Balance Billing & No Surprises Act Compliance

Health care providers and facilities must carefully manage when and how patients may be billed for amounts not paid by their health plans. Federal and state balance billing laws restrict certain out-of-network charges and impose notice, consent, disclosure, and payment requirements designed to protect patients from unexpected medical bills.

The federal No Surprises Act significantly changed the rules governing out-of-network billing for many emergency and non-emergency services. It generally prohibits balance billing in specified circumstances and establishes separate processes for resolving payment disputes between providers and health plans. CMS currently identifies balance billing restrictions, disclosure requirements, cost-transparency obligations, and dispute-resolution procedures as core provider responsibilities under the No Surprises Act.

G2Z Law Group assists physicians, medical groups, health care facilities, and other providers with balance billing compliance, No Surprises Act requirements, notice and consent procedures, out-of-network reimbursement disputes, and related state and federal billing regulations.

What Is Balance Billing?

Balance billing occurs when an out-of-network provider bills a patient for the difference between the provider's billed charge and the amount paid by the patient's health plan.

Historically, patients could receive unexpectedly large bills when they obtained care from an out-of-network provider, even when they had little or no ability to choose that provider. This frequently occurred during emergencies or when a patient received care at an in-network facility but was treated by an out-of-network professional.

CMS describes an unexpected balance bill as a surprise medical bill and explains that the No Surprises Act was enacted to protect consumers from many of these unexpected out-of-network charges.

What Does the No Surprises Act Prohibit?

The federal No Surprises Act generally protects patients enrolled in many group and individual health plans from certain out-of-network charges.

Among other protections, the law generally restricts balance billing for:

• emergency services provided by out-of-network providers or facilities;

• certain non-emergency services provided by out-of-network professionals at participating or in-network facilities; and

• air ambulance services provided by out-of-network providers.

For covered services, patients generally cannot be required to pay more than the applicable in-network cost-sharing amount. CMS also identifies ancillary services, including certain services furnished by anesthesiologists and other facility-based providers, as subject to specific protections against out-of-network balance billing.

These restrictions can create significant compliance concerns for hospitals, ambulatory surgical centers, physician groups, emergency physicians, anesthesiologists, radiologists, surgeons, and other providers whose services may be delivered in connection with a facility.

When Can a Patient Consent to Out-of-Network Billing?

In some limited circumstances, a provider may be able to obtain a patient's consent to receive services from an out-of-network provider and waive certain balance billing protections.

However, notice and consent requirements are highly regulated, and consent is not available for every type of service.

Providers relying on a notice-and-consent process must follow applicable timing, content, disclosure, and documentation requirements. A general financial consent form or ordinary acknowledgment of financial responsibility may not satisfy the federal requirements.

CMS specifically notes that providers and facilities may be required to furnish a plain-language notice explaining the patient's balance billing protections and, where permitted, obtain consent before billing the patient on an out-of-network basis.

Because the availability of notice and consent depends on the type of service and circumstances involved, providers should evaluate these procedures carefully before using them.

Do Balance Billing Laws Apply to Every Patient?

No.

The federal No Surprises Act generally applies to individuals enrolled in many employer-sponsored group health plans and individual health insurance plans. Medicare, Medicaid, TRICARE, Veterans Affairs health care, and certain other government programs have separate protections and reimbursement rules.

Certain types of coverage may also fall outside the federal protections. CMS currently notes, for example, that the federal No Surprises Act generally does not apply to stand-alone vision or dental plans, certain short-term plans, fixed-indemnity excepted benefits, and health care sharing ministries. Ground ambulance services also generally remain outside the federal balance billing protections unless state law provides otherwise.

State law may provide additional or broader patient protections, so the federal rules should not be considered in isolation.

How Do State Balance Billing Laws Affect Providers?

Many states adopted surprise billing and balance billing laws before or in addition to the federal No Surprises Act.

State laws may regulate:

• which providers and facilities are covered;

• when balance billing is prohibited;

• notice and disclosure requirements;

• out-of-network payment methodologies;

• arbitration or dispute-resolution procedures;

• emergency services;

• ambulance services; and

• enforcement and penalties.

Depending upon the health plan and type of coverage, state law, federal law, or both may apply.

For health care organizations operating across multiple states, compliance therefore requires evaluating the applicable jurisdiction as well as the patient's type of insurance coverage.

How Are Out-of-Network Payment Disputes Resolved?

The No Surprises Act generally removes the patient from certain payment disputes between out-of-network providers and health plans.

For qualifying disputes, federal law establishes an Independent Dispute Resolution, or IDR, process through which providers and plans may resolve disagreements regarding out-of-network reimbursement.

CMS maintains a federal IDR process and portal for qualifying out-of-network payment disputes.

The process is technical and deadline-driven. Providers may need to evaluate whether the dispute is eligible for federal IDR, whether a state process applies instead, whether required negotiations have occurred, and whether all applicable deadlines and submissions have been satisfied.

Errors in the dispute-resolution process can affect a provider's ability to pursue additional reimbursement.

What Other Billing Requirements Should Providers Consider?

Balance billing compliance frequently overlaps with other regulatory requirements.

Providers may need to consider:

• patient financial responsibility disclosures;

• good faith estimates;

• uninsured and self-pay patient requirements;

• payer contract provisions;

• billing and collection policies;

• provider-directory accuracy;

• continuity-of-care obligations;

• Medicare and Medicaid billing restrictions; and

• state consumer protection laws.

CMS specifically identifies good faith estimates, patient-provider dispute resolution, provider-directory requirements, and continuity-of-care protections among the broader provider obligations associated with the No Surprises rules.

Health care organizations should therefore evaluate their overall billing procedures rather than treating balance billing as an isolated compliance issue.

What Can G2Z Law Group Do for My Health Care Business?

G2Z Law Group assists physicians, medical groups, health care facilities, and other providers with balance billing and No Surprises Act compliance.

Our attorneys can help organizations determine when balance billing is prohibited, develop compliant notice and consent procedures, review patient financial responsibility forms, evaluate state and federal surprise billing laws, address out-of-network reimbursement disputes, and assess billing and collection practices.

We can also assist providers with Independent Dispute Resolution, payer reimbursement issues, good faith estimate requirements, regulatory complaints, and related health care billing compliance matters.

Because balance billing requirements can vary depending upon the service, facility, health plan, and jurisdiction, careful legal review can help providers protect reimbursement rights while avoiding improper patient billing and regulatory exposure.