Balance the Burden of the No Surprises Act

Providers Must Take Action to Balance the Burden of the No Surprises Act Interim Final Rule 

The impending cost to providers of compliance with the recently published Interim Final Rule (“IFR”)1 of the No Surprises Act (“NSA”) will be significant and unbalanced unless providers actively advocate to balance the burden between providers and payors. 

The IFR is Part I in a two-part series of rules from the Departments of Health and Human Services, Labor, and Treasury, as well as the Office of Personnel Management (together, “the Departments”) regarding the NSA. As drafted, the IFR does not recognize the fact that providers deal with a host of different plan types and jurisdictions. 

The federal rulemaking process allows the public to submit comments in response to interim final rules before they are finalized, and providers should not allow the opportunity to participate pass without expressing their views on the proposed regulations that disproportionately burden them and evince evidence of lobbying influence on the part of payors. 

Problematic Language 

Although the federal government has not explicitly asked for feedback or comment on the following items, providers should address the following these through regulatory comment due to the potential negative impacts: 

Calculation of the Qualifying Payment Amount (QPA) 

The Departments detailed their thought processes behind calculation of the qualifying payment amount (QPA), and it reveals to what lengths the government seeks to avoid any pressure on payors, at the expense of provider reimbursement. Specifically, while the Departments recognize that the NSA requires the QPA to be calculated based on the median of the contracted rate of the plan issuer, the Departments propose methods of calculating the QPA such that it would avoid “upward pressure” on the QPA.2 This includes the Departments: 

1. Deciding against requiring plans and issuers to calculate separate median contracted rates for facilities based upon characteristics of the facility as doing so would result in a higher median contracted rate.3 With exceptions for distinctions between freestanding and integrated emergency departments, no consideration is provided for specialized hospitals for cancer, children, teaching, etc., or any consideration to other unique and/or specialized operating circumstances; and4 

2. Calculation of the median contracted rate purely by applying the contract that is in the middle of available contracts available. For example, if a payor has three available contracts it would look only to the rates within the second contract, and not an average of the three available contracts. 

Here, providers should consider submitting comment that discusses the unforeseen harms to patients and communities (particularly rural communities) when payor reimbursement amounts are unilaterally and purposefully geared toward lower levels. At a minimum, the calculation of the QPA should not exclude data because of “upward pressure” on the QPA when no such language is stated in the NSA. Rather, the calculation of the QPA should equitably consider specialized providers.   

Conditions to Receive Notice 

In addition to reaffirming and expanding what is required as a component of the notice and consent for out-of-network care, the IFR also provides a litany of considerations that a physician must consider prior the aforementioned care being provided to a patient. Providers would likely agree that a patient should not be made to feel they are providing consent under duress or when lacking capacity to do so; however, the IFR also ties these requirements into consideration for financial consent. For example, prior to providing notice and obtaining consent under the NSA, the IFR states:  

[C]onsideration must be given to cultural and contextual factors that may affect the informed decision-making and consent process for members of underserved communities, including lack of trust arising from historical inequities, misinformation about the informed consent process, or barriers to comprehension of the information given through the informed consent process and after the informed consent document is signed. These barriers may include accessibility, language, and literacy barriers. In addition, the informed consent must be obtained in a way that adheres to all civil rights protections cited within this rulemaking, ensuring that all individuals including those from underserved, underrepresented communities, with limited English proficiency, and with disabilities, are able to understand and freely make informed decisions.5 

Here, providers may wish to provide comment on the impracticality and overly burdensome number of factors a physician must consider before he or she may engage with registration of a patient. Additionally, providers may wish to offer comment on the level of potential exposure this may bring upon a physician as the IFR seeks to resolve social issues and perceptions through unrelated rulemaking as these goals are more appropriately addressed through legislation directed as that specific objective, not through an out-of-network law. 

