Departments Release New No Surprises Act and Transparency FAQs

On July 7, 2023, the DOL, HHS and Treasury (collectively, the departments) released new FAQs (Part 60) addressing the coordination between the No Surprises Act (NSA) and the ACA annual out-of-pocket (OOP) maximum limit. The FAQs also address the interaction between the NSA and the ACA Transparency in Coverage (TiC) rules with respect to facility fees, which are increasingly charged for services provided even outside of hospital settings. Below is a key summary:

• Q/A-1 states that cost-sharing for services furnished by a provider or facility or provider of air ambulance services that are “nonparticipating” under the NSA is considered cost-sharing for “out-of-network” services for purposes of the ACA annual OOP maximum limit. Correspondingly, cost-sharing for services furnished by a “participating” provider or facility for purposes of the NSA is considered “in-network” cost-sharing for purposes of the ACA annual OOP maximum limit.
• Q/A-2 states when plans and insurers have contractual relationships with providers, facilities, or providers of air ambulance services that are not considered part of their network, they are not allowed to consider the providers or facilities as “participating” for purposes of the NSA while treating them as “out-of-network” under the ACA annual OOP maximum limit.
• Q/A-3 addresses disclosure requirements under the TiC rules and the NSA rules regarding facility fees. The departments are concerned that individuals are increasingly being charged facility fees unexpectedly, particularly for services received outside hospital settings. The overview section of the FAQ explains when facility fees are covered by the participant’s plan as essential health benefits provided in-network, cost-sharing for these fees is subject to the ACA annual OOP maximum limit. However, when facility fees are not covered as essential health benefits, these fees can expose individuals to financial risk.

The FAQ confirms that the TiC and NSA’s definition of "items and services" includes facility fees. Therefore, plans and insurers are required to make price comparison information for charged facility fees available to plan enrollees through an internet-based self-service tool and in paper form upon request.

These FAQs provide some clarifications as to how the NSA rules coordinate with the ACA annual OOP maximum limit and the TiC rules on facility fees. Employers should monitor the departments’ future proposed rules that are expected to address facility fees regarding the advanced explanation of benefits (EOB) requirement. The CAA requires that plans provide a participant with an advanced EOB for a service scheduled at least three days in advance or upon request. However, the effective date of this requirement has been delayed pending the release of related guidance.

FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 60 »