October 12, 2023

Posted on October 12, 2023 by Courtney Patterson

QUESTION:
As of last week, we no longer maintain a contract with a particular insurer, resulting in a change of network status. How do we handle patients who are now considered “out-of-network”?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
The No Surprises Act has anticipated this issue. Moving forward, if a contract terminates between a plan and provider or facility, the NSA applies continuity of care protections to individuals who are considered a “continuing care patient” and who are in the process of receiving items or services from the facility for which their insurance would cover.

In the event a plan’s contract is terminated with a provider or facility, the plan will notify its enrollees who are continuing care patients. These patients will have the right to elect continued transitional care from the provider and can choose to have the same benefits as they would have had under the plan had the contract not terminated. This election would only apply to the course of treatment currently being furnished by the provider or facility that qualifies the individual as a continuing care patient.

If the patient elects to continue treatment with their provider or facility, then the provider or facility must (1) accept payment from the plan for items or services furnished to the continuing care patient as payment in full and (2) continue to adhere to the policies, procedures and standards imposed by the plan for the individual as if the termination has not occurred.

According to CMS, this election may continue for the earlier of 90 days from the time the patient is notified of the plan’s termination or until the date on which the patient no longer qualifies as a continuing care patient with the provider or facility.

As an example, if a pregnant woman learns at her next obstetrician appointment that her physician no longer maintains a contract with her insurance, she would be eligible for continuity of care protections because she is receiving ongoing treatment for her pregnancy.

If you have a quick question about this, e-mail Mary Paterni at mpaterni@hortyspringer.com.

July 28, 2022

Posted on July 28, 2022July 28, 2022 by Courtney Patterson

QUESTION:
I see in this week’s New Cases that the Connecticut No Surprises Act does not have a private cause of action in the event an insurance company fails to reimburse a provider who provides care to an Out-Of-Network (“OON”) emergency department patient in the manner required by that state’s No Surprises Act. Is this the same under the federal No Surprises Act that went into effect on January 1, 2022?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
No. The federal No Surprises Act (“NSA”) anticipates that disputes will arise and has two separate arbitration processes that may be used in the event of a dispute. One arbitration process is for patients who receive medical bills for a non-covered service that exceeds the good faith estimate required by the NSA by at least $400. The other arbitration process is specifically intended to apply in the event of a dispute between an OON provider and an insurer, such as the one that was described in the Connecticut case.

To summarize, the NSA restricts a hospital (or where permitted by state law, an independent emergency department) and/or the emergency department physicians from charging OON patients who receive emergency services at the OON emergency department more than the OON patients would be charged if the OON patients were treated at an in-network emergency department.

If the NSA applies, then neither the hospital, the emergency department physicians, nor the insurer can charge the OON emergency patient more than the in-network amount. The NSA then requires the insurer to reimburse the hospital and the emergency department physicians for the care they have provided to the OON emergency department patient. However, the NSA does not dictate the amount that the insurer must pay the OON hospital and the emergency department physicians unless the amount is required by a state All-Payer Model Agreement or specified by state law.

In the absence of an applicable All-Payer Model Agreement or specified state law, the insurer must make an initial payment or a denial of payment to the OON provider within 30 calendar days. The hope is that the insurer and the OON providers will be able to agree on the amount of reimbursement due the OON hospital and the emergency department physicians. However, if the parties cannot agree, then, unlike the Connecticut law, the NSA has a dispute resolution process that must be followed by all involved in any fee dispute.

If either party believes that the payment amount is not appropriate (it is either too high or too low), it has 30 business days from the date of initial payment or denial of payment to notify the other party that it would like to negotiate. Once notified, the parties may enter into a 30-business day open negotiation period to determine an alternate payment amount. If following this 30-business day period, the OON providers are still not happy with the amount being offered by the insurer, then the OON providers may take advantage of the NSA’s arbitration process in order to determine the amount of payment.

