On December 27, 2020, the No Surprises Act was signed into law as part of the Consolidated Appropriations Act, 2021.  In July and October 2021, respectively, the Department of Health and Human Services, the Department of Labor, the Department of the Treasury and the Office of Personnel Management (the Departments) issued two Interim Final Rules implementing core aspects of the No Surprises Act, including (1) prohibiting non-participating providers from balance billing individuals who receive services in participating facilities unless prior notice and consent is provided and obtained (referred to as Part I);[1] and (2) requiring providers and facilities to provide good faith estimates (GFE) to uninsured (or self-pay) individuals of expected charges prior to their scheduled services (referred to as Part II, and together with Part I and the statute, the NSA).[2]

Effective as of January 1, 2022, to the extent that an out-of-network telemedicine provider furnishes services to a patient at an in-network facility, the disclosure notice requirements and balance billing prohibitions under Part I apply. Additionally, to the extent that a telemedicine provider furnishes services to an uninsured (or self-pay) patient, the transparency requirements under Part II, including the requirement to provide a GFE, may apply. Notably, the NSA provides for steep penalties, including imposition of civil monetary penalties of up to $10,000 per violation. Additional information regarding a telemedicine provider’s compliance obligations under the NSA are outlined below.

Disclosure Notice[3]

The NSA requires providers and facilities to make publicly available, post on their website, and give to patients a one-page notice describing balance billing requirements and prohibitions created by NSA (the Disclosure Notice). The Disclosure Notice has three essential elements:

• A statement explaining the provider’s and facility’s obligations under the NSA;

• A statement explaining any state law requirements regarding how much an individual may be charged for receiving services from nonparticipating providers and facilities; and

• Contact information for state and federal agencies that an individual may use if they believe a provider or facility has violated a requirement described in the notice.

The Disclosure Notice must be given to an individual no later than the date and time the provider or facility requests payment from the individual, including requests for copayment made at the time of a visit to the provider or facility, and may be provided either in-person, via mail, or electronically, as selected by the individual. HHS has issued a model Disclosure Notice that providers and facilities may use, which HHS considers an indication of good faith compliance. The model Disclosure Notice may be accessed here.

Providers offering services in connection with a “visit” to a healthcare facility must provide the Disclosure Notice to patients. Telemedicine providers face unique challenges in complying with this requirement. Specifically, a telemedicine provider may not know that it is providing services to a patient related to a facility “visit,” which can extend to certain services rendered before or after the actual stay at the facility, such as post-operative services. Additionally, by definition, telemedicine providers are not physically present on-site to provide notices to patients.

As such, telemedicine providers have two options to comply with the Disclosure Notice requirement:

• HHS allows a facility to provide the Disclosure Notice on behalf of a provider pursuant to a written agreement. In these instances, the Disclosure Notice must include information regarding the balance billing requirements and prohibitions applicable to both the facility and the provider.  HHS has expressly stated that it will permit one disclosure even in situations where the providers and facilities bill separately for items and services. It may be beneficial for a telemedicine provider to enter into a written agreement with all facilities in which it provides services to enable the facilities to provide the Disclosure Notice on its behalf. 

• A telemedicine provider can prepare its own Disclosure Notices tailored to each state in which it provides services to facilities. However, even in this case, telemedicine providers may still need to coordinate with the facilities in which it provides services to assist in providing the Disclosure Notices to its patients on its behalf, or in seeking the patient’s consent to receive the Disclosure Notice from the telemedicine provider electronically.

Notice and Consent[4]

While the NSA prohibits balance billing a patient (i.e., billing the patient for the difference between what his/her insurance will pay to an out-of-network provider and the provider’s charges) in certain instances, NSA provides an exception to balance billing protections for non-emergency services. Specifically, these protections may be waived if the patient is provided with sufficient notice and consents to paying for out-of-network costs (Notice and Consent). If the Notice and Consent are insufficient—or if the patient revokes consent—the protections remain in place and the nonparticipating provider cannot balance bill for those services. Notably, the Notice and Consent exception does not extend to certain ancillary services, as defined in 45 C.F.R. § 149.420(b).

