Advocacy Alert

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Administration Publishes No Surprises Act Final Rule

Julie Kozminski
August 23, 2022

The Biden administration on Aug. 19, 2022, published the No Surprises Act (NSA) final rule, which finalizes disclosure requirements for the qualifying payment amount (QPA) and select provisions for the related independent dispute resolution (IDR) process.

The rule, issued jointly by the Department of the Treasury, Department of Labor, and Department of Health and Human Services, comes after a two-part interim final rule released in 2021.

The interim final rule required health plans to disclose the QPA to out-of-network providers with each initial payment or denial of payment when the QPA served as the amount on which cost-sharing was based. Further, the rule designated the QPA as the primary factor in determining the payment amount for an out-of-network service in the IDR process.

In the final rule, HHS defined the term “downcoded” as either the alteration by a health plan of one service code to another service code, or the alteration, addition, or removal of a modifier, if the changed code or modifier is associated with a lower QPA than the service code the provider billed. Health plans must provide the QPA, and, if the claim has been downcoded, an explanation of why it was downcoded and the QPA for the service as it was billed.

Notably, in the IDR process, arbiters must consider along with the QPA other permissible factors, including a facility’s teaching status, case mix, and scope of services, when determining the payment amount for an out-of-network service.

The final rule did not address good faith estimate requirements, with which the association expressed concern in a December 2021 comment letter.

HHS also released frequently asked questions (FAQs) regarding implementation of the NSA and the Affordable Care Act. The FAQs cover questions related to:

  • general disclosure for protections against balance billing;
  • standard notice and consent form and model disclosure notice regarding patient protections against balanced billing;
  • methodology for calculating QPAs; and
  • requirements for initial payments or notices of denial of payment, related disclosures, and initiation of open negotiation periods and the federal IDR process.

Finally, the Centers for Medicare & Medicaid Services provided an initial status update on the current federal IDR process implementation. Between April 15 and Aug. 11, more than 46,000 disputes were initiated through the federal IDR portal, substantially more than estimated for a full year.

Contact Director of Policy Rob Nelb, MPH, at or 202.585.0127 with questions.

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