The No Surprises Act generally seeks to preserve state law and regulation in the area of balance billing and out-of-network payments to the extent those state provisions exist and are applicable to a particular claim.  The statute does this by referring to the primary nature of a "Specified State Law," defined as a law that provides for "a method for determining the total amount payable under a group health plan or a plan offered by a health insurance issuer to the extent such State law applies for an item or service furnished by a nonparticipating provider or nonparticipating emergency facility." As a result, the governing regulations will vary from state-to-state, and in those states that have some form of a "Specified State Law," from claim-to-claim.

The Center for Medicare and Medicaid Services (CMS) Center for Consumer Information and Insurance Oversight (CCIIO) issues state-by-state letters with details in three areas related to the applicability and enforcement of the NSA within a state:

• Whether CCIIO has determined that the state has a "Specified State Law"- Note that where there is a Specified State Law, it may only cover some disputes with the NSA provisions covering others. The letters do not provide detailed information on which disputes will fall under state regulation, so additional information will be necessary to triage disputes through different regulatory mechanisms. However, some of the letters make clear that all disputes in certain states will be subject to the federal NSA provisions.
• Whether the state or federal dispute resolution process for uninsured/self-play claims applies.
• Whether the state or the federal Department of Health and Human Services (HHS) will be the overall NSA enforcement entity, or whether there will be a collaborative enforcement agreement between HHS and a state.

CCIIO is posting these letters as they are finalized, and you are encouraged to read your state enforcement letter for insight into how out-of-network encounters with different types of insurance statuses will be reimbursed and evaluated should a dispute arise. Please check back here for more resources detailing state-by-state rules. CCIIO also released a chart for determining the applicability of the Federal IDR process by state.

We also encourage you to consult the map feature created by The Commonwealth Fund to illustrate the state/federal oversight issues.

When individuals do not have an opportunity to select in-network providers, The No Surprises Act (NSA) protects them from large and unexpected surprise bills.

1. For both emergency and non-emergency services, patient cost-sharing (e.g., coinsurance, deductibles) cannot be higher than if such services were provided by an in-network doctor. Any coinsurance or deductible must be based on in-network provider rates.
2. For non-emergency services, physicians must provide patients with a plain-language notice explaining that patient consent is required to receive care on an out-of-network basis before that provider can bill at the higher out-of-network rate. If the provider fails to do this, then cost-sharing cannot be more than in-network rates. CMS has released FAQs that speak to these "notice and consent" provisions.
3. Additionally, the regulations implementing the NSA stipulate that uninsured or self-pay patients are also entitled to receive clear and understandable documentation with a good faith estimate of all reasonably expected costs associated with the care they are considering or are scheduled to receive. Self-pay patients include those patients that otherwise have insurance but choose to not have a claim submitted to their plan or coverage. These provisions also apply to cosmetic procedures.

• Health care facilities and providers must provide a one-page, plain-language explanation of the No Surprises Act and disclose its requirements and prohibitions to both the public and patients with applicable health care plans.
• Require this notification to include information regarding the process through which patients can complain about alleged violations.
• Require the disclosure to be publicly posted, available on a public portion of a provider or facility's website and provided to applicable patients prior to the patient receiving a bill.
  • Model Disclosure Notice Regarding Patient Protections Against Surprise Billing

Providers, facilities and health plans that bill patients in violation of the No Surprises Act are subject to civil monetary penalties of up to $10,000.

• In determining what penalty to impose, CMS may consider a variety of factors, including the degree of culpability, history and frequency of prior violations, the impact on affected individuals, the gravity of the violation and whether any violations have been corrected.
• The penalty will be waived if a provider or facility does not knowingly violate and should not have reasonably known it violated the act, and reimburses any incorrect payments plus interest back to the patient.
• There is also a hardship exemption to the civil monetary penalties.

Within 30 days, a provider or facility may request a hearing regarding the civil monetary penalty with an administrative law judge. They may also appeal the ruling of the administrative law judge to the U.S. Court of Appeals for the circuit in which the provider or facilities provides services or where the violation occurred.

If you believe a health plan is not providing the required information with your initial payment (or notice of denial of payment) or is otherwise not in compliance with health plan obligations, you can submit a complaint by calling (800) 985-3059 or via the complaint portal. NOTE: You are allowed to include multiple complaints against the same health plan as part of a single complaint submission.

