The New Year Brings New Protection Against Surprise Medical Bills: What Consumers Need to Know

As we enter 2022 with intense focus trained once again on rising COVID-19 cases, one bit of good news is worth elevating: consumers are now protected from many of the worst surprise medical bills. The No Surprises Act (NSA), enacted with bipartisan support, took effect on January 1. The new law prohibits out-of-network providers from sending patients “balance bills” for emergency services and scheduled non-emergency care at an in-network hospital.

What are surprise “balance bills”?

Surprise balance bills traditionally happen when a patient receives health care services from an out-of-network provider they did not—or could not—choose, for example, when getting services in an emergency department or when receiving treatment from an anesthesiologist during surgery. In these cases, patients are stuck paying the balance between what their health plan covers and what the provider charges. They happen often and can cost a lot. KFF estimates that nearly one in five emergency visits and almost one in six hospital stays result in a surprise out-of-network charge. Air ambulance services are also common culprits. Around seven in ten transports, by one estimate, are out-of-network. These rides can cost an average of $30,000.

How does the NSA protect consumers from surprise bills?

The NSA builds on years of work in the states to enact consumer protections. There are now 33 states with surprise billing laws, but they vary in the scope of the protections they provide, and no state is able to fully protect people in large employer plans. The federal law makes possible a robust level of protection in all states and for the vast majority of insured, including those who have coverage through their employer. Specifically, the NSA protects patients from balance bills in two circumstances:

For emergency services, including air ambulance (but not ground ambulance); and
For scheduled non-emergency care at an in-network hospital when a provider there is out-of-network for the patient’s plan (for example, an anesthesiologist, radiologist, or assistant surgeon that assists with a scheduled surgery).

In most circumstances, under the NSA, these types of providers are prohibited from sending consumers any balance bills, and consumers are responsible only for cost sharing that would apply to in-network care. The NSA also instituted a process to determine what the patient’s health plan or insurer must pay the out-of-network provider, but that’s a dispute between providers and insurers that no longer runs the risk of leaving patients holding the bag. Unfortunately, Congress wasn’t able to reach agreement on covering ground ambulances. They instead established an advisory committee to make recommendations for future action.

Are out-of-network providers ever allowed to send a balance bill?

Consumers need to be aware that, in certain circumstances, out-of-network providers may ask them to waive their protections and agree to be balance billed for scheduled non-emergency care. The NSA takes into account that some consumers choose to go out-of-network to obtain services, but has provisions to try to ensure they understand the associated costs.

The NSA requires out-of-network providers to use a standard form that notifies patients of their rights, provides an estimate of how much they may expect to pay for the out-of-network care, and requests the patient’s consent to be balance billed. However, providers cannot use this standard form and seek a patient’s approval to balance bill (1) if there is no in-network provider available; (2) for care that is unforeseen or urgent; and (3) for care related to emergency medicine, anesthesiology, pathology, radiology, or neonatology, or for services provided by assistant surgeons, hospitalists, and intensivists, or for diagnostic services, including radiology and lab services. Also, patients cannot be coerced into signing away their protections (for example, if they would be charged a fee for cancelling a scheduled procedure). Finally, patients have the right to revoke their consent to be balance billed prior to obtaining services from the out-of-network provider.

What else should consumers keep in mind?

If all goes as Congress intended in passing the NSA, patients will be protected from balance bills in the situations that most often resulted in surprise bills from out-of-network providers and hospitals. But consumers may have to take additional steps to ensure they are getting the protections they are due under the new law.

What should a consumer do if they are coerced into signing away their protections? If a consumer feels pressured into waiving their protections against balance billing, they should contact their health plan or insurer to ask for an in-network provider that can provide the service. Note that the out-of-network provider seeking consent to balance bill must give their patient the standard notice at least 72 hours in advance of the scheduled appointment (or at least 3 hours in advance of the appointment if it is scheduled to occur in less than 72 hours). Consumers who feel coerced into signing away their rights can file a complaint with the federal NSA Help Desk by calling 1-800-985-3059 or visiting https://www.cms.gov/nosurprises.

What should a consumer do if they believe they were balance billed without their consent?
Consumers can contact their health plan or insurer for an explanation if their “Explanation of Benefits” (EOB) indicates they are responsible for a different amount than the bill they receive from their out-of-network provider. They can also contact the provider and ask for an explanation of the discrepancy between the EOB and the provider’s bill—it may be that the provider didn’t realize the NSA applies to them or the bill was sent in error. If a provider refuses to adjust their bill, the consumer can file a complaint with the NSA Help Desk. Some states may also accept complaints, typically through the department of insurance, and particularly for consumers who have coverage from insurers selling plans in the individual or small group market (including plans bought through the state’s Affordable Care Act marketplace).

Moving forward with the new protections

The primary goal of the NSA is to protect patients from surprise bills and to remove them from payment disputes between insurers and out-of-network providers or hospitals. Some provider groups are challenging the federal rules regarding how these disputes should be resolved, but those lawsuits do not delay implementation of the law and will not affect the NSA’s consumer protections. Throughout the legislative debate on surprise billing, there has been broad agreement—even among the parties to these lawsuits—that patients should no longer be held liable for out-of-pocket costs they couldn’t avoid. Welcome to the New Year and new protections!