Surprise Medical Bills

Congress passed the No Surprises Act in December 2020. As legislation evolved over the years, the CAP worked with federal lawmakers and other physician organizations to improve this policy drastically. Notably, the final legislation included three provisions the CAP adamantly pushed for. This includes holding patients harmless, fair reimbursement for care (no initial benchmark rate and an arbitration system with batching and no threshold amount), and efforts to address network adequacy standards.

Implementation of the No Surprises Act

The federal government released a series of regulations in 2021 to implement provisions of the No Surprises Act. Prior to the publication of new regulations, the CAP urged the government to issue strong rules to prevent health insurance plans from manipulating the health care system. Read these specific details in the CAP's letter to the Department of Health and Human Services (HHS).

The federal government issued its first interim final regulation in July 2021 regarding patient-cost sharing protections, rules to calculate qualifying payment amounts, and more. The CAP submitted formal comments in response to the July regulations (read online here). Unfortunately, the government issued a second interim final regulation in September 2021 that gives insurance companies the upper hand during the independent dispute resolution (IDR) process where physicians and insurers can resolve payment disputes. The September regulations also detail requirements around providing a good faith estimate to uninsured or self-pay patients. Read the CAP’s formal comments to the HHS detailing the problems with the regulation and how the CAP proposed to fix it.

Finally, the CAP filed an amicus brief in support of a lawsuit that challenges the federal government’s flawed implementation of the No Surprises Act. In the amicus brief, the CAP warned that the government’s actions will cause substantial harm and further drive more physicians out of their patients’ health plan networks.

No Surprises Act Resources

Watch a CAP webinar recording (download the slides) with further details about the No Surprises Act’s regulatory requirements.

The Centers for Medicare & Medicaid Services (CMS) created a website with information for patients and physicians. The CMS Center for Consumer Information & Insurance Oversight also created this high-level summary for physicians and facilities and a more detailed training on the prohibitions on balance billing. Additionally, the AMA has published a toolkit for physicians and a guide on the IDR process.

Other Resources:

Good Faith Estimate Requirements

In addition to requirements related to balance billing, the No Surprises Act included provisions intended to protect uninsured (or self-pay) individuals from unexpectedly high medical bills. When a physician/facility schedules an item or service (such as a medical device, a doctor’s visit, or a surgical procedure), it must determine the individual’s health insurance status. If the patient has no coverage (uninsured) or does not intend to submit a claim to the plan/coverage (self-pay), the physician/facility must provide notification to the patient of the good faith estimate (GFE) of expected charges.

Importantly for pathologists, the GFE must include expected charges for the items or services provided in conjunction with the primary item or service. Specifically, a GFE provided to uninsured (or self-pay) individuals must include an itemized list of all items or services that are reasonably expected to be furnished for that period of care, grouped by each provider or facility. The interim final rules do not require the good faith estimate to include charges for unanticipated items or services that are not reasonably expected and that could occur due to unforeseen events.

In March of 2022, the CAP met with CMS to try and obtain clarification and further guidance around these requirements. As we expressed in an April 2022 letter, “we see no clear way to proceed in providing prospectively reliable estimates for pathology services, as pathologists are not the initiator of the tissue or fluids submitted for diagnosis, and will know neither what will be submitted nor what will need to be done until the pathologist has reviewed the original specimen(s) from each individual patient.” We hope to have additional information soon.

See this CMS guidance for additional information on the good faith estimate requirements as well as this FAQ about the good faith estimates.

The CAP also has a toolkit for members.

Frequently Asked Questions

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The requirements related to surprise billing go into effect on January 1, 2022. The requirements related to good faith estimates go into effect for uninsured (or self-pay) individuals on January 1, 2022.

From January 1, 2022 through December 31, 2022, HHS will exercise its enforcement discretion in situations where a good faith estimate provided to an uninsured (or self-pay) individual does not include expected charges from other providers and facilities that are involved in the individual’s care.

No. These requirements generally apply to items and services provided to individuals enrolled in group health plans or group or individual health insurance coverage, and Federal Employees Health Benefit plans. The good faith estimate requirement and the requirements related to the patient-provider dispute resolution process also apply to the uninsured.

These requirements do not apply to beneficiaries or enrollees in federal programs such as Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs have other protections against high medical bills.

It depends. CMS released a chart that provides a high-level summary to assist in determining whether the federal IDR process or a state law or All-Payer Model Agreement applies for determining the out-of-network rate. Please see the document here.

The No Surprises Act prohibits balance billing in three major scenarios:

  1. A person gets covered emergency care from an out-of-network provider or out-of-network emergency facility;
  2. A person gets covered non-emergency care from an out-of-network provider as part of a visit to an in-network health care facility; or
  3. A person gets covered air ambulance services by an out-of-network air ambulance provider.

