No Surprises Act 2022 – Understanding Consumers’ Rights against Surprise Medical Bills

Starting January 1, 2022, there are new protections that prevent surprise medical bills under the federal No Surprises Act (NSA), Pub. L. No. 116-260, 134 Stat. 1182, Division BB § 109.  If you have private health insurance, these new protections ban the most common types of surprise bills. If you’re uninsured or you decide not to use your health insurance for a service, under these protections, you can often get a good faith estimate of the cost of your care up front, before your visit. If you disagree with your bill, you may be able to dispute the charges.

Overview (see this CMS Fact Sheet for more information)

• What is a “Surprise Bill”? Generally speaking, a Surprise Bill is a bill a patient receives from an out-of-network (OON) provider when the patient believed the service received was provided by an in-network (INN) provider and therefore covered at a greater rate by their health insurance. NY FIN SERV § 603(h).

• What does it mean to be “balance billed”? A patient is balance billed when they are billed by their medical provider for the balance remaining on a bill after the patient paid their expected cost-sharing (co-pay, coinsurance, and/or deductibles), and the patient’s insurance paid the most the plan agreed to pay for services the patient received.

• If you get health coverage through your employer, a Health Insurance Marketplace, or an individual health insurance plan you purchase directly from an insurance company, these new rules will:

  • Ban surprise bills for most emergency services, even if you get them out-of-network and without approval beforehand (prior authorization).

  • Ban out-of-network cost-sharing (like out-of-network coinsurance or copayments) for most emergency and some non-emergency services. You can’t be charged more than in-network cost-sharing for these services.

  • Ban out-of-network charges and balance bills for certain additional services (like anesthesiology or radiology) furnished by out-of-network providers as part of a patient’s visit to an in-network facility.

  • Require that health care providers and facilities give you an easy-to-understand notice explaining the applicable billing protections, who to contact if you have concerns that a provider or facility has violated the protections, and that patient consent is required to waive billing protections (i.e., you must receive notice of and consent to being balance billed by an out-of-network provider).

• If you don’t have insurance or you self-pay for care, in most cases, these new rules make sure you can get a good faith estimate of how much your care will cost before you receive it. For services provided in 2022, you can dispute a medical bill if your final charges are at least $400 higher than your good faith estimate and you file your dispute claim within 120 days of the date on your bill.

• What if my state has a surprise billing law? The No Surprises Act supplements state surprise billing laws; it does not supplant them. The No Surprises Act instead creates a “floor” for consumer protections against surprise bills from out-of-network providers and related higher cost-sharing responsibility for patients. So as a general matter, as long as a state’s surprise billing law provides at least the same level of consumer protections against surprise bills and higher cost-sharing as does the No Surprises Act and its implementing regulations, the state law generally will apply. For example, if your state operates its own patient-provider dispute resolution process that determines appropriate payment rates for self-pay consumers and Health and Human Services (HHS) has determined that the state’s process meets or exceeds the minimum requirements under the federal patient-provider dispute resolution process, then HHS will defer to the state process and would not accept such disputes into the federal process.

  • As another example, if your state has an All-payer Model Agreement or another state law that determines payment amounts to out-of-network providers and facilities for a service, the All-payer Model Agreement or other state law will generally determine your cost-sharing amount and the out-of-network payment rate.

Other Protections -- consumers already benefit from the following protections:

• Medicaid recipients cannot be balance billed. https://www.health.ny.gov/health_care/medicaid/program/update/2014/feb14_mu.pdf
• Medicare recipients who are in the QMB Medicare Savings Program cannot be balance billed. https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/QMB
• Uninsured patients who are Medicaid eligible can apply for Medicaid with up to 3 months of retroactive benefits, possibly gaining large financial protections from medical bills that accrued in the 3 months prior to application.
• NYS’s Hospital Financial Assistance Law, NY PUB HEALTH § 2807-k, requires hospitals to offer patients the opportunity to apply for financial assistance for hospital bills. This law does not require physicians or other providers that are not hospitals to offer financial assistance. https://www.health.ny.gov/facilities/hospital/financial_assist/patient_info/

The No Surprises Act and The New York Surprise Bill Law

The New York Surprise Bill Law and the NSA provide further protections for NY consumers, including those with private health insurance. The NSA sets a floor for consumer protections and will work in coordination with New York State’s existing health care consumer billing protections that became effective March 31, 2015 via the New York Surprise Bill Law, NY PUB HEALTH § 24;passed along with NY FIN SERV § 606 . The Department of Health (DOH) and the Department of Financial Services (DFS) will both be charged with ensuring consumers in NYS benefit from elements of the NSA that NYS’s laws do not already address. Prior to the NSA, the New York Surprise Bill law applied to consumers with “fully insured” plans that were therefore subject to NYS insurance law; consumers with “self-insured” plans did not fully benefit from NYS insurance protections because self-insured plans are regulated by and subject to federal law, such as ERISA. Now consumers with both types of coverage are protected from most surprise bills.

