Surprise Billing in Private Health Insurance: Overview of Federal Consumer Protections and Payment for Out-of-Network Services

Surprise Billing in Private Health Insurance: Overview of Federal Consumer Protections and Payment for Out-of-Network Services

Surprise Billing in Private Health Insurance:
July 26, 2021
Overview of Federal Consumer Protections
Ryan J. Rosso
and Payment for Out-of-Network Services
Analyst in Health Care
Financing
The term surprise billing typically refers to individuals receiving large, unexpected medical bills

for out-of-network care. Generally, surprise billing occurs when consumers are unknowingly, and
Noah D. Isserman
potentially unavoidably, treated by providers outside of their health insurance plan networks and,
Analyst in Health
as a result, unexpectedly receive larger bills than they would have received if the providers had
Insurance and Financing
been in their plan networks. To address surprise billing, Congress passed the No Surprises Act,

which was included as part of the Consolidated Appropriations Act, 2021 (P.L. 116-260).
Wen W. Shen
Legislative Attorney
No federal requirements directly addressed surprise billing prior to the passage of the No

Surprises Act, but over half of states had implemented policies to address surprise billing in some
capacity. However, the state laws are limited in application, as certain types of health insurance

plans—such as self-funded plans offered by employers—are exempt from state insurance
regulation. Among the states that offer such consumer protections, policies vary in their application and differ according to
the types of situations addressed (e.g., emergency services, out-of-network care at an in-network facility); the types of plans
addressed (e.g., health maintenance organization [HMO], preferred provider organization [PPO]); and the methods used to
determine insurer payments to providers for such services (e.g., benchmark, arbitration).
Beginning in 2022, federal requirements will address surprise billing in eight types of situations: (1) out-of-network
emergency services; (2) out-of-network services provided to a consumer during an outpatient observation stay or an inpatient
or outpatient stay during the visit in which a consumer receives emergency services; (3) out-of-network nonemergency, non-
ancillary services provided at an in-network facility; (4) out-of-network nonemergency, ancillary services provided at an in-
network facility; (5) out-of-network air ambulance services; (6) services scheduled at least three business days in advance; (7)
out-of-network services from a provider that initially was in network but subsequently became out of network during the
course of treatment (i.e., continuity of care); and (8) out-of-network services from a provider that the consumer assumed was
in network based on incorrect information from the plan. In many specified situations, the surprise billing consumer
protections and corresponding insurer/provider requirements are structured similarly. However, there are some distinctions
with respect to how federal requirements apply to specific surprise billing situations.
Similar to many state laws, federal surprise billing requirements often address the financial relationships among insurers,
providers, and consumers. They do so by establishing new requirements on insurers and providers to create a degree of
consumer protection related to reducing patient financial responsibilities with respect to some types of out-of-network care
and/or by providing consumers with information so they can make an informed decision about whether to receive scheduled
out-of-network care.
In addition, federal requirements often specify the methods by which insurers determine payment to providers in certain
surprise billing situations (because solely reducing consumer financial liability in such situations would reduce the total
amount providers receive for their services). This type of requirement effectively specifies what the insurer and the provider
are to recognize as the total payment for specified out-of-network care. For most surprise billing situations in which federal
law applies, insurers make an initial payment to providers for services and either entity subsequently may request to open
negotiations if the entity is unsatisfied with the initial payment amount. If an agreement cannot be reached through
negotiations, an independent dispute resolution process (IDR) is available; the IDR process allows the payment amount to be
determined by a neutral third party. In some instances where state surprise billing laws apply, state law methodologies will be
used to determine the payment amount instead of this federal methodology.
This report provides an overview of private health insurance billing and describes federal requirements related to surprise
billing. Table A-1 summarizes all deadlines and deliverables required in the No Surprises Act. Appendix B summarizes
additional provisions of the No Surprises Act not explicitly summarized or referenced elsewhere in the report. Table C-1
summarizes the applicability of federal surprise billing requirements to different surprise billing situations.
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Contents
Surprise Billing............................................................................................................... 1
Private Health Insurance Billing Overview .................................................................... 1
In-Network Coverage............................................................................................ 2
Out-Of-Network Coverage .................................................................................... 3
Federal Requirements Addressing Surprise Billing ............................................................... 5
What Plan Types Are Addressed? ................................................................................. 6
When Do Surprise Bil ing Requirements Apply? ............................................................ 6
What Consumer Protections Apply in Surprise Billing Situations? .................................... 7
Financial Protections............................................................................................. 7
Informational Protections .................................................................................... 11
How Much Do Insurers Pay Providers in Surprise Billing Situations? .............................. 16
How Are Surprise Bil ing Requirements Enforced?....................................................... 21
Enforcement Mechanisms Applicable to Insurers .................................................... 21
Enforcement Mechanisms Applicable to Providers .................................................. 22
How Do Federal Surprise Bil ing Requirements Interact with State Surprise Bil ing
Laws? ................................................................................................................. 23

Figures
Figure 1. Il ustrative Examples of Billing Under Private Health Insurance ............................... 3
Figure 2. Il ustrative Examples of Consumer Bil ing, Including Specified Surprise Bil ing
Situations .................................................................................................................. 10

Tables
Table 1. Il ustrative Example of Cost-Sharing Requirements for a Plan That Covers Out-
of-Network Services ..................................................................................................... 4
Table 2. Specified Consumer Financial Protections in Surprise Billing Situations...................... 8
Table 3. Criteria That Cause Surprise Billing Consumer Financial Protections to Apply ........... 11
Table 4. Information Included in Surprise Billing Notices.................................................... 13
Table 5. Federal Payment Methodologies in Surprise Bil ing Situations with Consumer
Financial Protections................................................................................................... 17
Table 6. Factors Considered During Independent Dispute Resolution (IDR) Process................ 20
Table 7. Factors Considered During Air Ambulance Independent Dispute Resolution
(IDR) Process ............................................................................................................ 21

Table A-1. Deadlines and Deliverables in the No Surprises Act ............................................ 28
Table C-1. Summary of Various Federal Surprise Billing Requirements, by Situation .............. 43

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Appendixes
Appendix A. Implementation Requirements of the Surprise Bil ing Protections in the No
Surprises Act ............................................................................................................. 27
Appendix B. Other Provisions of the No Surprises Act ....................................................... 38
Appendix C. Summary of the Applicability of Various Requirements in Different Surprise
Billing Situations ....................................................................................................... 42

Contacts
Author Information ....................................................................................................... 46

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Surprise Billing
The term surprise billing typical y refers to an individual receiving a large, unexpected medical
bil for out-of-network care. Often surprise bil ing occurs when a consumer is unknowingly, and
potential y unavoidably, treated by a provider outside of the consumer’s health insurance plan
network and, as a result, unexpectedly receives a larger bil than he or she would have received if
the provider had been in the plan network.1 For example, a consumer could receive a surprise bil
after he/she receives emergency services from an out-of-network provider or nonemergency
services from an out-of-network provider working in an in-network facility.
As these situations imply, surprise bil ing is rooted in most private insurers’ use of provider
networks. Therefore, this report begins with a discussion of the relationship between provider
network status and private health insurance bil ing before discussing various aspects of federal
surprise bil ing requirements.2
Federal surprise bil ing requirements were implemented by the No Surprises Act, part of the
Consolidated Appropriations Act, 2021 (P.L. 116-260). No federal requirements directly
addressed surprise bil ing prior to the passage of the No Surprises Act, but over half of states had
implemented policies to address surprise bil ing in some capacity.
This report answers frequently asked questions about the nature of the federal surprise bil ing
requirements and corresponding consumer protections, the interaction between federal and state
surprise bil ing requirements, and the enforcement of the federal provisions. A summary of
various federal surprise bil ing requirements can be found in an appendix table (Table C-1). The
Departments of Health and Human Services (HHS), the Treasury, and Labor were developing
implementation regulations at the time this report was being drafted; therefore, the report reflects
statutory language and certain aspects of the report may be further defined through the regulatory
process. Although the requirements are discussed in the present tense to facilitate easy reading,
they wil come into effect on January 1, 2022.
The body of the report general y does not discuss implementing requirements (e.g., required
rulemaking) and other deadlines and deliverables, but al deadlines and deliverables included in
the No Surprises Act are summarized at the end of the report (Table A-1).
The No Surprises Act also included other provisions that relate to the topic of surprise bil ing but
do not relate directly to the requirements on insurers and providers regarding the cost of, and
payment for, services provided in surprise bil ing situations. Some of these “other provisions” that
are not discussed or referenced within the body of this report are summarized in Appendix B.
Private Health Insurance Billing Overview
The charges and payments for health care items or services under private health insurance are
often the result of contractual relationships among consumers, insurers, and providers for a given
health plan.

