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Volume XII, Number 181

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

In this second installment of this blog series on the No Surprises Act interim regulations (NSA) we discuss: i) notice and consent requirements for out of network providers providing services at participating health care facilities; and ii) disclosure obligations. As a reminder, 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.”

Although these requirements are unlikely to apply in the most traditional telemedicine models that are functioning with no connection to a health care facility, we recommend reviewing and confirming based on the operations of your particular company.

For information on i) the good faith estimate requirements for uninsured and self-pay patients and ii) the prohibition on balance billing for emergency services, please see Part One of this series.

Notice & Consent for Nonparticipating Providers

The NSA requires written notice to be provided and consent to be obtained prior to balance billing patients in the case of non-emergency services performed by nonparticipating providers. The requirements only apply if the services are provided at participating (or in network) health care facilities. The definition of health care facility is limited to the following:

  • A hospital (as defined in section 1861(e) of the Social Security Act);

  • A hospital outpatient department;

  • A critical access hospital (as defined in section 1861(mm)(1) of the Social Security Act); and

  • An ambulatory surgical center (ASC) described in section 1833(i) (1) (A) of the Social Security Act.

More often than not, telemedicine providers do not provide services in connection with a health care facility; therefore, they do not need to worry about these intricate notice and consent obligations (though, as discussed in our Part One of this series [LINK], telemedicine providers do need to comply with the good faith estimate requirements). However, sometimes telemedicine is used at a facility for:

  • Secondary consultations; and

  • Specialty services that may be limited in the facility’s geographical region.

In these types of scenarios, the telemedicine provider does need to give this notice and obtain consent for services provided to patients. The requirement to provide notice with a good faith estimate and obtain written consent within the timeframes specified in the NSA may eventually extend to commercial pay patients. However, CMS has deferred this portion of the NSA.

To the extent you are obligated to follow this notice and consent process, we recommend using the template forms for notice and consent prepared by HHS to ensure maximum compliance with these requirements. Note that the forms must be available in the top fifteen languages and if the patient’s language is not one of these fifteen, then the provider must use a qualified interpreter to assist the individual with understanding the information. The forms must be provided together but physically separate from other documents and not attached to or incorporated into any other document

Note that nonparticipating providers can never bill patients for certain non-emergency ancillary services performed at participating health care facilities because they categorically fall outside of this notice and consent process. These ancillary services are:

  • Items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether provided by a physician or non-physician practitioner;

  • Items and services provided by assistant surgeons, hospitalists, and intensivists;

  • Diagnostic services, including radiology and laboratory services; and

  • Items and services provided by a nonparticipating provider if there is no participating provider who can furnish such item or service at such facility.

Disclosure Requirements

The NSA also requires health care facilities and health care providers to:

  • Give all patients (who are not government beneficiaries) a disclosure form (one-page double-sided, using print no smaller than 12-point font) before requesting payment of any kind;

  • Post the disclosure on its website; and

  • Hang the disclosure prominently in public locations at the health care facility (if applicable).

The website disclosure must be posted on a public website or a link to the information must appear on a searchable homepage of the provider’s website. If the provider does not have its own website, then this requirement is not applicable.

To maximize compliance with the NSA requirements, we recommend using the model disclosure form circulated by CMS. However, the disclosure should generally include:

  • A statement explaining the requirements and prohibitions applicable to the health care provider and/or health care facility under the NSA;

  • A statement explaining any state law requirements corollary laws; and

  • Contact information for the appropriate State and Federal agencies that a patient may contact if the he or she believes the provider and/or facility has violated a requirement of the NSA or applicable corollary state law.

This requirement includes a number of exceptions that generally make the health care providers required to provide this disclosure parallel to those subject to the notice and consent requirements above. However, health care providers who furnish items or services in connection with a visit at a participating (or in network) health care facility (as defined above) are subject to the disclosure requirements.

What Is a Visit?

A patients “visit” under the NSA includes more than just the items, services, and care provided at a health care facility. Specifically, a patient’s visit extents to equipment and devices, telemedicine services, imaging services, laboratory services, and preoperative and postoperative services, regardless of whether a practitioner provides the care at a health care facility.

If a telemedicine provider furnishes care in connection with a visit, even if the care is before or after the patient’s time at a health care facility, then the provider is obligated to provide the disclosures required under the NSA.

Other Caveats

There is deferred implementation and forthcoming guidance on additional portions of the NSA (in particular, the notice and consent obligations for commercially insured patients). Further, it is possible that there will be updated guidance on the already effective sections as the government solicited comments on multiple questions.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 68
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About this Author

Alexandra Shalom Health Care Lawyer Foley Lardner
Associate

Alexandra (Allie) Shalom is an associate and health care business lawyer with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group.

Allie's practice focuses on counseling clients in the health care, pharmacy, and medical device industries with respect to a wide range of regulatory and compliance matters. Her experience includes advising clients on Medicare and Medicaid reimbursement; internal investigations; managed care and value based payment arrangements; self-disclosures; federal and state fraud and abuse compliance; and state licensure issues. She also...

617-502-3272
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Partner

Kyle Faget is a Partner and business lawyer with Foley & Lardner LLP. She is a member of the firm’s Government & Public Policy Practice and the Health Care and Life Sciences Industry Teams. Her practice focuses on advising clients on regulatory and compliance matters involving the Food, Drug & Cosmetic Act, the False Claims Act, the Anti-Kickback Statute, the AdvaMed Code, and the PhRMA Code. She also regularly drafts and negotiates agreements required for the development and commercialization of pharmaceutical and medical device products. Prior to joining...

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Kara Schoonover Associate DC Health Care Cannabis
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Kara Schoonover is an associate in the business law department of Foley & Lardner LLP. *Kara is admitted only in Maryland. She is practicing under the supervision of a member of the D.C. Bar.

Previously, Kara served as a summer associate in the firm’s Washington, D.C., office where she worked directly with partners in business, litigation, FDA, government contracting, and health care groups. In this role, she conducted legal research on compliance issues, including accidental and intentional adulteration for food companies, poison packing prevention for drug companies,...

202-295-4123
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