No Surprises Act Rules: Updates and Future Considerations

Last month, we discussed the Hospital Price Transparency rule, which requires hospitals to publish their standard charges for certain items and services in accordance with the guidelines published by the U.S. Department of Health and Human Services (HHS). This month, we’ll look at the No Surprises Act, which stipulates that healthcare insurers may not surprise patients with out-of-network care bills, instead requiring healthcare providers and insurers to broker a price compromise between themselves.

The No Surprises Act, enacted on a bipartisan basis in December 2020, protects patients from surprise billing from out-of-network providers for nonemergency services, out-of-network ambulance services, and certain emergency services. According to the United States Secretary of Labor, the purpose of the No Surprises Act and Parts I and II of the act’s interim final rules is to ensure that surprise billing isn’t a barrier to receiving medical care.  In addition, the No Surprises Act and its interim final rules provide a dispute resolution framework for providers to resolve disputes regarding out-of-network rates.

No Surprises Act Overview

Part I of the interim final rules, released in July 2021, requires in-network pricing coverage for emergency and post-stabilization services rendered by out-of-network providers at participating healthcare facilities. Further, the rules obligate providers to give notice and receive patient consent prior to participating in balance billing and cost-sharing practices that exceed in-network cost-sharing amounts. The rules also establish disclosure requirements for providers related to the cost of services, procedures related to obtaining patient consent for certain billing practices, and a means by which patients can submit complaints for violations of the act.

Part II of the interim final rules, released in September 2021, furthers the goals of Part I by specifying the independent dispute resolution framework, establishing good faith cost estimate requirements in connection with self-pay patients, and forms an external review provision for the No Surprises Act.

Together, these rules seek to establish a framework that a Centers for Medicare and Medicaid (CMS) memo released in September 2021 states will equate to “new protections from surprise billing and excessive cost-sharing for consumers receiving healthcare items/services.”

In addition to Parts I and II of the interim final rules, a notice of proposed rulemaking was released in September 2021 that proposes the following:

• New reporting requirements regarding air ambulance services.
• New disclosures and reporting requirements regarding agent and broker compensation.
• New procedures for enforcement of Public Health Service Act (PHS Act) provisions against providers, healthcare facilities, and providers of air ambulance services.
• New disclosure and reporting requirements applicable to issuers of individual health insurance coverage and short-term, limited-duration insurance regarding agent and broker compensation.
• Revisions to existing PHS Act enforcement procedures for plans and issuers.

Independent Dispute Resolution

As highlighted in the CMS memo, one of the key aspects of the interim final rules is the strengthening of independent dispute resolution (IDR) procedures and timeframes. The memo states that “The Sept. 30, 2021, rule establishes the federal independent dispute resolution process that out-of-network providers, facilities, providers of air ambulance services, plans, and issuers in the group and individual markets may use to determine the out-of-network rate for applicable items or services after an unsuccessful open negotiation. Not all items and services are eligible for the federal independent dispute resolution process.”

The framework establishes the procedures and timeframes for providers and insurers to settle negotiations regarding out-of-network rates when state law doesn’t exist to govern dispute resolution procedures.