Departments Issue FAQs Addressing Issues Under No Surprises Act and Transparency Rules

FAQs clarify intent regarding participating provider status under ACA and surprise billing rules and confirm how facility fees must be included in price comparison tools.

September 11, 2023

On July 7, 2023, the Departments of Labor/Employee Benefit Security Administration (DOL), Health and Human Services (HHS) and Treasury (collectively the Departments) released FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 60 (FAQs Part 60). The FAQs clarify participating/in-network provider status under the ACA’s maximum out-of-pocket (MOOP) requirements and the No Surprises Act surprise billing provisions, and address facility fees under the No Surprise Act and Transparency in Coverage (TiC) Final Rules.

Key Actions

  • Coordinate with vendors/carriers and TPAs to confirm in- and out-of-network provider status is consistent for ACA out-of-pocket limits and surprise billing requirements.
  • Coordinate with vendors/carriers and TPAs to confirm facility fees are identified in required self-service price comparison tools.

Participating Provider/Facility Status Under the No Surprises Act and ACA Cost Sharing Accumulation

The ACA and its implementing regulations provide that all non-grandfathered group health plans must ensure any annual cost sharing imposed under the plan does not exceed the inflation-adjusted annual limit – also referred to as the MOOP limit – provided under the ACA. This cost sharing includes deductibles, coinsurance, copayments, and any other expenditure considered a qualifying medical expense. Expenses that are not subject to the MOOP limit include premiums, balance billing amounts for non-network providers, or spending for non-covered services. Prior regulations state that for plans that use a network of providers, cost sharing paid by, or on behalf of, a participant outside of the provider network is not required to be counted toward the annual MOOP limit. The ACA defines an out-of-network provider or facility as one with which the plan or health insurance issuer does not have a contractual relationship.

Enacted under the CAA ’21, the No Surprises Act and interim final rules generally prohibit balance billing and limit cost sharing for emergency services, non-emergency services provided by non-participating providers with respect to a visit to a participating facility, and air ambulance services provided by nonparticipating providers of air ambulance services. The No Surprises Act includes an exception, in limited circumstances, where patients may waive these surprise billing protections if they are provided notice and give consent. The No Surprises Act defines participating providers, emergency and health care facilities, providers of air ambulance services in terms of whether the group health plan or health insurance issuer has a contractual relationship.

The Departments confirm in FAQs Part 60 that cost sharing for services furnished by a provider, facility, or provider of air ambulance services that is “nonparticipating” for purposes of the No Surprises Act is also considered to be cost sharing provided out-of-network for purposes of the MOOP limit under the ACA. Similarly, cost sharing for “participating” providers for purposes of the No Surprises Act are considered to be in-network for purposes of the MOOP limit. FAQs Part 60 affirms the Departments’ position that group health plans and health insurance issuers may not treat a provider as out-of-network for purposes of the ACA MOOP limit while simultaneously treating the same provider as participating for purposes of balance billing and cost-sharing protections under the No Surprises Act.

Facility Fees Under the No Surprises Act and the Transparency in Coverage Final Rules

The TiC Final Rules require group health plans and health insurance issuers to make price comparison information available to plan participatns and beneficiaries through an internet based self-service tool and in paper form, upon request. The information must be available for plan years beginning on or after January 1, 2023 with respect to 500 items and services identified by the Departments in the TiC Final Rules, and with respect to all items and services for plan years beginning on or after January 1, 2024.

The No Surprises Act requires providers and facilities to provide individuals with a good faith estimate (GFE) of the expected charges for furnishing items and services. If an individual is enrolled in a health insurance plan or coverage, the provider must provide this notification of the GFE to the individual’s plan or coverage.

Additionally, the No Surprises Act requires plans and health insurance issuers, upon receiving a GFE, to send participants and beneficiaries an advanced Explanation of Benefits (AEOB) providing information in clear and understandable language such as whether the provider/facility is in-network or out-of-network, information on the applicability of any medical management techniques, and information estimating the individual’s cost sharing and the amount covered by the plan. Both the GFE and AEOB provisions took effect for plan years beginning on or after January 1, 2022; however, the Departments have deferred enforcement of these requirements pending rulemaking. Business Group on Health reviewed the GFE and AEOB requirements during our September 2022 Regulatory & Compliance Update webinar.

In FAQs Part 60 the Departments note their concern that individuals are increasingly being charged facility fees for health care received outside of hospital settings. FAQs Part 60 reiterate that facility fees are included in the definition of items and services for purposes of the TiC final rules – as well as for purposes of the GFE requirements under the No Surprises Act – and therefore must be included in the price comparison information made available to participants and beneficiaries through the required internet-based self-service tool and in paper form.

The FAQs also indicate that, while regulations have not yet been issued implementing the No Surprises Act GFE and AEOB provisions, the Departments anticipate that future proposed rules will address facility fees with respect to these provisions.

Next Steps

Employer plan sponsors should review FAQs Part 60 with legal counsel, carriers/vendors, and third-party administrators (TPAs) to ensure their plans are compliant with the guidance regarding participating provider status under the No Surprises Act and in relation to ACA MOOP accumulators. Employer plan sponsors should coordinate with their carriers/vendors and TPAs to ensure that the required self-service price comparison information for the initial 500 items and services reflects applicable facility fees, as well as for the subsequent price comparison resource for all covered items and services that is required beginning January 1, 2024. Business Group on Health will keep members informed of regulatory developments pertaining to the No Surprises Act GFE and AEOB provisions.


If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.

We provide this material for informational purposes only; it is not a substitute for legal advice.

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