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April 26, 2023

Promoting Parity in Behavioral Health Treatment

Applying the No Surprises Act to Behavioral Health Services

By Noreen Vergara, Amanda Bogle, Claire Postman and Mark Waterbury

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The omnibus spending bill, known as the Consolidated Appropriations Act, 2021 (CAA), 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), the CAA adds new provisions to the Internal Revenue Code, the Employee Retirement Income Security Act (ERISA), and Title XXVII of the Public Health Service Act (PHS Act). 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

The purpose of the NSA is two-fold: (1) to ensure that consumers who are enrolled in employer group health and welfare benefit plans, group or individual health insurance coverage, or the Federal Employees Health Benefits (FEHB) plans are protected from surprise medical bills and (2) to ensure that self-pay or uninsured consumers understand their potential out-of-pocket costs before receiving healthcare items or services.

The prevalence of balance billing by behavioral health providers, both in emergency and non-emergency situations, has been well-documented 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. This includes a requirement to offer OON coverage for behavioral health treatment when the health plan offers OON coverage for medical or surgical benefits. The NSA builds and expands on unrealized provisions of MHPAEA as well as the Patient Protection and Affordable Care Act (ACA) by providing consumers with comprehensive protections from surprise medical bills and a methodology for calculating and disputing OON cost-sharing obligations. 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. Despite significant compliance requirements, neither the ACA nor MHPAEA addressed the division of costs between the health plan, the provider, and the patient when providing such benefits on an OON basis. The NSA addresses these gaps by establishing requirements for setting member cost-sharing levels, determining factors for pricing OON claims reimbursement, setting pre-requisites for provider balance billing, and resolving payment disputes for OON treatment and services furnished to patients.

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

The Requirements Related to Surprise Billing; Part I (IFR I, or the Balance Billing Rule) were published on July 1, 2021, and require covered health plans to apply in-network patient cost-sharing to: (a) emergency care received from an OON hospital, (b) non-emergency care received from an OON provider and furnished at an in-network facility, and (c) air ambulance services from an OON air ambulance provider. 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.

Services received on an OON basis can occur for many reasons, including a patient’s inability to choose the facility where treatment is received or a patient’s selection of a healthcare facility in which they have no choice as to the specific provider (e.g., on-call physician, hospitalist, etc.) who renders the healthcare items and services. The Departments highlight the lack of provider choice for emergency services as a driver of high-cost OON care. A related reason for high utilization of emergency OON care is the lack of access to in-network specialist providers, including psychiatrists, who help manage chronic conditions on an outpatient and non-emergent basis.

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. In these situations, health plans are required to apply in-network cost sharing to the emergency screening examination and any further examination and treatment as may be required to stabilize the patient, regardless of whether the facility or provider furnishing the emergency services are in-network with the patient’s health plan. These in-network cost-sharing protections apply regardless of the department in which the healthcare items and services are furnished. Examples of behavioral health services that may qualify for NSA cost-sharing protections include crisis intervention services, depression and anxiety screenings, medical clearance, laboratory services, drug screening, and other ancillary services that are typically furnished to patients who require behavioral health treatment on an emergency basis.

The cost-sharing protections of IFR Part I and its related balance billing prohibitions apply not just to the items and services necessary to treat and stabilize the emergency medical condition, but also to any “post-stabilization” services the patient receives while admitted at the facility as a result of the emergency medical condition. 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. Behavioral health conditions make up more than 15% of total emergency department admissions and behavioral health emergency room visits result in inpatient admission at a significantly higher rates than emergency room visits for all other causes.

Requirements Related to Surprise Billing: IFR - Part II

On September 30, 2021, the Departments issued Requirements Related to Surprise Billing; Part II (IFR II, or the Self-Pay Rule), which enables all uninsured and self-pay patients to receive prospective estimates of their potential out-of-pocket costs associated with an item or service. With IFR II, the Departments sought to “provide individuals with more pricing information prior to seeking care, allowing them to shop for the care that is best for them and increase competition in the health care market.” Providers and facilities must affirmatively inquire if an individual is covered under a health plan and if not, or if the individual does not want to use their health plan benefits, provide a written estimate for the item or service before receiving such item or service. This good faith estimate (GFE) helps ensure that patients understand the total expected costs before receiving the services.

The Self-Pay Rule does not exclude any facility or provider 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, “conveying information about the availability of [GFEs] prior to or upon scheduling an item or service aligns with and is most relevant when uninsured (or self-pay) individuals are considering whether to proceed with medical care while interacting with their providers or facilities.” Further, as self-pay patients might not use the exact term “good faith estimate,” the Self-Pay Rule requires providers and facilities to assume that any discussion or inquiry about the cost of treatment or services is a request for a GFE.

In general, providers must supply patients with a GFE at least three business days in advance of a scheduled service or procedure. A provider may use a single GFE to estimate the costs for multiple services over a set time period (e.g., a defined number of therapy or treatment sessions or episode of care) for recurring services or items that span multiple visits (e.g., assistive technology for communication devices) that cannot exceed a 12-month period.

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. The Departments have currently interpreted “substantially in excess” to mean “an amount that is at least $400 more than the total amount of expected charges for the provider or facility listed on the good faith estimate.”

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. These services are provided after the patient is stabilized and as “part of outpatient observation or an inpatient or outpatient stay” that is related to the emergency visit. 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?

Yes, in most cases. A person who meets a state’s statutory criteria for an emergency detention will generally meet the definition of “emergency medical condition” under the NSA. Most states allow for emergency detention if a person is a danger to themselves or others due to mental illness. A minority of states also allow for emergency detention when a person is gravely disabled or unable to meet their own basic needs. However, alignment is not a certainty and both providers and health plans will want to review their state law emergency detention laws and document the specific reasons that a patient’s involuntary detention qualifies as treatment for an emergency medical condition, thus charges for treatment are covered by the NSA.

