The No Surprises Act and

The No Surprises Act and Dental Practice

With the new year came a new set of federal laws aimed at protecting consumers from surprise billing. The No Surprises Act is part of the Consolidated Appropriations Act of 2021, issued by the Department of Health and Human Services, the Office of Personnel Management, and the Departments of Labor and the Treasury. The law went into full effect on January 1, 2022.

The intention of the law is to protect consumers against healthcare providers billing patients the difference between in-network and out-of-network services without the patients being informed upfront about the costs. This can often happen in emergency situations; for instance, when a hospital emergency room is in-network for a patient, but the anesthesiologist attending during emergency surgery is not in-network. It can also apply to any patient receiving non-emergency care from out-ofnetwork providers at in-network facilities without upfront fee disclosures.

In the past, the patient could be billed for the out-of-network fees of the provider (also known as balance billing), which could potentially amount to thousands of dollars. The No Surprises Act stipulates that out-of-network providers in this situation must accept fees equal to the in-network median contract rate or go through an Independent Dispute Resolution (IDR) process using an arbitrator to settle on a reimbursement amount.

So how does this affect dentistry? As the law currently stands, the No Surprises Act applies to healthcare providers and enrollees participating with either group or individual health insurance policies. However, the definition of “health insurance policies” in the underlying law excludes short-term health policies and “excepted benefits,” which include standalone dental or vision plans. This means traditional dental insurances are not subject to the No Surprises Act. In addition, the American Dental Association went so far, in a statement dated December 13, 2021, to stipulate that private dental offices are not subject to the rule.

This does not mean the No Surprises Act can be completely ignored by all dental providers. For example, combined medical and dental coverage plans are becoming more and more common and will be subject to the law. Even so, the law would only apply in situations where treatment is performed in an in-network facility by an out-ofnetwork provider and the patient is not informed ahead of time about the cost of care.

Furthermore, regulations are still being revised and are not expected to be finalized until late 2022. Any additional changes to the law that directly affect dental providers will be the topics of future Insurance Solutions Newsletter articles.

As a precaution, until the rules are set in stone and fully understood, we suggest having the patient sign a detailed treatment estimate, prior to the date of service if possible. If treatment changes during a procedure, such as in the case of a pulp exposure, treatment should be paused long enough to obtain informed consent and financial consent, both signed by the patient. If potential changes are expected as a possibility, it is always best to have consent signed prior to beginning treatment.

Any time the provider is out-of-network, it is advisable to include a statement on the financial consent establishing that the patient was aware of the payer-provider relationship. For example, the form may state, “I understand the provider is outof-network with my insurance and costs associated with treatment may be higher than with an innetwork provider. I understand I will be responsible for the difference, if any, in treatment costs and consent to care.”

Even if the No Surprises Act has little effect on clinical practice, it is always advisable to obtain full consent in writing that the patient is aware of potential costs associated with care prior to starting treatment. Including this step in your standard practice protocols will help avoid issues with upset patients due to financial misunderstandings and potentially protect you in legal disputes over treatment.

Sources:

https://www.ada.org/publications/ada-news/2021/ december/ada-addresses-no-surprises-act-questions https://www.commonwealthfund.org/sites/default/ files/2021-01/Surprise_Billing_Law_Summary_v2_ UPDATED_01-19-2021.pdf https://www.erisaclaimdefense.com/implementingregulations-for-the-no-surprises-act-part-i/