The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury recently issued joint FAQs (Part 60) concerning the implementation of specific provisions of the Affordable Care Act (ACA) and Title I of Division BB of the Consolidated Appropriations Act, 2021 (the No Surprises Act). The purpose of these FAQs is to address overlap in some areas of the ACA and the No Surprises Act.
The first two FAQs concern cost-sharing requirements for surprise billing and how it interacts with the ACA annual out-of-pocket maximum limitation. Cost-sharing requirements under the surprise billing act depend on whether a “participating” or “nonparticipating” provider or facility. “Participating” or “nonparticipating” status is determined by whether the entity has a contractual relationship with the plan or insurer. ACA-cost sharing limitations, including maximum out-of-pocket (MOOP) limits, depend on whether the provider or facility is “in-network” or “out-of-network.”
FAQ 1 states that cost-sharing for the services of nonparticipating providers or facilities under the surprise billing rules constitutes cost-sharing for out-of-network providers for purposes of the MOOP limit. Accordingly, cost-sharing for the services of participating providers or facilities under the surprise billing rules constitutes cost-sharing for in-network providers for purposes of the MOOP limit.
FAQ 2 states that a plan or insurer that treats a provider or facility as out-of-network may not treat it as “participating” under the surprise billing act for the MOOP limit. Therefore, for all services for which the surprise billing rules apply, either the cost-sharing protections of the surprise billing rules apply (in the case of nonparticipating providers), or the ACA MOOP limit applies (in the case of participating providers). In other words, there are no circumstances under which an emergency facility providing emergency medical service be both “out-of-network” for purposes of the MOOP limit and “participating” for purposes of the No Surprises Act.
The third FAQ addresses disclosure requirements under the ACA transparency in coverage (TIC) rules and surprise billing rules concerning facility fees, which patients often are charged when receiving services outside the hospital setting. Under the TIC rules, plans and insurers must provide price comparison information available online and on paper (if requested). Providers and facilities also must provide insurers and plans with good faith billing estimates of expected charges for specific items or services if an enrollee seeks to have a claim for those items or services submitted to the insurer or plan. As a result, the plan must provide an advanced explanation of benefits to the individual concerning its coverage of the items or services. This FAQ specifies that the price comparison tools must include information on facility fees. Furthermore, the FAQ indicates that future regulations will likely require advanced explanations of benefits, including information on facility fees.
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