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 a “clinic, behavioral health entity, community mental health center or clinic, acute treatment unit, institution, or residential child care facility that provides treatment for persons with mental health disorders.” It 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. This may be due to the increased potential that a behavioral health inpatient unit may have network agreements that are separate and distinct from the other hospital units, even when the behavioral health unit is physically part of an in-network hospital. Additionally, the percentage of behavioral health inpatient admissions that begin with the treatment and stabilization of an emergency medical condition is higher than medical or surgical inpatient admissions that begin for the same reason.

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?

Likely no. Under the NSA, the patient’s physician is responsible for determining when a patient can provide informed consent to receiving continued 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.

The first criterion requires the treating physician to decide whether the patient is “able to travel using nonmedical transportation or nonemergency medical transportation to an available participating provider or facility located within a reasonable travel distance.” 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.

Secondly, the patient must be in a condition to receive the information in the notice and provide voluntary consent to treatment. 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 “unable to determine for himself or herself whether examination is necessary” and there is a threat of substantial harm to their well-being if the person does not receive care or treatment.

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. However, if a patient refuses to convert to voluntary status or is otherwise unable to provide informed consent for capacity or other reasons, that patient’s OON inpatient care would remain covered by the protections of the NSA.

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. As an example, if the facility does not have secure transportation capabilities in place to transfer a patient on an involuntary basis, the patient would have no alternative for transfer, rendering their voluntary consent ineffective and immaterial to their OON admission.

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 order for the NSA’s notice-and-consent process to apply, the patient must be “in a condition to receive the information in the notice.” The patient’s physician or treating provider makes this determination using their appropriate medical judgment. If the patient is experiencing a “mental or behavioral health episode or displaying symptoms of a mental or behavioral health disorder, or is impaired by a substance abuse disorder, consideration should also be given as to whether the individual’s condition impairs their ability to receive the information in the notice and provide informed consent.”

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. The NSA defines an authorized representative as “an individual authorized under state law to provide consent on behalf of the participant, beneficiary, or enrollee, provided that the individual is not a provider affiliated with the facility or an employee of the facility, unless such provider or employee is a family member of the participant, beneficiary, or enrollee.”

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. The patient’s health plan will only be able to charge the patient at in-network cost-sharing levels for the psychiatrist’s services and that OON psychiatrist would typically not be permitted to bill the patient for the balance of the services after insurance reimbursement. Furthermore, if the OON psychiatrist furnishes post-stabilization services after the patient’s emergency medical condition has been stabilized, those services will continue to be covered until the patient’s physician determines that the post-stabilization period has ended. The psychiatrist would only be permitted to balance bill the patient for services rendered during the emergency visit if the OON provider followed the notice-and-consent procedures set out in in the NSA.

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)?

Yes. In this situation, the OON provider would be providing non-emergency services at an in-network facility. These services would be scheduled in advance and, unless the OON provider was the only available provider in the geographic region, the patient would have the opportunity to consent to receive the services from the provider on an OON basis. The OON provider would need to provide notice to the patient that services would be provided on an OON basis within the appropriate timeframes allowed by the NSA and obtain the patient’s informed consent to pay OON cost-sharing amounts and to be balance billed for the services. This notice-and-consent exception would not apply in the case of services that are the result of unforeseen, urgent medical needs.

Further, the notice-and-consent exception does not apply to ancillary services, and OON providers are always prohibited from balance billing for such services in situations where the NSA applies. That said, this would not be a common scenario because psychiatry and other behavioral health services are not automatically considered ancillary services. However, psychiatry services may fall within the definition of ancillary services when provided by a nonparticipating provider if there is no participating provider who can furnish that service at the facility.

    Noreen Vergara

    Husch Blackwell, The Link, Kansas City, MO

    Noreen Vergara is a partner on Husch Blackwell’s healthcare regulatory team. She counsels healthcare organizations and benefit plans on the new benefit administration laws of recent years, including the Mental Health Parity and Addiction Equity Act, the No Surprises Act, transparency in coverage and hospital pricing transparency regulations, Medicare Advantage compliance, and

    those governing risk-sharing and health insurance payment arrangements. Please contact her

    at [email protected].

    Mark Waterbury

    Husch Blackwell, Boston, MA

    Mark Waterbury is a senior counsel located in Husch Blackwell’s Boston office. He routinely manages complex commercial contracts to ensure compliance with federal and state regulatory requirements governing state and federal health programs. He also advises on current and proposed federal and state law as they pertain to Medicare, Medicaid, CHIP, and QHP offerors; Stark Law and Anti-Kickback compliance related to provider and clinic billing practices, shareholder, and director investments; and corporate acquisitions. Please reach him at [email protected]

    Amanda Bogle

    Husch Blackwell, The Link, Chicago, IL

    Amanda Bogle is an associate with Husch Blackwell’s healthcare regulatory team. She

    provides counsel on healthcare transactional, regulatory, and operational issues, assisting clients as they navigate an ever-evolving regulatory landscape. Ms. Bogle was named 2023 Illinois Thomason Reuter’s Rising Star. Please contact her at [email protected].

    Claire Postman

    Husch Blackwell, Denver, CO

    Claire Postman is an associate located in Husch Blackwell’s Denver office, where she provides counsel on healthcare regulatory matters. She helps clients understand what complex regulations mean and how they can ensure their organization remains in compliance. Ms. Postman can be reached at [email protected].

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