The No Surprises Act Has Taken Effect – Are You in Compliance?

On January 1, 2022, the federal No Surprises Act (the “Act”) went into effect, which means that certain health care providers must have specific compliance programs, policies and procedures in place to ensure compliance with the Act. Some of the more noteworthy provisions of the Act include (1) restrictions on the issuance of “surprise bills” (i.e., a bill a patient unexpectedly receives after receiving services from a provider who the patient was unaware was out-of-network with the patient’s insurer) when a patient receives services at a hospital, an ambulatory surgical center, or other facility subject to the rule and (2) requirement that applicable health care facilities and providers provide “Good Faith Estimates” of expected charges to uninsured and self-paying individuals.

Restrictions on Surprise Billing

The Act and its implementing regulations provide financial protections for patients who receive health insurance coverage through their employer or individual health plans (e.g., the rule does not apply to Medicare or Medicaid patients) and mandate certain disclosures notifying patients of such protections. With respect to non-emergency services provided by out-of-network providers, the Act prohibits balance billing by providers without advance notice and consent of the patient. In addition, the Act specifically prohibits surprise billing for (1) emergency services received at a hospital or an independent freestanding emergency department (i.e., out-of-network services must be limited to in-network cost sharing amounts); (2) out-of-network charges for certain “ancillary” services (e.g., anesthesiology, pathology, and radiology services; items and services provided by assistant surgeons and hospitalists; diagnostic services; and items and services provided by a nonparticipating provider if there is no participating provider who can furnish such item or service at such facility); and (3) “items or services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished,” regardless of whether an individual has waived the balance billing protections for such services.

Requirement to Provide a “Good Faith Estimate”

Under the Act, health care providers and certain health care facilities (e.g., hospitals, FQHCs, laboratories, and imaging centers) are also required to provide to uninsured and self-pay individuals a written “Good Faith Estimate” of expected charges for health care items and services, upon an individual’s request for a Good Faith Estimate or an individual scheduling an item or service. In order to be in compliance with this rule, health care providers and facilities must ensure that the Good Faith Estimates include all of the required data elements and that they provide such Good Faith Estimates within the short timeframes set forth in the rule. In addition, health care providers and facilities must provide individuals with notice of the availability of such Good Faith Estimates.

The implementation of the Act is still evolving, as the provider-oriented regulations were issued by the federal agencies in the form of interim final rules with the opportunity for the public to comment and the federal agencies have also delayed the implementation of certain requirements. Therefore, though the aforementioned rules are final, we anticipate that the federal agencies will issue additional guidance and/or rulemaking on the implementation of the Act in the near future.

Please note that while this Alert focuses upon two noteworthy, provider-oriented provisions of the Act, this Alert is not exhaustive of the requirements set forth in the Act. If you have any questions regarding complying with the Act’s requirements, please do not hesitate to contact any member of the Health Law Practice Group at Shipman.