Surprise Medical Billing Disclosure to Participants
(Group Health Plan)

Summary

This template sets forth a notice that group health plans can and must provide to plan participants about the plan's surprise billing protections, consistent with federal requirements following enactment of the No Surprises Act. This template includes practical guidance, drafting notes, and an optional clause. This template sets forth a prescribed participant notice under the No Surprises Act, enacted as Title I of Division BB of the Consolidated Appropriations Act, 2021 (CAA) (Pub. L. No. 116-260), which included balance billing and reimbursement rate rules for group health plans and health insurance issuers in the context of certain healthcare services performed by nonnetwork providers. Among other things, for certain services, the No Surprises Act prohibited surprise billing of participants. It also constrained participant cost-sharing obligations and established a mandatory negotiation and arbitration process to resolve reimbursement rate disputes between the plan or issuer and the service provider. The No Surprises Act requires health care providers, facilities, health plans, health insurance issuers and Federal Employees Health Benefits (FEHB) Program carriers to notify consumers (and group health plan participants) about their surprise billing protections. In general, providers and facilities that furnish items or services at a health care facility (such as hospitals and ambulatory surgical centers), or in connection with visits at health care facilities, must give this notice to individuals who have health plans or coverage subject to the No Surprises Act. Providers and facilities shouldn't give these notices to an individual whose only coverage is Medicare, Medicaid, or any other form of coverage not subject to the No Surprises Act, or to an individual who is uninsured. The notices must: y Explain federal surprise billing restrictions; y Identify and explain any applicable state law protections against surprise billing; and y Identify how to contact the appropriate state and federal agencies in cases where protections may have been violated. Where Disclosure Should Appear? Federal law requires group health plans and health insurance issuers offering group or individual health insurance coverage to make publicly available, post on a public website of the plan or issuer, and include on each explanation of benefits for an item or service with respect to which the requirements under (ERISA § 716 (29 U.S.C. § 1185e); I.R.C. § 9816; and section 2799A-1 of the Public Health Service Act (PHS Act)) apply, information in plain language on: (1) The restrictions on balance billing in certain circumstances (2) Any applicable state law protections against balance billing (3) The requirements under Code section 9816, ERISA section 716, and PHS Act section 2799A-1 —and— (4) Information on contacting appropriate state and federal agencies in the case that an individual believes that a provider or facility has violated the restrictions against balance billing. ERISA § 720(c) (29 U.S.C. § 1185i); I.R.C. § 9820(c); PHS Act § 2799A-5(c). Model Language HHS created model standard notice and consent documents (Standard Notice and Consent Documents Under the No Surprises Act) and issued a brief FAQ addressing certain related issues: CMS, FAQs about Consolidated Appropriations Act, 2021 Implementation- Federal Independent Dispute Resolution System, Notice and Consent, Applicability. These forms were revised (both versions found at link above) based on public comments. Either version may be used for services furnished during calendar year 2022, but only the revised version is permissible for later services. FAQs Part 55, Q&A-13. The form and content requirements for the waivers to the balance billing patient protections are as follows. These apply for both eligible post-stabilization emergency services and eligible out-of-network provider services for in-network facility visits: • Delivery of notice and consent documents. The provider (or a participating facility acting on its behalf) provides to the individual written notice in paper or (if practicable) electronic form, as selected by the individual. The notice must be accompanied by a consent document, which together are provided separately from other care-related documents. • Notice requirements. The notice contains the following information (and satisfies other requirements issued by HHS): ○ Statement that the contemplated provider is a nonparticipating provider under the plan or coverage ○ A good faith estimated amount that the provider may charge to the individual (including amounts for any item or service reasonably expected to be furnished in conjunction with the primary service) ○ Notification that neither the provision of the estimate nor the individual's consent constitutes a contract as to the charges estimated or that binds the individual to be treated by that provider ○ Statement that prior authorization or other care management limitations may be required in advance of receiving the services –and– ○ Clear statement that consent to receive the services from the contemplated nonparticipating provider is optional and that the individual may instead seek care from an available participating provider, in which case the cost-sharing responsibility of the individual would not exceed that which would apply if the service were furnished by a participating provider • Timing. The notice and consent are provided (1) not later than 72 hours prior to the date the services are furnished if the appointment is scheduled at least 72 hours in advance or (2) on the date the appointment is scheduled if later (provided that for same-day notification, the notice must be provided no later than 3 hours prior to the time services are furnished). • Consent requirements. The provider or facility must obtain consent from the patient (or an authorized representative) that (1) is voluntarily rendered by the individual, who is able to freely consent, without undue influence, fraud, or duress; (2) in writing; (3) not revoked prior to the furnishing of the services; and (4) meets any other requirements imposed by HHS. The consent must: ○ Be documented on a form specified by HHS ○ Be signed by the individual prior to receiving the services ○ Acknowledge in clear and understandable language that the individual received the notice in the format selected and that the individual was informed that the nonparticipating provider charges for the service might not accrue toward meeting any cost-sharing limitation under the plan or coverage, including an explanation that such payment might not apply to an in-network deductible or out-of-pocket maximum ○ State that by signing the consent, the individual agrees to be treated by the nonparticipating provider and understands the individual may be balance billed and subject to cost-sharing requirements that apply to services furnished by the nonparticipating provider –and– ○ Document the time and date on which the individual received the notice and the time and date on which the individual signed the consent See Balance Billing and Other No Surprises Act Rules for a further discussion on the notice requirement. See CMS, Sample Notice of Surprise Billing Protections. Per CMS "Instructions for Group Health Plans and Health Insurance Issuers" plans and issuers may, but aren't required to, use the model notice provided by CMS to meet these disclosure requirements. The plan or issuer should review and complete the notice, customizing where needed, in a manner consistent with applicable state and federal law. The Departments of Health and Human Services, Labor, and the Treasury (the Departments) will consider use of the model notice in accordance with its instructions to be good faith compliance with the disclosure requirements of I.R.C. § 9820(c), ERISA § 720(c) (29 U.S.C. § 1185i), and PHS Act § 2799A-5(c), if all other applicable requirements are met. If a state develops model language issued by the Centers for Medicare and Medicaid Services (CMS), see website. The disclosure notice that is consistent with I.R.C § 9820(c), ERISA § 720(c) (29 U.S.C. § 1185i), and PHS Act § 2799A-5(c). CMS, as well as the Department of Labor, Treasury, IRS, and EBSA, consider a plan or issuer that makes good faith use of the state-developed model language to be compliant with the federal requirement to include information about state law protections. For a listing of key content about group health plan compliance with ERISA and the Internal Revenue Code, see ACA and Group Health Plan Resource Kit. For a discussion about the No Surprises Act, see Balance Billing and Other No Surprises Act Rules. See CMS, Sample Notice of Surprise Billing Protections.