1 A consumer may be surprised to receive larger-than-expected medical bills for other reasons; for example, the
surprise component may arise because a consumer misunderstands the terms of his or her health insurance policy and
receives a bill for an unexpected amount. Such other reasons generally are outside the scope of this report and are not
included in this report’s usage of the term surprise billing.
2 A previous Congressional Research Service (CRS) report on surprise billing discussed a selected set of policy issues
and legislative approaches relating to the topic. See CRS Report R46116, Surprise Billing in Private Health Insurance:
Overview and Federal Policy Considerations.
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Health care providers establish dollar amounts for the services they furnish; such amounts are
referred to as charges and reflect what providers think they should be paid. However, the actual
amounts a provider is paid for furnishing services vary and may not be equal to the provider-
established charges. The amounts a provider receives for furnished services, and how the payment
is divided between the insurer and the consumer, can vary due to a number of factors, including
(but not limited to) the provider’s network status (i.e., in network or out of network), whether the
services are covered under the plan, whether an insurer pays for services provided by out-of-
network providers, enrollee cost-sharing requirements, whether a provider can bil the consumer
for an additional amount above the amount paid by the consumer in the form of cost sharing, and
the insurer’s contract with the provider.
Figure 1 highlights the effects of these distinctions. The following sections discuss them in the
context of in-network and out-of-network coverage.
In-Netw ork Coverage
With private insurance, the amount paid for a covered item or service is often contingent on
whether a consumer’s insurer has contracted with the provider. Insurers typical y negotiate and
establish separate contracts with hospitals, physicians, physician organizations (such as group
practices and physician management firms), and other types of providers.3 If a particular insurer
has a contract with a specific provider, that provider general y is considered to be part of that
insurer’s provider network (i.e., that provider is considered in network).
The contents of contracts between insurers and providers vary and typical y result from
negotiations between the two parties; however, these contracts general y specify the amounts
providers are to receive for providing in-network services to consumers (i.e., negotiated
amounts).4 Negotiated amounts typical y are lower than what providers would otherwise charge
had they not contracted with an insurer.
When an in-network provider furnishes a service to a consumer, the insurer and the consumer
typical y share the responsibility of paying the provider the negotiated amount established in the
contract.5 The consumer’s portion of the negotiated amount is determined in accordance with the
cost-sharing requirements of the consumer’s health plan (e.g., deductibles, co-payments,
coinsurance, and out-of-pocket limits; see Figure 1).6 If the consumer receives covered services
from in-network providers, the consumer general y has lower cost-sharing requirements than if
he/she had received the same services out of network. General y, in-network providers are
contractual y prohibited from bil ing consumers for any additional amounts above the negotiated
amount (i.e., balance bill).

3 In some instances, an insurer may negotiate jointly with multiple entities. For example, an insurer may negotiate one
contract with a large health system that combines physicians and hospitals.
4 T he negotiated amount an insurer pays for particular services typically varies amon g all providers that have
contracted with the insurer. Such discrepancies are due, in part, to the market power of a given insurer relative to the
market power of a given provider.
5 Some services may be provided without cost to the consumer. For example, plans generally are required to provide
coverage for certain preventive health services without imposing cost sharing. 42 U.S.C. §300gg-13.
6 For definitions of such cost -sharing terms, see Centers for Medicare & Medicaid Services (CMS), Glossary, at
https://www.healthcare.gov/glossary/.
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Figure 1. Illustrative Examples of Billing Under Private Health Insurance
(20% coinsurance for in-network services and 40% coinsurance for out-of-network services)

Source: Congressional Research Service.
Notes: These examples are for il ustrative purposes only; they do not represent the ful spectrum of possible
bil ing scenarios. The examples assume the consumer’s deductible has been met, the in-network out-of-pocket
(OOP) limit has not been reached, and there is no out-of-network OOP limit. In the example, Provider Charge
= $50,000, Total Al owed Amount = $35,000, and Negotiated Amount = $30,000. Consumer cost-sharing
amounts are based on these totals, where applicable. Outside of this example, coinsurance rates for in-network
and out-of-network services may vary by plan.
Out-Of-Netw ork Coverage
When no contract between an insurer and a provider exists, the provider is considered to be out of
the insurer’s provider network. The total costs for services furnished by an out-of-network
provider, and who pays for such services, depend on a number of factors; one key factor is
whether the plan covers out-of-network services in the first place. General y, point-of-service
plans and preferred provider organization (PPO) plans cover out-of-network services. By
contract, exclusive provider organization plans and health maintenance organization (HMO) plans
general y cover only services by providers within the plans’ networks (except in an emergency or,
beginning in 2022, in certain surprise bil ing situations).
Insurer Pays for Out-Of-Network Services
When an insurer covers out-of-network services, both the consumer and the insurer contribute
some amount to the provider, with the consumer’s amount determined in accordance with the
plan’s cost-sharing requirements. Consumer cost-sharing requirements for services provided by
an out-of-network provider may be separate from (and typical y are greater than) cost-sharing
requirements for the same services provided by an in-network provider. For example, a plan may
have different deductibles for in-network and out-of-network services.
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Table 1 provides an example of how cost-sharing requirements may differ for in-network and
out-of-network services.
Table 1. Illustrative Example of Cost-Sharing Requirements for a Plan That Covers
Out-of-Network Services
Selected Cost-Sharing
Requirements
In Network
Out of Network
Deductible
$350 overal deductible
Coinsurance Rate
15% of negotiated amount
35% of total al owed amount
(Outpatient Surgery)
$7,000
Out-of-Pocket Limit
(includes amounts for in-network
No limit
providers only)
Source: Congressional Research Service.
Notes: This example is for il ustrative purposes only; it does not represent the ful spectrum of possible cost-
sharing requirements.
Cost-sharing requirements indicate how an insurer and a consumer wil share the cost for a
service, but the insurer determines the total amount that cost-sharing requirements wil be based
on—often referred to as the total allowed amount.7 (Because there are no contracts between out-
of-network providers and insurers, there are no negotiated amounts on which to base consumer
cost sharing.)
The total al owed amount does not necessarily match the negotiated amount insurers may have
contracted with other providers or the provider charge amount for that service.8 In other words,
there could be a discrepancy between the insurer and the provider over the total cost of care.
Insurers have their own methodologies for calculating the total al owed amount. They may do so
by incorporating the usual, customary, and reasonable rate (UCR), which is the amount paid for
services in a geographic area based on what providers in the area usual y charge for the same or
similar medical services.9
If an out-of-network provider’s total charge for a service exceeds the total al owed amount
determined by the insurer (and if al owed under law), the provider may directly bil (i.e., balance
bil ) a consumer for the amount of that difference (sometimes referred to as the excess charge; see

7 Under current law, plans that cover in-network emergency services are required to recognize the greatest of the
following three payment standards as the total amount for out-of-network emergency services: (1) the median amount
the insurer has negotiated with in-network providers for the furnished service; (2) the usual, customary, and reasonable
amount the insurer pays out -of-network providers for the furnished service; or (3) the amount that would be paid under
Medicare for the furnished service. Beginning in 2022, this greatest-of-three payment standard will no longer apply and
will be replaced by the payment standard implemented by the No Surprises Act, as applicable to emergency services.
For more information on the greatest -of-three payment standard, see “ Existing Requirements Addressing Surprise
Billing” in CRS Report R46116, Surprise Billing in Private Health Insurance: Overview and Federal Policy
Considerations.
8 If a total allowed amount is larger than a negotiated rate, then the consumer’s payment for out -of-network services
could be larger than a corresponding payment for in -network services, regardless of whether the cost -sharing terms are
identical for in-network and out -of-network care. For example, a 20% coinsurance rate on a $150 total allowed amount
would result in a larger payment ($30) than a 20% coinsurance rate on a $100 negotiated rate ($20).
9 CMS, “UCR (Usual, Customary, and Reasonable),” in Glossary, at https://www.healthcare.gov/glossary/ucr-usual-
customary-and-reasonable/.
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Figure 1). The consumer would therefore be responsible for paying amounts associated with any
cost-sharing requirements and the balance bil amount.
The provider is responsible for collecting any balance bil amounts; from an administrative
standpoint, it is considered more difficult to collect these balance bil amounts than to collect
payments from insurers.10 In some instances, providers may settle with balance-bil ed consumers
for amounts that are less than the total balance bil .
Insurer Does Not Pay for Out-of-Network Services
If a consumer receives out-of-network care not covered by his or her plan, the consumer is
responsible for paying the total amount charged by the provider for the out-of-network services
(represented in Figure 1 as “Out-of-Network Services Not Covered Under Plan”).11 Although the
consumer pays the provider in this instance, the consumer costs are not technical y cost sharing
(because the insurer is not sharing costs with the consumer), nor are they the balance remaining
after the provider receives certain payments. Therefore, this report refers to these costs as other
consumer costs.12
Similar to balance bil s, providers are responsible for collecting these other consumer costs .
Providers ultimately may decide to settle with the consumer for amounts that are less than the
initial charges.
Federal Requirements Addressing Surprise Billing
Federal surprise bil ing requirements were established as part of the No Surprises Act, Title I of
Division BB of the Consolidated Appropriations Act, 2021. The requirements wil take effect
starting with plan years that begin on or after January 1, 2022.13 The No Surprises Act placed
requirements on insurers and providers to create a degree of consumer protection in specified
surprise bil ing situations.14
The following section answers frequently asked questions about the broadly applicable consumer
protections that wil be required in specified surprise bil ing situations and the corresponding
requirements that wil apply to both insurers and providers.