If a consumer receives a surprise bill in the following situations the consumer will only be responsible for their in-network cost-sharing obligations:

• Treatment for Emergency Services and post-stabilization care

• Treatment by an out-of-network provider at an in-network hospital or ambulatory surgical center: A consumer was treated by an out-of-network provider at an in-network hospital or ambulatory surgical center if an in-network provider was not available; or an out-of-network provider provided services without the consumer’s knowledge; or there were unforeseen medical services provided and done so by an out-of-network provider. The NSA expanded the types of out-of-network provider services this protection applies to beyond only physicians; it now also applies to services provided by emergency medicine, anesthesia, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalists, or intensivist services.

• Referral to an out-of-network provider by one’s in-network provider: A consumer did not sign a consent acknowledging that the services were out-of-network AND: an out-of-network provider treats the consumer during their visit with an in-network provider; OR a consumer’s in-network provider sends a specimen to an out-of-network lab or pathologist; OR any other referrals by an in-network provider to an out-of-network provider when referrals are required by the insurer.

• Out-of-network air ambulance services

NSA additional protections

• Continuity of Care: If an in-network provider leaves the consumer’s insurance network, consumers are entitled to 90 days of continued care from the provider at the in-network cost.

• Health insurance identification card requirements: DFS implemented regulations in April 2021 that require NYS health insurance plans to print specific information on their consumer’s health insurance ID cards, such as plan name, consumer name and ID, coverage type, plan contact information, and specific cost-sharing amounts for primary care, specialists, urgent care, emergency care, and prescription drugs for 30-day supply. NSA requirements also include listing on the card the consumer’s annual deductible and annual maximum out of pocket expense.

• Up-to-date In-Network Provider Directories: Providers are required under the NSA to keep health plans informed as to their network status and current provider directory information. Consumers who relied upon network misinformation from the provider directory or through phone queries, including when not receiving a response from the plan within 1 business day of reaching out for network information, must be reimbursed by the provider for any amount the consumer paid above their in-network cost-sharing. NYS law requires health plans to maintain provider directories with specific enumerated provider information, with the written directory to be updated annually, and the online directory to be updated within 15 days of a provider changing a network or changing a hospital affiliation. The NSA provisions requiring directory updates are more stringent, but DFS is still evaluating whether changes might need to be made to current regulation https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2021_12

• Providers are required to ask consumers scheduling an appointment whether they have insurance, what kind, and if they do, whether they will be using their insurance for the appointment.

When is a bill not a surprise bill?

• Consumers have the right to choose out-of-network providers. If a consumer agrees to see an out-of-network provider, then the consumer’s bill will not be a Surprise Bill.

• The NSA allows for consumers to agree, usually 3 days in advance and in writing, to balance billing in certain circumstances although consumers can never agree to out-of-pocket costs for certain specialists (i.e., emergency medicine, anesthesiology, laboratory, etc.). The provider must provide a list of alternative in-network providers, and a “good faith estimate” of the service. An “advanced explanation of benefits”, as in advance of the service, will follow.

  • If the fee ends up being $400 or more in excess of the good faith estimate, the consumer may dispute the bill.

  • Complaints may also be filed with CMS within 120 days of the date of your first bill: https://www.cms.gov/nosurprises/consumers/complaints-about-medical-billing or by calling 1-800-985-3059. Providers are prohibited from assessing late fees or pursuing collections until the complaint  is resolved.

• Consumers who are uninsured or who choose self-pay are entitled to receive a “good faith estimate” of the charges within a certain timeframe prior to the appointment.

  • If the fee ends up being $400 or more in excess of the good faith estimate, consumers have 120 days to dispute the bill via a federal dispute resolution process. https://www.cms.gov/nosurprises/consumers/medical-bill-disagreements-if-you-are-uninsured

  • If the consumer did not get a good faith estimate and receives an unreasonable bill, they may still engage in an independent dispute resolution process through DFS. https://www.dfs.ny.gov/system/files/documents/2022/01/IDR_PatientApplication_2022.pdf

  • Complaints may also be filed with CMS, as noted above.

What if a consumer receives a surprise bill?

• Consumers should let their provider and insurer know right away. Consumers must submit a Surprise Bill Certification Form to their provider and insurer when an out-of-network provider treats a consumer when seeing an in-network provider; it may be submitted in additional scenarios. https://www.dfs.ny.gov/system/files/documents/2022/01/Surprise_Medical_Bill_Certification_Form_2022.pdf

• Complaints may also be filed with CMS, as noted above. 

Still to be determined

• The NSA requires that numerous regulations must be issued by several federal agencies. Not all regulations have yet to be issued; depending on their ultimate requirements, NYS may have to eventually adjust their consumer protections to be in alignment with federal law.

Resources

• CMS: https://www.cms.gov/nosurprises
• Overview of Rules & Fact Sheets: https://www.cms.gov/nosurprises/policies-and-resources/overview-of-rules-fact-sheets
• CMS Helpdesk: 800-985-3059, 8am-8pm ET seven days a week; TTY: 800-985-3059
• DFS: https://www.dfs.ny.gov/consumers/health_insurance/surprise_medical_bills

This article was authored by the Empire Justice Center.

This article was authored by the Health Law Unit of the Legal Aid Society.