The No Surprises Act - Final Rule Part 1 - Emergency Services

Season #1

In the second episode of this multiple part series, we dive into the details of the Interim Final Rule Part 1 for the No Surprises Act. Learn the rules and requirements around the No Surprises Act and how it impacts emergency services, including balance billing, out-of-network coverage, and which services are covered in this episode of Revenue Cycle Decoded where we crack the code on revenue cycle topics for medical practice managers.

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Hello, and welcome to Revenue Cycle Decoded where we are cracking the code on revenue cycle topics for medical practice managers.  In this episode, we are going to continue our discussion of the No Surprises Act, in particular, the Interim Final Rule Part 1 as it applies to emergency services.  

 So, in our previous episode we provided background on the No Surprises Act. This final rule became effective January 1 of 2022, and so it's very important that you understand what the requirements are and how they impact you, and what you need to do to be compliant. So let's dive into how this Act applies for emergency services. 

 The No Surprises Act protects against balance billing and out-of-network cost-sharing with respect to emergency services, non-emergency services provided by non-participating providers at certain participating healthcare facilities and air ambulance services furnished by non-participating providers.  Today, we're specifically going to focus on emergency services. 

 So, the No Surprises Act applies to group health plans and to health insurance issuers offering group or health insurance coverage and to carriers in the Federal Employee Health Benefits program. Specifically for emergency services, the Final Rules applies if a group health plan or a health insurance issuer offering group or individual health insurance coverage provides or covers any benefits with respect to services in an emergency department of a hospital or with respect to emergency services in a freestanding emergency department.  In this case, the plan or the health insurance issuer must cover emergency services and cannot require prior authorization for emergency services including out-of-network services, and without regard to whether or not the provider is a participating provider. Emergency services must be provided without regard to any other term or condition of the plan other than the exclusion or coordination of benefits, an affiliation, or waiting period as permitted under the Code, ERISA, or the Public Health Services Act, or applicable cost-sharing requirements.  The plan cannot impose administrative requirements or limitations on coverage for emergency services received from non-participating providers or facilities that are more restrictive than those applied to participating providers and facilities. And it must comply with the Act's requirements for cost-sharing, payment amounts, and processes for resolving billing disputes.  We'll talk about those requirements in a future episode.  

 The No Surprises Act limits cost-sharing for out-of-network services, including emergency services and air ambulance services, to the in-network levels that a patient would be expected to pay, and that cost sharing is going to count toward the patient's in-network deductibles and out-of-pocket maximum.  The facility or provider is prohibited from balance billing the patient for any out-of-network amounts over and above the patient's in-network cost sharing responsibility.  

 According to the Final Rule, emergency services include an appropriate medical screening exam, including any appropriate ancillary services provided by the facility or provider to evaluate if an emergency condition exists. It also includes medical exam and treatment to stabilize the patient regardless of the department of the hospital where that further medical exam and treatment is furnished. In other words, the Final Rule includes pre-stabilization services provided after the patient is moved out of the ER and admitted to a hospital. 

 The Final Rule is also clear that emergency services provided at an independent freestanding emergency department are also included in patient protections. And the Final Rule categorizes any healthcare facility that is geographically hospital and licensed by the state to provide emergency separate and distinct from a services as an independent freestanding emergency department, even if it isn't licensed specifically as an independent freestanding emergency department. In addition, depending on your state law, if urgent care centers in your state are permitted to provide emergency services, they would also fall under the Rule. If they're not licensed by the state to provide emergency services, then in that case, those urgent care centers would not be included.  So, what is important here is whether or not your state law licenses urgent care centers to provide emergency services. 

 Now, order the Final Rule, post-stabilization services are covered as emergency services unless four requirements are met.  

 The first is that the patient is able to travel using non-medical or non-emergency transportation. The second is that the patient receives notice and is able to consent and the patient must be in a condition to receive notification and provide informed consent in order to be transferred to a participating facility for post-stabilization services.  And, finally, any state law requirements must also be met. 

