Surprise! #NoSurprises Act is now the law of the land!
Just over a year ago, after years of bipartisan attempts to tackle one of the uglier problems with the U.S. healthcare system, Congress somehow ended up quietly slipping in a bill which resolved a large chunk of the issue with minimal fanfare:
Over at the New York Times, Sarah Kliff and Margot Sanger-Katz have written an excellent summary of the problem and the proposed solution:
Surprise bills happen when an out-of-network provider is unexpectedly involved in a patient’s care. Patients go to a hospital that accepts their insurance, for example, but get treated there by an emergency room physician who doesn’t. Such doctors often bill those patients for large fees, far higher than what health plans typically pay.
Part of the problem is that the patient is often not in any position to have any say in where they're taken or who cares for them. Obviously you can't tell the ambulance where to take you if you're unconscious, and even if you are, someone having a heart attack isn't exactly in the best frame of mind to make sure that the folks working to saving their life are in-network.
Even for scheduled surgery where you have the time to carefully check to make sure the hospital and surgeon are in-network, you can still be hit with surprise bills...for instance, the anesthesiologist might turn out to be a hired gun from some other facility, so you wake up to a massive bill from some doctor you've never heard of.
Language included in the $900 billion spending deal reached Sunday night and headed for final passage on Monday will make those bills illegal. Instead of charging patients, health providers will now have to work with insurers to settle on a fair price. The new changes will take effect in 2022, and will apply to doctors, hospitals and air ambulances, though not ground ambulances.
As noted at the time, ground ambulance bills were not included as part of the "No Surprises Act," which is a major problem since they represent something like half of all surprise bills nationally, but solving half the problem is better than nothing.
Well, after a lot of wonky debate and controversy about the exact details of how the #NoSurprisesAct would actually be implemented, as of January 1st, 2022, it's now officially the law of the land:
HHS Kicks Off New Year with New Protections from Surprise Medical Bills
Beginning January 1, 2022, new federal protections championed by the Biden-Harris Administration will shield millions of consumers from surprise medical bills—unexpected bills from an out-of-network provider, out-of-network facility or out-of-network air ambulance provider. The protections, implemented under the No Surprises Act, ban surprise billing in private insurance for most emergency care and many instances of non-emergency care. They also require that uninsured and self-pay patients receive key information, including overviews of anticipated costs and details about their rights.
In addition to shielding millions of consumers from surprise medical bills, these protections will further President Joe Biden’s work to promote competition in health care and other sectors of the American economy.
“The No Surprises Act is the most critical consumer protection law since the Affordable Care Act,” said Health and Human Services (HHS) Secretary Xavier Becerra. “After years of bipartisan effort, we are finally providing hardworking Americans with the federal guardrails needed to shield them from surprise medical bills. We are taking patients out of the middle of the food fight between insurers and providers and ensuring they aren’t met with eye-popping, bankruptcy-inducing medical bills. This is the right thing to do, and it supports President Biden’s vision of creating a more transparent, competitive and fair health care system.”
“The No Surprises Act offers significant relief to people across the country, and reinforces our fundamental belief that no one should go bankrupt when seeking necessary care,” said Centers for Medicare & Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure. “We are making it easy for consumers to know and understand their rights under the law, including what they can do if they receive a surprise medical bill. Consumers will not only benefit from these rights, but also will be empowered with the knowledge to address potential violations.”
A recent report from the HHS Office of the Assistant Secretary for Planning and Evaluation (ASPE) reviewed key evidence on surprise billing and the need for the consumer protections in the No Surprises Act. The report showed that surprise billing is common among those with private insurance—nearly one in five patients who go to the emergency room, have an elective surgery, or give birth in a hospital receive surprise bills, with average costs ranging from $750 to $2,600 per episode.
For Insured Individuals, Protections from Surprise Medical Bills
For people who have health coverage through an employer, a Health Insurance Marketplace®, or an individual health plan purchased directly from an insurer, the rules that took effect January 1, 2022:
- Bans surprise bills any time you receive emergency care, and require that cost sharing for these services, like co-pays, always be based on in-network rates, even when care is received without prior authorization.
- Bans surprise bills from certain out-of-network providers if you go to an in-network hospital for a procedure. This means cost sharing for certain additional services during your visit will generally be based on in-network rates.
- Requires providers and facilities to share with patients easy-to-understand notices that explain the applicable billing protections and who to contact if they have concerns that a provider or facility has violated the new surprise billing protections.
For Uninsured Individuals, Better Advanced Knowledge of Costs
For people who do not have health insurance or pay for care on their own (also known as “self-paying”), the rules that took effect January 1, 2022 require most providers to give a “good faith estimate” of costs before providing non-emergency care.
The good faith estimate must include expected charges for the primary item or service, as well as any other items or services that would reasonably be expected. For an uninsured or self-pay consumer getting surgery, for example, the estimate would include the cost of the surgery, as well as any labs, other tests, and anesthesia that might be used during the procedure.
Uninsured or self-pay consumers who receive a final bill that exceeds the good faith estimate by $400 or more can dispute the final charges.
Where to Learn More—Help Desk and Website
Both insured and uninsured/self-pay individuals who are concerned that their rights have been violated now have access to a host of tools, including a help desk (available at 800-985-3059, 8am-8pm ET seven days a week; TTY: 800-985-3059) and webpage (CMS.gov/nosurprises), where more details on registering potential violations can be found.