10 Loren Adler et al., State Approaches to Mitigating Surprise Out-of-Network Billing, USC-Brookings Schaeffer
Initiative for Health Policy, February 2019, p. 6, at https://www.brookings.edu/wp-content/uploads/2019/02/Adler_et -
al_State-Approaches-to-Mitigating-Surprise-Billing-2019.pdf.
11 Under current law, plans that cover in-network emergency services are required to cover out -of-network emergency
services, even if the plans would not cover other out -of-network care. Beginning in 2022, these plans also will be
required to cover services provided in specified surprise billing situations. See Table 2. For more information on the
current law requirement, see “ Existing Requirements Addressing Surprise Billing” in CRS Report R46116, Surprise
Billing in Private Health Insurance: Overview and Federal Policy Considerations.
12 A consumer generally is responsible for the entire bill if he or she receives a service that is not covered by the plan
(i.e., an excluded service), regardless of whether the consumer received the service from an in -network provider.
13 Prior to enactment of federal surprise billing requirements, a more limited set of related requirements applied to
consumer cost sharing for, and plan coverage of, out -of-network emergency services and consumer cost -sharing
requirements for ancillary provider services furnished at in-network facilities.
14 Federal surprise billing requirements were incorporated into the Public Health Service Act (PHSA), Employee
Retirement Income Security Act of 1974 (ERISA), and Internal Revenue Code (IRC). Although the provisions in these
statutes are substantively similar, the differences reflect, in part, the applicability of each statute to private plans. T he
PHSA’s provisions apply broadly across private plans, whereas ERISA and the IRC focus primarily on group plans.
T his report references only the U.S. Code citations associated with the PHSA requirements.
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In many specified situations, the surprise bil ing consumer protections and corresponding
insurer/provider requirements are structured similarly. However, some distinctions exist with
respect to how federal requirements apply to specific surprise bil ing situations. Such distinctions
are noted throughout the report. Furthermore, a table that summarizes various federal surprise
bil ing requirements, by situation, can be found in Table C-1.
What Plan Types Are Addressed?
Federal private health insurance requirements general y vary based on the segment of the private
health insurance market in which the plan is sold (i.e., individual market, fully-insured smal
group market, fully-insured large group market, or self-insured market).15 Some requirements
apply to al market segments, whereas others apply only to selected market segments.16 For
example, plans offered in the individual and fully insured smal -group markets must comply with
the federal requirement to cover the essential health benefits; however, plans offered in the fully
insured large-group market and self-insured plans do not have to comply with this requirement.
Federal surprise bil ing requirements general y apply to individual market plans, fully insured
smal -group and large-group plans, and self-insured plans.17 In addition, many surprise bil ing
requirements apply to Federal Employees Health Benefits (FEHB) Program plans and
grandfathered plans.18 However, of the surprise bil ing requirements described in this report (see
“When Do Surprise Bil ing Requirements Apply?”), the continuity-of-care and provider-directory
surprise bil ing requirements do not apply to FEHB Program plans or grandfathered plans.
Emergency service-related surprise bil ing requirements apply only to plans in the
aforementioned markets that cover emergency services in general.
When Do Surprise Billing Requirements Apply?
Federal surprise bil ing requirements apply to a variety of services and provider types.
Specifical y, surprise bil ing requirements address the following:
 Out-of-network emergency services
 Out-of-network services provided to a consumer during an outpatient observation
stay or an inpatient or outpatient stay during the visit in which a consumer
receives emergency services

15 For an overview of federal requirements on private health insurance plans, see CRS Report R45146, Federal
Requirem ents on Private Health Insurance Plans.
16 Consumers may have other types of private coverage (e.g., short -term, limited-duration insurance) that may not be
subject to the same requirements applicable to individual, small-group, large-group, or self-insured plans. For more
information on how private health insurance requirements apply to these types of coverage, see CRS Report R46003,
Applicability of Federal Requirem ents to Selected Health Coverage Arrangem ents.
17 In some instances, individual, small-group, and large-group plans may be subject to state surprise billing
requirements. See “ How Do Federal Surprise Billing Requirements Interact with State Surprise Billing Laws?”
18 T he Federal Employees Health Benefits (FEHB) Program provides health insurance to federal employees, retirees,
and their dependents. For more information on FEHB, see CRS Report R43922, Federal Em ployees Health Benefits
(FEHB) Program : An Overview. T he Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended)
provided that group health plans and health insurance coverage in which at least one individual was enrolled as of the
ACA’s enactment (March 23, 2010) could be grandfathered. For as long as a plan maintains its grandfathered status, it
is exempt from specified federal health insurance requirements established under the ACA. For more information on
grandfathered plans, see CRS Report R46003, Applicability of Federal Requirem ents to Selected Health Coverage
Arrangem ents. See 5 U.S.C. §8902(p) and 42 U.S.C. §18011(a)(5), respectively.
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 Out-of-network nonemergency, non-ancil ary services provided at an in-network
facility
 Out-of-network nonemergency, ancil ary services provided at an in-network
facility19
 Out-of-network air ambulance services
 Services scheduled at least three business days in advance
 Out-of-network services from a provider that initial y was in-network but
subsequently became out-of-network during the course of treatment (i.e.,
continuity of care)
 Out-of-network services from a provider that the consumer assumed was in-
network based on incorrect information from the plan (e.g., incorrect provider
directory information)
What Consumer Protections Apply in Surprise Billing Situations?
Surprise bil ing consumer protections general y take one of two forms: financial protections and
informational protections. Financial protections general y limit the financial liability of
consumers who inadvertently receive out-of-network care, which typical y costs more than in-
network care. Informational protections general y provide consumers with information on their
provider’s network status before the consumers receive care. If a consumer is notified before
receiving care that he or she wil be seen by an out-of-network provider, the consumer could
decide whether to see the out-of-network provider or could seek a different, in-network provider.
A consumer who is able to make this sort of informed decision about where to receive care may
be less likely to be surprised by a bil that is higher than anticipated due to the provider’s network
status.
The types of consumer protections vary depending on the surprise bil ing situation. Some surprise
bil ing situations have requirements that relate to both financial and informational protections;
other surprise bil ing situations have requirements that relate to only one type of protection. For
example, some surprise bil ing situations apply financial protections only if informational
protections are not applied appropriately, whereas other surprise bil ing situations apply financial
protections in al instances.
Financial Protections
Surprise bil ing financial protections apply to al surprise bil ing situations except when services
are scheduled at least three business days in advance.20 These protections reduce the amount

19 Ancillary services include services related to emergency medicine, anesthesiology, pathology, radiology, and
neonatology; certain diagnostic services (including radiology and laboratory services); items and services provided by
other specialty practitioners; and items and services provided by an out -of-network provider if there is no in-network
provider that can provide the service. 42 U.S.C. §300gg-132(b)(2).
20 T he financial protections that apply to situations in which services are scheduled three days in advance vary
depending on the consumer’s insurance status. T he financial protections do not apply to consumers with private health
insurance who are submitting a claim through their plan; however, these protections do apply to uninsured individuals
(defined as individuals who are not enrolled in a private health insurance plan, federal health care program, or FEHB
Program plan, and individuals who are enrolled in a private health insurance plan but are not seeking to have the
scheduled service covered by their plan). Specifically, in this situation, uninsured individuals would have access to a
patient -provider dispute resolution process if they were charged an amount that is “ substant ially in excess” of an
initially provided good-faith estimate of costs. Under the patient -provider dispute resolution process, an unaffiliated
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consumers pay in cost sharing and balance bil s (when consumers have plans that cover out-of-
network care) and the amount consumers pay in other consumer costs (when consumers have
plans that do not cover out-of-network care).21 Specific consumer protections vary slightly across
surprise bil ing situations, as specified in Table 2.
Table 2. Specified Consumer Financial Protections in Surprise Billing Situations
(where applicable)
Surprise Billing Situation(s)
Consumer Financial Protections
Out-of-network emergency services;

Cost-sharing requirements cannot be greater than
out-of-network services provided to a consumer during
what they would have been had the service been
an outpatient observation stay or an inpatient or
provided in-network
outpatient stay during the visit in which a consumer

Cost-sharing amounts are to be calculated based
receives emergency services;
on the median in-network rate for the service or
out-of-network nonemergency, non-ancil ary services
plan (e.g., a 20% coinsurance rate would be based
provided at an in-network facility; and
on the median in-network rate)a
out-of-network nonemergency, ancil ary services

Cost-sharing amounts count toward the in-
provided at an in-network facility
network deductible and out-of-pocket maximum

Consumer cannot be balance bil ed directly by the
provider
Out-of-network air ambulance services

Cost-sharing requirements are the same as what
they would have been had the service been
provided in-network

Coinsurance and deductible amounts are to be
calculated based on in-network rates

Cost-sharing amounts count toward the in-
network deductible and out-of-pocket maximum

Consumer cannot be balance bil ed directly by the
provider
Out-of-network services from a provider that initial y

Benefits are provided under the same terms that
was in network but subsequently became out of
would have applied before the change in provider
network during the course of treatment (i.e., continuity
network status
of care)

Consumer effectively cannot be balance bil ed
directly by the provider
Out-of-network services from a provider that the

Cost-sharing requirements cannot be greater than
consumer assumed was in-network based on incorrect
what they would have been had the service been
information from the plan (e.g., incorrect provider
provided in-network
directory information)

Cost-sharing amounts count toward the in-
network deductible and out-of-pocket maximum

