Updated on: February 4, 2021

No Surprise. It’s the Law

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Original story posted on: February 3, 2021

The law goes into effect Jan. 1, 2022. 

This time of the year, we often focus on predictions. I won’t here, for two reasons. First, predicting is perilous. At the start of last year, I wasn’t even stocking up on peanut butter and graham crackers in anticipation of the pandemic. I didn’t start that until the last week in January. Six weeks before the lockdown, it was still somewhat difficult to see it coming. If you had asked me on March 11, the last day I worked in the office, when the lockdown would end, I would have said “in about six weeks,” and I would have said with some confidence that life would be close to normal by June 1. So at least for me, predictions are hard.

But more importantly, while we were on break, Congress passed a surprise billing prohibition titled, unsurprisingly, the “No Surprises Act,” amending the Public Health Service Act. The law goes into effect Jan. 1, 2022. The entire provision is extremely long, and I’m not confident that I understand every angle yet, but some key points are clear. It applies in few contexts: emergency care, air ambulance services, and services provided in ambulatory surgical centers (ASCs) and hospitals (if the patient goes to an ASC or hospital) in their insurance plans. 

Within ASCs and hospitals, the law applies to both the facility and the physicians providing services in the facility. In those situations, a patient cannot be required to pay more in co-pays or deductibles, and the patient would pay for in-network services. This means that for patients, wherever they go to receive emergency room services, they’ll pay an in-network rate. For scheduled hospital or ASC services, the patient cannot be required to pay a physician who treats them in the hospital or ASC more than they would pay for an in-network service. 

This leaves a big question: if the healthcare professional charges more than the insurance pays for in-network care, who is responsible? The answer is that the health facility and insurer need to work it out. 

If they are unable to reach an agreement, there is a dispute resolution process akin to baseball arbitration. The insurance company offers the most money it is willing to pay, and the healthcare organization indicates the lowest rate it will accept. The arbitrator then must choose one of those two figures. The arbitrator isn’t allowed to “split the difference.”

The law, again, applies to air ambulance services, but somewhat surprisingly, it does not apply to ground ambulances. Since patients needing a ground ambulance are generally not in a great position to bargain, that omission is somewhat surprising.

If I’m understanding the law properly, and I am not certain I am, some physicians who are out of network can still require the patient to pay more than in-network rates, as long as they obtain consent in writing from the patient before the service is provided. But there is a huge caveat. The exception for patient consent does not apply to physicians who provide emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether the service is provided by a physician or a non-physician practitioner. 

Similarly, patients cannot be asked to consent to higher payments for diagnostic services, including radiology and laboratory services. It appears that a surgeon or hospitalist can ask the patient to agree to pay more, but a neonatologist may not. The No Surprises Act is one of the more difficult provisions I have come across, and I bet little traps and, well, surprises, will be discovered in the coming months.

Programming Note: David Glaser is a member of the RACmonitor editorial board and is permanent guest on Monitor Mondays. Listen to his segment, “Risky Business,” every Monday at 10 a.m. Eastern.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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