frequently asked questions for providers about the no surprises rules

FREQUENTLY ASKED QUESTIONS FOR

PROVIDERS ABOUT THE NO SURPRISES RULES

ril 6, 2022

The Consolidated Appropriations Act of 2021 established several new requirements to protect

consumers from surprise medical bills. These requirements are collectively referred to as “No

Surprises” rules. These requirements generally apply to items and services provided to

consumers enrolled in group health plans, group or individual health insurance coverage, and

Federal Employees Health Benefits plans. This document contains information on frequently

asked questions from providers and facilities regarding No Surprises rules, independent dispute

resolution, and exceptions to the new rules and requirements.

1. What are the new requirements and prohibitions of the No Surprises Act?

Patients now have new billing protections when getting emergency care, certain non-

emergency care from out-of-network providers during visits to certain in-network facilities,

and air ambulance services from out-of-network providers.

New Surprise Billing Requirements and Prohibitions

• No balance billing for out-of-network emergency services

• No balance billing for non-emergency services by out-of-network providers during

patient visits to certain in-network health care facilities, unless notice and consent

requirements are met for certain items and services.

• Providers and health care facilities must publicly disclose patient protections against

balance billing

• No balance billing for covered air ambulance services by out-of-network air

ambulance providers

• In instances where balance billing is prohibited, cost sharing for insured patients is

limited to in-network levels or amounts

• Providers must give a good faith estimate of expected charges to uninsured and self-

pay patients at least 3 business days before a scheduled service, or upon request

• Plans and issuers and providers and facilities must ensure continuity of care when a

provider’s network status changes in certain circumstances

• Plans and issuers and providers and facilities must implement certain measures to

improve the accuracy of provider directory information

2. I want more information on provider and facility requirements. Are there any

exceptions?

Requirement: No balance billing for out-of-network emergency services

Requirement Details

Exceptions to Requirement

• Out-of-network providers and out-of-

network emergency facilities cannot bill

or hold liable participants, beneficiaries,

or enrollees who received emergency

services for a payment amount greater

than the in-network cost-sharing

requirement.

• For these protections to apply,

emergency services must be received at

a hospital or an independent freestanding

emergency department.

• The patient must be enrolled in a group

health plan or group or individual health

insurance coverage. For this purpose, a

Federal Employees Health Benefits plan

is included as a group health plan.

• Cost-sharing is generally based on the

median of contracted rates payable to in-

network providers or in-network

facilities.

• Certain post-stabilization services are

considered emergency services, and are

therefore subject to this prohibition,

unless notice and consent and certain

other requirements are met (see next

column).

Out-of-network providers and out-of-

network emergency facilities may balance

bill for post-stabilization services only if all

of the following conditions have been met:

The attending emergency physician or

treating provider determines that the

participant, beneficiary, or enrollee:

• Can travel using non-medical or non-

emergency medical transportation to an

available in-network provider or facility

located within a reasonable travel

distance, taking into account the

individual’s medical condition; and

• Is in a condition to receive notice and

provide informed consent;

• The out-of-network provider or out-of-

network emergency facility provides the

participant, beneficiary, or enrollee with

a written notice including certain

information during a specific timeframe

(as provided in regulations and

guidance) and obtains consent to waive

surprise billing protections; and

• The provider or facility satisfies any

additional state law requirements.

Requirement: No balance billing for certain non-emergency services by out-of-network

providers during patient visits to in-network health care facilities, unless notice and consent

requirements are met. Review and download Standard Notice and Consent Documents

Requirement Details

Exceptions to Requirement

• Out-of-network providers cannot bill or

hold liable participants, beneficiaries, or

enrollees in group health plans or group or

individual health insurance coverage who

received covered non-emergency services

at an in-network health care facility for an

amount greater than the in-network cost-

sharing requirement for those services,

unless notice and consent requirements

are met.

• Cost-sharing is generally based on the

median of amounts that would have been

charged by in-network providers or in-

network facilities.

For purposes of these protections, health care

facilities include: hospitals, hospital

outpatient departments, critical access

hospitals, and ambulatory surgical centers.

These protections do not apply to other types

of health care facilities, such as urgent care

centers.