Consumer effectively cannot be balance bil ed
directly by the provider

Excess amounts paid by individuals for services are
to be refunded, with interest

entity would determine the charged amount that the individual would be responsible for paying. 42 U.S.C. §300gg-137.
21 In general, surprise billing financial protections require plans to cover certain out -of-network services. Because plans
generally must contribute some amount to these services, even if the plans otherwise would not contribute anything to
out-of-network care, consumers typically will not be responsible for other consum er costs (as such term was used in the
“Private Health Insurance Billing Overview”) in applicable surprise billing situations.
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Source: Congressional Research Service summary of various insurer requirements at 42 U.S.C. §§300gg-111(a),
300gg-111(b), 300gg-112(a), 300gg-113(a)(2), and 300gg-115(b), and provider requirements at 42 U.S.C. §§300gg-
131, 300gg-132, 300gg-135, 300gg-138, and 300gg-139.
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA)
and the Internal Revenue Code (IRC).
a. If the service is provided in a state that has an applicable surprise bil ing law or an all-payer model
agreement, the cost-sharing amount is to be calculated in accordance with such law or agreement.
In general, and regardless of whether the consumer’s plan covers out-of-network care, the
consumer wil pay only in-network cost-sharing amounts or rates when he/she receives out-of-
network care in surprise bil ing situations. For example, if a plan has a $100 co-payment for in-
network emergency services, the plan also must have a $100 co-payment for out-of-network
emergency services. Furthermore, out-of-network providers general y are prohibited from balance
bil ing the individual for amounts in addition to the consumer cost sharing.
Roughly half of the surprise bil ing situations further specify that, in general, the cost-sharing
amounts are to be calculated as if total cost for the service were the median of al amounts the
insurer had negotiated with various providers for that service in 2019, as adjusted for inflation,22
referred to as the median in-network amount. (These scenarios are specified in Table 2.) As
shown in Figure 2, in specified surprise bil ing situations, a 20% coinsurance rate would be based
on the insurer’s median in-network amount for 2019, as adjusted for inflation, instead of on an
amount negotiated with a particular provider or on the insurer’s total al owed amount.
However, if the service were provided in a state with an applicable surprise bil ing law or an all-
payer model agreement, the cost-sharing amount would be calculated in accordance with such
law or agreement.23

22 More specifically, the amount is based on the 2019 rates negotiated with providers in the same or a similar specialty,
provided in the same geographic region, and by the same plan type (e.g., small group , large group), as annually
adjusted by the Consumer Price Index for All Urban Consumers. If an insurer offers a plan in a geographic region
where it did not offer a plan in 2019 or the plan does not have sufficient information to determine a median in -network
amount for 2019, consumer cost -sharing amounts are determined based on a different methodology. See the definition
of Qualifying Paym ent Am ount, 42 U.S.C. §300gg-111(a)(3)(E).
23 For example, see Maryland’s all-payer hospital rate regulation system at Centers for Medicare & Medicaid Services,
Maryland All-Payer Model, https://innovation.cms.gov/innovation-models/maryland-all-payer-model.
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Surprise Billing in Private Health Insurance

Figure 2. Illustrative Examples of Consumer Billing, Including Specified Surprise
Billing Situations
(20% coinsurance for in-network services and specified surprise billing situations; 40%
coinsurance for out-of-network services)

Source: Congressional Research Service.
Notes: These examples are for il ustrative purposes only; they do not represent the ful spectrum of possible
bil ing scenarios. The examples assume the consumer’s deductible has been met, the in-network out-of-pocket
(OOP) limit has not been reached, and there is no out-of-network OOP limit. In the example, Provider Charge
= $50,000; Total Al owed Amount = $35,000; Median In-Network Amount = $32,500; and Negotiated Amount
= $30,000. Consumer cost-sharing amounts are based on these totals. Outside of this example, coinsurance
rates for in-network and out-of-network services may vary by plan type.
*** = Amount paid by plan, which is determined through a separate process. Median In-Network Amount =
the median of the plan’s negotiated amounts for that service in 2019, as adjusted for inflation. Median in-network
amount may be higher or lower than a particular in-network provider’s negotiated amount. Specified Surprise
Billing Situations = out-of-network emergency services; out-of-network services provided to a consumer
during an outpatient observation stay or an inpatient or outpatient stay durin g the visit in which a consumer
receives emergency services; out-of-network nonemergency, non-ancil ary services provided at an in-network
facility; and out-of-network nonemergency, ancil ary services provided at an in-network facility.
Except in the context of emergency services, consumer financial protections general y apply only
to covered services (i.e., services that would be covered by the plan if they were provided in
network). For example, if a particular service would not be covered by the plan if provided by an
in-network provider, the service would not be subject to the surprise bil ing protections if
provided by an out-of-network provider at an in-network facility.
In some situations, surprise bil ing consumer financial protections always apply; in other
instances, the consumer protections apply only if specified criteria are met. Most commonly, the
protections apply only if the consumer does not receive notice and give consent to receiving such
out-of-network care. Table 3 lists surprise bil ing situations where consumer protections are
conditional upon criteria.
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Table 3. Criteria That Cause Surprise Billing Consumer Financial Protections to
Apply
(for situations in which protections are conditional upon certain criteria)
Surprise Billing Situation
Criteria for Financial Protections to Apply
Out-of-network services provided to a consumer
Notification and consent requirements are not met;
during an outpatient observation stay or an inpatient or
OR
outpatient stay during the visit in which a consumer
Consumer is not in a condition to receive the
receives emergency services
notification and provide informed consent; OR
Consumer is not able to travel using nonmedical or
nonemergency transportation; OR
Other conditions specified by the Secretaries of Health
and Human Services, Labor, and the Treasury.
Out-of-network nonemergency, non-ancil ary services
Notification and consent requirements are not met.
provided during a visit at an in-network facility
Out-of-network services from a provider who initial y
Consumer elects to continue receiving care from the
was in network but subsequently became out of
now out-of-network provider. Protections would last
network during the course of treatment
for, at most, 90 days.
Out-of-network services from a provider that the
Consumer must have received incorrect information
consumer assumed was in-network based on incorrect
from the plan’s provider database or provider directory
information from the plan
that the provider was in network OR
In the event the individual was not provided with such
information, the consumer must have reached out to
the plan for information on the provider’s network
status and been incorrectly told the provider was in
network.
Source: Congressional Research Service summary of various requirements at 42 U.S.C. §§300gg-111(a)(3)(C),
300gg-111(b)(1), 300gg-113(a)(2), and 300gg-115(b).
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA)
and the Internal Revenue Code (IRC).
Informational Protections
Because surprise bil ing may occur when a consumer is unknowingly treated by a provider outside
of the consumer’s health insurance plan’s network, some surprise bil ing protections include
requirements that seek to provide consumers with more information about the providers in their
network and/or the care they are scheduled to receive. Theoretical y, this additional information
provides consumers with the ability to make an informed decision about their medical care before
they receive such care. These requirements alone do not eliminate surprise bil ing charges, but
they reduce the prevalence of unexpected out-of-network use.24
The surprise bil ing informational protections are structured as consumer notices and provider
directories.25 Most often, the appropriate application of informational protections precludes the
consumer from receiving financial protections in surprise bil ing situations (see Table 3).

24 More explicitly, although such requirements may reduce the prevalence of surprise billing, consumers who
expectedly receive out -of-network care still may be balance billed or responsible for other consumer costs.
25 Insurers and providers are subject to more general informational requirements that are not associated with any
specific surprise billing situations. For example, insurers are required to make publicly available, post on their websites,
and include on each explanation of benefits information on balance billing prohibitions. For information on the more
general surprise billing-related informational requirements included in the No Surprises Act (part of the Consolidated
Appropriations Act, 2021; P.L. 116-260), see Appe ndix B.
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Notification requirements affect the following surprise bil ing situations:
 Out-of-network services provided to a consumer during an outpatient observation
stay or an inpatient or outpatient stay during the visit in which a consumer
receives emergency services
 Out-of-network nonemergency, non-ancil ary services provided at an in-network
facility
 Services scheduled at least three business days in advance
 Out-of-network services from a provider that initial y was in network but
subsequently became out of network during the course of treatment (i.e.,
continuity of care).
Provider directory requirements affect the following surprise bil ing situation:
 Out-of-network services from a provider that the consumer assumed was in
network based on incorrect information from the plan (e.g., incorrect provider
directory information).
Notification
In the surprise bil ing context, consumer notifications are intended to inform the consumer of the
network status of the provider that he or she is scheduled to receive services from, as wel as of
other specified pieces of information (see Table 4). Depending on the surprise bil ing situation,
this information may be provided by the insurer and/or by the provider. In theory, a consumer
scheduled to receive services from an out-of-network provider could use this information to either
keep the scheduled services with the out-of-network provider or attempt to find an in-network
provider.
Depending on the surprise bil ing situation, consumer notification may affect the surprise bil ing
financial protections applicable to that situation (see Table 3). Most commonly, notifications (and
consumer consent) are used to satisfy criteria that exempt providers from having to apply
consumer financial protections in specified surprise bil ing situations. For example, certain out-
of-network providers in an in-network facility can provide notice to consumers in advance of
providing care. If the consumer is provided with such notice and consents to receiving such care,
the financial protections associated with that surprise bil ing situation would not apply;26 by
consenting to and receiving the out-of-network care, the consumer is acknowledging that he or
she is wil ing to pay more to see the out-of-network provider.
By contrast, in the continuity of care surprise bil ing situation (i.e., situations where a provider is
initial y in network but subsequently becomes out of network during the course of a consumer’s
treatment), the notification is used to inform the consumer of the provider’s network status and of
the consumer’s right to receive specified financial protections.27

26 42 U.S.C. §300gg-132(d), as referenced by 42 U.S.C. §300gg-111(b).
27 42 U.S.C. §300gg-113(a)(2).
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Table 4. Information Included in Surprise Billing Notices
Interaction with Financial
Surprise Billing Situation(s)
Provided By
When Provided
Required Information
Protections
Out-of-network services
Provider
For services scheduled at least

Statement that the provider is
Notification and consent
provided to a consumer during
72 hours in advance, not later
an out-of-network provider
requirements must be met in
an outpatient observation stay
than 72 hours before the

order for (or as part of criteria
or an inpatient or outpatient
service is provided.