Unfortunately, on February 23, 2022, the United States District Court for the Eastern District of Texas, in the case of Texas Medical Ass’n, et al. v. United States Department of Health and Human Services, et al., Case No. 6:21-cv-425 (E.D. Tex.), invalidated the NSA regulations governing this arbitration process. However, in April 2022, CMS and the Departments of Labor and the Treasury issued Independent Dispute Resolution (IDR) Guidance for Certified IDR Entities. Those guidelines can be found at: https://www.cms.gov/sites/default/files/2022-04/Revised-IDR-Process-Guidance-Certified-IDREs.pdf

Section 6 of these guidelines addresses payment disputes. The guidelines have retained “baseball” (i.e., High/Low) type arbitration. In this type of arbitration, the arbitrator must choose one of the party’s offers. The arbitrator has no authority to “split the baby in half” or otherwise deviate from either of those offers.

The guidelines then require the arbitrator to consider the “Qualified Payment Amount” (“QPA”). Unlike the original regulations that were the subject of the Federal Court’s injunction, these guidelines also permit the arbitrator to also take into account additional credible information relating to the offers submitted by the parties that relates to the circumstances.

Generally, the QPA is defined as the median of the contracted rates recognized by the plan for the same or similar item or service that is provided by a provider in the same or similar specialty and provided in the same geographic region in which the item or service under dispute was furnished, increased by inflation. The plan must calculate the QPA using a methodology established in the July 2021 NSA interim final rules. The guidelines then state that information is considered credible if, upon critical analysis, the information is worthy of belief and is trustworthy.

“Worthy of belief and is trustworthy” information that may be considered by the arbitrator includes the level of training, experience, and quality and outcomes measurements of the provider or facility that furnished the item or service in dispute; the experience or level of training of a provider that was necessary to provide the item or service to the patient; whether their experience or training made an impact on the care that was provided; the market share held by the provider or facility or that of the plan in the geographic region in which the item or service was provided; how the market share affects the appropriate out‑of‑network rate; and the acuity and complexity of the care provided.

Therefore, regardless of the terms of any state law, the federal NSA provides OON providers with the right to arbitrate payment disputes and to provide information that is trustworthy and pertains to the care at issue.

TO LEARN MORE ABOUT THE NSA, THE OIG FRAUD ENFORCEMENT ACTIONS DISCUSSED IN THIS WEEK’S GOVERNMENT AT WORK, THE FEDERAL FRAUD AND ABUSE LAWS, AND MUCH MORE, JOIN HENRY CASALE, DAN MULHOLLAND AND MARY PATERNI FOR OUR “HOSPITAL-PHYSICIAN CONTRACTS AND COMPLIANCE CLINIC” THAT WILL BE HELD IN LAS VEGAS, NEVADA FROM NOVEMBER 17‑19.

June 9, 2022

Posted on June 9, 2022June 9, 2022 by Courtney Patterson

QUESTION:
This past weekend, a patient presented to the emergency room with an injury that required immediate surgery. Our hospital was out of the patient’s network, so when it was determined that the patient was stable, we offered them the option to be safely transferred by ambulance (per doctor’s orders) to a hospital that is down the street and in-network. However, the patient declined this offer and chose to remain at our hospital for the duration of their care. Can we give the patient a written notice and get them to consent to waive their protection under the No Surprises Act, which would allow us to balance bill them for any subsequent post-stabilization services during their stay?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
At this point, the answer is no. Under the No Surprises Act (“NSA”), the hospital is prohibited from balance billing patients for emergency services even if the patient signs a consent waiving their protections under the NSA for such services. Generally, post-stabilization services are also considered emergency services under these new rules.

However, in certain circumstances, an out-of-network provider or facility may provide notice to and get written consent from a patient that would waive their balance billing protections for post-stabilization services. For this to occur, the following requirements must be met:

(1) the patient is stable enough to travel using nonemergency medical transport to an available in-network provider/facility and that provider/facility is within reasonable traveling distance considering the patient’s condition;

(2) the patient or their representative is in a condition where they can receive information and provide informed consent;

(3) the hospital provides written notice and obtains written consent from the patient to waive their balance billing protections; and

(4) the hospital is in compliance with all relevant state laws.