In an emergency, an individual usually receives care at the nearest emergency department. Even if they go to an in-network hospital for emergency care, they might get care from an out-of-network or "OON" provider at that facility. For non-emergency care, an individual might choose an in-network facility or an in-network provider, but not know that a provider involved in their care (for example, an anesthesiologist, radiologist or surgeon) is an OON provider. Historically, a person in these circumstances may have received a surprise bill from an OON provider that was higher than the amount they would otherwise pay or had planned for their in-network care.

There is currently no mechanism for a patient to waive No Surprise Act protections for emergency services.

Emergency Care Under the NSA

• Emergency care includes screening and stabilizing treatment sought by patients who believe they are experiencing a medical emergency.
• The No Surprises Act defines emergency services to also include post-stabilization services provided in a hospital following an emergency visit. Post-stabilization care is considered emergency care until a physician determines
  • the patient can travel safely to another in-network facility using non-medical transport,
  • that such a facility is available and will accept the transfer, and
  • that the transfer will not cause the patient other unreasonable burdens.
• Health plans that offer emergency coverage must provide it without regard to whether a facility or the provider is in-network or out-of-network.
• Health plans also cannot deny claims for emergency coverage based on an after-the-fact assessment of the care provided, any purported delay between when symptoms began and when the patient sought care or based on how long the symptoms were present.

Effective January 1, 2022

• Emergency services, regardless of where they are provided, must be treated on an in-network basis without requirements for prior authorization.
• Patient cost-sharing (e.g., copayments, coinsurance or a deductible for emergency services) cannot be higher than if such services were provided by an in-network provider. Any cost-sharing obligation must be based on in-network provider rates.
• Any "balance billing" of costs in excess of the recognized in-network rate and/or cost-sharing is prohibited.

Patient Cost-Sharing and the Qualified Payment Amount (QPA)

For emergency services, patient payments are limited to the patient's cost-sharing and deductible requirements for in-network care. For example, if a patient's health plan has a 20% coinsurance requirement for in-network emergency care, that same 20% requirement applies to out-of-network emergency care.

Patient cost-sharing calculations are applied to the lesser of the facility or provider's billed amount or the Qualified Payment Amount (QPA).

The QPA is the median of the contracted rates recognized by the health plan on January 31, 2019, for the same or similar item or service provided by a similar provider in the same geographic region and indexed for inflation.

Health plans must make payment directly to the facility and provider, indicating the total amount the plan believes it owes within 30 days of receiving a clean claim.

• The plan will provide a notice of the QPA, how it was calculated and a notification of the right to enter into a 30-day negotiation period related to the plan's payment, including contact information for the person at the plan responsible for such negotiations.
• The health care facility or provider will assess whether to accept the plan's payment or negotiate for a higher amount.
• If the health care facility or provider enters into negotiations and cannot reach a resolution within 30 days, the facility or provider has four days to initiate independent dispute resolution (IDR) regarding the payment amount.

Independent Dispute Resolution (IDR)

The Federal Independent Dispute Resolution (IDR) process is the process in which arbitrators decide certain disputes between providers and payors. Many details about the IDR process related to payments for out-of-network services are forthcoming, but CMS has indicated the following:

The Federal IDR process will only be used for disputes for which no state law applies.

IDR Process:

• The party that initiates IDR must do so via an HHS online portal.
• They will select a certified IDR entity and send written notice to the other party.
  • List of IDRs
• The responding party may agree to the IDR entity or object and propose a different entity.
• Both parties must pay the IDR filing fee (between $200 and $500 for 2022) upfront.
• Each party will submit an offer within 10 days after the IDR entity is selected.
• The offer must include a proposed payment amount and information regarding the following factors:
  • The calculated QPA
  • The provider's training and experience
  • The complexity of the procedure or medical decision-making
  • The patient's acuity
  • The market share of the health plan and the provider or facility
  • Whether the care was provided at a teaching facility
  • The scope of services
  • Any demonstration of good faith efforts to agree on a payment amount; and
  • The contracted rates from the prior year
• The arbitrator will then choose one of the two proposals as the amount of the payment.
• Under the current regulations, the arbitrator cannot come up with his or her own payment amount.
• Arbitrators are paid through fees assessed to the entities that use the IDR process.
• Arbitration is imposed on the losing party, with the prevailing party receiving a refund of their filing fees.
• The party that initiates the arbitration process is "locked out" from taking the same party to arbitration for the same item or service for 90 calendar days following a decision. The goal of this provision is to encourage settlement of similar claims. Any claims that occur during the lockout period, however, qualify for arbitration after the period ends.
• Regardless of the outcome of the IDR process and the final payment amount, participant cost-sharing will not be impacted.