Allowing Payors to Implement the NSA Before Rulemaking is Finalized 

The IFR states: 

Until rulemaking to fully implement these provisions is finalized and effective, plans and issuers are expected to implement the requirements using a good faith, reasonable interpretation of the statute. The Departments intend to issue guidance in the near future regarding their expectations related to good faith compliance with these provisions. 

Allowing payors to incorporate policies under their independent interpretations before finalization of the rules is materially denying providers the opportunity to truly comment on these rules and how they will impact patients and communities.  

New Claim Form Requirement 

The IFR proposes a new claim form requirement that would place a significant administrative burden on providers. The IFR states, “to the extent feasible, the Departments encourage providers and facilities to include information about whether the surprise billing protections apply to an item or service on the claim form itself.”6  

This proposed requirement is callously indifferent to the administrative burdens this obligation would place on providers insofar as delineating between which services from which facilities or providers would be subject to this law, but also neglects to acknowledge that there is no appropriate field on the UB-04 to notate such information. Providers should consult with their revenue cycle and billing professionals on how best to respond to this portion of the IFR inclusive of potentially unique system considerations that those in government may not have insight to. 

Where the Government is Seeking Comment 

Definition of “health care facility:”  

With respect to non-emergency services, the NSA currently defines a health care facility as either a hospital, a hospital outpatient department, a critical access hospital, an ambulatory surgical center, or any other facility, as specified by the Departments, that “provides items or services for which coverage is provided under the plan or coverage, respectively.”7 The Departments are seeking comment on what other types of facilities may be appropriate to designate as “health care facilities,” and specifically are interested in comment regarding whether urgent care centers or retail clinics should be designated as health care facilities for purposes of the NSA. 

Expanding the definition of “health care facilities” to include urgent care centers or retail clinics that do not provide emergency services8 would drastically expand the scope of which entities must comply with these new rules and thereby place additional administrative burdens on providers. Urgent care centers are defined and licensed differently between different states, which may further confuse both providers and consumers about who is subject to the law’s restrictions and who is not.  

Three Hour Notice Requirement 

The IFR proposes requiring providers and facilities to wait a minimum of three hours from the time notice and consent is provided to the provisioning of services. Specifically, the IFR states: 

In addition, these interim final rules specify that in the situation where an individual is provided the notice on the same day that the items or services are furnished, providers and facilities are required to provide the notice no later than 3 hours prior to furnishing items or services to which the notice and consent requirements apply.  

This 3-hour requirement is intended to address situations where an individual might be asked to provide consent immediately before a provider furnishes the item or service, which may prevent their consent from being truly voluntary. Stakeholders have recommended that notice and consent procedures be unavailable when an individual visits a participating facility and receives care from a nonparticipating provider from whom the individual did not seek out services (for example, if a specialist furnishes an unexpected consultation on the recommendation of the attending physician). Stakeholders expressed concern that such providers might provide the notice at the time they appear for the consultation, and the individual might feel compelled to consent to receive care. HHS is of the view that the requirement that the notice be provided no later than 3 hours prior to furnishing items or services helps to ensure individuals can voluntarily provide informed consent, while not removing the informed consent option entirely in instances where the appointment is made the same day as the date the services are scheduled. HHS seeks comment on whether such a time limit is a reasonable approach, as well as whether the 3 hours’ time requirement should be shorter or longer, in order to best ensure that consent is freely given while also facilitating timely access to care. For example, HHS is interested in understanding if there are situations where this time requirement may unduly delay access to urgently necessary care, including in the post stabilization care context. Alternatively, HHS is interested in understanding if more time may be necessary for an individual to read, understand, and consider their options, including considering whether they can resolve prior authorization or other care management limitations, before voluntarily consenting to treatment. HHS is also interested in whether these timing requirements present barriers to providers’ and facilities’ ability to comply with the requirement that the notice and consent documents be provided to the individual in paper or, as practicable, electronic form, as selected by the individual.9 

