Surprise Billing Resources

Massachusetts State Law

On January 1, 2021, Governor Baker signed into law An Act Promoting a Resilient Health Care System that Puts Patients First. The "Patients First" law added significant measures to address surprise billing, requiring healthcare providers to notify patients about network status and costs of care. The provisions became effective January 1, 2022.

On February 12, the governor approved language in the supplemental budget bill that delays the implementation of Chapter 260’s surprise billing provisions. Specifically, the bill delays until August 1, 2022 the following:

The commissioner shall implement this section and impose penalties for non-compliance consistent with the department’s authority to regulate health care providers; provided, however, that the penalty for non-compliance shall not exceed $2,500 in each instance. A health care provider that violates any provision of this section or the rules and regulations adopted pursuant to this subsection shall be liable for penalties as provided in this subsection.

While the law remains on the books, implementation of the law’s provisions by the DPH commissioner and imposition of any penalties is delayed from January 1 until the end of July. MHA will be providing additional guidance on our ongoing advocacy efforts related to this issue in the coming weeks.

Resources:

• Massachusetts Department of Public Health guidance from January 2022, outlining healthcare provider disclosure obligations related to scheduling services or making referrals to other providers
• Additional information on the provider requirements

Federal No Surprises Act

The No Surprises Act (NSA), part of the 2021 Consolidated Appropriations Act, was signed into law by former President Trump on December 27, 2020. Under the new federal legislation, beginning January 1, 2022, plans and providers (including hospitals, other health facilities, individual practitioners, and air ambulance providers) are prohibited from billing patients more than in-network cost-sharing amounts except under certain limited circumstances.

The prohibition applies to emergency care and to certain non-emergency situations where patients do not have the ability to choose an in-network provider. The NSA includes required notices and disclosures and also has establishes a new requirement for healthcare providers (both individual practitioners and facilities) to share “good faith estimates” of the total expected charges for scheduled items or services. The rule making process currently requires the good faith estimates only for those who are uninsured or self-pay individuals; rulemaking for insured individuals has not yet been completed.

The regulations require that providers and facilities provide notice and consent in the top 15 languages in a state or geographic region in which the applicable facility is located. In addition, providers and facilities will need to translate the notice and consent form into the top 15 applicable languages.

Resources:

• CMS website with comprehensive information pertaining to all aspects of the NSA
• CMS: FAQ on The No Surprises Act’s requirements and prohibitions
• CMS: The No Surprises Act’s Continuity of Care, Provider Directory, and Public Disclosure Requirements
• Massachusetts DOI: No Surprises Act Resources and Consumer Disclosures

• AHA implementation guide (AHA login required)

• Comprehensive training presentations from CMS on provider and facility requirements
• CMS Appendix of top 15 languages in each state
• PYA Infographic: Good Faith Estimates Workplan

Provider and Facility Disclosure Requirements

Each provider, hospital, and ambulatory surgery center is required to make publicly available, including on its website and to each patient who is enrolled in commercial health coverage, a disclosure regarding the patient protections against balance billing. CMS has created a model notice that providers and facilities should use.

The notice must be provided individually to commercially insured patients, including those in the Federal Employees Health Benefits Program (FEHBP), no later than the time a bill is sent to the patient or a claim for payment is submitted to a health plan.

Resources:

• Standard notice and consent forms for nonparticipating providers/emergency facilities regarding consumer consent on balance billing protections
• Model disclosure notice on patient protections against surprise billing for providers, facilities, health plans and insurers

Independent Dispute Resolution Process

Reimbursement for out-of-network services may be determined in one of several ways. The federal legislation defers to state law or policy if applicable. If no such policy applies (currently there is no applicable Massachusetts state policy), then the legislation defines the process through which reimbursement is determined.

First, the provider may accept the initial payment made by the plan.

Second, the health plan and provider may come to a mutually agreeable amount through routine negotiating procedures during a 30-day period that must be triggered within 30 days of when the plan sends the initial payment (or notice of payment denial).

Finally, should either of these fail, the parties may bring an outstanding dispute to an independent dispute resolution (IDR) process established under the law. However, the parties can continue to negotiate during the IDR process and do not need to complete it if they can agree to reimbursement during this period.

Resources:

• Federal IDR Process Guidance for Certified IDR Entities • Federal IDR Process Guidance for Disputing Parties • CMS Action on Texas IDR Lawsuit

Good Faith Estimates for Uninsured and Self-Pay Individuals

Providers will be required to provide uninsured and self-pay patients good faith estimates of expected charges for all scheduled services prior to care and upon request when shopping for care.

To ensure that patients receive one document with clear and understandable information on their expected costs, HHS establishes a process for one provider or facility (“convening provider/facility”) to coordinate and deliver the good faith estimates of all expected charges across all providers and facilities involved in the anticipated course of care. While the requirements go into effect on Jan. 1, 2022, HHS plans to exercise enforcement discretion through Dec. 31, 2022, as it relates to incorporating the good faith estimates from outside providers or facilities and encourages states to do the same. Requirements for advanced explanations of benefits and good faith estimates for insured individuals have not yet been established.

Resources:

• CMS: FAQ on Providing Good Faith Estimates and Self-Pay Patients
• Good Faith Estimate for Health Care Items and Services
• Additional Good Faith Estimate guidance from CMS

Additional Resources from MHA

• Slides: December 2021 Surprise Billing Webinar
• Advisory on state and federal surprise billing laws – January 2021 (login required)