This post provides an update to our previous publication summarizing the federal No Surprises Act and is part one of two in a series on new interim regulations implementing certain requirements of the No Surprises Act.

The recently issued interim final rule governing one aspect of the No Surprises Act—the treatment of out-of-network (OON) and uninsured patients during emergencies and where services are provided at in-network facilities regardless of emergent status—largely reflects the statute but commits the adopting federal agencies (HHS, Labor and the Treasury) to expansive readings in favor of limiting patient liability where possible.

In an emergency (defined using the prudent layperson standard), if the health plan (broadly defined) covers emergency services at all, it must provide coverage for such services at any facility or provider without prior approval and without any conditions not applicable to in-network providers. Billing by the OON facility or provider is limited in such circumstances and generally will be tied to the Qualifying Payment Amount (based on the median negotiated rate, subject to arbitration), which will be discussed in part two of this blog post. Notably, post-stabilization services remain an emergency and cannot be treated as OON if the services are a result of an unforeseen, urgent medical need that arises when a service is otherwise provided. However, if the following conditions are met, the prohibition on balance billing does not apply, as the services provided are not considered “emergency services”: (i) the patient is able to travel to an available participating provider or facility, (ii) the patient’s consent is obtained after being notified of the cost and alternative in-network providers, (iii) the patient is in a condition to receive the information and provide consent, and (iv) the provider complies with any additional requirements or prohibitions as may be imposed under state law.  If the patient does not consent, OON billing is improper. Patients will be advised of their rights to challenge an OON bill.  Providers and facilities are required to notify the plan of any post-stabilization services for which they are billing OON and that the requirements for such billing have been met.  There are penalties for failing to treat post-stabilization patients as OON in accordance with these complex rules (and to emphasize the point, facilities and providers are required to retain records for 7 years).

In most non-emergent circumstances at in-network facilities, providers are required to provide notice and to obtain consent prior to providing the service.  However, the prohibition on OON billing is absolute for (and the notice and consent provisions do not apply to) (i) specific ancillary services, including items and services related to emergency medicine, anesthesiology, pathology, radiology and neonatology, (ii) services provided by hospitalists, intensivists and assistants at surgery, (iii) diagnostic services, including radiology and laboratory services and (iv) items and services provided by an OON provider if there is no in-network provider at the facility.   The consent document is subject to technical requirements and the interim final rule provides that the regulators will provide a template form that is suggested for use but not required.

All providers and facilities are required to provide notice of the balance billing rules under this rule and State law, and appropriate federal and State agency contacts for complaints by posting on the facility/provider website, prominently on the premises and by mail.  Notice is not required if the provider does not furnish services “in connection with” (undefined) a visit to a health care facility.

The requirements for OON billing apply to catastrophic plans.

The interim final rule is set to take effect beginning on January 1, 2022.

As noted, we will discuss the Qualifying Payment Amount and the regulations’ plan coverage requirements in our next blog post.

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Photo of Edward S. Kornreich Edward S. Kornreich

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied…

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied providers (both for-profit and not-for-profit), vendors, GPOs, distributors and entrepreneurs. His approach combines sensitivity to meeting regulatory business goals with a comprehensive and realistic assessment of the health care environment, and he is particularly experienced in dealing with the complex issues related to integrated health care systems.

After working for the Legal Aid Society, Ed entered private practice, where he helped represent a major public hospital corporation in a series of reimbursement disputes with the state and federal governments, and counseled New York area hospitals and nursing homes on reimbursement and operational issues. Thereafter, Ed served as General Counsel of St. Luke’s-Roosevelt Hospital Center, one of the largest teaching hospitals in New York. After leaving St. Luke’s-Roosevelt Hospital Center, Ed joined Proskauer as a Partner in 1990.

Ed frequently writes and lectures on Medicare and Medicaid reimbursement, health care integration, not-for-profit law and corporate governance issues, and the application of federal and state anti-kickback and “Stark” laws to health care transactions.

Photo of Elizabeth (Betsy) Rosen Siegel Elizabeth (Betsy) Rosen Siegel

Elizabeth (Betsy) Rosen Siegel is an associate in the Health Care Department. Her practice focuses on representing health care clients, including hospitals, hospital systems, academic medical centers, physician organizations and other care entities. Betsy provides legal advice on a wide range of regulatory…

Elizabeth (Betsy) Rosen Siegel is an associate in the Health Care Department. Her practice focuses on representing health care clients, including hospitals, hospital systems, academic medical centers, physician organizations and other care entities. Betsy provides legal advice on a wide range of regulatory, transactional and corporate matters, including Medicare/Medicaid reimbursement, fraud and abuse compliance, managed care contracting, HIPAA and data privacy, and general corporate and business planning.

In addition, Betsy maintains an active pro bono practice, which includes representing individuals in various immigration matters and representing not-for-profit organizations on a variety of matters. Betsy also serves on the Her Justice Junior Advisory Board.

Betsy earned her J.D. from The George Washington University Law School in 2013, while also earning her graduate certificate in health policy from The George Washington University School of Public Health and Health Services. While in law school, she worked as a health insurance counselor at the George Washington University Law Health Rights Law Clinic and was a member of the Public Contract Law Journal. Betsy also served as president of the Student Health Law Association and received the American Bar Association/Bureau of National Affairs Award given to the members of the graduating Juris Doctor class who have demonstrated excellence in the study of health law. Betsy received her B.S. in health care management and policy magna cum laude from Georgetown University in 2010.