Many details regarding how the IDR process will be enacted and enforced are still forthcoming.

Patient Cost-Sharing and the Qualified Payment Amount (QPA)

For emergency services, patient payments are limited to the patient's cost-sharing and deductible requirements for in-network care. For example, if a patient's health plan has a 20% coinsurance requirement for in-network emergency care, that same 20% requirement applies to out-of-network emergency care.

Patient cost-sharing calculations are applied to the lesser of the facility or provider's billed amount or the Qualified Payment Amount (QPA).

The QPA is the median of the contracted rates recognized by the health plan on January 31, 2019, for the same or similar item or service provided by a similar provider in the same geographic region and indexed for inflation.

Health plans must make payment directly to the facility and provider, indicating the total amount the plan believes it owes within 30 days of receiving a clean claim.

• The plan is required to provide a notice of the QPA, how it was calculated and a notification of the right to enter into a 30-day negotiation period related to the plan's payment, including contact information for the person at the plan responsible for such negotiations.
• These plan obligations have been outlined in a checklist by CMS.
• The health care facility or provider will assess whether to accept the plan's payment or negotiate for a higher amount.
• If you seek to negotiate, you must officially file an "Open Negotiation Initiation" form with the plan.
• If the health care facility or provider enters into negotiations and cannot reach a resolution within 30 days, the facility or provider has four days to initiate independent dispute resolution (IDR) regarding the payment amount.

Independent Dispute Resolution (IDR)

The Federal Independent Dispute Resolution (IDR) process is the process in which arbitrators decide certain disputes between providers and payors. Many details about the IDR process related to payments for out-of-network services are forthcoming, but CMS has indicated the following:

The Federal IDR process will only be used for disputes for which no state law applies.

IDR Process:

• The party that initiates IDR must do so via an HHS online portal.
• They will select a certified IDR entity and send written notice to the other party.
  • List of IDRs
• The responding party may agree to the IDR entity or object and propose a different entity.
• Both parties must pay the IDR filing fee (between $200 and $500 for 2022) upfront.
• Each party will submit an offer within 10 days after the IDR entity is selected.
• The offer must include a proposed payment amount and information regarding the following factors:
  • The calculated QPA
  • The provider's training and experience
  • The complexity of the procedure or medical decision-making
  • The patient's acuity
  • The market share of the health plan and the provider or facility
  • Whether the care was provided at a teaching facility
  • The scope of services
  • Any demonstration of good faith efforts to agree on a payment amount; and
  • The contracted rates from the prior year
• The arbitrator will then choose one of the two proposals as the amount of the payment.
• Under the current regulations, the arbitrator cannot come up with his or her own payment amount.
• Arbitrators are paid through fees assessed to the entities that use the IDR process.
• Arbitration is imposed on the losing party, with the prevailing party receiving a refund of their filing fees.
• The party that initiates the arbitration process is "locked out" from taking the same party to arbitration for the same item or service for 90 calendar days following a decision. The goal of this provision is to encourage settlement of similar claims. Any claims that occur during the lockout period, however, qualify for arbitration after the period ends.
• Regardless of the outcome of the IDR process and the final payment amount, participant cost-sharing will not be impacted.
• If you believe a health plan is not providing the required information with your initial payment (or notice of denial of payment) or is otherwise not in compliance with health plan obligations, you can submit a complaint by calling (800) 985-3059 or via the complaint portal. NOTE: You are allowed to include multiple complaints against the same health plan as part of a single complaint submission.

Many details regarding how the IDR process will be enacted and enforced are still forthcoming.

The No Surprise Act entitles consumers using insurance to receive a good faith estimate of expected charges and an "advanced" EOB from their payer to alert them of out-of-pocket expenses.

• The good faith estimate requirement is triggered when an individual schedules health care services or requests the information. In response, providers and facilities must notify the patient and their plan or insurer of an estimate of expected charges for those services with expected billing and diagnostic codes.
• Once the provider has sent a health plan a "good faith estimate" or a member requests an estimate directly to the health plan, an insurer must send the member an Advanced EOB. Additionally, if the scheduled appointment is at a minimum of 10 days out, the plan must send an Advanced EOB within three business days of the notification. If the service occurs in less than 10 days, an insurer must send an Advanced EOB within 1 business day.

Health insurers must deliver Advanced EOBs by mail or electronic methods, whichever the member prefers.

Future rulemaking is expected to clarify multiple aspects of the Advanced EOB.