Good-faith estimate of the
service charges
for) financial protections to not
stay during the visit in which a
For services scheduled within
apply.
consumer receives emergency

72 hours of receiving the

List of in-network providers at
services; and
service, on the date the
the facility (if applicable)
out-of-network nonemergency,
appointment is made.

Information on whether prior
non-ancil ary services provided
authorization or other care
at an in-network facility;
management limitations are
required

Statement that consent to
receive services from out-of-
network provider is optional
Services scheduled at least
Insurer with information
For services scheduled at least

Information on the provider’s
No financial protections are
three business days in advance
received from providera
10 business days in advance (or
network status
associated with this surprise
if requested by the individual),

bil ing situation.b
not later than 6 business days

If the provider is in network,
the negotiated rate for the
after the date of scheduling.
service
For services scheduled at least

three business days in advance,

If the provider is out of
not later than two days after
network, a description of how
the date of scheduling.
information on in-network
providers can be obtained
(The Secretary may modify the

timing requirements for

Good-faith estimate of
services that have low
provider charges (provided to
utilization or significant
the insurer by the provider)
variation in costs.)

Good-faith estimate of the
amount of charges the plan wil
cover

Good-faith estimate of the
amount of cost-sharing the
CRS-13

Interaction with Financial
Surprise Billing Situation(s)
Provided By
When Provided
Required Information
Protections
consumer wil be responsible
for

Good-faith estimate of the
amount the consumer has
incurred toward deductibles
and out-of-pocket maximums

Disclaimer that the coverage
for the service is subject to
medical management
techniques (where applicable)

Disclaimer that the
information provided in the
notice is only an estimate

Any other information or
declaimers that the insurer
deems appropriate
Out-of-network services from a Insurer
When there is a network

Statement that the contract
Notification informs the
provider that initial y was in
contract termination between a
between the insurer and
consumer of the option to
network but subsequently
plan and provider of a
provider has been terminated
elect to receive financial
became out of network during
continuing care patient.

protections.

Statement informing the
the course of treatment (i.e.,
consumer of his or her right
continuity of care)
to elect continued transitional
care from the provider
Source: Congressional Research Service summary of various requirements at 42 U.S.C. §§300gg-111(a)(3)(C), 300gg-111(f), 300gg-111(b)(1), 300gg-113(a)(2), 300gg-
132(d), and 300gg-136.
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (IRC).
a. If the consumer is enrol ed in a private health insurance plan and is seeking to have the plan cover the service, providers are required to submit a good-faith
estimate of the expected charges to the insurer; that estimate is subsequently incorporated into the insurer notice to the consumer. In al other instances, providers
are required to give this information directly to the consumer. 42 U.S.C. §300gg-136.
b. With respect to situations in which services are scheduled at least three business days in advance, although there are no fin ancial protections associated with
consumers enrol ed in private health insurance who are submitting a claim through their plan, there are financial protections available for uninsured individuals
(defined as individuals who are not enrol ed in a private health insurance plan, federal health care program, or Federal Employees Health Benefits Program plan and
individuals who are enrol ed in a private health insurance plan but are not seeking to have the scheduled service covered by their plan). For uninsured individuals in
this situation, the provider wil provide a notice directly to the individual (see table note a) that includes a good-faith estimate of provider charges. If the uninsured
CRS-14

individual were subsequently charged an amount “substantial y in excess” of the initial y provided good -faith estimate of costs, the uninsured individual would have
access to a patient-provider dispute resolution process. Under this process, an unaffiliated entity would determine the charged amount that the individual would be
responsible for paying. 42 U.S.C. §300gg-137.

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Provider Directories
Provider directories are repositories of information for consumers about the providers that are in a
plan’s network. Both insurers and providers are subject to provider directory requirements that
seek to ensure consumers have, or have access to, accurate information about which providers are
within their plans’ networks. Insurer provider directory requirements address print provider
directories, web-based provider directories (i.e., databases), and methods by which individuals
can verify a provider’s network status by cal ing or electronical y communicating with the
insurer.28 Providers are required to support insurer compliance with such requirements by
providing insurers with the necessary information for the directory.29
If a consumer uses a provider directory or communicates electronical y or by phone with the
insurer and receives incorrect information about the provider’s network status, the consumer is
provided financial protections that limit costs of services from providers that the consumer
thought were in network.30
How Much Do Insurers Pay Providers in Surprise
Billing Situations?
As discussed in the “Private Health Insurance Bil ing Overview” section, in general, payment for
out-of-network services depends on whether the plan covers out-of-network benefits. Regardless
of whether a plan provides out-of-network benefits, there is no contract establishing a set
payment rate between an insurer and an out-of-network provider—that is, there is no amount that
providers and insurers both recognize as the total cost for care.
Where federal surprise bil ing financial protections apply, insurers (whether or not they provide
out-of-network benefits) general y are required to pay out-of-network providers some amount for
furnishing services. Federal requirements specify the methodologies insurers must use to
determine the payment amount for these services. When coupled with requirements that limit the
amount consumers pay providers in surprise bil ing situations, these methodologies effectively
result in the provider and the insurer recognizing the same total price for care.
Under federal requirements, most surprise bil ing situations require the insurer to make an initial
payment (or notice of denial of payment) to the provider, after which the provider or the insurer
may initiate open negotiations to determine how much the health insurer must pay the out-of-
network provider.31 If negotiations are unsuccessful, the parties may use an independent dispute
resolution (IDR) process.
However, the federal methodology does not apply in al situations. If the services were provided
in a state that has its own surprise bil ing law that applies to a given plan type, provider type, and
service, for example, the federal methodology would not be used; instead, the state law
methodology would be used to determine how much the health insurer must pay the out-of-

28 T he methods by which individuals can verify a provider’s network status by calling or electronically communicating
with the insurer are referred to in statute as a response protocol. 42 U.S.C. §300gg-115.
29 42 U.S.C. §300gg-139.
30 42 U.S.C. §300gg-115(b).
31 In some situations, surprise billing requirements are conditional upon certain criteria being met (see Table 3). In the
event that surprise billing financial protections do not apply, for example because certain out -of-network providers at
in-network facilities satisfied notice and consent requirements, this methodology would not be used.
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network provider.32 Relatedly, if these services were provided in a state that has an all-payer
model agreement, the amount designated under the agreement would apply.
As shown in Table 5, federal requirements do not explicitly specify the methodologies for
reimbursement in al surprise bil ing situations.
Table 5. Federal Payment Methodologies in Surprise Billing Situations with
Consumer Financial Protections
Methodology Interaction with
Surprise Billing Situation(s)
Payment Methodology
State Laws and Agreements
Out-of-network emergency
Initial payment (or notice of denial
Federal methodology does not
services
of payment) fol owed by out-of-
apply in states with an all-payer
Out-of-network services provided
network provider or insurer option
model agreement or a surprise
to a consumer during an outpatient
to initiate negotiation. If negotiation
bil ing law in effect with respect to
observation stay or an inpatient or
fails, either party may initiate an
the applicable plan type, provider
outpatient stay during the visit in
independent dispute resolution
type, and service.a
which a consumer receives
process.
emergency services
Out-of-network nonemergency,
non-ancil ary services provided at
an in-network facility
Out-of-network nonemergency,
ancil ary services provided at an in-
network facility
Out-of-network air ambulance
services
Out-of-network services from a
None specified in statute.
Not applicable.
provider that initial y was in
network but subsequently became
out of network during the course
of treatment (i.e., continuity of
care).
Out-of-network services from a
None specified in statute.
Not applicable.
provider that the consumer
assumed was in-network based on
incorrect information from the plan
(e.g., incorrect provider directory
information).
Source: Congressional Research Service summary of various requirements at 42 U.S.C. §§300gg-
111(a)(1)(C)(iv), 300gg-111(a)(3)(K), 300gg-111(b)(1)(D), 300gg-112(b), 300gg-113, and 300gg-115.
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA)
and the Internal Revenue Code (IRC).
a. Although federal law would defer to state air ambulance surprise bil ing laws in specified instances, states
general y have been limited in their ability to enact air ambulance surprise bil ing laws as a result of the
Airline Deregulation Act of 1978 (P.L. 95-504), which preempts state regulation of payment rates for
certain air transportation carriers (including air ambulances). For a discussion of state attempts to address

32 As an example, a state may have an emergency service surprise billing law that applies to fully insured plans and out -
of-network emergency departments. If a consumer with a fully insured plan received emergency services from an
emergency department in the state, the state methodology would be used to determine the total payment for the care. If
a consumer with a self-insured plan received emergency services from an emergency department within the state, the
federal methodology would be used, since the state law does not apply to self-insured plans. For a more in-depth
discussion of this topic, see “ How Do Federal Surprise Billing Requirements Interact with State Surprise Billing
Laws?”
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Surprise Billing in Private Health Insurance

air ambulance surprise bil ing, see Government Accountability Office (GAO), Air Ambulance: Available Data
Show Privately-Insured Patients Are at Financial Risk, GAO-19-292, March 20, 2019, p. 19, at
https://www.gao.gov/assets/700/697684.pdf.
Initial Payment
Where applicable, insurers are required to make an initial payment (or notice of denial of
payment) to a provider within 30 calendar days of receiving a bil for services.33
Open Negotiation
After the insurer makes an initial payment (or notice of denial of payment), the out-of-network
provider or the insurer may initiate open negotiations for the purpose of determining a mutual y
agreed-upon payment amount. The negotiations may be initiated during the 30-day period that
begins on the day the out-of-network provider receives an initial payment (or notice of denial of
payment) from the insurer regarding the out-of-network claim.34 The provider and insurer then
have 30 days from the date the negotiations were initiated (i.e., the open negation period) to reach
an agreement. If the negotiations are successful, the insurer is required to pay to the provider the
agreed-upon amount (or, after accounting for the initial payment, any remaining balance) within
30 days.35
After the 30-day open negotiation period, insurers and providers may access the IDR process;
insurers and out-of-network providers may continue to negotiate a payment rate after initiation of
the IDR process. If an agreement is reached between the parties after an IDR process is initiated
and before a determination is made through the IDR process, then the agreed-upon rate wil be
treated as the final payment rate and there wil be a process for determining how the parties wil
split the payment of the IDR process fees.36
Independent Dispute Resolution Process
If out-of-network providers and insurers cannot reach an agreement during the open negotiation
period, then either party may seek to initiate the IDR process within a four-day period following
the end of the open negotiation period.37 The IDR process is a “basebal -style” arbitration process
under which the out-of-network provider and the insurer submit to a neutral third party their best
and final offers for the amount each party considers adequate payment. The neutral third party
must review the offers and make a binding determination based on certain factors as to which
offer is the reasonable payment that the out-of-network provider must receive as payment in full.
General y, the process is the same across the various scenarios in which it applies, with a few
differences for situations involving services provided by air ambulance providers.

