The No Surprise Act (“NSA”) went into effect January 1, 2022, and impacts billing, and in particular balance billing, for emergency services as well as certain non-emergency services.  Generally speaking, a patient cannot be balance billed for emergency services.  Instead, the patient is only responsible for in-network cost share. 

The NSA specifies how the insurers must calculate the cost share amount.  More specifically, the patient’s cost-sharing responsibility will be calculated based on the total amount that would have been charged for the services by an in-network provider or facility, an amount the law terms the “recognized amount.”  Under this scenario, if a provider disagrees with the reimbursement, they can initiate an Independent Dispute Resolution with the insurer.  The patient is eliminated from the analysis.   

For non-emergency services provided by an OON provider at an in-network hospital or ASC, a patient cannot be balance billed unless the OON provider provides notice and obtains consent from the patient prior to the procedure.  If no notice is provided or consent obtained, the patient is only responsible for in-network cost share.  

For non-emergency services provided by an OON provider at an in-network hospital or ASC, a patient can be balance billed if the patient was provided notice of the estimated cost for the services prior to the procedure and consented to receiving the services with the understanding that they would be responsible for the balance of the bill (i.e., whatever insurance didn’t cover).  Costs associated with ancillary services such as anesthesia costs cannot be waived. 

There are also separate rules regarding services provided to uninsured patients as well as insured individuals who elect to self-fund services and not have their insurance billed.  Your practice may be considered a “convening provider” which would obligate it to collect the estimated costs from certain other providers as well.  In the event the charges exceed the estimate provided to the patient by more than $400, the patient can initiate a dispute resolution process.  Unless the parties agree to a resolution, the dispute process will determine whether the provider is paid the lesser of the billed charge or the median payment amount for the same/similar services in the same geographic area as reflected in an independent database. 

If you have any questions about how the NSA may impact your practice, please contact the attorneys at Nicholson & Eastin.