Surprise Medical Bills

Congress passed the No Surprises Act in December 2020. As legislation evolved over the years, the CAP had 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, notice and consent standards for waivers, rules to calculate qualifying payment amounts, disclosure requirements, and complaints processes. The CAP submitted formal comments in response to the July regulations. 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 fairly resolve disputes. Read the CAP’s formal comments to the HHS detailing the problems with the regulation and how the CAP proposed to fix it.

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

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

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.

In states that have passed robust surprise billing legislation, that state process will likely continue to apply to fully insured plans, as well as self-funded ERISA plans that opt in, where permitted. For specifics, CMS has sent letters to each state communicating whether the federal independent dispute resolution process and the federal patient-provider dispute resolution process apply, and in what circumstances, available online 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.

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.

In addition to requirements related to balance billing, the No Surprises Act protects uninsured (or self-pay) individuals from many unexpectedly high medical bills. Importantly, once an uninsured (or self-pay) individual schedules an item or service (such as a medical device, a doctor’s visit, or a surgical procedure) with a health care provider or health care facility, that provider or facility must give them a good faith estimate of the amount it expects to charge for that item or service. A provider or facility must also give this good faith estimate when an individual requests it (regardless of whether they have scheduled the item or service).

Additionally, a new patient-provider dispute resolution (PPDR) process will be available for uninsured (or self-pay) individuals who get a bill from a provider that is substantially in excess of the expected charges on the good faith estimate. Under the PPDR process, an uninsured (or self-pay) individual may initiate the PPDR process to seek a determination from an independent third-party certified by HHS for the amount the individual has to pay.

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.

See this CMS guidance for additional information on the good faith estimate 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.

Other resources: