More than one year after its effective date, the Centers for Medicare and Medicaid Services (“CMS”) has started investigating consumer complaints alleging provider violations of the No Surprises Act.
The No Surprises Act generally: (1) prohibits balance billing for out-of-network emergency services, non-emergency services provided by out-of-network providers at in-network facilities and air ambulance services; and (2) requires providers to issue good faith estimates to uninsured and self-pay patients upon scheduling items/services and upon request. For a more in-depth review of the various requirements under the No Surprises Act, please review our previous articles here.
CMS relies on patient complaints, submitted through the CMS No Surprises Act website, to identify potential provider violations of the No Surprises Act’s prohibition on balance billing. Although patients have been able to submit complaints to CMS for several months, CMS is now actively investigating potential non-compliance as a result of patient complaints. When investigating, CMS will issue a written notice to a provider requesting information related to the alleged violation needed by CMS to assess the validity of each complaint and, if valid, to understand any actions the provider has undertaken to resolve its No Surprises Act violation. The requested information includes the following:
- Provider Name(s), NPI(s), TIN or EIN(s) and Mailing Address.
- The name of the legal entity responsible for billing practices for the provider.
- Points of Contact for Provider Compliance Requirements.
- Documentation that demonstrates the patient responsibility amount, claim adjustment reason codes and remittance advice remark codes from the payer remittance advice transaction for the claims involved.
- Documentation of all bills associated with services provided to the patient in question.
- Documentation of all communications with the patient demonstrating account correction.
The official notice provided by CMS also requires that, if applicable, the provider or facility correct the patient account to reflect no greater than the plan-processed patient responsibility amount and to refund any excess amount collected from the patient in violation of the No Surprises Act.
Practical Takeaways
As a reminder, if CMS finds a provider is in violation of the No Surprises Act, such violation may result in an assessment of both federal Civil Monetary Penalties of up to $10,000 per violation and any applicable state-specific monetary penalties. A few steps that an organization can take to avoid penalties for No Surprises Act non-compliance include the following:
- Develop and implement written policies and procedures related to No Surprises Act Compliance. These policies and procedures should address public postings, patient notifications, good faith estimates, patient balance billing limitations and other requirements under the law.
- Educate responsible personnel on No Surprises Act obligations and internal policies and procedures.
- Assess compliance with the No Surprises Act requirements as part of internal auditing, internal audit, or compliance review practices.
For more information on surprise billing matters, please contact:
- Benjamin Fee at (720) 282-2030 or bfee@hallrender.com;
- Lisa Lucido at (248) 457-7812 or llucido@hallrender.com;
- Angela Smith at (317) 977-1448 or asmith@hallrender.com;
- Matthew Reed at (317) 429-3609 or mreed@hallrender.com; or
- Your primary Hall Render contact.
Special thanks to Liliann Stoll, Law Clerk, for her assistance with the preparation of this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
