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Departments Issue Guidance on No Surprises Act and Limitations on Cost Sharing Under the Affordable Care Act

by | Aug 1, 2023 |

By Dannae Delano, Roberta Watson and Barry Salkin

In FAQ Part 60, the Departments of Health and Human Service, Treasury, and Labor (the “Departments”) addressed limitations on cost sharing under the Affordable Care Act (the “ACA”), certain relationships between the ACA and the No Surprises Act, and facility fees under the No Surprises Act.

With respect to non-grandfathered plans, the ACA provides a maximum annual limitation on an individual’s cost-sharing.  This limit is sometimes referred to as the maximum out-of-pocket limitation or MOOP.  Under the ACA, the cost-sharing that is capped by the MOOP does not include premiums, balance billing amounts for non-network providers, or spending for non-covered services.  If a plan includes a network of providers, a plan may count an individual’s out-of-pocket spending for out-of-network items and services towards the MOOP limit but is not required to do so.

An out-of-network provider, for purposes of the MOOP cap, is a provider or facility with which the plan or issuer does not have a direct or indirect contractual arrangement with respect to the applicable plan or coverage.  In the new FAQ Part 60, the Departments explain that cost sharing for services provided by participating providers, as defined under the No Surprises Act, would be treated as in-network cost-sharing for purposes of the ACA, and cost-sharing for services provided by nonparticipating providers would be considered to be out-of-network cost sharing for purposes of the ACA.  Consistent with that approach, the Departments indicated that it is not permissible for a plan or issuer to treat a provider, facility, or provider of air ambulance services with which it has a contractual relationship as out-of-network for purposes of the MOOP limit under the ACA while also treating the provider as participating for purposes of the No Surprises Act.

The Departments also address facility fees provided outside of hospital settings (e.g., when facility fees are not covered in connection with essential health services).  The Departments indicate that for purposes of the Transparency in Coverage regulations issued by the Trump Administration, and the good faith estimate requirements for uninsured or self-pay individuals under the No Surprises Act, facility fees are included within the definition of “items and services.”  As a result, plans and issuers will be required to make price comparison information for covered facility fees available to participants, beneficiaries, and enrollees on request, as well as providing good faith estimates to uninsured or self-pay individuals, as will be required by the No Surprises Act once those provisions are effective.  The Departments further indicate that future regulations with respect to advanced explanations of benefits and good faith estimates will address facility fees in a similar manner.

Employer plan sponsors should be communicating with their group health plan vendors regarding the vendors’ preparation for the Transparency in Coverage, good faith estimates, and advance explanations of benefits required under the No Surprises Act, as explained further under FAQ Part 60.  It is key to remember that, beginning on January 1, 2024, there will be an expanded disclosure requirement for group health plans to provide price comparison information for all covered items and services that will likely address facility fees in a manner similar to FAQ Part 60.