includes new requirements for health insurers and health plans to provide healthcare consumers with comprehensive protections from surprise medical bills in certain situations. Codified as the No Surprises Act (NSA), Effective for plan years beginning on January 1, 2022, the NSA combats the practice of patients receiving surprise bills for healthcare services received from an out-of-network (OON) provider in certain circumstances. While the NSA is not intended to apply specifically to mental health and substance use disorder (collectively behavioral health) health plan benefits, behavioral health services, or behavioral health providers, the NSA and its implementing rules do apply to these benefits, services, and providers in the same way they apply to medical/surgical benefits, services, and providers.
This article examines situations where the NSA may impact behavioral health benefits, services, or providers in a significant way, and the potential effects of the NSA on the provision of behavioral health treatment.
Overview of No Surprises Act, Good-Faith Estimate, and Independent Dispute Resolution Processes
and is, in part, due to insured consumers lacking meaningful choice of in-network providers for behavioral health treatments. Until the passage of the Mental Health Parity and Addiction Equity Act (MHPAEA) in 2008, many mental health levels of care were limited to a set number of days per year, and treatment for substance use disorders (SUD) was categorically excluded from health plan benefits. While MHPAEA is not a benefit mandate, it does require health plans to comply with its terms when behavioral health benefits are covered. The ACA defines a set group of benefits that are deemed essential for a compliant group and individual benefit plan to offer, including benefits for emergency care and behavioral health services. MHPAEA guarantees that these behavioral health benefits are offered and administered in a manner that is equal to medical and surgical benefits.
The CAA tasked the Office of Personnel Management (OPM), the Department of the Treasury, the Department of Labor (DOL), and the Department of Health and Human Services (HHS) (collectively, the Departments) with the responsibility of implementing these new consumer protections. The Departments issued the regulations governing the NSA in several interim final rules.
Requirements Related to Surprise Billing: Interim Final Rule - Part I
While the Balance Billing Rule’s protections are in place, patients may not be balance billed for the difference between their health plan’s payment to the provider and that provider’s charges for services received on an OON basis.
The Departments highlight the lack of provider choice for emergency services as a driver of high-cost OON care.
Patients often receive emergency services during an evaluation for inpatient behavioral health treatment or when receiving medical treatment immediately prior to an inpatient admission for behavioral health treatment.These in-network cost-sharing protections apply regardless of the department in which the healthcare items and services are furnished.
By including post-stabilization items and services within the scope of the NSA, its protections can effectively apply through a patient’s related inpatient hospital stay when the patient is admitted through an emergency room or freestanding emergency treatment facility. The inclusion of post-stabilization services within the scope of the Balance Billing Rule is of particular importance to inpatient behavioral health facilities and hospital units, as inpatient admissions frequently occur through emergency room visits.
Requirements Related to Surprise Billing: IFR - Part II
This good faith estimate (GFE) helps ensure that patients understand the total expected costs before receiving the services.
from the responsibility to supply patients with a GFE and requires providers to supply a GFE to patients upon request. As the Departments state in the preamble to the Self-Pay Rule,
While a GFE is not a contract, the Self-Pay Rule establishes a patient-provider dispute resolution process when the total billed charges for the actual healthcare items and services provided are substantially in excess of the amounts contained in the GFE.
While the NSA establishes significant new requirements for all health plans and providers, there are common situations that occur when patients access behavioral health services. The remainder of this article outlines a few scenarios of significant importance to behavioral health providers and health plans.
NSA Scenarios Specific to Behavioral Health
Q: A patient is admitted to a hospital’s behavioral health inpatient unit after receiving emergency room services. The hospital is contracted with the patient’s health plan for medical services but the behavioral health unit is not included within that global network agreement. Instead, the behavioral health unit contracts separately with health plans and is considered OON with the patient’s health plan. Will the patient’s inpatient treatment be covered by the NSA?
Possibly yes. The NSA does not define the post-stabilization period, but rather defines post-stabilization services that are covered by the NSA’s protections.This means that a patient who is admitted to an OON inpatient unit from a hospital’s emergency room could still be protected by the NSA throughout the patient’s inpatient admission.
The inclusion of “post-stabilization services” as a defined category of services effectively changes the point in time when emergency care services convert to non-emergent inpatient care services. Before the passage of the NSA, whether a healthcare item or service was classified as an emergency service or an inpatient service was largely based on the site of service or where the patient was physically located when receiving that healthcare item or service. The post-stabilization provisions of the NSA extend its emergency services protections potentially through a patient’s entire inpatient admission if that patient was admitted subsequent to an emergency medical condition. For OON inpatient behavioral health facilities and providers, the shift from site of service determining payment for emergency treatment versus inpatient treatment to one where treating physicians make such decisions on a case-by-case basis is significant and will have ripple effects that impact how both health plans and providers determine payment rates.