Under the No Surprises Act, uninsured (or self-pay) individuals (defined respectively as "individuals with no insurance coverage or short-term, limited-duration insurance" and "individuals enrolled in individual or group health insurance coverage but not seeking to have a claim submitted to the insurance plan for coverage") are entitled to a Good Faith Estimate (GFE): a clear and understandable document that details the expected costs associated with the care that they are considering or are scheduled to receive. There is no mechanism for a patient to waive this requirement.

A provider or facility must inquire and determine if an individual meets the definition of an uninsured (or self-pay) individual, and if they do, provide them with a GFE when one is requested, or services are scheduled. This includes individuals considering or scheduled for medical aesthetic/cosmetic items or services.

While physicians are not required to use it, CMS has developed this example of the GFE notice.

The expected costs that inform the GFE should be provided by all physicians and facilities who are reasonably expected to furnish the items or services that would be billed to the uninsured (or self-pay) individual.

Terms to Know

• Convening Provider or Facility: "The provider or facility who receives the initial request for a good faith estimate from an uninsured (or self-pay) individual and who is or, in the case of a request, would be responsible for scheduling the primary item or service."
• Co-Provider or Co-Facility: "A provider or facility other than a convening provider or a convening facility that furnishes items or services that are customarily provided in conjunction with a primary item or service."

Convening providers or facilities are required to contact co-providers and co-facilities to obtain the estimate for their services so the convening provider or facility can provide a collective GFE to the patient. While CMS has stated that it will use its enforcement discretion to allow convening providers to provide the GFE to the patient without the charges from co-providers/co-facilities in the short term, the requirement to obtain the charges of co-providers and co-facilities is expected to be fully enforced as of January 1, 2023.

When to provide a good faith estimate:

• Upon patient's request
• Upon scheduling a service, before services are rendered
  • In cases when services are scheduled at least three business days before the service date, the good faith estimate must be provided no later than one business day after scheduling.
  • In cases when services are scheduled at least 10 business days before the service date, the good faith estimate must be provided no later than three business days after scheduling.
  • In an instance where a good faith estimate (preliminary) was provided upon the request of the uninsured (or self-pay) individual, upon the subsequent scheduling of the service, a new good faith estimate must be provided to the uninsured (or self-pay) individual for the now scheduled item or service.
  • When services are scheduled to be furnished in less than three days, no good faith estimate is required

Include the following in any good faith estimate:

• Patient's name and date of birth.
• Description of the primary item or service in clear understandable language and the date of service.
• Itemized list of items or services grouped by each provider or facility that are expected to be provided and the estimated charges.
• Estimate of expected charges being provided in conjunction with the scheduled service or item by another healthcare provider or healthcare facility.
• Applicable diagnosis codes.
• Name, NPI and TIN of each provider or facility represented in the good faith estimate, and the state and office or facility location where the item or service are expected to be provided.

Method for sharing a good faith estimate:

• Must be provided to the patient in writing and orally
• Estimates must be in accessible formats
• Must be available in the language spoken by the individual
• Must be made part of a patient's medical record and retained for at least 6 years

Patient-Provider Dispute Resolution

In a situation where an uninsured (or self-pay) individual receives a good faith estimate and then is billed for an amount "substantially in excess" (currently defined as $400) of the good faith estimate, a patient-provider dispute resolution process is available to determine an appropriate payment amount (unless a similar state mechanism provides this option to patients).

A patient's bill will be determined eligible for the patient-provider dispute resolution process if:

• The patient received a good faith estimate
• The process is initiated within 120 calendar days of the patient receiving the bill
• The bill is in excess of the good faith estimate by at least $400 (as individually adjudicated for each provider or facility listed on the GFE).

The participating individual will be expected to submit their request via an on-line portal and will be charged an administrative fee.

• To ensure the administrative fee does not act as a barrier for consumers accessing dispute resolution, the fee will be set at $25 in the first year and will be updated through sub-regulatory guidance in future years.

Once the provider/facility receives notice, they must not move bills into collections (or threaten to move bills into collections) for the disputed items or services as well as suspend accrual of late fees on unpaid bill amounts until the PPDR process has concluded.

• However, once this process has started, the parties can still negotiate a settlement amount. When necessary, the Select Dispute Resolution (SDR) entities will make payment determinations as part of the patient-provider dispute resolution process.

For additional details, see the CMS Resources GFEs for Uninsured (or Self-Pay) Individuals:

• CMS FAQs on GFEs – Part I
• CMS FAQs on GFEs – Part 2
• CMS Webinar Recording on GFEs