Interim Final Rule for the No Surprises Act

On July 1, U.S. Departments of Health and Human Services (HHS), Labor, and Treasury, and the Office of Personnel Management issued an interim final rule implementing the No Surprises Act (Act). 

The No Surprises Act, a bipartisan bill passed as part of a massive funding package in the final days of 2020, seeks to protect patients against surprise billing and balance billing at the federal level. The Act "provides federal protections against surprise billing and limits out-of-network cost-sharing under many of the circumstances in which surprise bills arise most frequently." Surprise billing occurs when patients unknowingly receive emergency or non-emergency care from providers outside their health plan's network. Patients typically bear the burden to pay the additional costs for out-of-network emergency and non-emergency services in these situations unless otherwise protected by state law. 

Medicare and Medicaid already prohibit balance billing. The new federal rule will extend similar protections to patients insured through employer-sponsored and other commercial health plans.

The interim final rule, which is the first in a series of regulations implementing the No Surprises Act, mandates the following: 
  • Emergency services, regardless of where they are provided, must be covered on an in-network basis, including the calculation of copayments, coinsurance, and deductibles, without requirements for prior authorization. 
  • Out-of-network balance billing and/or increased patient financial responsibility (e.g., higher copayment) for ancillary care (such as care rendered by an anesthesiologist or assistant surgeon) at an in-network facility will be prohibited in all circumstances; and 
  • Health care providers must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an out-of-network basis before that provider can bill at a higher out-of-network rate (e.g., one-page disclosure notice provided in person or through mail or email).
Specifically, the interim final rule will restrict "excessive out-of-pocket costs to consumers from surprise billing and balance billing" and out-of-network charges for several types of services. The interim final rule applies to health benefits plans beginning on January 1, 2022.