The No Surprises Act

Overview

Providers cannot balance bill patients for out-of-network rates in emergency and some non-emergency settings:

• Emergency care: No balance billing for nearly all ER services, including air ambulance services.
  • Ground ambulance services were excluded due to complexity, and the NSA required HHS to create an advisory group studying the matter.
• Non-emergency care: Bans out-of-network (OON) charges for ancillary care (e.g., an anesthesiologist or assistant surgeon) at an in-network facility for non-emergency care.
• Providers and plans must notify patients about their right to be held harmless from surprise balance bills.

What is balance billing?

Surprise billing occurs when a patient unknowingly receives care from a provider who is out of network. This results in a practice known as “balance billing,” where the healthcare provider or facility charges the patient the remainder of what their health plan does not pay.

Effective date

January 1, 2022

Who does this apply to?

The ban applies to all providers at applicable facilities: hospitals, hospital outpatient departments, critical access hospitals, ambulatory surgical centers, and “air ambulance services furnished by nonparticipating providers of air ambulance services.”

How are bills determined?

For surprise bills, the payment rate is determined by providers and payers, however the patient will not pay more than the in-network rate for that given service. If payers and providers cannot agree on a privately negotiated rate, bills are determined by the independent dispute resolution (IDR) process conducted by a certified entity.

Enforcement

States have the primary enforcement role (likely through state Attorneys General, Departments of Health, hospital commissions, or medical licensing boards), but the federal government can enforce the NSA either in coordination with states, or in place of states when they are unable or unwilling to.

Overview

A provider may balance bill if a patient gives prior written consent to waive their rights and be billed more by OON providers.

• Consent MUST be voluntary, but providers may refuse care if consent is denied
• Consent must be given either 72 hours in advance, or, for same-day services, at least 3 hours in advance

If payers and providers cannot agree on a privately negotiated rate, bills are determined by the independent dispute resolution (IDR) process conducted by a certified entity.

• Both parties submit their best offer for the OON claim
• IDR entity evaluates and chooses offer that seems most appropriate; which then becomes OON payment for that bill
• The IDR must consider the plan’s Qualified Payment Amount (QPA) and all other permissible information

Additional details

Patients cannot give consent to waive protections under the following circumstances: Emergency services

• Unforeseen urgent medical needs arising when non-emergent care is furnished
• Ancillary services, including items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology
• Items and services provided by assistant surgeons, hospitalists, and intensivists
• Diagnostic services including radiology and lab services
• Items and services provided by an out-of-network provider if there is not another in-network provider who can provide that service in that facility

Legal disputes have challenged several aspects of the IDR process since the October 2021 interim final rule detailed it.

Providers said that the IDR too heavily considered the QPA calculation—which was largely based off of the median, in-network rate for a certain region, thus unfairly favoring health plans in the negotiation process.

In response, HHS modified the IDR process in its August 2022 final rule, requiring IDR entities to consider all information in the determination of the appropriate OON rate.

As of February 2023, there are several ongoing lawsuits from provider organizations claiming that this process is still unfair.

Overview

Providers must provide an itemized good faith estimate (GFE) of expected charges for scheduled services, including any relevant information from other providers ancillary to the scheduled service.

Plans must provide an advanced explanation of benefits (AEOB) with a provider’s GFE, patient expenses, and applicable medication management techniques.

Who is involved?

Unlike the balance billing protections, the GFE requirements apply to all providers and facilities. For purposes of this requirement, CMS defines two “types” of providers involved in this process:

Convening provider: A convening provider or facility is the patient-facing provider or facility that schedules the service or item.  

Co-provider: A co-provider or co-facility refers to any other provider or facility that furnishes services or items (e.g., laboratories) in conjunction or relation to the convening provider or convening facility’s request.

The AEOB requirement applies to individual and group plans, but not to federal healthcare programs (Medicare, Medicaid, Medicare Advantage, Indian Health Services, VA Health Care, or TRICARE).  

Facilities and providers that provide items or services to individuals covered by group and individual plans, as well as those covered by the Federal Employees Health Benefits Program (FEHBP) must provide GFEs to the health plans providing AEOBs.

Timeline

Convening providers must send a patient a GFE within 1 day of scheduling services, or within 3 days if services are scheduled more than 10 days in advance.
Convening providers must also reach out to get information from co-providers, who must respond within 1 business day of the request.

Health plans must generate and send a patient an AEOB within 1 day of receiving a GFE, or within 3 days if services are scheduled more than 10 days in advance.

GFE Contents

• Name and birth date of patient;
• Description of service;
• Itemized list of expected services;
• Applicable diagnosis codes, service codes, and expected charges for each service listed;
• All provider or facility information (including any co-providers or co-facilities) including name, location, NPI number and tax-ID number;
• List of any services that needs to be separately scheduled;
• Disclaimers stating:
  • A GFE is only an estimate and subject to change
  • There may be additional items or services not included in the GFE
  • A patient has the right to initiate the patient-provider dispute resolution process
  • The GFE is not a contract

An insurance company must provide patients with an estimate that includes:

• A good faith estimate delivered by a provider;
• Information regarding the individual’s cost-sharing, deductibles, and out-of-pocket expenses;
• Any applicable information on medical management techniques, such as prior authorizations

Who receives a GFE?

The convening provider must generate and directly deliver a GFE to uninsured and self-paying patients.

Eventually, providers will be required to generate GFEs for insured patients, but deliver them to patients’ health plans to create the AEOB.

Insured patients will receive an AEOB directly from their health plans.

Effective date

January 1, 2022 for uninsured and self-paying patients*

Statutory deadline: January 1, 2022*

Penalty

If the bill for the scheduled services exceeds $400 from the estimate, an uninsured or self-paying patient* may initiate a Patient-Provider Dispute Resolution (PPDR) process

No penalty yet*

Enforcement

HHS has delayed CMS enforcement of the GFE requirement until future rulemaking. . Enforcement was slated to start on Jan. 1, 2023.

No enforcement yet*

Overview

Plans must report certain information annually to the HHS, DOL, and Department of the Treasury on prescription drug and healthcare spending.

Plans must create an internet-based price comparison tool for enrollees.

Who is involved?

Group and individual plans

Group and individual plans

What is required?

Plans must report on:

• General plan information: Information on enrollment, premiums, and other identifying plan information
• Annual spending: Total annual spending and healthcare spending categories
• Prescription drug pricing: The 50 prescription drugs that are the most frequently dispensed, most costly, and have had the greatest increase in expenditure over the past year
• Rebates and fees: Prescription drug rebates, fees, and remunerations paid by manufacturers to the plan for each therapeutic class, as well as the 25 drugs with the highest amount of rebates

Plans must provide their members with a consumer-facing price comparison tool with cost-sharing estimates across providers for 500 items and services, accessible online, by phone, or paper copy. This requirement is aligned with the Transparency in Coverage Rule as part of CMS’s plan to make pricing information more accessible.

Beginning in 2024, CMS will require price comparison tools to allow individuals to request cost-sharing estimates for specific items and services.

Enforcement

Enforcement for reporting of 2020 and 2021 data began December 27, 2022. Subsequent annual reporting is due by June 1.

Enforcement began January 1, 2023, for the tool that covers 500 items and services. Enforcement for all items and services begins January 1, 2024. However, requirement applicability dates vary based on when the 2023 and 2024 plan or policy years start for each plan or issuer.

Enforcing agencies by plan type

• Self-insured employer group plans: Enforced by Department of Labor and Department of Treasury
• Fully insured group and individual plans: States have primary enforcement authority, but HHS can enforce if states do not
• Self-insured plans sponsored by non-federal public employers: Enforced by HHS
• FEHBP: Enforced by Office of Personnel Management