thanks, Dr. G
We'll know more as the law is tested, but what we know now from the language and association/society white papers and interpretation, is, if you are out of network and a private practitioner with no facility affiliation (ASC or hospital services), you have a requirement to post a notice for patients to see you are out of network. CMS has posted a model notice that is somewhat helpful in crafting your approach to satisfy the 2-prong disclosure requirement (1. the patient one-pager; 2. the website disclosure) - - https://www.cms.gov/files/document/model-disclosure-notice-patient-protections-against-surprise-billing-providers-facilities-health.pdf.
"Provide 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."
"To satisfy the public disclosure requirement, providers and facilities must prominently display a sign with the required disclosure information in a location of the provider or facility, such as, where individuals schedule care, check-in for appointments, or pay bills, unless the provider doesn’t have a publicly accessible location.
To satisfy the separate requirement to post the disclosure on a public website, the disclosure or a link to the disclosure must appear on a searchable homepage of the provider’s or facility’s public website." Id.
HHS has provided a sample form here - CMS-10780 Appendix II - Standard Notice and Consent.pdf.
Other particulars -
"Who should get this notice
In general, providers and facilities must give the disclosure notice to individuals who are participants, beneficiaries, or enrollees of a group health plan or group or individual health insurance coverage offered by a health insurance issuer, including covered individuals in a health benefits plan under the Federal Employees Health Benefits Program, and to whom they furnish items or services, and then only if such items or services are furnished at a health care facility, or in connection with a visit at a health care facility.
Provision of the notice Providers and facilities must provide the notice in-person, by mail, or via email, as selected by the individual. The disclosure notice must be limited to one-page (double-sided) and must use a font size of 12-points or larger. Providers and facilities must issue the disclosure notice no later than the date and time on which they request payment from the individual (including requests for copayment or coinsurance made at the time of a visit to the provider or facility). If the provider or facility doesn’t request payment from the individual, the notice must be provided no later than the date on which the provider or facility submits a claim for payment to the plan or issuer." Id.
So, what are the restrictions? Under NY Law (and perhaps other state laws where you may practice) and Federal No Surprise Law, you may be prohibited from sending a patient balance for the difference between the charged amount and collected amount from a patient's insurance company, depending on your compliance with providing estimates in advance, and compliance with disclosure and notice requirements. CMS discusses the genesis of the new Federal Law on its website, at the below link, and as provided below -
Summary of IFC
This IFC protects individuals from surprise medical bills for emergency services, air ambulance services provided by out-of-network providers, and non-emergency services provided by out-of-network providers at in-network facilities in certain circumstances.
If a plan or coverage provides or covers any benefits for emergency services, this IFC requires emergency services to be covered:
- Without any prior authorization (i.e., approval beforehand).
- Regardless of whether the provider is an in-network provider or an in-network emergency facility.
- Regardless of any other term or condition of the plan or coverage other than the exclusion or coordination of benefits, or a permitted affiliation or waiting period.
Emergency services include certain services in an emergency department of a hospital or an independent freestanding emergency department, as well as post-stabilization services in certain instances.
This IFC also limits cost sharing for out-of-network services subject to these protections to no higher than in-network levels, requires such cost sharing to count toward any in-network deductibles and out-of-pocket maximums, and prohibits balance billing. These limitations apply to out-of-network emergency services, air ambulance services furnished by out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, including hospitals and ambulatory surgical centers. Id. For those providers rendering out of network in-patient or ASC out-patient services the Federal No Surprise Law will now require disclosure and estimated costs provided to patients in advance, or the patient will have a right to seek independent dispute resolution for bills outside a $400 delta.
HHS has also provided for a sample patient Waiver form - CMS-10780 Appendix IV - Standard Notice Consent Updated.pdf, which as you will see is a pretty involved informed consent that must be obtained not less than 72 hours in advance of receipt of services, and would apply for any private pay, self-funded employer plan, effective now, otherwise the Federal No Surprise Law will serve as a minimum standard requiring fee disclosures and patient notices. Certain patients are not capable of giving consent.
Government Impact Statement
Striking reading I came across in review of the new law was the CMS Supporting Statement, assessment of cost of the new law implementation. Here is an excerpt related to Individual Physician Practitioners -
"HHS estimates that 145,887 individual physician practitioners will incur burden and cost to comply with this provision. HHS estimates an average of two hours and thirty minutes for the individual physician practitioner to read and understand the provided notice and draft any additions in clear and understandable language and (for 80% of individual physician practitioners) a computer programmer one hour to post the information in the provider’s website. HHS estimates that the one-time burden for individual physician practitioners to develop, prepare, print, post the notices, and make website updates will be approximately 481,426 total burden hours. This results in an equivalent cost of approximately $75,075,712." Id.
"HHS estimates that the one-time burden for health care providers (including providers associated with health care facilities, individual physician practitioners, and wholly physician-owned private practices) and health care facilities to provide notice of the right to a good faith estimate of expected charges to uninsured (self-pay) individuals will be approximately 2,743,283 total burden hours with an associated equivalent cost of approximately $320,250,169." Id.
Looking for more assistance?
The above represents a compilation of the best tools I have seen on the new law. If you are looking for assistance with papering and further guidance, we are happy to help. We already have a New York Out of Network package we will apply for the Federal law compliance that you may feel is more user friendly (or overkill?), and for January we will extend a 15% discount for existing clients and newsletter participants. (Flat fee cost of $850, regular here.) Please email Taryn if you are seeking further assistance.