At this point, the patient requires medical transportation via ambulance in order to travel. As such, the patient cannot receive notice or give consent to waive their balance billing protections under the NSA. The hospital is prohibited from balance billing the patient for any post-stabilization services provided to the patient during their stay so long as that requirement is not met. If, however, there comes a time when the patient can be safely transferred to another hospital through means other than medical transport, but the patient wishes to remain at your hospital, then you may consider providing notice and getting written consent from the patient to waive their protections so long all other notice and consent requirements mentioned above are met.

May 26, 2022

Posted on May 26, 2022 by Courtney Patterson

QUESTION:
I understand that the Surprise Billing case that was discussed in this week’s HLE arose before the No Surprises Act (“NSA”) went into effect. How would the NSA have affected that case?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
While the case of the $229,112.13 surprise bill arose before the January 1, 2022 effective date of the NSA, it is interesting to see how the facts in that case would be affected if they happened after January 1, 2022.

The case does not state whether the patient’s surgery was emergency or elective. However, the fact that the hospital and the patient were able to agree that the amount the patient would owe the hospital for that surgery was to be $1,336.90, leads us to assume that it was an elective surgery. Based on that assumption, let’s explore what would happen if the same set of facts were to occur after the NSA went into effect.

First, there was a mix-up as to the patient’s insurance coverage. Apparently, the hospital first thought that the patient was in-network and that was the basis for the $1,336.90 agreed-upon price. It was only after the surgery was completed that the hospital realized that the patient was out-of-network and that based on the hospital’s charge master the hospital claimed that the patient owed the hospital $229,112.13.

When the patient refused to pay this amount, the hospital sued. The jury not only sided with the patient, but it also decided that the agreed-upon price was too high and determined that the amount that the patient owed the hospital was only $766.74. You should be aware that the appellate court disagreed with the trial court and reversed the jury verdict, reinstating the hospital’s demand. However, the Colorado Supreme court reversed the appellate court and reinstated the jury’s verdict. So, after being forced to expend legal fees and the anxiety that resulted from the appellate court decision, the patient’s final amount due was $766.74.

Under the NSA, the result would be very different. Again, assuming this was a non-emergency surgery, the hospital would have been required to make an affirmative determination before the surgery whether the patient was in-network or out-of-network. If the patient was out-of-network, then the patient would be considered uninsured (or self-pay). At this point, the hospital is required to provide the self-pay patient with a good faith estimate that includes a list of all of the items or services that are reasonably expected to be furnished in conjunction with the surgery and the cost of that care.

When the good faith estimate must be provided depends on when the surgery was scheduled. If the surgery is scheduled at least three business days before the date of surgery, then the good faith estimate must be provided no later than one business day after the date of scheduling. If the surgery is scheduled at least 10 business days before the date of surgery, then the good faith estimate must be provided no later than three business days after the date of scheduling. If a good faith estimate is requested by the self-pay patient, then the good faith estimate must be provided no later than three business days after the date of the request. In any event, the patient must be made aware of the cost BEFORE the surgery – no longer will a patient wake up from surgery only to be informed that their bill would be much greater than the good faith estimate.

In addition, under the NSA, a patient who is involved in a dispute with a provider over the cost of the care provided pursuant to the good faith estimate, is not required to go to court or incur the costs of litigation. If the difference between the amount of the good faith estimate, and the actual bill is more than $400, then the NSA entitles the patient to arbitrate the dispute. This result is best illustrated by the following question and answer taken for CMS’s Center for Consumer Information & Insurance Oversight presentation on the NSA:

Tonya is a 40-year-old female with a long history of right knee pain. She does not have any form of health insurance. Tonya schedules an appointment with her orthopedist to receive a cortisone injection in her knee. Upon scheduling the appointment, her orthopedist sends her a good faith estimate. The good faith estimate lists the total expected charges of $300 for the procedure. Tonya undergoes the injection and subsequently receives a bill from the orthopedist. The total billed charge is $850.

Would Tonya be eligible to pursue the PPDR (Arbitration) process?

