Federal law: No Surprises Act – Provider Obligations

Dear Colleagues,

In follow up to our December Coding Tip of the Month newsletter guidance regarding the State Surprise Billing Law, we wanted to share the most recent update from the Massachusetts Health and Hospital Association (MHA). At the bottom of this e-mail you will find the entire MHA communication, but we would like to highlight the Massachusetts specific section and individual patient/provider notices attached.

  •  The Massachusetts Department of Public Health (DPH) released this guidance on January 3, 2022, outlining healthcare provider disclosure obligations related to scheduling services or making referrals to other providers.

Thank you,
Alycia Messelaar

Quick Summary

  • On January 1, 2021, Governor Baker signed into law An Act Promoting a Resilient Health Care System that Puts Patients First. The “Patients First” law added significant measures to address surprise billing, requiring healthcare providers to notify patients about network status and costs of care. The provisions became effective January 1, 2022. DPH is delaying imposing penalties until July 1, 2022.
  • The Massachusetts Department of Public Health (DPH) released this guidance on January 3, 2022, outlining healthcare provider disclosure obligations related to scheduling services or making referrals to other providers.
  • The state law is in addition to the Federal No Surprises Act, which also became effective on January 1, 2022. While the two laws have similar provisions aimed at preventing surprise bills, the federal law focuses on preventing surprise bills for patients at in-network facilities who are treated by out-of-network clinicians in both emergency and non-emergency situations, and does not include government payers, such as Medicare and Medicaid. The Massachusetts law puts the onus on all healthcare providers to disclose certain information to patients, regardless of their insurance coverage, in non-emergency situations.
  • This American Hospital Association implementation guide provides the best overall review of the federal No Surprises Act.
  • MHA is continuing to work with DPH to clarify the state Patients First law’s requirements and to understand how the state law interacts with the requirements of the federal law.

Healthcare Provider Disclosure Obligations Under State Patients First Law

The state Patients First law (Chapter 260 of the Acts of 2020) includes new provisions protecting patients from surprise bills through updates to M.G.L. c. 111, section 228. The new language defines healthcare providers as doctors of medicine, osteopathy, and dental science; registered nurses; social workers; doctors of chiropractic; psychologists; interns, residents, fellows, or medical officers licensed per c. 112, s. 9; registered pharmacists; hospitals, clinics, or nursing homes; and public hospitals. It requires the following of providers:

  • Disclose to patients or prospective patients whether they participate in the patient’s health plan at the time an admission, procedure, or service is scheduled;
  • If participating in the patient’s network, inform patient they may request the allowed amount and any facility fees for the service, which must be provided within two days of the request. An estimated maximum amount may be provided if specific treatment is unknown. Additional information about out-of-pocket costs can be provided by the insurance carrier;
  • If provider does not participate in the patient’s insurance network, patient must be informed verbally and in writing. (Time frames vary depending upon when service scheduled.) Patient must also be provided with the charge for the service at the time of scheduling and informed that the service may be available at a lower cost from an in-network provider;
  • Providers who fail to provide notice may not bill the patient beyond applicable co-payments or deductibles that would have applied for in-network services;
  • When referring a patient, providers must disclose if the referred provider is part of the same provider organization, inform the patient that the referred provider may not participate in the patient’s health plan, and provide the patient with sufficient information to obtain additional information from their insurance carrier;
  • When directly scheduling an appointment for a patient, the provider must verify whether the referred provider participates in the patient’s health plan and notify the patient if the referred provider does not participate.

Penalties Within the State Law

The law authorized DPH to impose a penalty of up to $2,500 for each instance of failing to comply with the above requirements. These penalties take effect July 1, 2022. Patients may also submit complaints with the relevant licensing board if a provider fails to comply with the requirements.

We know that you have many questions about this law and how it intersects with the federal law. Please send your specific questions to Karen Granoff at KGranoff@mhalink.org. We will be working to get answers to your questions and to provide you with more information to assist with implementation of both the state and federal laws.

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