No surprises in the original No Surprises Act regulation – Food, Drug, Healthcare, Life Sciences


United States: No surprises in the initial regulation of the law on the absence of surprises

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This article provides an update to our previous post Summarizing Federal Law Without Surprises, and is part of two in a series on New Interim Regulations implementing certain requirements of the law without surprises.

The recently published Interim Final Rule governing one aspect of the No Surprises Act — the treatment of off-grid patients (OONs) and uninsured patients during emergencies and when services are provided at facilities in the network regardless of hospital status. emergency — largely reflects the law but commits the enacting federal agencies (HHS, Labor, and Treasury) to extensive readings in favor of limiting patient liability wherever possible.

In an emergency (defined using the layman’s prudent standard), if the health plan (broadly defined) covers emergency services, it should provide coverage for these services at any facility or provider without prior approval and without any conditions not applicable to the in- network providers. Invoicing by the OON facility or provider is limited in such circumstances and will generally be tied to the qualifying payment amount (based on the median negotiated rate, subject to arbitration), which will be discussed in Part II of this blog post. . Notably, post-stabilization services remain an emergency and cannot be treated as OON if the services are the result of an unforeseen urgent medical need that arises when a service is provided elsewhere. However, if the following conditions are met, the prohibition on invoicing the balance does not apply, as the services provided are not considered “emergency services”: (i) the patient is able to attend at an available provider or participating facility, (ii) the patient’s consent is obtained after being informed of the cost and alternative providers in the network, (iii) the patient is able to receive the information and give consent, and (iv) the supplier complies with any additional requirements or prohibitions that may be imposed under state law. If the patient does not give consent, the OON billing is incorrect. Patients will be informed of their rights to dispute an OON bill. Suppliers and facilities are required to inform the plan of all post-stabilization services for which they charge OON and that the requirements for such billing have been met. There are penalties for not treating post-stabilization patients as OON in accordance with these complex rules (and to emphasize this point, facilities and providers are required to keep records for 7 years).

In most non-emergency circumstances at network facilities, providers are required to provide notice and obtain consent before providing service. However, the prohibition on OON billing is absolute (and the notice and consent provisions do not apply) (i) to specific ancillary services, including emergency medicine related items and services , anesthesia, pathology, radiology and neonatology, (ii) services provided by hospitals, resuscitators and surgical assistants, (iii) diagnostic services, including radiology and laboratory services and (iv) items and services provided by an OON supplier if there is no network supplier in the establishment. The consent document is subject to technical requirements and the Interim Final Rule provides that regulators will provide a template form whose use is suggested but not required.

All vendors and establishments are required to provide notice of balance billing rules under this rule and state law, as well as the appropriate contacts of federal and state agencies for complaints by posting them on the establishment / supplier website, prominently on premises and by mail. Notice is not required if the provider is not providing services “in connection with” (undefined) a visit to a health care facility.

OON billing requirements apply to catastrophic plans.

The provisional final rule is expected to enter into force on January 1, 2022.

As stated, we will discuss the qualifying payment amount and plan coverage requirements in our next blog post.

No surprises in the initial regulation of the law on the absence of surprises

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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