ANSWER: Yes, Tonya would be eligible to pursue the PPDR (Arbitration) process. Tonya is uninsured, and the total billed charge is considered substantially in excess of the good faith estimate, since the difference between the total expected and total billed charges is greater than or equal to $400. Under the NSA, in order to be eligible to pursue the PPDR (Arbitration) process, an individual must be considered uninsured or self-pay, the total billed charges by the particular convening provider, convening facility, co-provider, or co‑facility, must be substantially in excess ( > $400) of the total expected charges for that specific provider or facility listed in the good faith estimate, and the date of the bill must be within 120 days.

Confirmation of insurance status before the surgery, advance notice of all services, a good faith estimate of all costs to the self-insured patient which must be reasonable charges not an inflated charge based on the hospital’s charge master, and the right to arbitration if there is more than a $400 difference between the patient’s bill and the good faith estimate – yes, the case in this week’s HLE would have turned out very differently once the NSA went into effect on January 1, 2022.

March 10, 2022

Posted on March 10, 2022 by Courtney Patterson

QUESTION:

Is the “No Surprises Act” in effect? I heard that a court enjoined it. Is the No Surprises Act limited to Emergency Care? Can you give me an example of how the Act works? What recourse do I have if I do not agree with the amount that the insurer pays me under this Act?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
The No Surprises Act and its implementing regulations (the “Act”) have been in effect since January 1, 2022. The Act prohibits emergency department physicians and the facility from billing a patient an out-of-network fee for emergency care provided at any hospital Emergency Department and, if permitted by your state, any free-standing emergency department, regardless of whether the hospital or emergency department physicians participate in the patient’s insurance network.

The Act also prohibits balance billing a patient for non-emergency services provided in an in-network hospital by certain out-of-network physicians, including all traditional hospital-based physician specialties. A physician can get a patient’s waiver of their rights under the No Surprises Act by using the notice and consent form provided by CMS for (1) certain non-emergency services and (2) post-stabilization services. However, out-of-network physicians cannot obtain waivers for non-emergency services provided at an in-network hospital if they provide traditional hospital-based ancillary services (such as pathology), diagnostic services (including lab and x-ray); services provided by hospitalists, assistant surgeons, or intensivists; or if there are no in-network physicians on the hospital’s medical staff who can provide the care needed by the patient. The waiver will also not apply to any emergent conditions that arise during a non-emergency service to which the patient provided his/her consent and waiver to be balance billed.

This section of the Act is best exemplified by one of the questions and answers provided by CMS’s Center for Consumer Information & Insurance Oversight:

Rhonda is a 50-year-old female with employer-sponsored health insurance who discovers a lump in her breast. Her primary care provider orders a mammogram, which shows a suspicious mass. She is referred to the local in-network hospital’s outpatient department for a biopsy. The biopsy is reviewed and found to be negative for malignant cells by a pathologist who happens to be out of network.

How much can the pathologist bill Rhonda under the rules of the No Surprises Act?

ANSWER
Under the No Surprises Act, the pathologist is banned from billing Rhonda more than the in‑network cost-sharing amounts, as determined by her health plan. The pathologist, as an ancillary service provider, is banned from obtaining consent from the individual to waive these balance billing protections.

In the past, the pathologist could bill the out-of-network patient his/her usual and customary charge. The patient would submit the bill to her insurer and the insurer would pay the provider the out-of-network rate and the pathologist could then balance bill the patient for any amount not covered by insurance – NO MORE. The No Surprises Act regulations also prohibits the pathologist from obtaining the patient’s consent to waive these rights (although, as described above, certain other specialties can obtain the patient’s waiver for (1) certain non-emergency services and (2) post-stabilization services).

As stated above, the pathologist cannot bill the patient more than the pathologist would bill the patient if the patient was in-panel. The pathologist must then bill the insurance carrier. If the pathologist is not happy with the amount paid by the insurer, the pathologist must negotiate with the plan for 30 business days. If the pathologist is still not happy with the amount being offered by the plan, the pathologist must go to arbitration to determine the amount of payment.

However, on February 23, 2022, a federal court has enjoined the CMS provider/health plan arbitration process (but only the arbitration process – the rest of the No Surprises Act regulations are in full force and effect). That arbitration process created a presumption that the amount that the provider should be paid is the “Qualified Payment Amount” (“QPA”), which is typically the median rate the insurer would have paid for the service if provided by an in-network provider or facility.

