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April 19, 2022

CMS Issues FAQs on the No Surprises Rules

On April 6, 2022, the Centers for Medicare & Medicaid Services (CMS) issued new frequently asked questions (FAQs) for providers pertaining to the No Surprises Act.

The No Surprises Act established a variety of new requirements intended to protect consumers from surprise medical bills. These requirements are collectively referred to as the “No Surprises Rules.” The rules’ requirements generally apply to items and services provided to consumers enrolled in group health plans, group or individual health insurance coverage, and federal employees health benefits plans. CMS’s FAQs provide information on questions received from providers and facilities pertaining to the rules, relevant exceptions, and the independent dispute resolution (IDR) process. The following is a summary of key takeaways from the FAQs.

Exceptions to the Rules

In addition to setting out the various requirements for providers under the rules, the FAQs clarify a variety of exceptions applicable to the requirements, including those related to balance billing for out-of-network emergency services, the types of services for which providers may never balance bill, and disclosure of patient protections against balance billing. Notably, the FAQs provide that there are no exceptions to the requirement barring out-of-network providers of air ambulance services from balance billing for services.

Enforcement Discretion for Good-Faith Estimates

In regard to providing a good-faith estimate in advance of scheduled services or upon request, the FAQs clarify that the Department of Health & Human Services (HHS) will exercise its enforcement discretion in situations where a good-faith estimate provided to an uninsured or self-pay individual fails to include expected charges from other providers and facilities that are involved in the individual’s care. Importantly, this enforcement discretion will only apply from January 1 through December 31, 2022. Additionally, the HHS will also defer enforcement of the requirement that providers and facilities provide good-faith estimate information for individuals enrolled in a health plan or coverage until further rulemaking is issued.


The FAQs clarify that although the rules’ protections apply to individuals enrolled in a health plan either through an employer, marketplace, or an individual market health issuance insurer, the rules do not apply to individuals with coverage through programs that include Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or Tricare. The rules’ protections also do not apply to individuals who are enrolled in short-term limited duration insurance; excepted benefits, including stand-alone dental or vision-only coverage; or retiree-only plans.

In terms of identifying the types of providers the rules apply to, the FAQs state that how the provider practices, rather than specialty type, license, or certification, is the appropriate assessment. Although the rules broadly apply to physicians or health care providers acting within their scope of practice as identified under applicable state law, some requirements of the rules are only triggered by practice in a certain setting or manner.

Notice and Consent Requirements

The FAQs clarify that health care providers, facilities, and patients are not required to sign an acknowledgement that the required disclosure notice for patient protections against surprise billing was provided or received. Providers may also enter into a written agreement with the facility allowing the facility to make the disclosure instead of the provider.

Providers and facilities are also permitted to provide patients with a notice and consent form if the patient is being asked to waive their balance billing protections. However, a different notice and set of requirements will apply in these cases. This consent form must be signed by the patient, must be retained for at least seven years, and is only applicable to non-emergency care (not post-stabilization services) provided by out-of-network providers related to a visit to an in-network facility and post-stabilization services. Additionally, the notice and consent form may not list a provider group and instead must explicitly identify the individual provider expected to provide a given service. Importantly, the balance billing prohibitions do not apply to situations where a patient is receiving non-emergency services from an out-of-network provider during a visit to an out-of-network facility, and as such, the patient’s consent is not required for the provider to bill the patient directly or balance bill for the services.

IDR Process Fees

The FAQs clarify that there are two types of fees applicable to the federal IDR process. These fees include the administrative fee for use of the process and the certified IDR entity fee. Each party must pay an administrative fee per single or batched IDR determination (i.e., a determination that involves multiple IDR items or services that are considered jointly as one payment determination). The administrative fee for calendar year 2022 is $50.

The certified IDR entity fees must be paid by each party, and the fees are due when each party submits their offer. Fees for single determinations must be within the range of $200 to $500, and fees for batched determinations must be within the range of $268 to $670. The certified IDR entity, however, may receive approval from HHS to charge fees that are outside these ranges. The fee paid by the prevailing party will generally be refunded, and in some cases, the refund may be split between parties. However, administrative fees for batched determinations will not be refunded, even in instances where an agreement is reached by the parties prior to a determination from the certified IDR entity.

We recommend that health care providers subject to the rules review and update their policies and procedures as necessary based on the additional information and clarifications provided in CMS’s FAQs, which can be viewed in their entirety on CMS’s website. Barclay Damon’s Health & Human Services Providers Team is available to assist health care providers with compliance efforts under the rules and will continue to monitor any developments and best practices.

If you have any questions about the content of this alert, please contact Dena DeFazio, associate, at, or another member of the firm’s Health & Human Services Providers Team.


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