What is the No Surprises Act?
The No Surprises Act (NSA) is part of the federal Consolidated Appropriations Act (CAA) signed into law in 2020. The NSA includes patient billing protections effective January 1, 2022. There has been a lot of discussion around the No Surprises Act and how it will impact behavioral health facilities and medical practitioners. The goal of this post is to explain the No Surprises Act in an easily digestible fashion which will help you, the provider, understand its overall impact on your facility and your daily life.
The No Surprises Act was written to protect both privately insured and uninsured individuals from surprise medical bills for care received from out-of-network medical providers or facilities.
The new legislation prohibits balance billing of patients for:
This means that patients who use out-of-network facilities will only be responsible for traditional cost-sharing amounts that would be their responsibility if care had been provided in-network (i.e. deductible, copay, co-insurance).
Additionally, the No Surprises Act defers to existing state balance billing laws. There are currently thirty-three states with some form of legislation regarding balance billing. California has some of the most comprehensive balance billing protections already in place. In this case, the most significant change for behavioral health facilities refers to balance billing out-of-network services that were provided at an in-network facility (for self-funded insurance plans only.) What this means is that if you are an in-network facility and provide a separately billed service using an out-of-network provider; you cannot balance bill the patient for the out-of-network service.
Existing California laws trump all other aspects of the No Surprises Act. However, it should be noted that the new legislation does not apply to in-network facilities that bill per diem for services such as detox, residential treatment, partial hospitalization, and intensive outpatient.
This is because if the facility is in-network and the services are billed per diem, there is no differentiation between specific in/out-of-network providers since the facility, as-a-whole, is treated as the provider.
What are the Provisions of the No Surprises Act?
In addition to the legislation regarding balance billing, there are also four new provisions regarding transparency – the first of which applies to balance billing while the rest apply across the board.
The first provision concerns out-of-network notice and consent. This provision states that non-emergency out-of-network providers working at in-network facilities are excluded from the No Surprises Act (thus can both bill beyond in-network rates and balance bill) if they meet the following criteria:
This does not apply to services provided when there is no in-network provider, diagnostic services, emergency medicine, anesthesiology, radiology, neonatology, or items furnished as the result of unforeseen circumstances.
The second provision is minor and states that ID cards must include deductible, out-of-pocket maximum limit, telephone number, and website for consumers. Most of this was already required and will only help encourage transparency.
The third provision requires payers to provide members with an advanced explanation of benefits for all services provided by providers and behavioral health facilities regardless of network status whenever an appointment is made. The procedure for this is as follows:
The advanced EOBs from the payer will include: the network status of the provider/facility, the provider’s estimate of services and billable rate, the cost sharing estimate (including the amount incurred toward deductible and out-of-pocket maximums), and generic disclaimers (e.g. the costs are based on an estimate and the final total may differ). Another important aspect is that it prohibits “gag clauses” in agreements between payers and providers that directly or indirectly restrict a health plan from disclosing provider-specific price, cost, or quality data to consumers. The exact extent of this is undefined and open to provider interpretation, allowing providers to place “reasonable restrictions” on the public disclosure of the information subject to the gag clause prohibition.
What does balance billing look like under the No Surprises Act?
Another piece of the No Surprises Act focuses on payment negotiation for out-of-network providers who are unsatisfied with the reimbursement they receive from an insurance company. Rather than allowing the facility to balance bill the patient for the difference, The No Surprises Act requires that the facility negotiate directly with the payer. If the behavioral health facility is still unsatisfied, they can open an Independent Dispute Resolution (IDR). The goal here is to remove any “surprise” financial burden from the patient.
At the end of this process, there is a winner and a loser. The IDR will side with one party or the other. The significance of this, aside from the payment determination, is that the “losing” party must pay the fees associated with the process for both parties.
What would the Independent Dispute Resolution (IDR) Process look like for my Facility?
Does the No Surprise Act apply to me?
The ban on surprise medical bills may affect behavioral health practitioners who work in hospitals or other facilities and serve out-of-network patients. This is especially true for those who work in emergency services. However, most behavioral health providers will only be affected by the requirements for good-faith cost estimates.
