Regulatory Changes Impacting Surprise Billing

Regulatory Changes Impacting Surprise Billing

By Matt Kerschner

With the goal of protecting consumers from the high, unexpected out-of-pocket costs associated with surprise billing, the No Surprises Act was enacted on December 27, 2020, as part of the Consolidated Appropriations Act (CAA) of 2021. Starting in 2022, new protections will be in place to ensure that consumers better understand the cost of care and that they do not face a surprise medical bill. The US Department of Health and Human Services (HHS) has worked with the US Department of Labor, the US Department of the Treasury, and the Office of Personnel Management to promulgate regulations that codifies the specific protections available to consumers, as well as processes for payers and providers to resolve disputes in cases in which surprise billing protections are applicable. As of the date of the publication of this article, HHS has issued two interim final rules, and AHIMA anticipates that there will be additional regulation promulgated in 2022 to implement additional provisions of the CAA.

Surprise Billing Part I

The first surprise billing interim final rule focuses primarily on patient protections and defining key terms, including the “Qualifying Payment Amount” (QPA), with an effective date of January 1, 2022. Key patient protections included in the interim final rule include:

  • Banning surprise billing for emergency services. Emergency services, regardless of where they are provided, must be treated on an in-network basis without requirements for prior authorization.
  • Banning out-of-network charges for ancillary care at an in-network facility.
  • Banning high out-of-network cost-sharing for emergency and certain non-emergency services.
  • Banning other out-of-network charges without advance notice.
  • Defining the QPA as the basis for patient cost-sharing. The QPA is the median of contracted rates for the “same or similar items or services” in a particular geographic area. For protected services, the patient’s proportional cost-sharing obligations must reflect what the patient would have paid for in-network care.

The rule also included provisions pertaining to a patient’s ability to waive surprise billing protections for non-emergency services when accessing out-of-network care. In non-emergency situations, an out-of-network provider or facility can refuse to treat a patient if the patient refuses to consent to waiving surprise billing protections. Prior to waiving surprise billing protections, patients must receive a notice and consent waiver that is aligned with specifications laid forth in regulation. The notice and consent must be provided to the patient according to the following specifications:

  • Providers and facilities must use the standard written notice and consent forms created by HHS.
  • The notice must include a good-faith cost estimate of the patient’s estimated charges and whether prior authorization or other care management requirements may need to be satisfied.
  • The provider or facility must inform the patient that consent is not required and that they have the option to request a referral for in-network care.
  • Notice and consent forms must be translated into the 15 most common languages in the facility’s geographic region.
  • The notice and consent form must be given to the patient separately from other documents and may be provided on paper or electronically.
  • The notice and consent form must be given to the patient at least 72 hours in advance of a scheduled appointment. If the appointment occurs less than 72 hours after scheduling, notice and consent can be given on the same day as the appointment was made and must be given at least three hours in advance.

AHIMA’s comments in response to this interim final rule can be found here.

Surprise Billing Part 2

The second surprise billing interim final rule primarily focuses on details pertaining to the independent dispute resolution (IDR) process for payers and providers, and protections for uninsured and self-pay individuals, including specifications for good-faith estimates and the patient-provider dispute resolution process.

The interim final rule establishes a process for initiating IDR and also provides details pertaining to the template forms for the IDR process, timelines associated with various steps in the IDR process, the criteria for becoming a certified IDR entity, reporting requirements for IDR entities, and the mandatory ranges for IDR fees. The interim final rule also clarifies the factors that will be considered by an IDR entity when resolving disputes.

Good-faith estimates of projected costs must be provided to uninsured and self-pay patients upon request and must meet specifications contained in the interim final rule. Providers must offer good-faith estimates of charges in written form, either on paper or electronically, based on the patient’s requested method. According to the rule, good-faith estimates must include:

  • Patient name and date of birth
  • Description of the primary item or service in clear and understandable language
  • An itemized list of items or services, grouped by each provider or facility, reasonably expected to be provided for the primary item or service, and items or services reasonably expected to be furnished in conjunction with the primary item or service, for that period of care, including those provided by co-providers/co-facilities
  • Applicable diagnosis codes, expected service codes, and expected charges associated with each listed item or service
  • Name, NPI, TIN, and location of each provider or facility
  • A list of items or services that the convening provider or convening facility anticipates will require separate scheduling and that are expected to occur before or following the expected period of care for the primary item or service
  • Key disclaimers, including that there may be additional items or services that may need to be scheduled or requested separately and are not reflected in the good-faith estimate; that actual items, services, or charges may differ from the good-faith estimate; that patients have the right to initiate the patient-provider dispute resolution process; and that the good-faith estimate is not a contract.

In instances where actual billed costs are $400 or more than the costs estimated in the good-faith estimate, a patient may initiate the patient-provider dispute resolution process to enforce surprise billing protections and resolve the payment dispute. An uninsured or self-pay individual may submit an initiation notice for dispute resolution within 120 calendar days of receiving the bill. In determining payment, the dispute resolution entity will review the copies of the bills, itemized good-faith estimates, and any additional documentation from the parties. The dispute resolution entity may consider additional factors that support charges for medically necessary items or services that occurred because of unforeseen events.

As of the publication of this article, AHIMA is still in the process of finalizing our comments in response to Part 2. However, AHIMA recently hosted a webinar about recent public policy developments that impact price transparency.

To find out more about what is on the horizon for providers, patients, and payers with regard to price transparency, check out our on-demand webinar here.


Matt Kerschner ( is the director of regulatory affairs at AHIMA.

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