• No Surprises Act

    What Is the No Surprises Act?

    The No Surprises Act, part of the Consolidated Appropriations Act of 2021, created protections against out-of-network balance billing and established an Independent Dispute Resolution process. Physicians and providers, facilities, and health plans can use IDR to resolve payment disputes for certain out-of-network charges and to determine the payment rates for those services.

    How Does the No Surprises Act Affect Billing?

    When a physician, provider, or facility gets a payment-denial notice or an initial payment from a health plan for out-of-network emergency services, certain services delivered by out-of-network providers at an in-network facility (e.g., anesthesiology and radiology) the health plan, physician, provider, or facility must start an open negotiation period of 30 business days. If the health plan and physician, provider, or facility don’t agree on a payment amount in that time, either party can begin the IDR process. 

    Independent Review Process

    The independent dispute resolution process:

    • Brings in a third party, known as a certified IDR entity, to decide the payment amount. The parties in dispute can select the IDR entity from a list of certified organizations; everyone involved must attest to having no conflicts of interest.
    • Requires the physician, provider, or facility and the health plan to submit payment offers to the dispute-resolution entity, along with additional information supporting their payment offers.
    • Requires the dispute-resolution entity to select from the disputing parties’ payment offers. The rate must reflect the offer that the IDR entity determines best represents the value of the item or service. All parties must abide by the entity’s decision, and payment must be made within 30 calendar days.


    Good-faith Estimate for Uninsured and Self-pay Patients

    On Jan. 1, 2022, the NSA began requiring physicians, providers, and facilities to provide good-faith estimates of charges for care to uninsured or self-pay patients (someone enrolled in a health plan who will not submit a claim).

    The GFE is a notification that outlines an uninsured or self-pay individual's expected charges for a scheduled or requested item or service. CMS has provided instructions and a sample good-faith estimate template.

    Generally, all physicians, providers, and facilities that schedule items or services for an uninsured or self-pay individual or receive a request for a GFE from such an individual must provide a GFE. No specific specialties, facility types, or sites of service are exempt from this requirement.

    GFE Timeframes Provisions

    The GFE must be provided within the following regulatory timeframes:

    • If the item or service is scheduled at least three days in advance, the GFE must be provided no later than one business day after the item or service was scheduled.
    • If the item or service is scheduled at least 10 business days in advance, the GFE must be provided no later than three business days after the item or service was scheduled.
    • If a patient requests a GFE or asks to discuss the cost of an item or service, the GFE must be provided within three business days of the request.
    • A GFE is not required if the item or service is scheduled within three business days or not scheduled in advance (e.g., walk-in urgent care, emergency services, etc.).

    GFE FAQs

    CMS has released FAQs that address other GFE requirements, including patient notification, specific methods for delivering GFEs, changes to the scope of a GFE, storing GFEs, what happens when a GFE is incorrect, and co-provider responsibilities.

    Dec. 21, 2021, CMS FAQs

    April 5, 2022, CMS FAQs

    Dec. 2, 3033, CMS FAQs

    Dec. 27, 2022, CMS FQHC FAQs

    Good-faith Estimate Workflow

    • Step 1: Identify no-insurance or self-pay patients.
    • Step 2: Provide required notice. A physician or provider is responsible for informing all self-pay patients of their right to a GFE of expected charges when scheduling occurs or when questions about the costs arise.   

      CMS has published a model notice for this purpose. The use of this model notice is not mandated, but CMS will consider its use good faith compliance with the notice requirement. Additionally, written notice must be posted informing uninsured or self-pay patients of their right to obtain a GFE of expected charges. The notice must be prominently displayed and accessible on the physician’s, provider’s, or facility’s website, in the office, and on-site where scheduling or questions about the cost of items or services occur.
    • Step 3: Determining the timing of the GFE. The timing of the physician or provider’s delivery of the GFE depends on whether and how far out the date of service is scheduled. See above.
    • Step 4: Provide a GFE. The convening physician or provider must submit the GFE to the patient in written form, either on paper or electronically, based on the patient’s preference. The convening provider is the physician or provider who receives the initial request for a GFE from an uninsured or self-pay patient and who is responsible for scheduling the primary service.

      The obligation to provide a GFE for a scheduled service is not dependent on the patient requesting the GFE. The obligation to provide the GFE is triggered when the service is scheduled. Even if the patient requests the GFE be furnished by phone or in person, the convening physician or provider still must issue the GFE in written form. The CMS has provided instructions and a sample good-faith estimate template.

    GFE Enforcement Delay

    On Dec. 2, 2022, HHS delayed enforcement, pending future rulemaking, the requirement for co-physicians, co-providers, or co-facilities will be responsible for submitting specific information to the convening physician or provider within one business day of scheduling or receiving a request from the convening physician or provider.

    Co-physicians or co-providers are defined as a physician, provider, or facility other than a convening provider or a convening facility that furnishes items or services that are customarily provided in conjunction with a primary item or service. In one CMS example, a patient scheduling surgery with an orthopedic surgeon can expect a GFE including an itemized list of items or services in conjunction with and including the actual knee surgery, such as:

    • physician professional fees,
    • assistant surgeon professional fees,
    • anesthesiologist professional fees,
    • facility fees,
    • prescription drugs, and
    • durable medical equipment fees.

    How Will the Co-Provider Requirements Affect Family Physicians?

    As a co-provider, family physicians may receive requests from convening physicians, convening providers, or convening facilities that require submission of an estimate of charges if the convening physician, convening provider, or convening facility reasonably expects the FP’s services to be associated with their scheduled item or service. If a family physician’s office receives one of these requests, the physician’s office must submit its estimate back to the convener within one business day. 

    Advanced Explanation of Benefits

    The NSA also introduced a requirement for Advanced Explanation of Benefits. The AEOB requirement applies to all services provided by in-network and out-of-network providers and facilities. Payers must provide AEOBs whenever an appointment is made for services and whenever requested by the patient, even without an appointment. The AEOB will be triggered by a GFE that is submitted by the physician or provider furnishing the item or service.

    For every scheduled service and upon patient request, the payer must provide the patient with an AEOB that includes

    1. the network status of the physician, provider, or facility;
    2. the contracted rate for the item or service or, if the physician, provider, or facility is not a participating provider or facility, a description of how the individual can obtain information on physicians, providers, and facilities that are participating;
    3. the GFE received from the physician or provider;
    4. a GFE of the amount the plan or coverage is responsible for paying, and the amount of any cost-sharing for which the individual would be responsible for paying with respect to the GFE received from the physician or provider; and
    5. disclaimers indicating whether coverage is subject to any medical management techniques.

    AEOB Enforcement Delay

    To allow for the establishment of appropriate data transfer standards, enforcement of the requirement that plans and issuers provide an AEOB has been deferred. The delay postpones the requirement that a physician’s office submit a GFE to the patient’s insurance company, which would prompt the payer to provide an AEOB to the patient. However, a proposed rule on the AEOB is forthcoming that could establish provisions that would implement this requirement. 

    What Is the AAFP Position on the No Surprises Act?

    The AAFP has called for enforcement exemptions for primary care practices and other refinements to the No Surprises Act. The AAFP is deeply concerned that, once implemented, the AEOB requirements will add a much greater level of administrative burden and further diminish staff time devoted to caring for patients.

    No Surprises Act Resources

    Previous AAFP NSA Advocacy and Resources

    Additional Resources

    Federal Resources