Government Issues Guidance On The Relationship Between The No Surprises Act And The Affordable Care Act

The Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments) have issued an FAQ clarifying the relationship between the balance billing provisions of the No Surprises Act and maximum out-of-pocket limitations of the Affordable Care Act (ACA).

The ACA imposes a maximum out-of-pocket limit (MOOP) on cost sharing for essential health benefits imposed by non-grandfathered health plans for services from in-network providers. Cost sharing includes deductibles, coinsurance, copayments, or similar charges, but does not include premiums, balance billing amounts for non-network providers, or spending for non-covered services.  The MOOP limit does not apply to services from an out-of-network provider.   In the preamble to the MOOP rules, the Departments noted that an out-of-network provider is a provider or facility with which the plan or issuer does not have a contractual payment arrangement.  The FAQ establishes that the opposite is also true: an in-network provider is a provider or facility with which the plan or issuer does have a contractual payment arrangement.  A contractual arrangement will be deemed to exist whether it is direct or indirect.

The NSA provides that patients may not be balanced billed by “non-participating providers” for emergency services, certain non-emergency services and air ambulance services.  In addition, a plan or issuer must count any cost-sharing payments made by a participant, with respect to emergency services subject to the surprise billing protections of the No Surprises Act toward the MOOP limit. A participating provider is a provider or facility that has a contractual payment relationship directly or indirectly with a group health plan or health insurance issuer.

The Departments note that some plans may have contracts with providers, facilities or air ambulance services but do not consider them as part of their network.  As a result, the plans are treating those providers as out-of-network for purposes of the ACA (so that that the MOOP limitation does not apply) but as participating providers under the NSA (so that the balance billing protections also do not apply).  The FAQ establishes plans can’t have it both ways; if providers with these types of contracts are considered participating providers under the NSA they must also be considered in-network providers for purposes of applying the MOOP under the ACA and vice-versa.

Accordingly, for emergency services, non-emergency services furnished by a provider with respect to a visit to a participating health care facility, and air ambulance services, either the limitation on MOOP provided by the ACA (for non-grandfathered plans) or the prohibition on balance billing provided by the NSA will apply.

The FAQ also addresses the status of facility fees under the Transparency in Coverage (TiC) Rules and the NSA.  Facility fees are often charged by a hospital when a patient receives treatment from a provider at the hospital.  However, hospitals have recently begun purchasing physician practices and are now charging facility fees to patients who receive treatment at those practices, even though it was provided outside the hospital.

The FAQ notes that providers and facilities are required to make price comparison information available to patients under the TiC rules and NSA and provide a good faith estimate (GFE) of expected charges for certain services.  Upon receipt of a GFE, a health plan is required to provide an Advanced Explanation of Benefits (AEOB) indicating, among other things, the amount of any cost sharing for which the patient would be responsible.  The AEOB requirements are currently on hold pending the issuance of regulations.  The FAQ makes it clear that facility charges are included among the charges required to be disclosed to patients and health plans and must be included in the AEOB when that requirement becomes effective.

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