Five Takeaways: Requirements Under the No Surprises Act

January 21, 2022


The No Surprises Act was enacted as part of the Consolidated Appropriations Act, 2021, on December 27, 2020 to expand patient protections from surprise bills and excessive patient cost-sharing related to care delivered by providers or facilities that are “out-of-network.” Federal agencies have issued several regulations to implement the provisions of the No Surprises Act, with most provisions taking effect beginning January 1, 2022. While the regulations contain numerous requirements and specific details on how the requirements will apply, these five key takeaways should be of interest to any practice, regardless of where practitioners typically provide services. This document also provides links to helpful resources regarding NSA regulations and requirements.

1: Patient Protections Apply to More than Just Emergency Services

The No Surprises Act offers patients protections against balance billing and excessive cost-sharing above in-network cost-sharing requirements in certain scenarios, including emergency services. However, these protections extend beyond those services that are typically considered emergency services to include certain post-stabilization services. Further, the balance billing and cost-sharing protections also apply to non-emergency care furnished by out-of-network providers furnishing services at in-network facilities.

The NSA rules apply to services performed at an in-network hospital or ASC. A provider is not permitted to obtain the patient’s consent for the following services. If an out-of-network provider performs these services at an in-network hospital or ASC, the provider will always be limited to collecting the in-network cost-sharing and may not balance bill:
• Items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether provided by a physician or non-physician
• Items and services provided by assistant surgeons, hospitalists and intensivists.
• The health plan must reimburse the clinician directly, (e.g., mandatory assignment of benefits).
• Any patient cost sharing must count toward the patient’s deductible and/or out of network cost sharing maximum as though the services were provided in network.

The No Surprises Act regulations set certain additional requirements that physicians should be aware of:

Provider and facility disclosure requirements — Each provider, hospital and ASC is required to make publicly available, including on its website and to each patient who is enrolled in commercial health coverage, a disclosure regarding the patient protections against balance billing. HHS has created a model notice that providers and facilities should use, but it should be reviewed by counsel and must include relevant state law information if applicable. The notice must be provided individually to commercially insured patients, including those in the Federal Employees Health Benefits Program (FEHBP), no later than the time a bill is sent to the patient or a claim for payment is submitted to a health plan. Model notice and instructions are available here:
• Providers only need to give notice if they provide care in a hospital, an ASC, or in connection with a visit to a hospital or an ASC. Providers do not need to post the notice at their location or furnish it to patients if the hospital or ASC does so. Providers should enter written agreements for the facilities to provide these notices.
• Providers still need to post the notice on their website if they have one.

Notice and Consent to Balance Bill

For applicable post stabilization services as well as services furnished by out-of-network providers at in-network facilities , the balance billing protections can be waived if:
• The provider adheres to specified notice protocols; and
• The patient consents to receive the services despite being out of network.

Requirements for these notice and consent protocols include, but are not limited to:
• The use of standard notice and consent documents;
• The delivery of the documents within specified timeframes ahead of the service (at least 72 hours in advance, or if scheduled within 72 hours, no later than 3 hours before the service is furnished); and
• The provision of a good faith estimate (GFE) for the items and services involved. For a non- participating provider, the GFE need only address the charges to be
submitted by that provider. Please note, restrictions apply regarding when balance billing protections can be waived. For example, they cannot be waived for emergency, unforeseen, urgent services, or for “ancillary services” such as radiology, anesthesiology, pathology, or assistants-at-surgery among others.

2: Billing and Cost-Sharing Protections are Largely Tied to a Qualifying Payment Amount (QPA)

The No Surprises Act created the concept of a QPA. The QPA is an amount that, based on interim final rulemaking, generally is intended to represent the median of the contracted rates of the plan or issuer for the item or service in the geographic region. It is established by a plan or issuer based on rates in effect on January 31, 2019, and it is increased by inflation for each year thereafter.

Except in certain cases, the amount of the patient’s allowed cost-sharing, in the protected scenarios discussed above, will be based on the QPA. For instance, if a patient’s in-network co-insurance was 20% of the allowed amount when provided in network, for an out-ofnetwork item or service covered by these provisions, the patient’s cost-sharing limit would be 20% of the QPA.

The second way the QPA becomes relevant is for payment disputes that are eligible for the federal independent dispute resolution (IDR) process. More details regarding the Federal IDR process are discussed in the next section. (As noted below, however, the Federal IDR process will not always apply.) The QPA plays a role in Federal IDR in that the arbiter must consider the QPA as part of the deliberation in making a final payment determination. Under interim final rulemaking, IDR entities, “…must presume that the QPA is an appropriate payment amount.” However, this requirement for the federal IDR process is opposed by stakeholders and has been challenged in legal proceedings.

