Protocol Committee Support (PSC) Column: No Surprises Billing Act 2022

September 15 2022

Written by Joan Cahill, BNS, OCN, CCRP, Asst. Research Practice Manager (ARPM), Department of Radiation Oncology, Duke Cancer Center

Most of us can recount a story from one of our patients who needed to go to the emergency room while on a break from treatment, then ended up with huge medical bills because they were either seen at an out-of-network facility or cared for by an out-of-network provider.

With bipartisan support, the No Surprises Act became law in January 2022 and hopefully these stories will be an exception rather than the rule.

The primary goal of the act is to protect health care consumers (all of us) from receiving unanticipated high medical bills after receiving medical care at an in-network facility with out-of-network providers or care received at an out-of-network facility. Surprise bills have been generated following care both in the emergency room setting and in the non-emergency room setting. The act prevents surprise medical bills to patients with private individual or group health insurance plans. Medicare, Medicaid, Indian Health Services and Veterans Affairs Health Care members already had protections in place to prevent surprise billing.

The Consumer Financial Protection Bureau defines a surprise medical bill as “an unexpected bill, often for services received from a health care provider or facility that you did not know was out-of-network until you were billed.”Imagine you were enjoying a nice vacation, you decided to try skydiving for the first time, ended up falling with injury and were transported by ambulance to the nearest emergency department. Unknowingly, you were transported to an out-of-network facility without any choice in who will provide your care. Most likely, you did not have a clue your health insurance would not cover the emergency at an out-of-network facility leaving you, the consumer, to pay the difference between what your insurance company pays for in-network services and what is charged by the out-of-network provider or facility. This is referred to as balance billing. Owing this balance came as a huge surprise to you. You will not forget this vacation for a long time!

Under the provisions of the No Surprises Billing act, most emergency care services provided at an out-of-network facility cannot be billed at higher costs than in-network facilities any longer. Since the act became law, if an air ambulance transport service company is used to transport a patient, this can only be charged at in-network costs. There is a catch though, even with the new law surprise bills can still be sent to patients for ground ambulance service utilized for transportation to the emergency room.

Surprise bills have not solely been generated by using out-of-network emergency services. The new act has put protections in place to prevent other types of surprise bills generated when care has been provided by an out-of-network provider at in-network facility. Many health care facilities have contracted with out-of-network providers of specialty services such as radiology, anesthesiology, pathology, or infectious disease consultants. Out-of-network providers may practice at your in-network facility. Imagine you had an MRI scheduled at your in-network healthcare facility before January 2022. You had no idea the radiologist reading the MRI is an out-of-network provider, the MRI was completed at your in-network facility. Before January, you would have received a surprise bill (the balance) leaving you, the patient to pay the difference between what your health insurance covers at in-network rates and the charges the out-of-network provider billed. The act prohibits this type of balance billing.

But there is a catch!Under the law, an out-of-network provider is required to give patients notice informing the patient of the providers’ out-of-network status. The notice must explain the protections the law provides and who to contact with questions/concerns. If the out-of-network provider obtains written consent* at least 72 hours before the care services are delivered to the patient, out-of-network charges may be billed at higher rates than in-network insurance covers. Another way to think of this is that billing protections afforded under the new law could be waived by completing a written consent with the patient.

Now, pretend you are the out-of-network radiologist who read the MRI and whose services resulted in the surprise bill.Don’t you deserve to be paid fully and at going market rates for the clinical care and expertise provided in good faith to the patient and facility? The out-of-network provider could decide to dispute the amount the insurance company will pay for services rendered.The provider has the right to start a negotiation process where the provider and insurance company debate back and forth on the final payment. Failing that, the law has established an independent dispute resolution process for payment also known as arbitration. In making a final determination the arbitrator must consider manyfactors including:

  • The qualifying payment amount (QPA), simply put the QPA is the median in-network rate the insurer pays for the same services in the geographic area where services are provided
  • Patient acuity and complexity of care
  • The clinical expertise,skills and advanced training the provider holds

Once final payment is determined, the arbitrator’s decision is binding.

Where does this leave people who don’t have health insurance?The law also applies to all licensed providers who treat uninsured or self-pay patients. It now behooves the practice providing the healthcare services to inquire and determine if an individual patient needs a “good faith estimate” (GFE) of costs. In plain language, a good faith estimate provides the patient with a cost breakdown of all reasonably expected charges related to the plan of care. For example, if the service to be provided is a colonoscopy; the GFE must include costs related to the surgical center, pharmacist, medications, nursing care, IV charges, anesthesiology etc. If the service to be provided involves recurring care (e.g. managing diabetes), then a 12 month GFE must be provided and updated as needed during the year. Since January 2022 if the amount billed is $400 over the good faith estimate received, the recipient may dispute the charges via the patient-provider dispute process.

The new act places additional administrative burdens firmly on the health care facility providing care. Financial care counsellors and healthcare providers will have extra paperwork, more time will be needed to complete the act’s required documentation and while the No Surprises Act is seen as a win for individuals or groups with privately held insurance it offers little protection to the under insured and the uninsured who may still end up with a mountain of medical bills.

* determined

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