Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

As its name suggests, the No Surprises Act establishes patient protection against most surprise medical bills from out-of-network, emergency service, and air ambulance providers. Two of the major provisions affecting providers—the good-faith estimate and balance billing requirements—became effective as of January 1, 2022.

Good-Faith Estimates

The good-faith estimate provision requires providers to provide uninsured and self-pay patients with a good-faith estimate of the expected charges prior to providing services. In order to comply with this requirement, providers will need to determine whether a patient has insurance upon initial contact with the patient.

The good-faith estimate must be in writing and included in the patient’s record. Providers are not required to include in the estimate charges for unanticipated items or services that are not reasonably expected.

Once services are completed, if the actual cost exceeds the estimate by more than $400, the patient may dispute the medical bill.

Balance Billing

The balance billing provision applies when an individual receives either emergency care or nonemergency care from an out-of-network provider at an in-network facility. In these situations, patients are only responsible for paying the amount that they would have paid had the provider been in network.

Nonemergency providers can ask patients to waive these protections but must give patients a detailed consent form at least 72 hours before a scheduled appointment or 3 hours before a same-day appointment. The balance billing protections may not be waived for emergency services.

If the patient does not waive the balance billing protections, the out-of-network provider and insurance company must then negotiate the payment amount. If they cannot agree to an amount after 30 days, the act provides for an “independent dispute resolution process” to determine a reasonable payment.

This process requires the parties to submit to federal “baseball-style” arbitration where the arbitrator will assume that the median network rate is the appropriate payment unless additional information shows that that rate is inappropriate. The American Medical Association, American Hospital Association, and other provider groups are currently challenging this presumption in court.

It remains to be seen whether the independent dispute resolution process will survive judicial review. In the meantime, providers should be cognizant of these new provisions and ensure they update their processes to establish compliance.