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Surprise Medical Billing Under Federal and Ohio Law

Breanne M. Rubin and Anna L. Schroeder

Man viewing laptop with surprised look on face.   Not long after Eastman & Smith’s article, Surprise Medical Billing by Non-Network Providers in Michigan was released detailing a new Michigan law, both the federal government and State of Ohio finalized similar laws of their own. Application of these laws will begin in January of 2022 in an effort to prevent “surprise billing,” which occurs when a patient receives care from a provider or facility that is not part of their health insurer’s network, often unknowingly, leaving them with large and unexpected medical bills.

Federal No Surprises Act

   The federal No Surprises Act (the Act), passed in December of 2020 as part of the Consolidated Appropriations Act (HR 133), prohibits health care providers from billing patients more than what the provider would be paid for in-network services, even if the provider is out-of-network, in certain scenarios. The Act applies to a broad range of providers including physicians, non-physician practitioners, hospitals, ambulatory surgery centers and air ambulance transports. Key provisions of the Act include the following.

   The Act further prohibits out-of-network providers from:

   Even if the aforementioned notice and consent requirements have been met, however, out-of-network providers may not bill for the difference in nonemergency service rates if the provider is based at the in-network facility and is the only provider available to deliver the services. Furthermore, insured individuals are protected from surprise billing resulting from inaccurate information provided by their health plan, and the Act calls for a dispute resolution process between providers and health plans (or providers and uninsured patients) to address payment disagreements. The Act extends to hospitals, facilities, individual practitioners and air ambulance services. Most provisions of the Act will go into effect on January 1, 2022.

Interim Final Rules - Surprise Billing

  Relatedly, on July 1, 2021, the Department of Health and Human Services, Department of Labor, Department of the Treasury and Office of Personnel Management released an interim final rule with comment period (IFC), entitled “Requirements Related to Surprise Billing; Part I.” This is the first regulation to provide details for implementing the Act. Among its requirements, are the following.

   The IFC was published in the Federal Register on July 13, 2021, to be effective September 13, 2021. Comments to the IFC will be accepted through September 7, 2021.

Ohio House Bill

   At the state level, Ohio House Bill 388 (HB 388) was signed into law on January 7, 2021. HB 388 largely mirrors the No Surprises Act, but two differences should be noted:

   H.B. 388 also establishes the default reimbursement rate as the greatest of the in-network rate, the out-of-network rate or the Medicare rate and sets forth procedures by which payees (i.e., providers, facilities, emergency facilities and ambulances) may seek to negotiate reimbursement in lieu of the default rate. The Ohio Department of Insurance has issued a draft rule implementing these provisions. Comments to this draft were accepted through May 28, 2021, and an updated draft with additional opportunity to comment is expected before HB 388’s effective date of January 12, 2022.

   For questions related to the No Surprises Act or Ohio House Bill 388, please contact one of our health care attorneys.


Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.