On December 27, 2020, the Consolidated Appropriations Act, 2021, was signed into law. The Act included a measure entitled the “No Surprises Act” to restrict medical providers from sending consumers surprise medical bills.

Once the Act goes into effect in 2022, consumers will not receive balance bills for the following:

• Emergency care;

• Transport by air ambulance; or

• Non-emergency care at an in-network facility, when patients are unknowingly treated by an out-of-network doctor or lab

In these situations, consumers would only be responsible for paying their deductibles and co-payments per the terms of their in-network health insurance plans. Under the Act, medical providers are prohibited from making patients responsible for the difference between their deductibles/co-payments and any higher fees that the provider wants to charge.

For uninsured consumers, the Act requires the creation of a provider-patient bill dispute resolution process by the secretary of the Department of Health and Human Services.

Physicians may be allowed to balance-bill patients in some cases, but to do so, they must obtain permission in advance. For patients who elect to see an out-of-network physician, the physician must provide a cost estimate and obtain patient consent at least 72 hours in advance of treatment. If the timeframe is shorter, a patient must provide his or her consent the day the appointment is made. The Act only allows this in non-emergency situations and there are several types of physicians barred from this practice, including anesthesiologists, pathologists, radiologists, neonatologists, assistant surgeons, and laboratories.

The Act also provides a 30-day period for insurers and providers to negotiate the payment of out-of-network charges. If no resolution is reached, these claims may be submitted to an independent dispute resolution process where an arbitrator makes the final decision. Health care providers are barred from using their “billed charges” during the arbitration process since these charges are typically much higher than negotiated rates and do not typically reflect the actual cost of care.

In addition, the Act bars consideration of Medicare or Medicaid prices during arbitration. Instead, negotiators may take into consideration the median in-network prices paid by the insurer for disputed services. Several other factors may also be taken into consideration, including whether the provider has attempted to join the insurers’ network and how sick the patient was compared with others. The Act also allows for consideration of network rates that a provider may have agreed to over the previous four years.

To help consumers better understand their cost-share liability in advance, the Act also includes these consumer protection requirements:

• Plans are required to include cost-sharing and contact information on the plan and plan ID cards.

• Plans are required to maintain an online price comparison tool and provide price comparison guidance by phone so enrollees can compare their cost-sharing responsibilities.

• Plans are required to establish an online database of providers and facilities that it has contractual relationships with and include contact information for each provider and facility.

• Plans are required to disclose the Act’s requirements and prohibitions against surprise billing, any state laws regarding surprise billing, and contact information for the appropriate federal and state agencies to report a violation of these prohibitions or requirements. This information must be made available via a public website and in applicable explanations of benefits.