Surprise Billing Provisions of No Surprises Act

October 14, 2021

Requirement of the Consolidated Appropriations Act (plan years on or after Jan. 1, 2022)

The No Surprises Act (NSA) is part of the Consolidated Appropriations Act (CAA). Under NSA, most out-of-network providers will no longer be allowed to balance bill patients for:

  • Emergency services
  • Out-of-network care during a visit to an in-network facility
  • Out-of-network air ambulance services, if patients’ benefit plan covers in-network air ambulance services

For items and services subject to NSA requirements, member cost-share will be calculated based on the lesser of a new qualified payment amount or the provider’s billed charge. The qualified payment amount is a new median contract rate calculation set forth by the NSA and related interim rules.

Generally, if an out-of-network provider isn’t satisfied with a payment on items or services subject to NSA, they can first initiate a negotiation with the plan and, failing that, pursue binding independent dispute resolution (IDR). Through this process, the parties submit their respective offers and other required information, and the IDR entity selects one of the parties’ offers as the outcome, which determines whether any additional amount will be paid to the provider.

The NSA and related interim rules state that some of its provisions such as member cost-share requirements, claim payment deadlines and availability of the federal IDR process, do not apply if a state law provides a method for determining the total amount payable to the provider for that item or service.

CAA expands the current definition of emergency services. Emergency services continue to be defined by the prudent layperson standard. If a plan covers services in an emergency department or independent freestanding emergency room, the following services will be included as emergency services under NSA:

  • Screening and ancillary services necessary to evaluate the emergency condition (participating and non-participating)
  • Services to stabilize the patient (participating and non-participating)
  • Post-stabilization outpatient observation or an inpatient or outpatient stay, if the plan would cover the services (non-participating only)

More on the CAA and Transparency in Coverage Final Rule.