33 42 U.S.C. §§300gg-111(a)(1)(C)(iv), 300gg-111(b)(1)(C), and 300gg-112(a)(3)(A).
34 42 U.S.C. §§300gg-111(c)(1)(A) and 300gg-112(b)(1)(A).
35 42 U.S.C. §§300gg-111(c)(6) and 300gg-112(b)(6).
36 42 U.S.C. §§300gg-111(c)(2)(B) and 300gg-112(b)(2)(B).
37 Either party may initiate the independent dispute resolution (IDR) process by providing notice to the other party and
to the Secretaries of Health and Human Services (HHS), Labor, and the T reasury. 42 U.S.C. §§300gg-111(c)(1)(B) and
300gg-112(b)(1)(B).
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Establishment of Independent Dispute Resolution Processes
The Secretaries of Health and Human Services, Labor, and the Treasury are required to create an independent
dispute resolution process (IDR) process for emergency services and services provided by out-of-network
providers at in-network facilities and an IDR process for air ambulance services before December 27, 2021. Many
features of these processes are specified in statute and summarized in this report; however, the Secretaries are to
further specify aspects of these IDR processes through regulations. For example, the Secretaries are to specify the
criteria under which multiple services can be “batched” and considered as part of a single IDR determination. In
another example, the Secretaries are to establish the certification process for IDR entities (including by
incorporating process features specified in statute).
Source: 42 U.S.C. §§300gg-111(c)(2)(A) and 300gg-112(b)(2)(A); 42 U.S.C. §§300gg-111(c)(4)(A) and 300gg-
112(b)(4).
Notes: More specifical y and per statute, the certification process must ensure that certified IDR entities
meet the fol owing standards: has (directly or through contracts or other arrangements) sufficient medical,
legal, and other expertise and sufficient staffing to make payment determinations on a timely basis; is not a
health insurer or a provider or facility or a subsidiary of such type of entity; carries out the responsibilities of
an IDR entity in accordance with law; meets the appropriate indicators of fiscal integrity; maintains the
confidentiality of individual y identifiable health information obtained during the IDR process; does not act as
an IDR entity if not eligible due to a conflict of interest; and meets other requirements as determined by the
Departments of Health and Human Services, Labor, and the Treasury.
Once the IDR process has been initiated, the insurer and the out-of-network provider have three
business days to jointly select a neutral third party (i.e., certified IDR entity) to make a payment
determination. The selected certified IDR entity cannot be party to the determination; cannot have
a material familiar, financial, or professional relationship with the insurer or the provider; and
cannot have a conflict of interest with the insurer or the provider. If the parties do not make a
selection by the deadline, the Secretaries of HHS, the Treasury, and Labor are to assign a certified
IDR entity.
No later than 10 days after the certified IDR entity has been selected, the out-of-network provider
and the health insurer each must submit an offer for a payment amount (and other information
requested by the certified IDR entity). The two parties also may submit other information relating
to their offers.
The certified IDR entity must determine which offer is most reasonable based on factors specific
to the situation in which the service was furnished.38 The certified IDR entity is prohibited from
considering certain factors when making a decision; Table 6 lists the factors the certified IDR
entity is required to consider or prohibited from considering when making a payment
determination. The factors differ in situations involving air ambulances; Table 7 lists the factors
the certified IDR entity is required to consider or prohibited from considering when making a
payment determination involving an air ambulance provider. The certified IDR entity’s decision
must come within 30 days of the entity’s selection.39
After the certified IDR entity makes a payment decision, the plan must make the final payment to
the provider within 30 days of the decision. The party whose offer was not chosen is responsible
for paying IDR entity fees, and both parties must pay a fee to the Secretaries of HHS, the
Treasury, and Labor to be used to carry out the IDR process.40

38 42 U.S.C. §§300gg-111(c)(5)(C) and 300gg-112(b)(5)(C).
39 42 U.S.C. §§300gg-111(c)(5)(A) and 300gg-112(b)(5)(A).
40 42 U.S.C. §§300gg-111(c)(5)(F), 300gg-111(c)(8), 300gg-112(b)(5)(E), 300gg-112(b)(8).
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The certified IDR entity’s decision is binding on both parties, unless the claim for payment is
fraudulent or facts presented to the certified IDR entity were misrepresented. A binding payment
determination general y is not subject to judicial review except in limited situations.41
During the 90 days after an IDR decision has been made, the party that initiated the IDR process
may not subsequently attempt to initiate the IDR process to seek a payment determination
involving the same opposing party and service that were subject to the initial notification.42
Table 6. Factors Considered During Independent Dispute Resolution (IDR) Process
(as applied to non-air ambulance surprise bil ing situations with a specified payment methodology)
Required to Be Considered
Prohibited from Being Considered

The 2019 median in-network rate, as adjusted for

Usual and customary charges
inflation, for services that are comparable to the

Amount that would have been bil ed by the out-of-
service under consideration and furnished in the
network provider for the service had the surprise
same geographic region as the service under
bil ing protections not applied
considerationa



Amount that public payors (including Medicare,

The level of training, experience, and quality and
Medicaid, the State Children’s Health Insurance
outcomes measurements of the provider that
Program [CHIP], TRICARE, or the Department of
furnished the service
Veterans Affairs) would pay or reimburse the out-

Market share of the out-of-network provider or
of-network provider for the service
insurer in the geographic region where the service
was provided

Acuity of the individual receiving the service or the
complexity of furnishing the service to the
individual

Teaching status, case mix, and scope of services of
the out-of-network facility that furnished the
service

Demonstrations of good faith efforts (or lack of
good-faith efforts) made by the out-of-network
provider or the insurer to enter into network
agreements and, if applicable, contracted rates
between the provider and the insurer during the
previous four plan years

Other information requested by the IDR entity

Any information about the submitted offer
supplied by the out-of-network provider or the
insurer
Source: 42 U.S.C. §§300gg-111(c)(5)(C) and (D).
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA)
and the Internal Revenue Code (IRC).
a. More specifical y, the median in-network rate is based on the 2019 rates negotiated with providers in the
same or a similar specialty, provided in the same geographic region, and determined in accordance with the
same plan type (e.g., smal group, large group), as annual y adjusted by the Consumer Price Index for Al
Urban Consumers. If an insurer offers a plan in a geographic region where it did not offer a plan in 2019 or
the plan does not have sufficient information to determine a median in-network amount for 2019, consumer
cost-sharing amounts are determined based on a different methodology. See definition of Qualifying Payment
Amount, 42 U.S.C. §300gg-111(a)(3)(E).

41 Payment determinations will be subject to judicial review in the cases described in 9 U.S.C. §10(a)(1) -(4). 42 U.S.C.
§§300gg-111(c)(5)(E)(i)(II) and 300gg-112(b)(5)(D).
42 42 U.S.C. §§300gg-111(c)(5)(E)(ii) and 300gg-112(b)(5)(D).
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Table 7. Factors Considered During Air Ambulance Independent Dispute Resolution
(IDR) Process
Required to Be Considered
Prohibited from Being Considered

The 2019 median in-network rate, as adjusted for

Usual and customary charges
inflation, for services that are comparable to the

Amount that would have been bil ed by the out-of-
service under consideration and furnished in the
network provider for the service had the surprise
same geographic region as the service under
bil ing protections not applied
considerationa

Amount that public payors (including Medicare,

Quality and outcomes measurements of the
Medicaid, CHIP, TRICARE, or the Department of
provider that furnished the service
Veterans Affairs) would pay or reimburse the out-

Acuity of the individual receiving the service or the
of-network provider for the service
complexity of furnishing the service to the
individual

Training, experience, and quality of the provider
that furnished the service

Ambulance vehicle type, including the clinical
capability level of the vehicle

Population density of the pick-up location (e.g.,
urban, suburban, rural, or frontier)

Demonstrations of good-faith efforts (or lack of
good faith efforts) made by the out-of-network
provider or the insurer to enter into network
agreements and, if applicable, contracted rates
between the provider and the insurer during the
previous four plan years