The decision to end the post-stabilization period is vested solely in the treating physician. Their decision determines when the patient’s health plan can charge OON cost sharing as well as when an OON provider is permitted to notify the patient of their OON status and to balance bill for those services. The treating physician must make the “post-stabilization” decision when the patient has stabilized enough to either: (a) provide informed consent to transfer to an in-network hospital, (b) provide informed consent to be balance billed for continued inpatient treatment at the OON hospital, or (c) be discharged. The NSA does not provide guidance on whether the emergency room physician or the patient’s admitting psychiatrist should make this “post-stabilization” decision. As such, it will be important for hospitals and admitting behavioral health inpatient units and facilities to communicate with the hospital emergency room and the treating physician to determine whether an OON patient is still receiving post-stabilization services at the time of admission to the inpatient behavioral health unit. Unless and until the patient’s treating physician decides that the patient has stabilized enough to consent to transfer or continue treatment on an OON basis, the NSA’s protections will continue until discharge.
Q: If a patient’s visit to an emergency room results in the patient being admitted under an emergency detention process, would this qualify as an “emergency medical condition” for purposes of triggering NSA protection?
A minority of states also allow for emergency detention when a person is gravely disabled or unable to meet their own basic needs.
Whether NSA protections apply also depends on whether the state permits a patient to be transported for emergency services when admitted on an involuntary basis under its emergency detention statute. These allowances or prohibitions on patient transfer will impact whether the NSA applies to healthcare items or services received by the patient after admission. Not all states require that a patient subject to an emergency detention receive services at a hospital or independent freestanding emergency department. For example, in Colorado, a person may be transported to a designated facility, which may be a hospital, but which could also be aIt will be important for the patient’s treating physician to document their decision concerning a patient’s ability to transfer to an in-network facility, as the NSA creates an incentive for physicians to make this decision sooner rather than later to avoid the patient receiving significant NSA-protected inpatient care. The likelihood that an OON inpatient admission will be covered by the NSA may be higher for a behavioral health admission rather than a medical or surgical admission.
Q: If a patient is receiving inpatient treatment under the state’s emergency detention statute, can the patient consent to receive post-stabilization inpatient behavioral health treatment on an OON basis?
This notice-and-consent process is only required when the patient’s physician determines that the patient has met certain threshold criteria for informed consent, as discussed below. These threshold criteria will be difficult to meet for patients who are receiving involuntary treatment pursuant to the state’s emergency detention process.
If the patient is detained on an involuntary basis, they are not able to travel using nonmedical transportation and may not be suitable for nonemergency medical transportation.
It is possible, but not always the case, that a patient who is subject to an emergency detention would not be in a condition to listen to and understand the information in the notice. The patient’s physician is asked to make a subjective determination, based on their knowledge of the patient’s health and their interactions with the patient, on whether the patient can understand the network status of the provider and make an informed judgment on what may be in their financial self-interest. State law may provide some guidance as to when a person may consent to receive OON services after receiving inpatient care. For example, the state of Florida has a provision in its emergency detention law that states a person may be involuntarily examined if the patient, due to a substance use disorder or mental illness, is
Notwithstanding the above, a patient who has been admitted under an emergency detention statute may still be capable of providing informed consent. If the person was detained due to a risk of harm to self or others, but is otherwise lucid and involved in their treatment, they may be able to make a decision to transfer to an in-network facility for treatment on a voluntary basis or to convert to voluntary inpatient status and continue to receive treatment at the current facility on an OON basis.
Additionally, when determining whether the patient consents to continued OON care, the treating provider will need to consider whether the patient has reasonable options for continued treatment.
Q: What happens if a patient is not able to provide informed consent to receive emergency care on an OON basis due to their behavioral health condition?
IFR I of the NSA specifically contemplates a situation where a patient may be unable to consent due to a behavioral health condition.
In a situation where a patient cannot “receive the information” in the notice or consent to OON treatment, the NSA provides that notice and consent may be provided to and by the patient’s authorized representative.
Q: If an emergency department physician requests a psychiatric consult from an OON psychiatrist, would that psychiatrist’s services fall within the scope of the NSA?
Yes. In the situation described above, the OON psychiatrist is providing behavioral health emergency services with respect to an emergency medical condition. If the psychiatry consult is requested in order to evaluate the patient for emergency detention (regardless of whether the patient is actually admitted) or to evaluate the patient for a voluntary inpatient admission, then the NSA’s protections would apply.
Q: Do the NSA’s protections apply to an OON behavioral health provider who provides care at an in-network facility (e.g., a psychiatrist who uses an electroconvulsive therapy room at an in-network hospital)?
the patient would have the opportunity to consent to receive the services from the provider on an OON basis.