I Can’t Go For That, No Balance Billing

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Holland & Hart - The Benefits Dial

The Consolidated Appropriations Act of 2021 (“CAA”) established, among other things, new protections from surprise billing and excessive cost-sharing for consumers receiving health care items and services (“No Surprises Act”).

Most group health plans and health insurance issuers that offer group or individual health insurance coverage have a network of providers and health care facilities that agree to accept a specific payment amount for their services. Providers and facilities that are not part of a plan’s or issuer’s network usually charge higher amounts than the in-network providers and facilities. Group health plans and issuers typically do not cover the entire out-of-network costs, leaving the individual with higher costs than if they had been seen by an in-network provider. In many cases, the out-of-network provider may bill the individual for the difference between the billed charge and the amount paid by their plan or insurance, unless prohibited by state law (known as “balance billing”).

Effective beginning January 1, 2022, the CAA prohibits plans and providers from billing patients more than in-network cost-sharing amounts in certain circumstances. The prohibition applies to both emergency care and certain non-emergency situations where patients do not have the ability to choose an in-network provider.

On July 1, 2021, the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury, along with the Office of Personnel Management released an interim final rule with comment period, entitled “Requirements Related to Surprise Billing; Part I.” These interim rules apply to group health plans and health insurance issuers offering group or individual health insurance coverage and:

  • provide protections against balance billing and out-of-network cost sharing with respect to emergency services, nonemergency services furnished by nonparticipating providers at certain participating health care facilities, and air ambulance services furnished by nonparticipating providers of air ambulance services;
  • prohibit nonparticipating providers, health care facilities, and providers of air ambulance services from balance billing participants, beneficiaries, and enrollees in certain situations, and permit these providers and facilities to balance bill individuals if certain notice and consent requirements are satisfied;
  • set forth complaint processes with respect to violations of the protections against balance billing and out-of-network cost sharing; and
  • require group health plans and health insurance issuers offering group or individual health insurance coverage to make publicly available, post on a public website of the plan or issuer, and include on each explanation of benefits a one-page notice about the requirements and prohibitions of the No Surprises Act, any applicable state balance billing limitations or prohibitions, and how to contact appropriate state and federal agencies if someone believes the provider or facility has violated the requirements described in the notice.

Download a sample notice.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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