Other information requested by the IDR entity

Any information about the submitted offer
supplied by the out-of-network provider or the
insurer
Source: 42 U.S.C. §300gg-112(b)(5)(C).
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA)
and the Internal Revenue Code (IRC).
a. More specifical y, the median in-network rate is based on the 2019 rates negotiated with providers in the
same or a similar specialty, provided in the same geographic region, and determined in accordance with the
same plan type (e.g., smal group, large group), as annual y adjusted by the Consumer Price Index for Al
Urban Consumers. If an insurer offers a plan in a geographic region where it did not offer a plan in 2019 or
the plan does not have sufficient information to determine a median in-network amount for 2019, consumer
cost-sharing amounts are determined based on a different methodology. See definition of Qualifying Payment
Amount, 42 U.S.C. §300gg-111(a)(3)(E).
How Are Surprise Billing Requirements Enforced?
Enforcement Mechanisms Applicable to Insurers
With respect to insurers, federal law adopts the existing applicable enforcement frameworks of
the Public Health Service Act (PHSA), Employee Retirement Income Security Act of 1974
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(ERISA), and Internal Revenue Code (IRC).43 These existing enforcement frameworks are
described briefly below.44
In general, the PHSA enforcement framework applies to health insurance issuers in the group and
individual markets and gives states the option to be the primary enforcers of the federal
requirements.45 If the HHS Secretary determines a state has failed to “substantial y enforce” the
federal requirements in that state, however, the Secretary must enforce the requirements.46 The
Secretary may impose a civil monetary penalty on issuers that fail to comply with the PHSA’s
requirements. The maximum penalty imposed under the PHSA is currently $162 per day for each
individual with respect to which such a failure occurs.47
Private-sector, employment-based group health coverage (including self-insured plans and
coverage provided by health insurance issuers) general y is subject to the enforcement
frameworks under both ERISA and IRC.48 Among other enforcement mechanisms, the relevant
ERISA provisions, subject to specified exceptions, authorize plan participants, other specified
individuals, and the Secretary of Labor to file civil actions to enjoin any act or practice that
violates ERISA.49 The IRC, by contrast, subjects employers or group health plans to an excise tax
for noncompliance with the IRC’s requirements, general y at a rate of $100 per day for each
affected plan participant during the noncompliance period.50
Enforcement Mechanisms Applicable to Providers
With respect to providers, federal law adopts an enforcement framework that is similar to that
which applies to insurers under the PHSA.51 Specifical y, the law gives states the option to be the
primary enforcers of the requirements on providers (including air ambulance services).52 If the
HHS Secretary determines that a state has failed to “substantial y enforce” the federal
requirements in that state, however, the HHS Secretary must enforce the requirements.53
Under the federal enforcement framework, the HHS Secretary may impose a civil monetary
penalty on providers that fail to comply with federal surprise bil ing provisions. The maximum
penalty the Secretary may impose is $10,000 per violation through procedures set forth in Section
1128A of the Social Security Act.54 The HHS Secretary, however, must waive penalties for a
provider that (1) does not knowingly violate and should not have reasonably known it violated the

43 42 U.S.C. §300gg-22(a)(1).
44 For more information about these enforcement frameworks, see CRS Report R46637, Federal Private Health
Insurance Market Reform s: Legal Fram ework and Enforcem ent.
45 42 U.S.C. §300gg-22(a)(1).
46 42 U.S.C. §300gg-22(a)(2).
47 42 U.S.C. §300gg-22(b)(2)(C)(i). T he civil monetary penalty for violations of T itle XXVII of the PHSA is adjusted
annually for inflation. See 45 C.F.R. §102.3.
48 See 29 U.S.C. §§1181–1191c; 26 U.S.C. §§9831(a), 9832(a)-(b). Neither ERISA nor IRC applies to governmental
plans. See 29 U.S.C. §1003(b)(1); 26 U.S.C. §9831(a). ERISA also does not apply to church plans. 29 U.S.C.
§1003(b)(2).
49 See 29 U.S.C. §1132(a); 29 U.S.C. §1132(b) (limiting the Secretary of Labor’s authority to take enforcement actions
against health insurance issuers).
50 26 U.S.C. §4980D(b).
51 42 U.S.C. §300gg-134.
52 42 U.S.C. §300gg-134(a)(1).
53 42 U.S.C. §300gg-134(a)(2).
54 42 U.S.C. §300gg-134(b)(1).
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prohibition on surprise bil ing; (2) withdraws the bil within 30 days of the violation; and (3)
reimburses the plan or enrollee in an amount equal to the difference between the bil ed amount
and the amount al owed to be bil ed under federal law, plus any interest at a rate determined by
the HHS Secretary.55 The HHS Secretary also may establish a hardship exemption to the
penalties.56
The federal enforcement framework also provides mechanisms for relevant agencies to be
notified of violations. Under the law, states may notify the Secretaries of HHS, Labor, and the
Treasury, as applicable, of instances of provider violations of the prohibitions on surprise bil ing,
any enforcement actions taken against providers, and the disposition of any such enforcement
actions.57 Additional y, the HHS Secretary and the Secretary of Labor must establish a process to
receive complaints from consumers and ERISA plan participants, respectively, relating to al eged
violations of the provider provisions.58 The Secretary of Labor must establish a process to
transmit such complaints to states or to the HHS Secretary for potential enforcement actions.59
Upon receiving a notice from a state or the HHS Secretary of violations of the prohibitions on
surprise bil ing, the Secretary of Labor also must identify any patterns of such violations as they
relate to plans subject to ERISA and conduct an investigation pursuant to ERISA Section 504 to
determine whether any person has violated any ERISA provision.60 In addition, the Secretary of
Labor must coordinate with states and the HHS Secretary, as needed, to ensure correction of such
violations retrospectively and prospectively.61
How Do Federal Surprise Billing Requirements Interact with State
Surprise Billing Laws?
As of February 2021, more than half of the states had enacted laws to address some form of
surprise bil ing.62 The state policies differ in various respects but general y encompass—like the
federal law—certain requirements and prohibitions on both insurers and providers.63 To the extent
these state policies apply to insurers, however, they general y do not apply to self-funded plans
subject to ERISA.64 This regulatory landscape means the federal surprise bil ing requirements

55 42 U.S.C. §300gg-134(b)(4).
56 42 U.S.C. §300gg-134(b)(5).
57 42 U.S.C. §300gg-134(a)(3).
58 42 U.S.C. §300gg-134(b)(4); 29 U.S.C. §1152(b).
59 29 U.S.C. §1152(b).
60 29 U.S.C. §1152(a).
61 29 U.S.C. §1152(a).
62 Maanasa Kona, “State Balance Billing Protections,” Commonwealth Fund, February 5, 202 1, at
https://www.commonwealthfund.org/publications/maps-and-interactives/2021/feb/state-balance-billing-protections.
63 CRS Report R46116, Surprise Billing in Private Health Insurance: Overview and Federal Policy Considerations.
64 Ibid. In general, ERISA broadly preempts state regulation of self-funded plans, and existing state surprise billing
laws generally reflect this regulatory scheme. T he relevant state surprise billing laws in Washington, for instance,
specifically exclude employer-sponsored self-funded health plans from their definition of health plans. See RCW
§§48.49.010, 48.43.005(29). However, in Rutledge v. Pharm. Care Mgmt. Assoc., 141 S. Ct. 474, 480–81 (2020), the
Supreme Court recently held that certain state laws regulating health care costs—in that case, an Arkansas law that
addresses reimbursement practices between pharmacy benefit managers and pharmacies—are not preempted by
ERISA. Some commentators have suggested that under Rutledge, states may have more flexibility to apply their own
surprise billing requirements to self-funded plans and their third-party administrators. See Erin C. Fuse Brown and
Elizabeth Y. McCuskey, “T he Implications of Rutledge v. PCMA for State Health Care Cost Regulation,” Health
Affairs Blog, December 17, 2020, at https://www.healthaffairs.org/do/10.1377/hblog20201216.909942/full/.
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general y apply as is in two circumstances where there is an absence of relevant state law: (1) the
federal law’s insurer provisions apply uniformly to self-funded plans, which state law general y
does not regulate, and (2) both the federal law’s insurer and provider provisions apply in states
that choose not to enact their own surprise bil ing laws.
In cases where a state maintains surprise bil ing requirements, the interaction of federal and state
requirements may be governed by principles of federal preemption. In general, under the
Constitution’s Supremacy Clause, federal law preempts—or supersedes—conflicting state law.65
At the same time, because congressional purpose is the “ultimate touchstone” of the preemption
analysis,66 federal law can specify the scope and extent of its preemptive force through express
preemption provisions.67
The federal surprise bil ing law specifies its preemptive scope in two ways. First, the law
expressly preserves certain areas of state law. The insurer provisions specify that the amount fully
insured plans must pay providers for certain out-of-network services wil continue to be governed
by state law in states that have prescribed a payment methodology.68 The law also specifies that
its requirements on maintaining accurate, up-to-date provider directories do not preempt any state
law relating to health care provider directories.69
Second, and more general y, the federal law adopts, or applies a provision similar to, the
preemption provision under Section 2724(a) of the PHSA.70 Under the federal surprise bil ing
preemption provisions, state laws are preempted by the federal law only if the state laws impose
“such standard or requirement” (in the case of fully insured plans) or “such requirement or
prohibition” (in the case of providers) that “prevents the application” of a federal requirement or
prohibition.71 This general y means that federal provisions set the floor on surprise bil ing
regulation, and existing state laws—to the extent they impose the same or additional standards,
requirements, or prohibitions on fully insured plans and providers as the federal law —are
general y preserved, unless the additional standards, requirements, or prohibitions “prevent[] the
application” of a federal provision.72 Few courts have interpreted this preemption language,
which may be susceptible to different constructions as to its scope.
This preemption language, for instance, may be construed narrowly to general y permit state laws
that are more protective of consumers. The conference report accompanying the Health Insurance
Portability and Accountability Act of 1996 (HIPAA, P.L. 104-191), which enacted PHSA Section
2724(a) and related preemption provisions, could support this construction. Regarding these
preemption provisions, the conferees stated they “intend[ed] the narrowest preemption,” such that

