No Surprises Act aims to provide national surprise billing fix

December 16, 2020

After years of back and forth discussion, a national surprise billing fix will soon be implemented as part of the recently passed COVID relief and appropriations package.

Last month, a group of bipartisan legislators reached a deal over the latest solution to end surprise billing when patients receive out-of-network services. The No Surprises Act will prevent patients from being billed in emergency scenarios or non-emergent situations where the patient did not have reasonable access to an in-network provider. In such situations, patients will be responsible only for their in-network cost sharing responsibility. Payers and providers would then negotiate the remainder of the bill.

Providers would be required to provide good faith estimates of all scheduled services when requested by a patient. For nonemergency care, patient-informed consent is required for patients to be balance billed.

Providers and facilities that are out-of-network are prohibited from sending patients bills for more than the in-network cost-sharing amounts unless a patient has provided informed consent after receiving a notice of their network status and an estimate of charges 72 hours prior to receiving out-of-network services. For appointments within 72 hours of receiving services, the patient must receive notice the day the appointment is made and provide informed consent to receive out-of-network care.

An independent dispute resolution process is available when both sides can’t reach an agreement on an out-of-network payment rate within 30 days. During the process, a third-party will consider the rates proposed by each side, the median in-network rate for the service provided, and a number of other variables, including:

  • Provider’s training and experience
  • Patient acuity and complexity of the item or service
  • Demonstrations of good faith efforts (or lack thereof) to enter into a network agreement
  • Prior contracted rates during the four prior years

Unlike previous versions of the legislation, there will be no minimum threshold to enter resolution. Claims may also be batched together for resolution.

Finally, the legislation will restrict patient billing to 90 days from the date of service. Providers or facilities found to be in violation of the law would be subject to civil monetary penalties of up to $10,000 per violation.

Specifically, The legislative language amends three different statutes – Public Health Service Act, Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC).

However, the law did receive some pushback from provider groups, including the American Hospital Association, who said in a letter to the House Ways and Means Committee that while the group supports “provisions to protect the patient from surprise medical bills,” it still has significant concerns with several portions of the dispute resolution process, the new billing timeline restrictions, and the fact that the bill does not establish penalties for insurers who fail to reimburse providers for out-of-network services.

Notably, the AHA pointed out the fact that providers have no control over how quickly payers respond to claims and that delays on the payer’s end could lead to tight billing timeframes or penalties for providers who miss the 90-day billing window.

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