The notice and consent exception does not

apply to the following list of ancillary

services, meaning a provider is always

prohibited from balance billing for these

services:

• Items and services related to

emergency medicine, anesthesiology,

pathology, radiology, and neonatology

• Items and services provided by

assistant surgeons, hospitalists, and

intensivists

• Diagnostic services, including

radiology and laboratory services

• Items and services provided by an out-

of-network provider if there is no in-

network provider who can provide the

item or service at the facility.

Requirement: Disclosure of patient protections against balance billing. Review and download

the Model Disclosure Notice.

Requirement Details

Exceptions to Requirement

• A provider or facility must disclose to any

participant, beneficiary, or enrollee in a

group health plan or group or individual

health insurance coverage to whom the

provider or facility furnishes items and

services information regarding federal and

state (if applicable) balance billing

protections and how to report violations.

• Providers or facilities must post this

information prominently at the location of

the facility if the location is publicly

accessible, post it on a public website (if

applicable), and provide it to the

participant, beneficiary or enrollee no

later than the date and time on which the

provider or facility requests payment from

the individual or, with respect to an

individual from whom the provider or

facility does not request payment, no later

than the date on which the provider or

facility submits a claim to the group

health plan or health insurance issuer.

A provider isn’t required to make disclosures

if the provider doesn’t furnish items or

services at a health care facility at which the

balance billing protections apply, or in

connection with a visit to such a health care

facility.

A provider is not required to make the

disclosure to individuals to whom the

provider furnishes items or services, if such

items and services are not furnished in

connection with a visit at a health care

facility.

A provider isn’t required to make the

disclosure to individuals if there is a written

agreement where the facility agrees to make

the disclosure instead of the provider.

Requirement: No balance billing for air ambulance services by out-of-network providers of air

ambulance services

Requirement Details

Exceptions to Requirement

• Out-of-network providers of air

ambulance services cannot bill or hold

liable participants, beneficiaries, or

enrollees in group health plans or group or

individual health insurance coverage who

received covered air ambulance services

for an amount greater than the in-network

cost-sharing requirement for those

services.

• The cost-sharing requirement is generally

based on the lesser of the median of

contracted rates payable to in-network

providers of air ambulance services or the

billed amount for the services.

None.

Requirement: Providing a good faith estimate in advance of scheduled services, or upon

request, to an uninsured or self-pay individual.

Requirement Details

Exceptions to Requirement

• When a health care provider or facility

schedules an item or service, it must

inquire if the individual who schedules an

item or service is enrolled in a group

health plan, group or individual health

insurance coverage offered by a health

insurance issuer, a federal health care

program, or a Federal Employees Health

Benefits plan. If so, the provider or

facility must inquire if the individual is

seeking to have their claims for the item

or service submitted to the individual’s

plan or coverage.

• If the patient has no such plan or

coverage, or doesn’t intend to submit a

claim to the plan or coverage, the provider

or facility must provide notification to the

patient (in clear and understandable

language) of the good faith estimate of the

expected charges, expected service, and

diagnostic codes of scheduled services.

• The good faith estimate must include

expected charges for the items or services

that are reasonably expected to be

provided in conjunction with the primary

item or service, including items or

services that may be provided by other

providers and facilities.

• For more information regarding the good

faith estimate for uninsured (or self-pay)

individuals, see

Guidance on Good Faith

Estimates and the Patient-Provider

Dispute Resolution (PPDR) Process for

Providers and Facilities

• If the patient is enrolled in such plan or

coverage, and intends to have a claim

submitted for the scheduled items or

service, the provider or facility must

submit a good faith estimate to the plan or

issuer, which in turn must send an

advance explanation of benefits to the

patient.

• From January 1, 2022 through December

31, 2022, the Department of Health &

Human Services (HHS) will exercise its

enforcement discretion in situations where

a good faith estimate provided to an

uninsured (or self-pay) individual doesn’t

include expected charges from other

providers and facilities that are involved

in the individual’s care.

• Until rulemaking is issued regarding the

requirement to provide a good faith

estimate to an individual’s plan or

coverage, HHS will defer enforcement of

the requirement that providers and

facilities provide good faith estimate

information for individuals enrolled in a

plan or coverage and seeking to submit a

claim for scheduled items or services to

their plan or coverage.

Requirement: Continuity of care when a provider’s network status changes

Requirement Details

Exceptions to Requirement

• When the contractual relationship

between a plan or issuer and a provider or

facility ends and results in a change in the

provider or facility’s network status, if the

health care provider or facility has a

continuing care patient, they must:

• Accept payment from the plan or

issuer (and cost-sharing payments

from the individual) for the course of

treatment of a continuing care patient

at the previously agreed-upon

payment amount for up to 90 days

after the date the patient was notified

of the change in the provider’s

network status.