If you’re a private practitioner working alone or at a group practice, you must still ensure that you and your practice are in compliance with cost estimate requirements (Good Faith Estimate or GFE). Be prepared to show these estimates to all current and future clients who are uninsured or self-pay. They must be delivered before clients receive the service, and clients can request an estimate before scheduling any service at all.
What is the Good Faith Estimate?
The good faith estimate (or GFE) is a notification that outlines an uninsured (or self-pay) individual’s expected charges for a scheduled or requested item or service. Providers and facilities must give this estimate to an uninsured (or self-pay) individual (or their authorized representative) who requests it or who schedules an item or service. The good faith estimate will also include items or services reasonably expected to be provided along with the primary item(s) or service(s), even if the individual will receive the items and services from another provider or another facility. These requirements are applicable for good faith estimates requested on or after January 1, 2022 or for good faith estimates required to be provided in connection with items or services scheduled on or after January 1, 2022.
What does a GFE Include?
A good faith estimate issued to an uninsured (or self-pay) individual must include:
How does the NSA Apply to Insured and Uninsured Patients?
Some requirements also apply to providers and facilities with respect to uninsured (or self pay) individuals, like requirements that providers and facilities provide good faith estimates for scheduled care, or upon request. Requirements under the No Surprises Act don’t apply to beneficiaries or enrollees in Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs have other protections against high medical bills. The protections also don’t apply to short-term limited duration insurance (STLDI), excepted benefits, or retiree-only plans; or account-based group health plans. If you exclusively serve clients with coverage from one or more of these programs, the new ruling should not affect you.
Will my billing procedures change under the No Surprises Act?
The No Surprises Act does not have a large impact on the billing and collections process for most behavioral health facilities. Additionally, in California – given its current balance billing consumer protections – the act only adds new legislation for out-of-network providers rendering services at an in-network facility for self-funded plans which is relatively uncommon.
The No Surprise Act will have a direct impact on transparency provisions. The third provision regarding advanced EOBs will likely increase cost transparency with patients and could prove beneficial to behavioral health facilities. As payers roll out the new policies, we will have a better understanding of the Act and its impact on behavioral health facilities and healthcare.
How can my Facility comply with NSA and GSE requirements?
CMS has not come out with specific compliance regulations as of yet or what the violation will be for not following. Your Facility or Practice simply needs to make sure to keep track of Good Faith Estimates for all current and future patients, and a record of who has received a GFE. See the end of this blog article for a FREE downloadable PDF including GFE tracking examples and checklists!
So should you be worried by this change? The big picture takeaway is that you should not panic or get upset if you can’t immediately figure out all the details of the new GFE requirements. Instead, make a good faith effort to comply—with the guidance and resources we are providing and will continue to provide.
Based on how APA has seen the Centers for Medicare and Medicaid Services (CMS) roll out similarly complex requirements for providers (e.g., HIPAA and Information Blocking/Open Notes), APA expects that CMS will delay hard enforcement until providers have had some time to figure out implementation, and APA expects CMS and other regulators to apply a softer, educational touch where providers have made a good faith effort to comply, even if they get some details wrong.
Until CMS develops further enforcement guidance, APA’s view is that the main risk to psychologists will be in cases where actual costs for services to a patient exceed the latest GFE by over $400, triggering the patient’s right to initiate dispute resolution. This can be avoided by tracking patient billing in conjunction with your GFE so the two can be compared.
Good Faith Estimate Checklist for Behavioral Health Providers:
Here are the steps other behavioral health practices are taking to remain compliant with the No Surprises Act:
Conclusion:
The final provision of the No Surprises Act is a price/cost comparison tool which must be provided by payers to participants through an internet-based, self-service tool, by paper on request and over the telephone.
In the meantime, our Elevated Billing Team is ready to help keep your facility in compliance with the No Surprises Act and avoid any significant revenue loss. Contact us for more information!
Resources:
https://www.cms.gov/nosurprises
https://www.apaservices.org/practice/legal/managed/billing-disclosure-requirements
https://www.cms.gov/nosurprises/Ending-Surprise-Medical-Bills
https://www.cms.gov/nosurprises/consumer-protections/Understanding-costs-in-advance
https://www.dol.gov/newsroom/releases/ebsa/ebsa20210930