At a minimum, this proposed requirement would impact registration, scheduling, and the availability of providers to render services. It also begs the question of practicality as the three-hour rule not only delays the provisioning of care to a patient, it may create an unnecessary scheduling burden for patients. Where the IFR discusses patient burdens in previous sections with regard to limited access to private transportation and potential unavailability or increased safety-hazards of public transportation, as well as the cost-prohibitive nature of taxis or ride-share services and other social risk factors, it fails to provide the same considerations here with regard to treatment delays.10  

The IFR further fails to consider additional patient health and safety factors with regard to unnecessary exposure to communicable disease, particularly during the public health emergency, where a patient may have no choice but to wait for an unreasonably lengthy period of time for care or services under this obligation. For these reasons, providers are encouraged to request either elimination or substantial shortening of this timed obligation, as HHS’s concerns may be addressed with a significantly shorter waiting period between notice and consent and treatment than three hours.  

No Time Period or Statute of Limitations for Filing a Complaint 

The IRF specifically does not include a time period or statute of limitations for consumers to file a complaint against a provider for non-compliance with the NSA. The IFR states: 

[T]he Departments are of the view that every complaint should be processed and investigated as appropriate to ensure that any necessary enforcement action can be taken. Therefore, these interim final rules do not include a time period upon which a complaint must be filed. The Departments seek comment on whether a complainant should be required to file a complaint within a given time period and if so within what time period a complaint should be filed for the purpose of this section.11 

Providers should request a time period for complaints to align with other consumer protection laws or with the time periods in which they must retain records relating to the NSA, including consideration of the seven-year period with which they must retain a copy of the notice and consent form for out-of-network services. Otherwise, it is not unforeseeable that complaints may be filed beyond the statutory timeframe in which the provider was required to keep a record and that record had since been destroyed, thereby placing the provider at an unfair disadvantage. Complaints should be timely filed when memories and records are fresh.  

Provider Challenges in Development of a Good Faith Estimate 

Regarding the “good faith estimate” that must accompany the notice and consent, the IFR states:  

HHS is of the view that an individual cannot consent to waive balance billing and cost-sharing protections unless they have been informed of their potential liability with respect to both the facility and provider charges related to receiving post-stabilization services at a nonparticipating emergency facility. Therefore, nonparticipating emergency facilities must include in the written notice the good faith estimated amount that the participant, beneficiary, or enrollee may be charged for items or services furnished by the nonparticipating emergency facility or by nonparticipating providers with respect to the visit at such facility (including any item or service that is reasonably expected to be furnished by the nonparticipating emergency facility or nonparticipating providers in conjunction with such items or services). HHS seeks comment regarding potential challenges nonparticipating emergency facilities may have in coordinating the development of a good faith estimate on behalf of both the facility and providers.12 

Here, the government also seeks comment as to “whether the provider or the facility should be required to include information about what may be covered by the individual’s plan or coverage and an estimate of the individual’s out-of- pocket costs.”13  

Providers should consult with their revenue cycle leadership on the information that would be necessary to develop a good faith estimate, including an estimate of the full-time employees necessary to coordinate with payors in order to issue a good faith estimate of the services, as well as logistical and practical challenges in obtaining real-time plan and benefit specific information from out-of-network health plans, particularly employer-sponsored health plans that operate under a reference-based reimbursement model as their methods of calculation of plan benefits and member liability are often historically opaque.  

Contracted Networks and the QPA 

In determining the median contracted rate for purposes of calculating the qualifying payment amount (QPA), the Departments correctly recognized that some health plans rent provider networks. The IFR states: 

The Departments understand that some plans or issuers may rent provider networks or otherwise contract with third parties to manage provider networks. In these situations, contracted rates between providers and the entity responsible for managing the provider network on behalf of a plan or issuer would be treated as the plan’s or issuer’s contracted rates for purposes of calculating the QPA. The Departments seek comment on whether additional guidance or special rules are needed regarding how to define a contract in this situation.14 

Here, it may be prudent for providers to comment that any entity contracting with, for example, MultiPlan, is bound by the facility’s contract with MultiPlan for purposes of calculating the QPA.  

