No Surprises Act: 2023 Changes and Clarifications

Effective January 1, 2022, the No Surprises Act (NSA) established new federal protections against surprise medical bills and balance billing for services received from out-of-network providers.

Since January 2022, CMS has published over 50 resources related to the Act, five of which were released as recently as December. In August 2022, CMS issued the final rules, entitled “Requirements Related to Surprise Billing: Final Rules.” To help make sense of the Act and related content, XiFin developed a No Surprises Act Resource Center and has produced over 20 blogs, news, and webinars to date.

The supplemental CMS information being released was meant to provide additional clarification and new guidance on the requirements under the No Surprises Act. However, the abundant resources and constantly evolving information can make it difficult for providers to stay informed.

So as we enter the new year, let’s reflect on what aspects of the No Surprises Act have changed and have been clarified. Listed below are five critical aspects of the No Surprises Act that all providers should be aware of.

1. Primary Requirements Under the No Surprise Act Remain Unchanged

The seven (7) primary requirements for healthcare providers and facilities remain unchanged under the legislation, including:

1. No balance billing for out-of-network emergency services
2. No balance billing for non-emergency services performed at certain participating healthcare facilities without consent
3. No balance billing air ambulance services by nonparticipating providers
4. Disclose patient protections against balance billing
5. Provide a good faith estimate of services to the self-pay patients
6. Improve provider directory information by providing timely updates to health plans
7. Ensure continuity of care when a provider’s network status changes

Reminder: Non-emergency services provided by a hospital or surgery center are subject to balance billing prohibitions under the No Surprises Act.

2. CMS Clarified Which Non-Emergency Services Are Impacted

Non-emergency services provided at “certain participating healthcare facilities” without consent are subject to balance billing prohibitions under the No Surprises Act. The Act defines healthcare facilities as hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgery centers. Visits and services under the Act are not limited based on if the provider is physically located at the facility. Initially, the Act did not address non-emergency services performed in other healthcare facilities such as urgent care centers or physician offices.

On April 6, 2022, CMS released Frequently Asked Questions for Providers About the No Surprises Rule, which clarifies the issue. In the FAQ, CMS stated that for purposes of these protections, healthcare facilities include: hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgical centers; these protections do not apply to other types of healthcare facilities, such as urgent care centers.

3. HHS Delayed Enforcement of Good Faith Estimate Requirements for Co-Providers 

The Act requires a good faith estimate (GFE) to be provided to all uninsured patients and should include all services expected to be provided by both primary and co-providers. HHS recognized that providing the GFE would involve coordination between the primary and co-providers. Therefore, in 2022 HHS did not exercise enforcement on a GFE that did not include all services. HHS gave co-providers until December 31, 2022, to implement a process with the primary provider to ensure all services were provided on the GFE. 

On December 2, 2022, CMS released an FAQ stating, “HHS is extending enforcement discretion, pending future rulemaking, for situations where GFEs for uninsured (or self-pay) individuals do not include expected charges from co-providers or co-facilities.” 

Based on feedback and comments, HHS clarified that compliance with this requirement was likely not possible, given the complexities involved with developing business practices necessary to facilitate the exchange of data between primary and co-providers.

4. Payment Determination Standards Under the IDR Process Remain Under Scrutiny

The ACT established an independent dispute resolution (IDR) process for providers and health plans to determine out-of-network payments. The initial guidance provided by CMS instructed IDR entities to place emphasis on Qualifying Payment Amount (QPA), which is defined as the median contracted rate as of January 31, 2019, based on the same service in the same market. IDR entities were instructed not to deviate from the QPA, absent credible evidence showing that the QPA was “materially different” from the appropriate rate. The District Court vacated these requirements in rulings in February and July 2022.

The final rules released in August removed the provisions that the District Court vacated and specify that IDR entities should select the offer that best represents the value of the item or service under dispute after considering the QPA and all permissible information submitted by the parties.

However, on September 22, 2022, the Texas Medical Association (TMA) filed another lawsuit challenging the Independent Dispute Resolution (IDR) process under the No Surprises Act Final Rule released in August. That same day, the American Hospital Association and the American Medical Association announced they were filing an amicus brief supporting the TMA lawsuit. In November leaders of the House Ways and Means Committee wrote a letter expressing concern regarding the IDR process.

5. Independent Dispute Resolution Fees Are Increasing

On December 23, 2022, CMS released the amended 2023 fee guidance for the independent dispute resolution process. Effective January 1, 2023, administrative fees due from each party will increase from $50 to $350 per party, along with IDR entity fees for single and batched determinations.

The fee increase is a result of the significant backlog of disputes pending eligibility determinations which continue to grow. As a result, contractors and government staff are being engaged to conduct pre-eligibility reviews and support the certified IDR entities’ eligibility determinations.

According to the Federal IDR Status Update released in December 2022, between April 15 and September 30, stakeholders had initiated 90,078 disputes through the federal IDR portal, which is substantially more than the federal agencies anticipated for an entire year.

Of the 90,078 disputes initiated, 23,107 (26%) were closed by September 30, 2022. Closure reasons cited in the report include:

• 15% payment determination was reached
• 69% of disputes were found ineligible
• 16% other (withdrawn, outside settlement, submission errors, etc.)

More than 600 unique non-initiation parties were involved in disputes involving emergency and non-emergency items or services. United Healthcare represented approximately one-quarter of all disputes. Ten insurance providers were the non-initiating party in 85% of all disputes for emergency and non-emergency services.

For additional information on the No Surprises Act, visit XiFin’s No Surprises Act Resource Center, which includes FAQs, Complimentary Webinars, NSA industry news, and resources from industry experts.

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