Another Surprise! The No Surprises Act Requires Consumer Disclosures

In December 2020, Congress signed into law the No Surprises Act (NSA) addressing surprise medical billing.¹ Specifically, the NSA prohibits out-of-network health care providers and facilities from balance billing certain commercially insured patients in certain circumstances. Balance billing occurs when the out-of-network provider or facility bills the patient for the difference between the amount they charge and the amount paid by the patient’s insurance. Health care providers and facilities are required to make certain consumer disclosures addressing the NSA’s balance billing protections.

Disclosure Requirements

The disclosure requirements are found at 45 C.F.R. § 149.430 and apply to the following individuals and entities:

• Health care providers providing care in a health care facility or in connection with a visit to a health care facility; and
• Health care facilities defined as a hospital, hospital outpatient or emergency department, critical access hospital, independent freestanding emergency department or ambulatory surgical center.

Notably, air ambulance service providers and health care providers providing care in a setting other than a health care facility or in connection with a visit to a health care facility are not subject to the disclosure notifications. For example, a primary care physician providing primary care services in a physician office is not subject to the disclosure notifications because the care is not being provided in a heath care facility or in connection with a visit to a health care facility.²

So how are consumers notified of the NSA protections? The NSA requires health care providers and facilities to provide a disclosure statement directly to certain commercially insured patients and post it at their location and on their website if they have one.

The NSA lays out the specific manner and content of the consumer notification. The Department of Health and Human Services (HHS) also has provided a model disclosure statement with instructions that may be utilized by providers and facilities. Although not required, “HHS considers use of this model notice in accordance with these instructions to be good faith compliance with the disclosure requirements of the [NSA] if all other applicable [NSA] requirements are met.”³ The model disclosure may be found here.

Patient Disclosures

Health care providers and facilities must provide the disclosure statement directly to patients in-person or via mail or email, as selected by the patient, who (i) are enrolled in a group health plan (fully or self-insured plan), group or individual health insurance coverage, or Federal Employees Health Benefits plan, and (ii) are receiving services at a health care facility or in connection with a visit to the health care facility. Notably patients insured by Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or Tricare do not have to receive the disclosure because these health plans already prohibit balance billing.⁴

The disclosure statement must be provided no later than the date and time payment is requested from the patient or if no such payment is requested, the date the claim is submitted to insurance for payment. HHS has indicated the disclosure statement may be provided earlier, such as when the appointment is scheduled or when other standard notices are provided to patients like the Notice of Privacy Practices.⁵ In its rulemaking, HHS also has included copayments or coinsurance in payment collection, which means the disclosure must be provided directly to the patient at the time of the visit if the provider or facility collects a copayment or coinsurance at the point of care.⁶

Location and Website Disclosures

The disclosure notification must be displayed on a sign in a prominent location of the provider or facility but only if the provider has a publicly accessible location. In its rulemaking, HHS considers “a sign to be posted prominently, if the sign were posted in a central location, such as where individuals schedule care, check-in for appointments or pay bills.”⁷

The disclosure notice also must be posted on the provider’s or facility’s webpage or link to such information posted on a searchable homepage of the website unless the provider or facility does not have a website.

Providers may enter into written agreements with a health care facility to post the notice at their location and/or furnish it to patients provided the notice includes information regarding the balance billing requirements and prohibitions applicable to both the provider and facility and is in the required form and manner. Written agreements may include an existing contract amended to include this obligation or a new agreement. If the facility fails to post the notice or furnish it to patients as required under its written agreement with the provider, the facility, not the provider, is in violation of those disclosure requirements. Providers are still required to post the disclosure on their website if they have one.

These disclosure requirements became effective January 1, 2022. For more information on the NSA and how it impacts your practice, please contact Shea Luna, Esq.

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¹Consolidated Appropriations Act of 2021. Pub. L. No. 116-260, div. BB tit. I, 134 Stat. 1182, 2758 (2020).
²Requirements Related to Surprise Billing Part I, 86 Fed. Reg. 36872 (July 13, 2021)
³Model Disclosure Notice Regarding Patient Protections Against Surprise Billing, Instructions for Providers and Facilities
⁴CMS Frequently Asked Questions for Providers About the No Surprises Rules, April 6, 2022
⁵Requirements Related to Surprise Billing Part I, 86 Fed. Reg. 36872 (July 13, 2021)
⁶Id.
⁷Id.