Understand the No Surprises Act

The No Surprises Act is a law establishing federal standards to resolve surprise bills for the fully insured individual, small group and large group markets and for self-insured group plans including grandfathered plans for plan and policy years beginning on and after Jan. 1, 2022. The law applies to emergency services at out-of-network hospitals and free-standing emergency facilities, out-of-network providers at in-network facilities, and out-of-network air ambulance carriers.

The No Surprises Act establishes an independent dispute resolution process, also referred to as arbitration, to resolve disputes between out-of-network providers and insurers/health plans and prohibits balance billing by out-of-network providers with certain exceptions. The law does not apply if the member chooses to receive items and services from an out-of-network provider.

The Departments of Health and Human Services, Labor and the Treasury will clarify a number of important provisions of the No Surprises Act through rulemaking.

The No Surprises Act applies to three types of health care providers and facilities:

1. Out-of-network emergency-covered items and services.
2. Covered medical items and services performed by an out-of-network provider at an in-network facility.
3. Out-of-network air ambulance items and services.

Insurers/health plans are prohibited from requiring prior authorization for out-of-network emergency services and may not apply coverage limitations for out-of-network emergency services that are more restrictive than those for in-network services.

Insurers/health plans cannot apply cost sharing for out-of-network covered items and services that is greater than cost-sharing applied to in-network covered items and services (e.g., 10% coinsurance for the same in-network and out-of-network covered items and services). All out-of-network cost-sharing must be counted toward any in-network deductible and cost-sharing limits.

Insurers/health plans have 30 days after they receive a bill to either pay the out-of-network rate directly to the provider or deny the claim. The out-of-network rate is the difference between the member’s cost-sharing amount and the following:

If the insurer/health plan and out-of-network item or service is covered by a state law that establishes the reimbursement rate, that rate will apply.

• If the state does not have an applicable law, either the amount agreed to by the insurers/health plans and provider or the amount set by the independent dispute resolution process.
• If the state has an All-Payer Model Agreement, the reimbursement is set by that agreement.

Yes, in certain cases it may. Out-of-network providers are prohibited from balance billing members for emergency services. Out-of-network providers at in-network facilities are prohibited from balance billing members with certain exceptions.

Out-of-network providers of ancillary services at an in-network facility are prohibited from balance billing members. Ancillary services are defined by the No Surprises Act as those related to emergency medicine, anesthesiology, pathology, radiology, neonatology and laboratory and in situations where an in-network provider is not available at the in-network facility to provide the services.

An out-of-network provider at an in-network facility may balance bill members if they are not providing ancillary services and if they give advance notice to the member that the covered item or service is out-of-network and the estimated cost. The member must acknowledge that they received the notice.

Out-of-network providers at in-network facilities that are providing non-ancillary services must provide advance notice to members that the services are  out-of-network and a good faith estimate of the cost. If the member makes an appointment for the out-of-network services at least 72 hours in advance, the notice must be provided no later than 72 hours before the date of service. If the member schedules the appointment within 72 hours of the date of service, the notice must be provided on the date of service.

The notice may be in writing or electronic at the option of the member. The notice must include the following information:

• That the provider is out-of-network.
• Good faith estimates of the cost for any items and services.
• Consent to obtain out-of-network items and services is voluntary.
• That the member may choose to receive the items or services from an in-network provider.
• If applicable, identify in-network providers at the facility who can provide the items or services.
• Information about whether prior authorization may be required.

The member must sign an acknowledgement that they received the notice and understand that any cost-sharing will apply to the member’s out-of-network deductible and cost-sharing limits and that they will be responsible for any balance bill.

No. The No Surprises Act does not impact claims related to members who choose to use out-of-network providers. Balance billing may continue with those claims.

The law may not pre-empt state surprise billing laws that establish a process for determining out-of-network reimbursement for covered items and services for insurers subject to the state’s law.

The insurer and health plan have certain responsibilities if a member gets out-of-network notice from a provider prior to service, including:

• Include in-network and out-of-network deductibles and the in-network and out-of-network out-of-pocket max on the ID Card.
• Count all cost-share toward plan deductible and out-of-pocket max unless the member agreed to receive out-of-network care.
• Cap member cost-share at the plan’s network cost-share level.
• Provide estimate of cost of care and member cost-share if member chooses to go out-of-network.
• Provide information to members on how to receive the items and services in-network.

The Departments of Health and Human Services, Labor and the Treasury will clarify certain provisions of the No Surprises Act through rulemaking.