• Continue to adhere to all policies,

procedures, and quality standards

imposed by the plan or issuer for such

items or services as if the contract

were still in place.

None.

Requirement: Implement measures to improve the accuracy of provider directories

Requirement Details

Exceptions to Requirement

• Any health care provider or health care

facility that has or has had a contractual

relationship with a plan or issuer to

provide items or services under the

coverage must submit provider directory

information to the plan or issuer, at a

minimum:

• At the beginning of the network

agreement with the plan or issuer,

• At the time of termination of the

network agreement with the plan or

issuer,

• When there are material changes to the

content of the provider directory

information of the provider or facility,

• Upon request by the plan or issuer, and

• At any other time determined

appropriate by the provider, facility, or

HHS

• Any health care provider or health care

facility that has or has had a

contractual relationship with a plan or

issuer to provide items or services

under the plan or insurance coverage

must:

• Reimburse participants,

beneficiaries, or enrollees who in

reliance on an incorrect provider

directory, paid a provider bill in

excess of the in-network cost-

sharing amount. Reimbursement

must be for the full amount paid in

excess of the in-network cost-

sharing amount, plus interest.

None.

3. Do No Surprises protections apply to patients in all types of insurance?

• Generally, the No Surprises protections apply to individuals enrolled in a health care

plan, through an employer (whether self-funded or insured, including coverage offered by

federal, state, or local governments, or a multiemployer plan), or through the federal

Marketplaces, state-based Marketplaces, or directly through an individual market health

insurance issuer.

• The rules don’t apply to people with coverage through programs like Medicare,

Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. Each of

these programs already has other protections against surprise medical bills. The

protections also don’t apply to individuals enrolled in short-term limited duration

insurance, excepted benefits (such as stand-alone dental or vision-only coverage), or

retiree-only plans.

• Uninsured and self-pay individuals are also entitled to a good faith estimate, upon request

or scheduling of an item or service, through the No Surprises billing protections.

4. Where can I send questions I have about these new provider and facility requirements?

You can send any questions about the provider requirements to

provider_enforcement@cms.hhs.gov

5. What types of providers do the No Surprises requirements apply to?

When assessing whether a No Surprises requirement applies to a particular provider, it is

important to look at how the provider practices, rather than the provider’s specialty type, license,

or certification. The rules apply broadly to any physician or other health care provider who is

acting within the scope of practice of that provider’s license or certification under applicable

state law. However, some providers may not practice in a setting or manner that triggers certain

requirements. For example, a provider who never furnishes services in connection with a visit to

a health care facility or emergency facility wouldn’t furnish items or services that fall within the

balance billing protections. However, that same provider would, for example, need to provide a

good faith estimate of expected charges to uninsured or self-pay individuals, when applicable,

and comply with the continuity of care and provider directory requirements.

6. Providers and facilities are generally required to provide participants, beneficiaries, and

enrollees with a written disclosure about their balance billing protections. Does the patient

need to sign an acknowledgement that the patient has received the new disclosure notice

regarding patient protections against surprise billing disclosure?

No. Under the No Surprises Act, health care providers and facilities must make publicly

available, post on a public website of the provider or facility (if applicable), and provide a one-

page notice that includes information in clear and understandable language regarding patient

protections against surprise billing. Patients don’t need to sign to acknowledge that they have

received the disclosure notice regarding patient protections against surprise billing. Review and

download the model disclosure notice for patient protections against surprise billing

, which

providers and facilities may use.

Note, providers and facilities may also provide patients with a notice and consent form if they are

asking the patient to waive their balance billing protections. This is a different notice, and

different requirements apply to the use of this notice.

7. The No Surprises rules allow patients to give consent to waive surprise billing protections in

certain circumstances. Is a patient required to sign the notice and consent form in order to

waive their protections?

Under the No Surprises Act, if a provider or facility plans to balance bill a patient in

circumstances in which that would otherwise be prohibited, the out-of-network provider or an

out-of-network emergency facility must provide the patient (or an authorized representative) with

a notice detailing the patient’s protections and providing information about the potential costs if

the patient waives their surprise billing protections.

