Home / Legislative News
Certain Procedures of No Surprises Act Set Aside
By Burnham Compliance

On February 28, 2022 the Departments of Health and Human Services, Labor and the Treasury (Departments) announced in a memorandum that they would temporarily set aside certain provisions of their interim final rule, released on September 30, 2021, governing aspects of the federal independent dispute resolution (IDR) process under the No Surprises Act (NSA). The memorandum was issued in response to a February 23, 2022 ruling by the Unites States District Court for the Eastern District of Texas in the case of Texas Medical Ass’n, et al. v. United States Department of Health and Human Services, et al., that invalidated these provisions.

The NSA was enacted on December 27, 2020 as Division BB of the Consolidated Appropriations Act, 2021. It generally prohibits health plans and insurers, in-network facilities and providers of air ambulance services from balance billing covered individuals beyond in-network cost-sharing limits for certain out-of-network services. Consumer protections began taking effect January 1, 2022.

Specifically, among the provisions that were invalidated by the district court included “a rule that created a rebuttable presumption that the amount closest to the qualifying payment amount is the proper payment amount for an NSA-covered item or service in disputes involving the NSA’s IDR procedures.” Thus, without this presumption, there is a greater risk that when there is a dispute between a provider and the third-party administrator, the provider may prevail.

The Departments indicated they are reviewing the district court’s decision and are considering next steps to conform to the court’s order. Specifically, they are immediately withdrawing guidance documents that were based on, or referred to, the portions of the interim final rule that were invalidated and will update them to comply with the court’s order. Once the revised guidance is issued, they will provide appropriate training through webinars and roundtable discussions. The Departments also intend to open up the IDR process for resolving payment disputes related to out-of-network payment amounts between providers or facilities and health plans/issuers.

Please note that the Departments’ other guidance under the NSA remains in effect. Thus, consumers continue to be protected from surprise bills for out-of-network emergency services, out-of-network air ambulance services, and certain out-of-network services received at in-network facilities. The patient-provider dispute resolution process for uninsured and self-pay consumers to dispute bills that exceed a provider’s or facility’s good faith estimate by $400 or more also remains available and unchanged by the court’s order.



For additional information regarding the NSA, including consumer protections under it, visit www.cms.gov/nosurprises, or contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.