No Surprises Act Frequently Asked Questions: Volume 6

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In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect uninsured patients from surprise billing. Some sections of the NSA became effective on January 1, 2022, while other sections are on hold until regulations are released. 

This series answers frequently asked questions about the No Surprises Act including:

  • Scope, effectiveness, and patient notice
  • Good Faith Estimates (GFE) applicability
  • GFE timing and logistics
  • GFE content, distribution, and implementation
  • GFE dispute resolution

This article covers how the No Surprises Act approaches balance billing and emergency services. Balance billing is when a provider bills a patient for the difference between the provider’s charge and the allowed amount. In the NSA, there are limitations to the applicability of balance billing. 

Balance Billing Limitations- Applicability

Which providers must comply with new balance billing limitations?

The No Surprises Act’s balance billing limitations apply to three different groups:

  1. Out-of-network providers and facilities providing emergency services;
  2. Out-of-network providers providing non-emergency services at in-network facilities; and
  3. Services are provided by out-of-network air ambulance providers.

What are the balance billing restrictions applicable to emergency services?

Providers of emergency services may never balance bill patients for emergency services, a “balance billing prohibition.” Providers include individual providers and practitioners as well as facilities providing emergency services such as hospitals with emergency departments, hospitals providing post-stabilization services, regardless of whether they have an emergency department, and independent free-standing emergency departments. An urgent care clinic may be subject to the rules if it meets the definition of an independent freestanding emergency department.

What services are included within the NSA’s definition of “emergency services”?

“Emergency services” includes (a) an appropriate medical screening examination that is within the capability of the emergency department of a hospital or an independent freestanding emergency department, including ancillary services routinely available to the emergency department, to evaluate whether an emergency medical condition exists; and (b) such further medical examination and treatment as may be required to stabilize the individual (regardless of the department of the hospital in which the further medical examination and treatment is furnished) within the capabilities of the staff and facilities available at the hospital or the independent freestanding emergency department.

When determining if the patient was seeking care for a possible emergency medical condition, the following “prudent layperson” definition is applied: A person, who has average knowledge of health and medicine, experiences a medical condition (including a mental health condition or substance use disorder) that is so severe they believe:

  • They need immediate medical care and failing to get immediate medical care could:
    • Result in their health or the health of their unborn child is in serious jeopardy;
    • Result in serious impairment to bodily functions; or
    • Lead to serious dysfunction of any bodily organ or part.

What are “post-stabilization services” for purposes of the balance billing prohibition?

Post-stabilization services are covered services that are provided after the individual is stabilized, as part of an outpatient observation, or an inpatient or outpatient stay related to the emergency visit (regardless of the department of the hospital).

Are all post-stabilization services considered “emergency services” subject to the balance billing prohibition?

No. In limited circumstances, an out-of-network provider or emergency facility can use the No Surprises Act’s notice-and-consent exceptions to obtain voluntary consent from an individual to waive the balance billing protections for post-stabilization services. The waiver/consent process can be used if the patient can travel via non-medical transportation to an available in-network provider, the patient is provided with notice and provides informed consent to the balance billing, the patient can understand the notice and consent, and the provider follows any applicable state law requirements.

I am an out-of-network provider performing services at an out-of-network facility, how do the balance billing limitations apply to me?

Only the prohibition on balance billing for emergency services will apply. The prohibitions and restrictions on balance billing for non-emergency services apply only to out-of-network providers performing services at in-network facilities.

I am an out-of-network provider, but I do not provide emergency services and I do not provide any services within facilities. Do the balance billing restrictions apply to me?

No. If you do not provide any services within a facility, you are not subject to the balance billing limitations and prohibitions. The balance billing restrictions of the NSA apply only to emergency services, air ambulance services, and non-emergency services provided by out-of-network providers at in-network facilities. If you do not provide services at facilities, the balance billing prohibitions are not applicable.

What is considered a “facility” for purposes of the restrictions on balance billing for non-emergency services provided at in-network facilities?

A facility is a hospital, critical access hospital, an outpatient department of a hospital or critical access hospital, and an ambulatory surgery center (“ASC”).

To be considered an in-network facility, the hospital, critical access hospital, or ASC must be in-network with the payer or have a single case agreement with the payer for a specific individual.

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com

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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