However, the good faith estimate requirements are broader, and any state- or locally-licensed health care institution will need to comply. CMS confirmed this in a recent FAQ: “Generally, all providers and facilities that schedule items or services for an uninsured (or self-pay) individual or receive a request for a GFE from an uninsured (or self-pay) individual must provide such individual with a GFE. No specific specialties, facility types, or sites of service are exempt from this requirement.”

Note that the No Surprises Act’s prohibitions on balance billing for non-emergency services only apply to covered non-emergency services that are furnished as part of a visit to one of the following in-network health care facilities: hospitals (including critical access hospitals); hospital outpatient departments; or ambulatory surgical centers. Out-of-network providers can’t balance bill for non-emergency items and services that are part of a visit at an in-network health care facility. This includes the following: equipment and devices; imagine services; telemedicine services; lab services; preoperative services and postoperative services. These items or services don’t need to happen physically within the in-network health care facility to be treated as part of a visit (e.g., offsite laboratory services).

To ensure compliance with the No Surprises Act, providers/facilities may need to bill the plan or issuer directly to determine whether No Surprises Act requirements apply, given the terms of an individual’s health plan/coverage and a facility’s participation status.

The No Surprises Act’s ban on balance billing for non-emergency services only apply to plan covered services. If a non-emergency service is not covered under the in-network benefits and terms of coverage under an individual’s health plan, then the No Surprises Act’s rules on balance billing do not apply for these services.

No. The requirement to provide a GFE to an uninsured (or self-pay) individual is not triggered upon scheduling an item or service if the item or service is being scheduled fewer than 3 business days before the date the item or service is expected to be furnished. For example, if an uninsured (or self-pay) individual arrives to schedule same-day laboratory testing services, the laboratory testing provider or facility is not required to provide the individual with a GFE.

The No Surprises Act requires plans and issuers to send an initial payment or notice of denial of payment not later than 30 calendar days after a nonparticipating provider/facility submits a bill related to the items and services that fall within the scope of the surprise billing protections for emergency services, non-emergency services performed by nonparticipating providers related to a visit to a participating facility, and air ambulance services furnished by nonparticipating providers of air ambulance services. The 30-calendar-day period begins on the date the plan or issuer receives the information necessary to decide a claim for payment for such services, commonly known as a “clean claim.” The Departments will generally enforce the applicable provisions of the No Surprises Act in conjunction with states where applicable. Providers, facilities, and providers of air ambulance services with concerns about a plan’s or issuer’s compliance with the 30-calendar-day requirement to send an initial payment or notice of denial of payment may contact the No Surprises Help Desk at 1-800-985-3059 or submit a complaint at

The initial payment should be an amount that the plan or issuer reasonably intends to be payment in full based on the relevant facts and circumstances and as required under the terms of the plan or coverage, prior to the beginning of any open negotiation period or initiation of the Federal IDR process. The initial payment is not required to be equivalent to the QPA (or the QPA less the individual’s cost-sharing amount), but the plan or issuer must include the QPA for each item or service with the initial payment or notice of denial of payment, as well as a statement certifying that the QPA applies for the purposes of the recognized amount, among other required information. A notice of denial of payment means, with respect to an item or service for which benefits subject to the surprise billing protections are provided or covered, a written notice from the plan or issuer to the provider/facility that states that payment for the item or service will not be made by the plan or coverage and explains the reason for denial. For example, a notice of denial of payment could be provided if the item or service is covered but is subject to a deductible greater than the recognized amount. The term “notice of denial of payment” does not include a notice of benefit denial due to an “adverse benefit determination.” There is a significant distinction between an adverse benefit determination, which may be disputed through a plan’s or issuer’s claims and appeals process, and a notice of denial of payment or an initial payment that is less than the billed amount, which may be disputed through open negotiation and, after that, through the Federal IDR process. In general, when adjudication of a claim results in a participant, beneficiary, or enrollee being personally liable for payment to a provider or facility, this determination may be an adverse benefit determination that can be disputed through a plan’s or issuer’s typical claims and appeals process. Conversely, when: (1) the adjudication of a claim results in a decision that does not affect the amount the participant, beneficiary, or enrollee owes; (2) the dispute involves only payment amounts due from the plan or issuer to the provider, facility, or provider of air ambulance services; and (3) the provider, facility, or provider of air ambulance services has no recourse against the participant, beneficiary, or enrollee, the decision is not an adverse benefit determination and the payment dispute may be resolved through open negotiation and, if necessary, the Federal IDR process.