The standard Notice and Consent must be in writing and given physically separate from and not attached or incorporated into any other documents. Additionally, a representative of the provider or facility must be physically present or available by phone to answer any questions and explain the documents and estimates to the individual. The Notice and Consent must state:

• That the provider is an out-of-network for the individual’s health plan or coverage;

• A good faith estimate of the amount that the nonparticipating provider may charge the beneficiary for the items and services involved, including any item or service that is reasonably expected to be furnished by the nonparticipating provider with such items or services;

• That neither the good faith estimate nor the individual’s consent to waive the protections afforded by the NSA constitute a contract;

• That prior authorization or other care management limitations may be required before receiving such items or services at the facility; and

• That consent to receive items and services from a nonparticipating provider is optional and that the beneficiary may instead seek care from an available participating provider.

HHS has issued a standard Notice and Consent, which is available here. As noted above with respect to the model Disclosure Notice, use of the standard Notice and Consent is an indication of good faith compliance.

If an individual schedules an item or service at least 72 hours before the date that the items and services are to be furnished, the Notice and Consent must be provided to the individual at least 72 hours before the scheduled date. If the individual makes an appointment within 72 hours of the date the items and services are to be furnished, the Notice and Consent must be provided to the individual, or the individual’s authorized representative, on the day the appointment is scheduled. If an individual is provided the Notice and Consent on the day the items or services are to be furnished, the documents must be provided no later than three hours prior to furnishing the relevant items or services.

As with the Disclosure Notice, it may be difficult for a telemedicine provider to provide the Notice and Consent to patients without coordinating with the facilities in which the patients receive the services.

Good Faith Estimate Requirements[5]

Finally, the NSA requires the healthcare provider or facility that receives the initial request for a GFE from an uninsured (or self-pay) individual and is responsible for scheduling the primary item or service (called the “convening” provider) to furnish GFEs to uninsured (or self-pay) individuals at their request and at the time of scheduling an item or service. GFEs must be provided to individuals within the timeframes set forth in the regulations based on when the patient encounter is scheduled and/or when the request for the estimate is made. Providers are also required to provide a notice outlining an uninsured (or self-pay) individual’s right to receive a GFE, a model for which is available here. A GFE must contain a number of specific data elements, including but not limited to:

• a description of the primary item or service in clear, understandable language (and if applicable, the date the primary item or service is scheduled);

• an itemized list of items or services reasonably expected to be provided alongside the primary item or service by the convening provider, convening facility, co-providers, or co-facilities; and

• applicable diagnosis codes, expected service codes, and expected charges associated with each listed item or service.

Convening providers or facilities must also contact all “co-providers and co-facilities,” which are other providers or facilities anticipated to provide services to the patient alongside the primary item or service. Convening providers and facilities must request co-providers and co-facilities to submit all information relevant to the GFE no later than 1 business day after an appointment is scheduled or a request is made. However, the general requirement to incorporate information from co-providers and co-facilities is subject to enforcement discretion through December 31, 2022.

Telemedicine providers may be “convening providers” to the extent an uninsured (or self-pay) individual schedules an appointment at least three business days in advance or the patient requests a GFE directly from the telemedicine provider.  In these instances, it may be easier for a telemedicine provider to provide the GFE by email or other electronic means, as the regulations permit a convening provider to electronically transmit the GFE if the patient requests this method of delivery.

Key Takeaways for Telemedicine Providers

Effective January 1, 2022, telemedicine providers may have compliance obligations under the NSA. Specifically, a telemedicine provider may be a non-participating provider furnishing services to a patient located at an in-network facility, in which case the Disclosure Notice and—to the extent the telemedicine provider wants to balance bill—Notice and Consent obligations noted above apply. Additionally, telemedicine providers may likely be required to provide information regarding their charges to the convening provider or facility as part of a GFE, or may be a convening provider themselves to the extent an uninsured (or self-pay) individual schedules an appointment with the telemedicine provider at least three business days in advance.

Because telemedicine providers are not on-site providing services to patients, it will be particularly important to coordinate with the originating site where the patient is located to ensure the telemedicine provider’s NSA obligations are met. One option, as described above, is to contract in advance with all facilities the telemedicine provider typically provides services to assist in fulfilling the telemedicine provider’s obligations, such as providing Disclosure Notices and obtaining a signed Notice and Consent in order to balance bill.

The authors wish to thank McDermott law clerks Monserrat Alvarenga and Kelsey Reinhardt for their contributions to this post.

[1] Requirements Related to Surprise Billing; Part I, 86 Fed. Reg. 36872 (July 13, 2021).

[2] Requirements Related to Surprise Billing; Part II, 86 Fed. Reg. 55980 (Oct. 7, 2021).

[3] 45 C.F.R. 149.430.

[4] 45 CFR 149.420(c)

[5] 45 C.F.R. § 149.610.