 So let's talk for a minute about the travel requirement.  In this case, the attending emergency room physician or the treating healthcare provider must determine if the patient is able to travel using non-medical transportation or non-emergency medical transportation to an available participating provider or facility located within a reasonable travel distance.  And, they have to take into consideration the patient's medical condition.  Really, this requirement is intended to address situations where the patient has received emergency services far from a geographic region where any participating providers or facilities are located.  And it would also address situations where a patient in an underserved and geographically isolated community or those with social risk factors related to income and transportation may face additional barriers in obtaining post-stabilization services without some disruption in care.  For example, if a patient is not able to afford a cab to another facility or doesn't own a vehicle or have someone who could transport them to a participating facility.  In other words, the Final Rule is trying to prevent patients in these situations from having unreasonable travel burdens placed upon them to obtain post-stabilization services at a participating facility or from a participating provider.  Now the Final Rule does not define reasonable travel distances, and in fact, has requested comment on what would be a reasonable travel distance and what other factors there might be that could add to an unreasonable travel burden. Now, if the patient does require medical transport to travel, then the surprise billing protections do apply.  

 So, now let's turn to the second requirement for post-stabilization services, and that is notice and consent. In order for the patient to be transferred to a participating facility or provider for post-stabilization services, notice and consent has to be provided.  And in this case, the emergency room physician or treating healthcare professional must take into consideration the state of mind state of the patient, as well as the effect of any alcohol and the emotional or drug use, including medication that may have been administered while the patient was in the emergency department.  The treating provider or physician must also consider pain as a factor, and whether or not the patient is in the emergency department for a mental or behavioral health episode.  He must also take into consideration any substance abuse impairment, or impairment due to the patient's condition, the reason why the patient presented to the emergency department or any conditions that may have arisen while the patient was there.  But in addition to these factors, the physician must also consider cultural and contextual factors, and those could include a lack of trust due to historical inequities or misinformation regarding consent process or barriers to comprehension of the information in the notice and consent such as accessibility, language or literacy. In addition, the emergency room physician or healthcare provider must make sure that the patient’s civil rights are protected.  The consent cannot be obtained if the patient is subject to undue influence, fraud, or duress, for example, being threatened with restraint.  There must be a reasonable option for post stabilization services, transport, and service provider or facility.  

 And finally, any state requirements must be met.  Some state requirements may be more restrictive than the No Surprises Act requirements and so, if that is the case, those requirements have to be met in order to meet the standard. In other words, the Final Rule anticipates that post-stabilization notification and consent procedures should generally only be applied in limited circumstances, for example, where an individual knowingly and purposefully seeks care from a nonparticipating provider or facility because they prefer that provider or that facility even though it is nonparticipating with their network. 

 Now, the Final rule uses the standard of a prudent layperson when deciding if the patient has an emergency medical condition.  Essentially if the patient has acute symptoms of sufficient severity including severe pain that a prudent layperson with average knowledge of health and average knowledge of medicine could reasonably expect that a lack of medical attention could result in putting their health in serious jeopardy or serious impairment of dysfunction, and this does include mental health conditions and substance abuse disorders.  

 The Final Rule discusses that some plans and health insurance issuers have made a practice of denying claims for emergency services based on the final diagnosis codes.  And some plans and issuers actually auto-deny all claims for emergency services and then the provider or the facility has to appeal and after the appeal is received, then the plan will apply the prudent layperson standard upon reviewing documentation as part of a complete consideration of the claim.  Instead, a denial in whole or in part must be based on a determination that the prudent layperson standard has been met based on all pertinent documentation and it must be focused on presenting symptoms, not solely on the final diagnosis. 

 In addition, the plan cannot impose a time limit between the onset of symptoms and presentation at the emergency room or restrict coverage because the patient did not experience a sudden onset of symptoms.  And if the plan or issuer provides coverage for any emergency services at all, it cannot deny coverage based on a general plan exclusion that would apply to items or services other than emergency room services, for example, dependent maternity care.

 If this episode has been helpful to you, please like and subscribe.  Our next episode will continue our discussion of the No Surprises Act Interim Final Rule Part One, specifically non-emergency services by non-participating providers at participating healthcare facilities. In the meantime, please visit us at Revenue Cycle Decoded dot com where we are cracking the code on revenue cycle topics for medical practice managers.  Also see the links below in our description to join us on Facebook, LinkedIn, or follow us on Twitter.  Thank you for watching.  We'll see you next time.