On Dec. 27, 2020, the No Surprises Act (NSA) was signed into law as part of the Consolidated Appropriations Act of 2021.  These provisions were intended to address unexpected gaps in insurance coverage that result in “surprise medical bills” when patients unknowingly obtain medical services from physicians and other providers outside their health insurance network.

Because the No Surprises Act, which takes effect on Jan. 1, 2022, imposes limits and confers some rights on physicians caring for patients in these situations, it is important for physicians to understand how the law will affect them.

Read the AMA’s summary of the NSA (PDF).

On July 1, 2021, the Departments of Health and Human Services (HHS), Department of Labor (DOL) and Department of Treasury (the Departments) and the Office of Personnel Management (OPM) issued an interim final rule (IFR) (PDF) implementing several provisions of the NSA, enacted as part of the Consolidated Appropriations Act, 2021 (CAA).

Interim final rule: Part I

View the first part of the AMA summary of the interim final rule, implementing certain provisions of the No Surprises Act.

Given statutory timeframes required under the NSA and the pending implementation of most provisions by Jan. 1, 2022, the Departments made the decision to issue an IFR. As a result, the requirements outlined in the IFR are final and will become effective on Sept. 13, 2021.

In general, the IFR provides the following:

  • In determining how the qualifying payment amount (QPA) is calculated, the IFR reduces the likelihood that plans will need to use data from outside, independent databases. This is done through broad definitions of “markets” and “geographic regions,” allowing reliance on small data sets, benchmarking for “new service codes,” etc.
  • Reduces the role of bonuses, risk sharing, penalties and other incentive-based and retrospective payments or payment adjustments in the calculation of the QPA.
  • Establishes a structure for the interaction of state and federal surprise billing requirements, where state law preempts federal law when either a set payment amount or dispute resolution process is in place for state-regulated plans and, when applicable, self-funded Employee Retirement Income Security Act (ERISA) plans that opt-in to the state law.
  • Outlines a process by which a patient receives notice and potentially provides consent to receive out-of-network care and forgo the financial protections of the NSA.
  • Establishes criteria for facilities and physicians/providers to provide required disclosure to patients about balance billing protections—both state and federal.
  • Broadens complaint processes for patients, physicians and plans.
  • Reaffirms several patient protections for emergency medical care, including the prudent layperson standard.

The AMA has several concerns about the way the QPA (median contracted rate) will be determined. Additionally, while the Departments attempt to consolidate and standardize some administrative requirements on physicians, in other areas the Departments expand requirements in ways that may not benefit patients but result in burdens on physicians.

Download the PDF for part one of the summaries on the IFR of the No Surprises Act.

AMA comments (PDF) to the Departments on IFR Part I.

On September 30, 2021, the Departments issued a second IFR implementing the NSA. This IFR implements the following parts of the NSA:

  • The open negotiations and independent dispute resolution (IDR) processes between providers (physicians, hospitals, etc.) and health plans.
  • Section 110 of the NSA expanding the scope of the federal external review process to cover adverse benefit determinations under the NSA.
  • The good faith estimate (GFE) requirements for uninsured patients and patients who are not planning to use their coverage (i.e., self-pay).
  • The dispute resolution process for uninsured or self-pay patients when the GFE significantly exceeds the costs of care.
  • Establishes a federal IDR portal to be used for IDR entity (IDRE) certification, the initiation of the IDR process, the selection of an IDRE by parties, the submission of supporting documentation to IDREs and the submission of IDRE reporting metrics.

The AMA has serious concerns with several provisions of IFR Part II, including the way in which the dispute resolution process is structured. The IFR establishes the qualifying payment amount (QPA) as a presumptively reasonable out-of-network payment and directs the IDR entities to select the offer closest to the QPA unless credible information submitted by the parties clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate.

With this requirement, the Departments are underscoring their objective to reduce the frequency with which the IDR is used and ultimately bringing down the in-network rates of providers. Although the QPA is meant to represent the median in-network rate, the method used to calculate it (as outlined in Part I IFR), will often result in much lower amounts. Together, the Part I and Part II IFRs will make it more difficult for physicians to receive fair payment for out-of-network services and to enter into meaningful contract negotiations with health plans which now have little incentive to offer fair contracted rates.

Interim final rule: Part II

View the second part of the AMA summary of the interim final rule, requirements related to surprise billing of the No Surprises Act.

Download the PDF for part two of the summaries on the IFR of the No Surprises Act.

On Sept. 10, 2021, the Departments issued a proposed rule to implement additional components of the NSA. Of importance to physicians as it relates to the NSA, the proposed rule would establish a similar enforcement structure over providers to that established under the Affordable Care Act (ACA), allowing states to enforce NSA provision to the extent of their authority and, if a state fails to substantially enforce the requirements, the federal government will step in.

AMA comments (PDF) on the proposed rule.    

Nov. 2021

Oct. 2021

  • Oct. 18: Comment letter (PDF) proposed rules implementing certain provisions of Title I (No Surprises Act) and Title II (Transparency) of Division BB of the Consolidated Appropriations Act, 2021 (CAA).

Sept. 2021

  • Sept. 7: Comment letter (PDF) on the July 12, 2021, Interim Final Rule (IFR): Requirements Related to Surprise Billing; Part I, implementing provisions of the No Surprises Act (NSA).

Aug. 2021

  • Aug. 11: Comment letter (PDF) to CMS on implementation of the No Surprises Act, advanced explanation of benefits and good faith estimates.

June 2021

  • June 17: Congressional sign-on letter (PDF) to Departments, urging to “reflect congressional intent in your rulemaking by ensuring a balanced process to settle payment disputes between health plans and providers,” in regard to the NSA.
  • June 14: Comment letter (PDF) to CMS administrator on IDR process.

May 2021

  • May 21: Comment letter (PDF) to CMS acting administrator on QPA and related calculations in the NSA.
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