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No Surprises Act – Post Stabilization Services and the Notice/Consent Form

 

October 22, 2021

Nashville, TN – This is the second article in a series of articles to familiarize members with the No Surprises Act (NSA) passed by the U.S. Congress in 2020 and effective Jan. 1, 2022. The previous article was a quick introduction to the act and the rules promulgated at that time by federal agencies.

The NSA prohibits balance billing for the following:

Emergency Services at an Out-Of-Network Facility; 

Non-Emergency Services from a Non-Participating Provider at a Participating Facility; and

Air Ambulance Services.

A health care provider is defined in the rule as a physician or other health care provider who is acting within the scope of practice of that provider’s license or certification under applicable state law. The definition specifically excludes providers of air ambulance services.

Surprise billing protections apply if the health plan covers services provided at an emergency department and the patient goes to an out-of-network (OON) emergency room. Additionally, a plan may not require a provider to obtain a prior authorization for covered emergency services. The cost-sharing for a patient must not be greater than if the service was provided by a participating (PAR) provider or facility. Any cost-sharing payment by the patient must be counted toward any in-network deductible or out-of-pocket maximums.

Post-stabilization services are considered emergency services and subject to the protections of the NSA unless all of the following conditions are met:

  1. The emergency or treating provider determines that the patient may travel via nonmedical or nonemergency medical means to an available participating provider/facility.
    1. The provider/facility must be within a reasonable distance, considering the patient’s medical condition.
    2. The treating provider provider is a physician or health care provider who has evaluated the patient.
    3. The provider's decision on travel is binding on the facility.
    4. The provider should consider patient’s transportation options when making the decision.
      1. Can patient pay for a taxi?
      2. Does patient have a car or someone to drive him/her?
      3. If public transit is available, does the patient's medical condition make the travel type acceptable?
  2. The provider/facility furnishing post-stabilization services must satisfy the notice and consent requirements.
  3. Patient or his/her representative must be in a condition to receive the notice and provide informed consent.
  4. Conditions/requirements of state law must be met. Tennessee does have laws and regulations regarding the transfer of hospital inpatients. Consult with the hospital where the patient is located regarding any transfer requirements that must be met to comply with Tennessee law and rules.

A federal rule details the information that must be included in the notice and consent and a standard notice and consent document has been developed. Click here to access the form on CMS’ website and in the "Downloads" section click on CMS-10780. This downloads a zip file of pdfs and the consent form is titled, CMS-10780 – Standard Notice and Consent.pdf.

If you have any questions, contact legal@tnmed.org or 615-460-1645.