By Edward I. Leeds & D. Finn Pressley

In a set of Frequently Asked Questions and Answers, the Departments of Labor, Health and Human Services, and the Treasury have issued guidance that coordinates application of the No Surprise Billing rules under the Consolidated Appropriations Act, 2021, with:

  • The cost-sharing limits under the Affordable Care Act; and
  • The requirement to provide access to cost information through an internet-based self-service tool under the Transparency in Coverage regulations.

The new guidance closes a gap that might otherwise exist between the No Surprise Billing rules and the cost-sharing limits. Generally speaking, the No Surprise Billing rules apply only to certain out-of-network services. By contrast, the cost-sharing limits under the Affordable Care Act apply only in-network. The FAQs make it clear that, for services within the ambit of the No Surprise Billing Rules (emergency services, non-emergency services provided by an out-of-network provider at an in-network facility, and out-of-network air ambulance services), either the No Surprise Billing rules or the cost-sharing limits will apply. The determination is based not on a formal designation of whether a provider is in-network or out-of-network, but on whether a plan makes its payment under a contractual arrangement with the provider. If it does, the plan participant’s costs will be subject to the cost-sharing limits. If not, the No Surprise Billing rules will apply.

This guidance may help to resolve some issues raised by providers over the application of the No Surprise Billing rules.  It also clarifies that plan participants will have protection with regard to their share of medical expenses, either through the No Surprise Billing rules or through a contractual arrangement with a provider and the cost-sharing limits.

The FAQs align the Transparency in Coverage regulations and No Surprise Billing rules with regard to facility fees outside of a hospital setting. Noting that these charges are being applied with increasing frequency, the FAQs require that self-service tools under the Transparency in Coverage regulations address those charges. Health care providers and plans can expect a consistent approach under the No Surprise Billing rules that require providers to furnish good faith estimates of costs and plans and insurers to issue Advanced Explanations of Benefits to plan participants. Enforcement of those rules has been delayed, pending the issuance of further guidance. The FAQs anticipate that such guidance will also require facility fees to be taken into account.