Helaine Fingold Quoted in “Surprise Bill Legislation Means Big Changes for Patients and Hospitals”

On Dec. 27, 2020, the No Surprises Act was signed into law as part of the Consolidated Appropriations Act of 2021. The No Surprises Act addresses surprise bills at the federal level, and will go into effect Jan. 1, 2022. Among other things, the legislation will ensure that if out-of-network care is provided, the patient’s cost will be the same as if the provider was in-network.

“Implementation of the act will likely add another layer of complexity to revenue cycle processes,” says Helaine I. Fingold, JD, a healthcare attorney in the Baltimore office of Epstein Becker Green.

A few states have enacted laws to protect enrollees from surprise billing. These existing laws apply to fully insured plans, and will continue to apply under the new law. “The No Surprises Act will add self-insured plans to the surprise billing mix,” Fingold explains.

For self-insured plans, revenue cycle departments will need to identify affected out-of-network services, calculate cost-sharing and payment amounts based on the plan’s average contracted rate, and manage the dispute resolution process, through which out-of-network hospitals can seek higher payment amounts. “Each of these steps will require a defined business strategy,” Fingold says.

The best approach is going to vary depending on the health plan. For instance, some plans will take the approach of making an initial payment that is below the average contracted rate. The nonparticipating hospital that provides ED services to an insured patient can either accept that payment amount or push for a higher payment using the dispute resolution process. “The No Surprises Act does not provide protection for all services received out of network,” Fingold notes.

It only protects enrollees from receiving a surprise bill for emergency services provided by a nonparticipating provider at either an in-network or an out-of-network facility, or for certain nonemergency services provided by a nonparticipating provider at an in-network facility. “It does not cover, for example, services provided by a nonparticipating physician or practitioner in a physician’s office or other nonhospital clinic,” Fingold explains.

A patient still could receive a surprise bill for covered nonemergency services from a nonparticipating provider outside the hospital setting. “The new law should not result in hospitals having to write off entire bills for emergency services,” Fingold says.

However, for out-of-network ED care, hospitals might have to write off the difference between billed charges and the approximate amount they would have received had the hospital been in network. In states without surprise billing laws, hospitals can use the new law’s negotiation and arbitration processes to seek higher reimbursement amounts.

“Ultimately, facilities will need to assess the cost of bringing such challenges to determine the viability of operating out of network as a business strategy,” Fingold says.