Although some states have enacted laws to reduce or eliminate surprise billing, comprehensive nationwide consumer protections were not available. But now, the No Surprises Act builds a national baseline of protections with a series of final and proposed rules issued in 2021, which complement existing laws in states where they already exist and protect all consumers nationwide.
The Centers for Medicare & Medicaid Services (CMS) also released a fact sheet with additional details:
The No Surprises Act protects people covered under group and individual health plans from receiving surprise medical bills when they receive most emergency services, non-emergency services from out-of-network providers at in-network facilities, and services from out-of-network air ambulance service providers. It also establishes an independent dispute resolution process for payment disputes between plans and providers, and provides new dispute resolution opportunities for uninsured and self-pay individuals when they receive a medical bill that is substantially greater than the good faith estimate they get from the provider.
Starting in 2022, there are new protections that prevent surprise medical bills. If you have private health insurance, these new protections ban the most common types of surprise bills. If you’re uninsured or you decide not to use your health insurance for a service, under these protections, you can often get a good faith estimate of the cost of your care up front, before your visit. If you disagree with your bill, you may be able to dispute the charges. Here’s what you need to know about your new rights.
What are surprise medical bills?
Before the No Surprises Act, if you had health insurance and received care from an out-of-network provider or an out-of-network facility, even unknowingly, your health plan may not have covered the entire out-of-network cost. This could have left you with higher costs than if you got care from an in-network provider or facility. In addition to any out-of-network cost sharing you might have owed, the out-of-network provider or facility could bill you for the difference between the billed charge and the amount your health plan paid, unless banned by state law. This is called “balance billing.” An unexpected balance bill from an out-of-network provider is also called a surprise medical bill.
People with Medicare and Medicaid already enjoy these protections and are not at risk for surprise billing.
What are the new protections if I have health insurance?
If you get health coverage through your employer, a Health Insurance Marketplace®, or an individual health insurance plan you purchase directly from an insurance company, these new rules will:
- Ban surprise bills for most emergency services, even if you get them out-of-network and without approval beforehand (prior authorization).
- Ban out-of-network cost-sharing (like out-of-network coinsurance or copayments) for most emergency and some non-emergency services. You can’t be charged more than in-network cost-sharing for these services.
- Ban out-of-network charges and balance bills for certain additional services (like anesthesiology or radiology) furnished by out-of-network providers as part of a patient’s visit to an in-network facility.
- Require that health care providers and facilities give you an easy-to-understand notice explaining the applicable billing protections, who to contact if you have concerns that a provider or facility has violated the protections, and that patient consent is required to waive billing protections (i.e., you must receive notice of and consent to being balance billed by an out-of-network provider).
What if I don’t have health insurance or choose to pay for care on my own without using my health insurance (also known as “self-paying”)?
If you don’t have insurance or you self-pay for care, in most cases, these new rules make sure you can get a good faith estimate of how much your care will cost before you receive it.
What if I’m charged more than my good faith estimate?
For services provided in 2022, you can dispute a medical bill if your final charges are at least $400 higher than your good faith estimate and you file your dispute claim within 120 days of the date on your bill.
What if I do not have insurance from an employer, a Marketplace, or an individual plan? Do these new protections apply to me?
Some health insurance coverage programs already have protections against surprise medical bills. If you have coverage through Medicare, Medicaid, or TRICARE, or receive care through the Indian Health Services or Veterans Health Administration, you don’t need to worry because you’re already protected against surprise medical bills from providers and facilities that participate in these programs.
What if my state has a surprise billing law?
The No Surprises Act supplements state surprise billing laws; it does not supplant them. The No Surprises Act instead creates a “floor” for consumer protections against surprise bills from out-of-network providers and related higher cost-sharing responsibility for patients. So as a general matter, as long as a state’s surprise billing law provides at least the same level of consumer protections against surprise bills and higher cost-sharing as does the No Surprises Act and its implementing regulations, the state law generally will apply. For example, if your state operates its own patient-provider dispute resolution process that determines appropriate payment rates for self-pay consumers and Health and Human Services (HHS) has determined that the state’s process meets or exceeds the minimum requirements under the federal patient-provider dispute resolution process, then HHS will defer to the state process and would not accept such disputes into the federal process.
As another example, if your state has an All-payer Model Agreement or another state law that determines payment amounts to out-of-network providers and facilities for a service, the All-payer Model Agreement or other state law will generally determine your cost-sharing amount and the out-of-network payment rate.
Oh, yeah...there's something else to keep in mind (Larry Levitt is the Executive Vice President for Health Policy at the Kaiser Family Foundation):
You know who won't be protected from surprise medical bills in the legislation Congress is about to pass? People in short-term insurance plans that have been expanded by the Trump administration.
— Larry Levitt (@larry_levitt) December 21, 2020
Of course if #ShortAssPlans were included in this legislation, their premiums would likely double overnight, since they cover so little to begin with.
Interestingly, the reason they aren't included has nothing to do with them managing to lobby their way out of it (as the ground ambulances did):
Those plans typically lack provider networks, so no negotiated rate/contracts. It’s all balanced billed.
— Amy Shefrin (@AmyShefrin) December 21, 2020
This is another reason why you should avoid so-called "Short-Term, Limited Duration" plans if at all possible and stick to ACA-compliant policies.