Doctors and hospitals must not bill patients more than the in-network cost sharing amount for surprise bills
For services covered by the NSA, providers are prohibited from billing patients more than the applicable in-network cost sharing amount; a penalty of up to $10,000 for each violation can apply.
Today, many out-of-network doctors and hospitals bill patients directly for their full, undiscounted fee, leaving to patients to submit the out-of-network claim to their insurance and collect what reimbursement they can. That common billing practice will change starting next year. Providers will need to first find out the patient’s insurance status and then submit the surprise out-of-network bill directly to the health plan. Providers are “encouraged” to include information about whether NSA protections apply on the claim itself (including, whether the patient has consented to waiver her balance billing protections, described below.) Health plans must respond within 30 days, advising the provider of the applicable in-network cost sharing amount for that claim; cost-sharing generally will be based on the median in-network rate the plan pays for the service.7 The health plan will send an initial payment to the provider and send the consumer a notice (called an explanation of benefits, or EOB) that it has processed the claim and indicating the in-network cost sharing amount the patient owes the out-of-network provider. Only at this point is the out-of-network provider allowed to send the patient a bill for no more than the in-network cost sharing amount.
How will consumers know if a bill or claim constitutes a surprise medical bill? – It is up to both providers and health plans to identify bills that are protected under the NSA. The regulations also request public comment on whether changes to federal rules governing electronic claims (so-called HIPAA standard claims transactions) are needed to indicate claims for which surprise billing protections apply.8
Providers and plans also must notify consumers of their surprise medical bill protections. Providers and facilities must post a one-page disclosure notice summarizing NSA surprise billing protections on a public website and give this disclosure to each patient for whom they provide NSA-covered services. (Appendix 1) This notice must be provided no later than the date when payment is requested, though the regulation specifies it is not required to be included with the bill, itself. Health plans are also required to provide consumers the disclosure notice with every EOB that includes a claim for surprise medical bills.
If a health plan or provider (or both) fail to properly identify a surprise bill, it will be up to the patient to recognize that NSA protections should apply and seek relief.
Some providers can ask consumers to waive rights
An exception to federal surprise billing protections is allowed if patients give prior written consent to waive their rights under the NSA and be billed more by out-of-network providers. Providers are never allowed to ask patients to waive their rights for emergency services or for certain other non-emergency services or situations described above. Consent must be given voluntarily and cannot be coerced, although providers can refuse care if consent is denied.
Notice and Consent Waiver Not Permitted for:
- Emergency services
- Unforeseen urgent medical needs arising when non-emergent care is furnished
- Ancillary services, including items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology
- Items and services provided by assistant surgeons, hospitalists, and intensivists
- Diagnostic services including radiology and lab services
- Items and services provided by an out-of-network provider if there is not another in-network provider who can provide that service in that facility
Federal regulations provide for a standard waiver consent form, improbably titled the “Surprise Billing Protection Form,” (Appendix 2) that must include key information, including
- a statement that the patient is not required to waive protections, and can try to find an in-network provider/facility instead (for post stabilization care, the notice must indicate the name of available in-network providers)
- a statement that the out-of-network provider/facility can refuse to treat if the patient refuses to waive surprise billing protections
- a statement that waiving protections could cost the patient more money in out-of-network charges
- a description of the out-of-network services to be provided, along with billing codes and a good faith (nonbinding) estimate of costs the patient may owe
The law requires that consent must be given at least 72-hours in advance or, if the patient schedules a service less than 72-hours in advance, no later than the day the appointment is made. For same-day scheduled services, regulations permit consent to be given at least 3 hours in advance. It is possible, for example, that an out-of-network doctor could ask an already-hospitalized patient in the morning to waive her NSA protections for a service the doctor schedules to be given later that afternoon.
