How does the Federal No Surprises Act Impact Telemedicine Providers? Part One


In this two-part blog series, we dive into the key points for telemedicine providers in the several hundred pages of the No Surprises Act interim regulations (NSA). The good news for the telemedicine industry is that the majority of the several hundred pages of statutes and regulations are inapplicable to many telehealth providers.

In Part One, we discuss i) the good faith estimate requirements for uninsured and self-pay patients and ii) the prohibition on balance billing for emergency services. Part Two will dive into i) notice and consent requirements for out of network providers providing services at participating health care facilities and ii) disclosure obligations.

The NSA defines a physician or health care provider 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, but does not include a provider of air ambulance services.”

Telemedicine providers within the scope of this definition should confirm their obligations under the NSA.

Please note that the NSA does not apply to individuals insured under Medicare, Medicaid, Tricare or other federal health care programs.

Good Faith Estimate for Uninsured and Self-Pay Patients

All providers subject to the NSA now have a duty to provide a good faith estimate of expected charges (GFE) to any patients who do not have health insurance (uninsured) or who have health insurance but are paying for their health care services out-of-pocket (self-pay). Providers must determine whether the patient is self-pay or uninsured, and, if so, provide them a GFE when scheduling. A provider must also provide a GFE when requested–and any discussion or inquiry regarding the potential costs of items or services must be construed as a request for a GFE.

The provider must provide the GFE following specific timelines:

Note: there is an obligation to provide a follow-up GFE no later than 1 business day before the primary item or service is furnished if: 1) there are any changes to a GFE already provided; or 2) there are any changes to who is providing the services represented in the GFE.

CMS has made available a template GFE that can be utilized; however, the following information is required to be provided in each GFE:

In addition to the GFE itself, written information about the availability of a GFE must be readily available on the provider’s website and in its office, including on-site where scheduling occurs (if applicable).

Prohibition on Balanced Billing for Emergency Services

The first and headlining requirement of the NSA is its balanced billing prohibition for emergency services in certain situations. Specifically, the prohibition applies to nonparticipating providers providing emergency services at an emergency facility, which are generally the following licensed entities where emergency services are provided:

This requirement implicates any telemedicine emergency services provided to an emergency facility. For the purpose of this rule, emergency services are services provided to treat an emergency medical condition and generally include:

For example, if a hospital emergency department has contracted with a telemedicine provider for emergency services or specialist services that are provided in the context of an emergency, that provider cannot balance bill the patient.

This restriction applies if the patient has insurance that covers certain emergency services but is out of network with this particular provider. In this situation, the telemedicine provider would be required to bill the patient’s insurance company directly or through the health care facility (depending on the arrangement between the facility and provider). The patient may only be billed the amounts owed if the provider were in network (e.g., co-pay, deductible, or co-insurance).


© 2024 Foley & Lardner LLP
National Law Review, Volumess XII, Number 66