A patient (or an authorized representative) isn’t required to, nor should the patient (or their

authorized representative), sign the consent form unless the patient is willing to waive these

protections and understands or agrees they will be paying out of pocket for balance bills on out-

of-network services. However, the patient’s (or an authorized representative’s) signature

(physically or digitally) on the consent form is necessary for a waiver of the balance billing

protections to be effective. The standard notice and consent forms

, which providers and facilities

must use in instances where the provider or facility seeks to balance bill the patient, must be

provided in accordance with the regulations and guidance issued by HHS. Providers and

facilities must retain signed documents for at least 7 years.

Note that notice and consent is only allowed for post-stabilization services, if certain conditions

are met, and for certain non-emergency services. For non-emergency care (not post-stabilization

services) provided by out-of-network providers related to a visit to an in-network facility,

surprise billing prohibitions always apply to ancillary services including diagnostic services like

radiology and laboratory services, anesthesiology, pathology, and neonatology, regardless of

whether provided by a physician or nonphysician practitioner, and a patient is not permitted to

waive surprise billing protections for these services. Thus, in surprise billing situations, providers

are not allowed to seek notice and consent for these services.

8. When using the standard notice and consent Documents, can a provider or facility

complete the form by listing a physician or provider group instead of an individual

physician or provider’s name? For example, could the form list XYZ Physician Group if

the individual scheduling the visit doesn’t know who will see the patient on the day of the

visit?

The notice and consent form

must explicitly identify the individual provider who is expected to

provide a given service; listing a provider group is not permitted.

9. If a patient is having elective services (that is, non-emergency services) and the facility is

out-of-network, may the facility, or the provider balance bill the patient?

The federal balance billing prohibitions don’t apply to non-emergency services provided by out-

of-network providers during patient visits to out-of-network facilities. In this setting, the provider

does not need to obtain the patient’s consent to bill them directly, or balance bill them.

10. How many types of fees are there for the Federal Independent Dispute Resolution (IDR)

process?

There are 2 fees for independent dispute resolution:

1. The administrative fee for use of the process

2. The certified IDR entity fee, which is payment for review

What is the IDR administrative fee? How much is it?

• Each party is required to pay an administrative fee per single or batched determination. The

administrative fee is intended to cover the cost to the Federal government of the Federal

IDR Process. For calendar year 2022, the administrative fee due from each party (i.e., the

provider or facility, and the insurance company or plan) for participating in the Federal IDR

process is $50.

11. What is the certified IDR entity fee?

Each party (i.e., the provider or facility and the insurance company or plan) must pay the entire

certified IDR entity fee. The certified IDR entity fees are due when each party submits their

offer. Following the payment determination, generally, the certified IDR entity fee paid by the

prevailing party will be refunded to that party; in some cases, the refund of the fee may be split.

For more information, see

https://www.cms.gov/CCIIO/Resources/Regulations-and-

Guidance/Downloads/Technical-Guidance-CY2022-Fee-Guidance-Federal-Independent-

Dispute-Resolution-Process-NSA.pdf.

12. How much is the certified IDR entity fee?

Single Determination

For calendar year 2022, certified IDR entities must charge a fixed certified IDR entity fee for

single determinations within the range of $200-$500, unless the certified IDR entity has received

approval from the Departments to charge a fee outside that range.

Batched Determination

A batched determination involves multiple qualified IDR items or services that are considered

jointly as part of one payment determination by a certified IDR entity for purposes of the Federal

IDR process. The administrative fees will not be refunded, even if the parties reach an agreement

before the certified IDR entity makes a determination. If a certified IDR entity chooses to charge

a different fixed certified IDR entity fee for batched determinations, for calendar year 2022, that

fee must be within the range of $268-$670, unless the certified IDR entity has received approval

from the Departments to charge a fee outside that range.

13. I am a provider or facility and have questions about the IDR Administrative Fee and/or the

Certified IDR Entity Fees that will be charged.

For further questions about the Federal IDR process or fee guidance, please contact us at

FederalIDRQuestions@cms.hhs.gov

This communication was printed, published, or produced and disseminated at U.S. taxpayer

expense. The information provided in this guidance is intended only to be a general informal

summary of technical legal standards. It is not intended to take the place of the statutes,

regulations, or formal policy guidance upon which it is based. This guidance summarizes current

policy and operations as of the date it was presented. We encourage readers to refer to the

applicable statutes, regulations, and other interpretive materials for complete and current

information.