The Federal No Surprises Act (“NSA”) was signed into law on December 27, 2020, as part of the Consolidated Appropriations Act of 2021. Since its enactment, the NSA has been supplemented on two occasions by regulations which were issued jointly by the U.S. Department of Labor, U.S. Department of Health and Human Services, and Internal Revenue Service; first on July 13, 2021, and again on October 7, 2021. The legislation and these regulations took effect January 1, 2022. Since then, the Centers for Medicare & Medicaid Services have issued additional guidance on applicability of the NSA to dentists.

The collective intent of the NSA and its implementing regulations is to curb the practice of surprise medical billing to patients by out-of-network facilities and providers; specifically with respect to emergency medical care and non-emergency care administered at certain healthcare facilities (essentially hospitals and ambulatory surgery centers). The surprise billing addressed by the NSA is also commonly referred to as “balance billing”; or the practice of charging a patient, often without advance notice, for the difference between the charges for the medical services provided and the amount that the patient’s medical benefits plan will cover for the out-of-network facility or provider.

Effect of No Surprise Act

In practice, the NSA will substantially amend §2719A of the Affordable Care Act, as well as portions of ERISA and the Public Health Service Act, by implementing new emergency services compliance requirements applicable to most group health plans (i.e., fully insured plans, self-funded plans, and grandfathered plans). Under the NSA, the practice of balance billing patients in the context of emergency care will be completely prohibited for out-of-network facilities and providers.

With respect to certain non-emergency services performed by out-of-network healthcare facilities and providers, the NSA will still allow for balance billing; provided that, the patient is given certain advance notice and consent requirements are met. These notice requirements, for non-emergency services, must be provided to patients by written or electronic means no less than 72 hours prior to the time of appointment (or the day of the appointment, if it was made less than 72 hours prior). The notice for out-of-network, non-emergency healthcare, must include the following information:

• Notice that the provider or facility is non-participating/out-of-network under the patient’s plan;
• A good faith estimate of the charges for the items or services to be performed (including that the estimate or consent does not constitute a formal agreement with the patient on the fees that will be charged);
• If the facility is in-network, but the provider providing services at the facility is not, then the patient must be given a list of any participating providers at the facility who are able to furnish the necessary items or services, and must be advised that they can be referred, at their option, to a participating provider; and
• Whether prior authorization or other managed care pre-requisites must be complied-with before the patient can receive the medical item or service from the non-participating provider.

Limited Applicability to General and Specialty Dentists for Insured Patients

In our opinion, the NSA and its implementing regulations have limited effect on both general and specialty dentists for their patients who have dental insurance. This opinion is based on the express language of the NSA and the regulations.

First, while the NSA and its regulations are applicable to most group medical health plans (as described above), the NSA explicitly excludes certain “excepted benefits” plans. Such excepted plans do not have to comply with NSA requirements. NSA and its regulations excluded benefits plans include limited-scope dental insurance plans.

An excepted, limited-scope dental insurance plan is described as a plan which is provided under a separate policy, certificate, or contract of insurance, or which is otherwise not an “integral part” of a group health plan. A benefits plan is not an “integral part” of a group health plan when participants have the right to opt out of coverage, or if claims are administered under a separate contract from other benefits administration. It is also worth noting that to qualify as a non-integrated, excepted benefit, plan participants are not required to pay a separate premium or contribution for the excepted coverage.
Based on some fairly extensive inquires, we are satisfied that, with the possible exception of some Medicaid plans, essentially all dental insurance falls within the definition of limited-scope dental insurance plans. Given this situation, our opinion is that nearly all insured patients, who both general and specialty dentists service, will be covered by limited-scope dental plans which are excluded from compliance with the notice and other requirements of the NSA.

In addition to the excepted benefits plans exemptions, the NSA also applies only in a limited context of healthcare services. Specifically, the legislation focuses heavily on participants in group medical health plans who are seeking care in hospital emergency services, emergency services provided in freestanding/independent emergency departments, or emergency services provided in connection with non-emergency care at emergency facilities.

Further, it appears that the NSA notice and consent requirements, in the context of non-emergency health care services, only apply to healthcare facilities and to providers when they are providing services in those facilities.

Consequently, except for oral surgeons who may be providing emergency or non-emergency care in a hospital or other facility, such as an ambulatory surgery center, these additional provisions of the NSA further support our conclusion that it has limited applicability to both general and specialty dentists working in their private offices, as opposed-to in a healthcare facility, and who are treating patients that have dental insurance.

Applicability to General and Specialty Dentists for Uninsured Patients

Under the regulations, an “uninsured patient” is defined as one who has no dental insurance at all; or has such insurance but it does not cover the procedure/treatment which the dentist is providing for the patient; or has insurance but the patient does not want to use it and elects to self-pay. We recommend that dentists document in their billing records that a patient falls within one of these three categories as “uninsured” for a particular procedure/treatment.

In each of these three categories of “uninsured patients,” the dentist is required to provide the patient with a good faith estimate, (“GFE”), of the costs for the procedure/treatment. The GFE must be provided in writing or electronically and, to simplify the notice requirement, we recommend that the GFE should be provided seven business days before the date on which the procedure/treatment is scheduled to be performed, except in an emergency situation.

The GFE must include the following: (1) The patient’s name and date of birth; (2) a description of the primary item or service in “clear and understandable language” and, if applicable, the date of the scheduled service; (3) any ancillary items or services expected to be provided in conjunction with the primary item or service; (4) the diagnosis and procedure codes for the primary and ancillary items or services; (5) the expected charge for all the items or services; (6) the name and identifying information for each provider or facility which will be performing each of the primary and ancillary items or services; (7) the items or services that require separate scheduling and the charge for which will be estimated in a separate GFE; (8) disclaimers that this expected charge does not include any additional charges for treating any “known complications,” (that is, any complications which are known to have occurred in the past in providing any of these items or services), and does not include charges for any additional items or services which become necessary in the course of providing the primary or ancillary items or services.

Recommendations

In sum, our opinion is that, after considering the above-described exceptions and other limitations of the NSA, it has limited applicability to general and specialty dentists when dealing with their patients who have insurance.

Nevertheless, for purposes of harmonious dentist/patient relations, our recommendation is that: (1) in all situations when a dentist is reviewing a treatment plan with a patient, and prior to providing any services, the dentist should advise the patient of the estimated total fees to complete the plan and the dentist’s best estimate of the patient’s portion of these fees; and (2) when the charges will be substantial for significant dental procedures, give the patient the option to first contact their carrier, to determine how much of the charges will be covered by their insurance, before the patient decides whether to have the procedures.

We presume that most dentists comply with the above recommended protocols. Our final recommendation is that to the extent they do not document such compliance, they should do so.