2022 Guidance on No Surprises Act Compliance

The No Surprises Act (NSA) went into effect Jan. 1, 2022, but since the effective date, there have been numerous updates and changes regarding the NSA and compliance with it. We examine the key NSA 2022 changes and details of the guidance.

As we previously wrote, the NSA is a federal law enacted primarily to eliminate surprise medical bills for individuals enrolled in group health plans or group or individual health insurance coverage offered by a health insurance issuer that results from: (1) emergency services rendered by out-of-network providers or (2) covered non-emergency services rendered by out-of-network providers at in-network facilities. In 2021, the Office of Personnel Management, Department of the Treasury, Department of Labor and Department of Health and Human Services (together, the Departments) jointly issued a series of interim final rules on NSA requirements – part one, part two and part three.

In 2022, there have been legal challenges to certain provisions of the NSA, which have led to portions of the NSA requirements being vacated. We explored these developments when they occurred in March and again in August.

CMS, on behalf of the Department of Health and Human Services, has also issued numerous pieces of helpful guidance and education, including the following:

• In February 2022, CMS issued FAQs on independent dispute resolution (IDR) under the NSA. This FAQ answers almost 50 questions in the areas of:
  • IDR entity qualifications
  • IDR fees
  • IDR process

It also issued a chart to help determine whether the federal IDR process, a state law or the All-Payer Model Agreement applies for determining out-of-network rates.

• On April 5, 2022, CMS issued FAQs on the good faith estimates (GFE) that providers must provide to uninsured and self-pay patients. Topics covered include:
  • Must a GFE include a diagnosis?
  • Does a GFE need to be provided for each instance of a recurring item or service?
  • Is a GFE required for same-day or walk-in services?

This was Part II of a series of FAQs on GFEs. Available for reference is Part I.

• On April 6, 2022, CMS issued a set of detailed FAQs on provider NSA compliance that included, among other things, the following topics:
  • Exceptions to NSA requirements
  • Patients and providers to whom the NSA applies
  • Contact information at CMS for questions regarding NSA compliance
  • Signature requirements
  • IDR fees
• On June 24, 2022, CMS released FAQs that provided guidance and clarification on additional questions regarding NSA applicability, notice and consent that continued to confuse providers despite coverage in previous FAQs and other guidance from CMS. They include, among other topics:
  • To which providers do the NSA requirements apply?
  • Do any of the NSA protections apply to individuals covered by Medicare Advantage or Medicaid Managed Care?
  • When are providers prohibited from using the notice and consent exception?
  • Can providers rely on oral consent to waive NSA protections?
• On Aug. 19, 2022, the Departments jointly issued a set of FAQs that included the following topics:
  • Application of the NSA billing prohibitions to reference-based pricing plans
  • Application of the NSA billing provisions to behavioral health facilities
  • Which versions of consent and notice forms to use

Most recently, also on Aug. 19, 2022, the Departments issued a final rule that  finalized certain requirements under the July 2021 interim final rules and clarified the process for providers and health insurance issuers to resolve their disputes. The final rule includes requirements regarding information health insurance issuers must share about the qualifying payment amount (QPA) if they downcode a bill from a provider or facility. The final rule also finalizes certain requirements under the October 2021 interim final rule related to consideration of information when a certified IDR entity makes a payment determination, in light of the case law, which vacated certain portions of the law on this topic. Finally, the final rule includes requirements regarding IDR entities explanations of determinations and underlying rationale. The terms of the final rule went into effect Oct. 25, 2022.

Looking forward, on Sept. 16, 2022, the Departments issued a Request for Information to inform rulemaking on the requirements related to the advanced explanation of benefits and GFE for covered individuals. Comments can be submitted through Nov. 15, 2022.