3: An IDR Process May Be Available to Address Disputed Payment Amounts Between Non-Contracted Providers and Payers

The No Surprises Act generally defers to state law and regulations on balance billing and out-of-network payments from plans to providers. To the extent that there is an applicable state law that applies to item or service involved in a potential dispute (including with respect to the insurance coverage and the non-participating provider), then the dispute must be addressed in accordance with the state law. This may, or may not, involve a state-based IDR process.

However, if no state law applies, then the Federal Government has established a Federal IDR process. The Centers for Medicare and Medicaid Services (CMS) has created a “Federal IDR Portal” to facilitate the IDR process and submission of information. A number of rules apply regarding steps that must be taken before an IDR request is initiated, to advance the IDR process (including the submission by each party to the dispute of an offer), to receive a payment determination, and to reconcile payment discrepancies in accordance with the payment determination. While very little detail is known at this time in mid-January 2022, the IDR portal is expected to be functioning by the March 2022; recall that the health plans have 30-days to pay or deny the claim and then there is a mandatory 30-day “negotiation period” before the IDR can begin in earnest.

A list of approved Federal IDR entities is available here. Notably, nothing regarding the IDR process affects the patient’s cost-sharing liability.

4: Any Provider Potentially Furnishing Care to an Uninsured or Self-Pay Patient May Be Required to Furnish a Good Faith Estimate of Expected Costs

In addition to the patient protections that apply to emergency services and specified out-of network services discussed under Takeaway 1, all providers have obligations under the No Surprises Act and its implementing regulations to provide a Good Faith Estimate (GFE) to patients who are either uninsured or who may not seek to submit a claim to their health insurance issuers for an item or service (i.e., a “self-pay” individual). Under federal regulations, a GFE is a “…notification of expected charges for a scheduled or requested item or service, including items or services that are reasonably expected to be provided in conjunction with such scheduled or requested item or service,” by applicable providers.

The obligation to provide the GFE is NOT limited to “facilities” as defined in the regulations that govern the applicability of the out of network and balance billing restrictions, (e.g., hospitals, hospital outpatient depts. and ASCs), so potentially any place of service (POS) including physician clinics and officers are within the regulation requiring the GFE for uninsured and self-pay patients.

The provision of the GFE places significant requirements on a primary – or “convening” – provider (who receives the initial request for the GFE, and who is or would be, under a request, responsible for scheduling the primary item or service) to coordinate collection of expected charge information from other providers (”co- providers”) who would customarily provide services in conjunction with the primary item or service. If an otherwise classified “co-provider” receives a request from a patient for the GFE, that essentially converts that provider to a “convening provider” under the rule in terms of primary obligation for the GRE and a 1/1/22 enforcement timeline by federal authorities.

Strict timelines apply for the provision of the GFE (no later than 3 business days after scheduling, and in some cases, as soon as 1 business day after scheduling if a service is scheduled within 3-days of furnishing the item or service).

The GFE must be provided in a way that is accessible to the patient, and record retention requirements also apply.

HHS Provides Model Language – “Right to Receive a Good Faith Estimate”:

If the total of the billed charge is more than $400 higher than the GFE, the patient may initiate a patient-provider dispute resolution (PPDR) process, which then triggers additional action by the provider. However, these provisions also are designed to defer to state laws that govern billing disputes between uninsured or self-pay individuals and providers. HHS intends to issue additional clarification on which states would preempt these federal provisions for uninsured or self-pay patient payment disputes. CMS has prepared Frequently Asked Questions to address the GFE requirements for uninsured and self-pay patients.

5: Rulemaking Continues

Federal agencies finalized many of their requirements for the No Surprises Act through interim final rulemaking, so while many provisions take effect January 1, 2022, there is the potential for policies to change as they are finalized. However, the timeline for final policies to be issued is unclear, and policies may remain in place for some time.

Many additional provisions required by the No Surprises Act have not yet been addressed through rulemaking, so additional requirements are expected to be published in the future.

Finally, CMS has yet to address a number of key implementation and operational questions raised by stakeholders: for example, whether on-and off-campus provider-based departments are considered a “facility,” presumably as a “hospital outpatient department,” and therefore required to meet the provider obligations established under the rules that seek to protect patients from surprise bills for non-emergency services furnished by nonparticipating providers at participating healthcare facilities (per Takeaway 1).

CMS Resources:

Additional Resources:

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