Disclosure Requirements and Transparency 

The IFR states that, “[t]he Departments seek to ensure transparent and meaningful disclosure about the calculation of the QPA while minimizing administrative burdens on plans and issuers.”15 Unfortunately, the IFR shifts that administrative burden to providers when it does not require payors to make meaningful disclosures that promote transparency in the calculation of the QPA.  

As currently drafted, the IFR requires the payor to disclose the QPA for each item or service involved, a statement certifying that the QPA applies for purposes of the recognized amount for payment, and that each QPA shared with the provider was determined in compliance with the IFR.16 The payor must also include a statement explaining how the provider may initiate the 30-day negotiation process.17  

Disclosures beyond these three requirements are regrettably only made upon specific request, including information about whether the QPA includes contracted rates or a fee schedule, whether a related service code was used to determine the QPA for a new service code, whether the payor used a database to determine the QPA, and whether the payor’s contracted rates include incentive based or retrospective payments or adjustments that were included or excluded for purposes of calculating the QPA.  

As currently drafted, the IFR does not promote transparency in the independent validation of the QPA by the provider. Rather, it unfairly shifts the onerous burden to the provider of individually requesting information necessary to calculate anticipated payment for items and services. This is particularly imbalanced when providers are already at a disadvantage with out-of-network reference-based plans which often do not share patient benefit information or cost sharing information.  

A Call to Action—Submit Comments  

Comments to the IFR must be received at one of the addresses provided below, no later than 5 p.m. on September 7, 2021 to be assured consideration.18  

Comments, including mass comment submissions, must be submitted in one of the following three ways (you must choose only one of the ways listed): 

1.Electronically. You may submit electronic comments on this regulation at by entering the file code CMS-9909-IFC in the search window and then clicking on ‘‘Comment’’.

2.By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9909–IFC, P.O. Box 8016, Baltimore, MD 21244–8016. Please allow sufficient time for mailed comments to be received before the close of the comment period.

3.By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9909–IFC, Mail Stop C4–26–05, 7500 Security Boulevard, Baltimore, MD 21244–1850. 

The IFR in its current form is appallingly biased in favor of payors at the expense of providers. Comments should include descriptions of how your facilities may serve disadvantaged communities, including rural communities, minority populations, and patient populations impacted by other socially determinate issues.  

Providers should also consider issuing a letter jointly, with fellow regional or geographical providers or providers within the same specialty, to demonstrate the shared concern over these proposed rules and the negative unintended consequences to patients, communities, and the physician-patient relationship. Providers may also consider joining advocacy groups or associations formed on behalf of patients.

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If you are concerned about the lack of resources your team has to devote to reviewing the No Surprises Act and its corresponding regulations our team of credentialed revenue cycle experts is here to help. Customer service is at the heart of Ensemble’s ethos and we are ready to help you prepare for the operational impact associated with the No Surprises Act. Avoid performance disruption by getting ahead of the requirements and preparing now for what’s to come in January 2022.

Contact us to learn more at [email protected], (704) 765-3715, or 


1.Requirements Related to Surprise Billing; Part I, 86 Fed. Reg. 36872, (July 13, 2021).
2.Id. at 36930-36931
5.Id. At 36881.
6.Id. at 36900.
7.Id. at 60.
8.Notably, the IFR recognizes that some state laws allow “urgent care centers” to provide emergency services, and the IFR states that such facilities would fall within the definition of independent freestanding emergency departments for purposes of the IFR. See pg. 36879.
9.Id. at 36907.
10.Id. At 36880-36881.
11.Id. at 36902.
12.Id. at 36907-36908.
13.Id. Similarly, the IFR seeks to relegate if providers should be required to provider further information on plan-specific prior authorization obligations which present similar administrative challenges.
14.Id. at 36889.
15.Id. at 36898.
16.Id. at 36898—36899.
17.Id. at 36899.
18.Id. at 36872.