The regulations also limited the information that can be presented to the arbitrator and specifically prohibited the arbitrator from considering the provider’s usual and customary charges for an item or service, the amount the provider would have billed for the item or service in the absence of the Act, or the reimbursement rates for the item or service under Medicare or Medicaid. Finally, the arbitration is “baseball-type” arbitration, which means that the arbitrator must pick one of the amounts proposed – the arbitrator does not have the discretion to split the difference or to choose an amount other than the amount proposed by the provider or by the health plan.

The federal court enjoined this arbitration process from going into effect. However, the court did not provide any guidance as to how disputed fees are to be resolved while this case is on appeal, or how payment disputes are to be resolved until new regulations are promulgated.

October 28, 2021

Posted on October 28, 2021October 28, 2021 by Courtney Patterson

QUESTION:
I noticed that part two of the surprise billing rules were published. Do these new rules require any action prior to their January 1, 2022 effective date?

ANSWER:
The surprise billing saga continues! Are you ready for January 1?

By way of background, on July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an interim final rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021. Effective January 1, 2022, the interim final rule affords patients protection against balance billing and cost sharing for certain out-of-network services, prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent, and requires providers to disclose federal and state patient protections against balance billing. You can tune in to our audio conference or read about it here to learn more about what part one of the Surprise Billing rules require of you.

On September 30, 2021, the Departments issued a second interim rule with additional provisions aimed at protecting consumers from surprise medical bills under the No Surprises Act. Among other things, this rule removes the consumer from payment disputes by requiring providers and health plans to follow outlined payment dispute processes to resolve any remaining costs for out‑of-network services not billed to the patient.

In addition, beginning January 1, 2022, providers will be required to provide uninsured and self‑pay consumers “good faith” estimates of expected charges for items or services within one business day after scheduling or within three business days after the consumer requests the estimate. A “good faith” estimate should include an itemized list of and expected charges for the scheduled item or service and any other related item or service likely to be provided.

In anticipation of these rules taking effect, you should begin to review the dispute resolution language in your payor contracts, if such language exists, to ensure that it is aligned with the processes outlined in the second interim rule. You should also begin drafting a good faith estimate form or adopt CMS’ template, which can be found here.

Tune in to our next surprise billing audio conference on January 4, 2022 for more information on the implementation of the Surprise Billing rules.

August 12, 2021

Posted on August 12, 2021 by Courtney Patterson

QUESTION:
“What about those surprise billing rules? We heard they aren’t effective until January 1, 2022. Should we be doing anything now to prepare?”

ANSWER:
The Surprise Billing Rules are a big deal! And there are steps you can take to be prepared for January 1, 2022.

On July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an interim final rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021. Effective January 1, 2022, the interim final rule affords patients protection against balance billing and cost sharing for certain out-of-network services, prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent, requires providers to disclose federal and state patient protections against balance billing, and sets forth complaint and dispute resolution processes for patients, payers, and provides to address potential violations of the protections against balance billing and cost sharing under the No Surprises Act.

Among other protections, the Interim Final Rule prohibits balance billing for non-emergency services furnished at an in-network facility by an out-of-network provider, absent notice and consent. In addition, out-of-network providers may only bill the patient such cost-sharing amounts similar to what the patient would pay had they received those services in-network. This restriction includes out-of-network charges for ancillary services (e.g., radiology, anesthesiology, pathology, cardiology, and emergency medicine) provided at in-network facilities. Any charges left over, however, may not be balanced billed to the patient.

In anticipation of these rules taking effect, you should review your hospital-based provider contracts. If the contracts are silent on how those providers can bill patients, you could build language into the contracts requiring the provider to contract with every health plan that the hospital contracts with. You can also put language in the contact prohibiting the out-of-network provider from balance billing.

This is one of several issues hospitals should be considering in preparation for the surprise billing rules’ January 1, 2022 effective date. For more information on the Surprise Billing Rules, tune in to our audio conference. If you have any questions, or if you would like help reviewing your provider agreements, feel free to reach out to Mary Paterni at mpaterni@hortyspringer.com.