The law without surprises: practical implications for health and mental health professionals

As its name suggests, the law without surprise, effective January 1, 2022, is designed to protect patients against surprise medical bills, particularly non-care network costs. While aiming for transparency, the new law will require health and mental health professionals to adjust their complaints handling, reporting procedures and administrative processes. According to a recent Review of national legislation the item,”[B]ailments are often a surprise because the patient was unable to choose whether to use an in-network or out-of-network facility or provider, or was unaware that the provider was out-of-network until the services were rendered. Emergency services must be provided, whether inside or outside the network, unless there are established exclusions or coordination of benefits.

Good Faith Estimate

One of the main provisions of the new law is that a good faith estimate must be given regarding the expected charges for services and items offered to uninsured and self-paid customers. The Department of Health and Human Services (DHHS) defines a “good faith estimate” as “a notification of the expected charge for a scheduled or requested item or service, including items or services that can reasonably be expect them to be provided in conjunction with such scheduled or requested services. item or service” (45 CFR § 149.610(a)(2)(vi). Such good faith estimates are considered part of the customer’s record and suppliers” must provide a copy of any previously issued good faith estimates provided within the past 6 years to an uninsured (or paying) person at the request of the uninsured (or paying) person (45 CFR §149.610(f)(1)).

Right of objection

In accordance with Section 2799B-7 of the Public Health Services Act and its regulations, DHHS must establish a process for resolving patient-provider disputes. The purpose of the Selective Dispute Resolution (SDR) process is to resolve payment disputes between people who:

  1. Are not enrolled in a group health plan or group or individual health insurance, or
  2. Are you under a federal health care program or a Federal Employees Health Benefits (FEHB) program health benefit plan (uninsured persons), or
  3. Do not intend to file a claim with their group health insurance plan, health insurance coverage or FEHB (self-paid individuals) health insurance plan and health care provider, facility or air ambulance service provider in determining the amount that person must pay to their health care provider, facility or air ambulance service provider.

Practice Iimplications

Based on the law, not surprisingly, suppliers must:

  1. Provide a one-page explanation of what the law means with no surprises to the patient, especially regarding the patient’s right to dispute charges.
  2. Help patients understand that patients have the right to dispute balance billing for out-of-network providers.
  3. To obtain written waiver patient rights under the Act:

If a provider seeks to have a patient waive the protections of the law without surprises, the provider must provide the patient with a detailed written consent form at least 72 hours before a scheduled appointment or 3 hours before a same-day appointment . More details on the required consent are forthcoming, but current regulations require that the consent form be provided to the patient separately from other forms and indicate: (1) whether prior authorization is required; (2) what network providers are available; and (3) the good faith estimate of costs for the total bills for out-of-network care offered.

It is important to note that patients should not be asked to waive their right to balanced billing if they are faced with the need for emergency services or if they are faced with the need for ancillary but non-emergency services, including including anesthesia or radiology. What if the patient is not cognitive or so ill that he cannot concentrate on reading? If the patient refuses to consent to services (and the estimated costs of those services), a provider may refuse to provide services. One of the purposes of the law is to try to prevent an out-of-network provider from engaging in “balanced billing”. What is balance billing? Invoicing of the balance occurs when a provider bills the patient for the difference between “the provider’s fee and the portion of that fee paid by insurance. Balance billing is not allowed for people insured by Medicare and Medicaid, but until the No Surprises Act, nothing prohibited it in private insurance. Providers should inform patients of services that have been subject to the law’s rules without surprises, provided the consumer may still need to know how to dispute bills and hold their provider and insurance company accountable. If an initial appeal is unsuccessful, there is an appeal process through a third party. Information about the third-party process can be obtained by contacting the No Surprises Helpline at 800-985-3059.

Median Rate vs Arbitration Process

The service provider must invoice the health insurance scheme according to the patient’s status. The insurer must respond to the provider with its cost sharing in the network within 30 days, based on the average (median) reimbursement rate of its network. If the parties do not agree on a fair rate for the services rendered, this will trigger a federal arbitration process.

The No Surprises Act states that the arbitrator chooses the offer closest to the median of the network rate, unless there is additional information that shows the network rate to be inappropriate. Many provider groups, including the American Hospital Association and the American Medical Association, are engaged in litigation with the government, claiming in part that the “network median rate defeats Congress’s intent to pass the law by ignoring other factors that should be considered.”

Will the No Surprises Act survive judicial review? That remains to be seen. In the meantime, hospitals, insurance companies, mental health providers and patients must race to comply.

Elisa Reiter is senior counsel at Underwood Perkins, CP She is certified in family law and child protection law by the Texas Board of Legal Specialization. Contact: [email protected]

Daniel Pollack MSW, JD is a professor at Yeshiva University School of Social Work At New York. Contact: [email protected]

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