What a Provider Has to Disclose About Balance Billing

Answer first: the whole regime keys to being a participant, beneficiary or enrollee

Each of these three sections repeats the same phrase when it names who is protected: a participant, beneficiary, or enrollee of a group health plan or group or individual health insurance coverage offered by a health insurance issuer.

That phrase is the boundary of the regime. The prohibitions limit what a nonparticipating provider or facility may bill such a person beyond the cost-sharing requirement determined under the plan. Where there is no plan and no coverage, there is no cost-sharing requirement to measure against, and these particular prohibitions have nothing to operate on.

A person paying cash without coverage is addressed by a different part of the same body of rules — the good faith estimate requirements — which is a separate mechanism with separate contents and a separate dispute process.

This is worth stating at the front because the phrase surprise billing gets applied to any unexpectedly large bill. In this rule it has a specific meaning: being billed by a provider outside the plan's network more than the plan's cost sharing, in defined settings.

The disclosure duties described below therefore have two audiences. One is the person with coverage, who is being told what the prohibitions are. The other is the general public, because part of the disclosure must be posted publicly.

The public posting and the one-page notice

The disclosure section requires each health care provider and health care facility, including a hospital emergency department and an independent freestanding emergency department, to do three things with the same information: make it publicly available, post it on a public website if the provider or facility has one, and provide it to any covered individual to whom it furnishes items or services.

The content must be in clear and understandable language and must include three things. A statement explaining the requirements of and prohibitions applicable to the provider or facility under the two named statutory sections and their implementing regulations. Where applicable, a statement explaining any state law requirements regarding the amounts the provider or facility may charge a covered individual with whom it has no contractual relationship, after receiving payment from the plan and any applicable cost sharing. And a statement providing contact information for the appropriate state and federal agencies that an individual may contact if the individual believes a requirement described in the notice has been violated.

The methods are prescribed. On a website, the information or a link to it must appear on a searchable homepage of the provider's or facility's site; a provider or facility without its own website is not required to make that posting. In public, the information must appear on a sign posted prominently at the location; a provider without a publicly accessible location is not required to post one.

For individuals, the format is specific: a one-page, double-sided notice using print no smaller than twelve-point font, provided in person or through mail or email, as selected by the individual.

The timing is tied to the money. The notice must be provided no later than the date and time on which the provider or facility requests payment from the individual, or, for an individual from whom no payment is requested, no later than the date the provider or facility submits a claim to the plan or issuer.

Exceptions and one anti-duplication rule follow. A provider need not make these disclosures if it does not furnish items or services at a health care facility or in connection with visits at health care facilities. And where a provider furnishes a covered item or service at a facility, it satisfies the sign and one-page notice duties if the facility makes the information available under a written agreement — with the consequence that if the facility then fails to do so, the facility, but not the provider, violates the disclosure requirements.

The consent document, and the seventy-two-hour rule

For non-emergency services furnished by a nonparticipating provider at a participating facility, the prohibition on billing above the plan's cost sharing can be lifted, but only through a notice and consent process the regulation specifies in detail.

The written notice must be provided in paper or, as practicable, electronic form as the individual selects; must be provided with the consent document, physically separate from other documents and not attached to or incorporated into any other document; and must be provided on a timetable. Not later than seventy-two hours before the date the items or services are furnished, where the appointment was scheduled at least seventy-two hours in advance. On the date the appointment is scheduled, where it was scheduled within seventy-two hours. And where the notice is given on the same day the services are furnished, no later than three hours before furnishing them.

The notice's content is enumerated. It must state that the provider is nonparticipating with respect to the plan or coverage. It must include the good faith estimated amount the provider may charge for the items and services involved, including anything reasonably expected to be furnished in conjunction with them, together with notification that providing the estimate or consenting does not constitute a contract with respect to the estimated charges or a contract binding the individual to be treated by that provider or facility.

It must state that prior authorization or other care management limitations may be required in advance. And it must clearly state that consent is optional, that the individual may instead seek care from an available participating provider, and that in that case the individual's cost-sharing responsibility would not exceed what would apply to an item or service furnished by a participating provider.

The consent itself must be on a form specified by the Secretary through guidance, signed before the items and services are furnished, and must acknowledge in clear and understandable language that the individual was provided the written notice in the selected form and was informed that payment of the charge might not accrue toward any plan limitation on cost sharing — including an explanation that the payment might not apply to an in-network deductible or out-of-pocket maximum. It must state that by signing, the individual agrees to be treated by the nonparticipating provider and understands the individual may be balance billed and subject to that provider's cost-sharing requirements. And it must document the time and date the notice was received and the time and date the consent was signed.

Consent must be provided voluntarily, meaning the individual is able to consent freely, without undue influence, fraud or duress, and must not have been revoked in writing before the items and services are received.

Where consent cannot be asked for at all

The notice and consent route is closed for a defined set of services. For non-emergency services at a participating facility, the regulation states that the notice and consent criteria do not apply and the prohibition always governs with respect to ancillary services.

Ancillary services are defined to include items and services related to emergency medicine, anesthesiology, pathology, radiology and neonatology, whether provided by a physician or a non-physician practitioner, and items and services provided by assistant surgeons, hospitalists and intensivists.

The emergency section carries a parallel absolute rule. A nonparticipating provider or facility remains subject to the prohibitions with respect to items or services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished, regardless of whether the notice and consent criteria were satisfied.

In the emergency setting, where the exception can apply at all, it applies only if the attending emergency physician or treating provider determines that the individual is able to travel using nonmedical or nonemergency medical transportation to an available participating provider or facility within a reasonable travel distance, taking the individual's medical condition into account — and that determination is binding on the facility. The individual must also be in a condition to receive the information and to give informed consent, as determined by the attending physician or treating provider using appropriate medical judgment.

Two extra content requirements attach in that setting. At a participating facility with a nonparticipating provider, the written notice must also list any participating providers at the facility able to furnish the items and services, and notify the individual of the option to be referred to one. At a nonparticipating emergency facility, the notice must include the good faith estimated amount the individual may be charged by that facility or by nonparticipating providers with respect to the visit.

Language access, records, and who tells the plan

The regulation requires the notice and consent document to be offered in language the individual can use. The provider, or the participating facility acting for the provider, must give the individual the choice to receive the documents in any of the fifteen most common languages in the state where the facility is located — or, alternatively, in any of the fifteen most common languages in a geographic region that reasonably reflects the region the facility serves.

Where the individual's preferred language is not among those fifteen and the individual cannot understand the language in which the documents are provided, the notice and consent criteria are not met unless the provider or facility has obtained the services of a qualified interpreter to assist the individual with understanding the information in the documents.

Records have a fixed retention period. A nonparticipating emergency facility that obtains a written consent must retain the written notice and consent for at least seven years after the date the item or service is furnished. Where a nonparticipating provider obtains a signed consent, the provider may either coordinate with the facility to retain the documents for seven years, or must retain them itself for seven years.

There is also a duty running to the plan rather than to the patient. Where an individual is stabilized and furnished additional items and services, a nonparticipating provider or emergency facility must notify the plan or issuer when transmitting the bill — either on the bill or in a separate document — as to whether all the conditions for the exception are met for each item and service billed, and where applicable provide a copy of the signed written notice and consent.

One general instruction runs through the whole scheme: the provider or facility must satisfy any additional requirements or prohibitions imposed under state law. The federal rule sets a floor, and state law can add to it.

The applicability dates are stated in the sections themselves. The emergency services provisions apply to emergency services furnished during a plan year, or in the individual market a policy year, beginning on or after the first of January in 2022, and the disclosure requirements are applicable beginning on that same date.