FAQs Part 60 - No Surprises Act, Transparency in Coverage Rule and the Affordable Care Act

On July 7, 2023, Federal Regulators issued FAQs Part 60, reminding plan and insurers of mandates under the No Surprises Act, Transparency in Coverage Rule and the Affordable Care Act.

Maximum Out of Pocket Limit (MOOP limit)

Regulators reiterated that cost sharing attributable to benefits provided by nonparticipating providers is generally,  not required to be counted toward the maximum out of pocket limit or MOOP limit under federal law1. However, the No Surprises Act requires that a plan and insurer count any cost-sharing payments made by a participant for services that are subject to the surprise billing protections of the No Surprises Act toward any in-network deductible or MOOP limit.

Regulators went on to reiterate that if a plan or insurer has a direct or indirect contractual relationship with a provider, facility or air ambulance provider that set forth the terms and conditions on which a relevant item or service is provided to a plan participant, that provider, facility or air ambulance provider is considered as “participating” for purposes of the No Surprises Act, and is considered in-network for purposes of the MOOP limit under federal law1. 

For emergency services, non-emergency services furnished by a provider in a participating facility, and air ambulance services, either,

1. the balance billing and cost-sharing protection under the No Surprises Act will apply because the items and services are furnished by a nonparticipating provider, emergency facility or provider of air ambulances services; or
2. the MOOP limit under the ACA will apply (if the plan/coverage is non-grandfathered) because the items or services are furnished by an in-network provider, facility, or provider of air ambulance services.

Under no circumstances can an emergency facility providing emergency services to a participant be “out-of-network” for purposes of the MOOP limit and simultaneously be “participating”.

Facility Fees

Federal regulators expressed concern that participants are increasingly charged facility fees for health care received outside of hospital settings. When facility fees are covered by the participant’s plan or coverage in connection with essential health benefits provided in-network, cost sharing for these fees is subject to the MOOP limit.  When not covered, those fees expose participants to financial risk, and will come as a surprise. Such fees should be included in the Transparency in Coverage Rule price comparison information.  While Federal regulators have not yet issued regulations implementing the No Surprises Act’s good faith estimate and advance EOB mandate provisions, Federal regulators anticipate that future proposed rules will address facility fees in conjunction with such mandate provisions.