65 U.S. CONST. art. VI, cl. 2. For more information about federal preemption, see CRS Report R45825, Federal
Preem ption: A Legal Prim er.
66 Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).
67 See Puerto Rico v. Franklin Cal. T ax-Free T rust, 136 S. Ct. 1938, 1946 (2016) (explaining that where a statute
includes an express preemption clause, the Supreme Court “ do[es] not invoke any presumption against pre-emption but
instead focus[es] on the plain wording of the clause, which necessarily contains the best evidence o f Congress’ pre-
emptive intent”).
68 42 U.S.C. §§300gg-111(a)(3)(K), 300gg-111(b)(1)(D).
69 42 U.S.C. §300gg-115(a)(7).
70 See 42 U.S.C. §300gg-23(a).
71 42 U.S.C. §300gg-23(a); §300gg-134(c) (stating that the federal surprise billing law’s provider requirements “shall
not be construed to supersede any provision of State law which establishes, implements, or continues in e ffect any
requirement or prohibition except to the extent that such requirement or prohibition prevents the application of a
requirement or prohibition” of the federal surprise billing requirements).
72 See UnitedHealthcare of N.Y., Inc. v. Lacewell, 967 F.3d 82, 92 (2d Cir. 2020).
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“[s]tate laws which are broader than federal requirements would not prevent the application of
federal requirements.”73 As an example, the conferees noted that while HIPAA’s guaranteed
availability requirement would apply only in the smal -group market, such that each insurer
offering health insurance coverage in that market must accept every smal employer with 2 to 50
employees in the state that applied for coverage and must accept for enrollment under such
coverage every eligible individual who applied for enrollment, states may require guaranteed
availability of coverage for groups of more than 50 employees, or for groups of 1. Based on these
remarks, a few courts have commented that relevant terms of these preemption provisions
“appear to permit state laws that are, general y speaking, more favorable to [consumers].”74
The relevant preemption language and conference report remarks, however, also could be viewed
as consistent with a broader construction. Under such a construction, while more consumer-
protective state provisions would be permitted, they could be preempted as “preventing the
application” of federal law to the extent compliance with such a state provision would make it
impossible to comply with a federal provision or would interfere with the method by which the
federal statute was designed to achieve its policy goal.75
The potential y different interpretations of the preemption language may be particularly relevant
for some federal surprise bil ing requirements. For example, as identified above in Table 4, the
federal provider provisions prohibit out-of-network providers from bil ing patients more than in-
network cost-sharing amounts for certain ancil ary services delivered at or ordered from an in-
network facility but permit the providers to balance bil patients for non-ancil ary services if the
providers satisfy certain notice-and-consent requirements.76 Under the notice-and-consent
process, an out-of-network provider general y must provide, at least 72 hours before the date of
service, a written notice to the patient that provides various information, including the provider’s
out-of-network status, a good-faith estimate of the amount the provider may charge the patient,
and a list of in-network providers at the facility that could provide the service.77 The consent
signed by patients must acknowledge that they have been provided with the written notice and
were informed that payment of any bil ed charges may not accrue toward their plan deductibles or
any limits on cost sharing.78
Many state surprise bil ing laws include comparable notice-and-consent requirements. For some
of these state provisions, their interaction with federal provisions is likely the same under both
interpretations of the preemption language discussed above. For instance, where the state
provisions are coextensive with the federal provisions, or impose additional requirements that do
not interfere with the federal provisions, the state provisions likely are preserved under both
constructions. Some state laws, for instance, include certain additional specifications or
procedures for the notice-and-consent process to protect consumers, such as prohibiting the notice

73 See H.R. Conf. Rep. No. 104-736 (1996), at 205.
74 See Fossen v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102, 1108 (9 th Cir. 2011) (internal quotation marks
omitted).
75 See UnitedHealthcare of N.Y., Inc. v. Lacewell, 967 F.3d 82, 92 (2d Cir. 2020). In Lacewell, the court did not
specifically interpret what it means for a state law to “prevent[] the application” of ACA provisions but indicated that
general implied preemption principles may inform this preemption provision’s scope. Under such principles, state and
federal law conflict with one another when “the two acts cannot be reconciled or consistently stand together” or if the
state law “interferes with the methods by which the federal statute was designed to reach [its policy] goal.” Ibid. at 92,
96.
76 42 U.S.C. §300gg-132(d).
77 42 U.S.C. §300gg-132(d)(2).
78 42 U.S.C. §300gg-132(d)(3).
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from being obtained by representatives of the in-network facility or prohibiting the provider from
collecting more than the estimated amount without obtaining a separate written consent.79 State
provisions that offer less protection to consumers, by contrast, likely are preempted under both
constructions. State laws that al ow notice to be given less than 72 hours before the date of
service,80 for instance, likely “prevent the application” of federal minimum timing requirements.
Similarly, state laws that more broadly al ow providers to balance bil for ancil ary services if the
providers follow specified notice-and-consent procedures likely “prevent the application” of the
federal prohibition.81
Some state provisions that are more protective of consumers, however, might “prevent the
application” of the federal provisions only under a broader construction of the preemption
language. For example, state laws that more broadly prohibit balance bil ing for out-of-network
services beyond ancil ary services likely are considered more protective of consumers and thus
likely are preserved under a narrow construction. However, such state provisions, to the extent
they apply to non-ancil ary services, may “prevent the application” of the federal notice-and-
consent requirements by prohibiting what the federal provisions permit.82 Thus, under a broader
construction of the preemption language, such state prohibitions might be preempted as they
apply to non-ancil ary services because they conflict with the federal notice-and-consent
process.83
HHS may further specify the federal surprise bil ing law’s preemptive scope through
regulations.84

79 See, for instance, Cal. Health & Safety Code §1371.9(c)(2).
80 See, for instance, Cal. Health & Safety Code §1371.9(c)(1).
81 See, for instance, Cal. Health & Safety Code §1371.9(c).
82 Washington State, for instance, prohibits balance billing for any nonemergency services involving “surgical or
ancillary services” furnished by an out -of-network provider at an in-network facility. See RCW §48.49.020(b).
Depending on the scope of “ancillary services” further specified by HHS through regulations, Washington’s prohibition
could be broader than the federal law. See 42 U.S.C. §300gg-132(b)(2).
83 In Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 31, 33 (1996), for instance, the Supreme Court
concluded, under general implied preemption principles, that a federal statute authorizing national banks to sell
insurance in small towns preempted a state statute that forbade them to do so, given that the Supreme Court’s
precedents generally take the view that “normally Congress would not want States to forbid, or impair significantly, the
exercise of a power that Congress explicitly granted.”
84 See 42 U.S.C. §300gg-132(b).
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Appendix A. Implementation Requirements of the
Surprise Billing Protections in the No Surprises Act
This appendix contains a table of CRS-identified deadlines and deliverables included in the No
Surprises Act (Title I of Division BB of the Consolidated Appropriations Ac t, 2021 [P.L. 116-
260]). The table includes four columns: (1) the required activity; (2) the deadline for such activity
(if applicable); (3) the citation within the legislative text, including the page number; and (4) the
statutory citation of the required activity (if applicable). The requirements in the table are listed in
the order of their presence in the No Surprises Act. In some instances, requirements are mirrored
across some combination of the Public Health Service Act (PHSA), Employee Retirement Income
Security Act of 1974 (ERISA), and Internal Revenue Code (IRC). For items mirrored across
statutes, CRS combined the mirrored requirements into one row in the table and included
statutory citations for the mirrored language.
The table includes the provisions that require secretarial activity (including, but not limited to,
federal rulemaking, public reporting, and reporting to Congress) and similar activity by other
government entities (e.g., comptrol er general). Anytime a Secretary (or other government entity)
is required to do something relating to the implementation of a provision, CRS noted the required
activity in the table below. Instances where permissive authority was provided in regard to the
implementation of a provision are excluded from the table. Enforcement provisions are similarly
excluded.
Some provisions include explicit deadlines for secretarial activity. For example, Section 103 of
the No Surprises Act requires the Secretary of Health and Human Services (HHS), the Secretary
of Labor, and the Secretary of the Treasury to establish, through rulemaking, an independent
dispute resolution process no later than one year after the date of enactment (i.e., one year after
December 27, 2020). When explicit deadlines are included within the legislative text, these
deadlines are noted within each row. Other provisions cal for the federal government to take
some action but do not mention an explicit timing. For example, Section 104 of the No Surprises
Act requires the HHS Secretary to, through rulemaking, establish a process to receive specified
consumer complaints but does not mention a timing element for when the rulemaking needs to be
issued. Where the provisions did not mention explicit timing, the deadline column indicates “No
specified deadline.”

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Table A-1. Deadlines and Deliverables in the No Surprises Act
(Title I of Division BB of the Consolidated Appropriations Act, 2021 [P.L. 116-260])
Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
Section 102. Health Insurance Requirements Regarding Surprise Medical Billing
The Secretaries of HHS and the Treasury, in
Not later than October 1, 2021
Section 102(a) [1579]
PHSA Section 2799A-1(a)(2)(A)(i)
consultation with Secretary of Labor, are required to
Section 102(c) [1605]
IRC Section 9816(a)(2)(A)(i)
establish through rulemaking a process under which
health plans and issuers are audited by the Secretary of
HHS, the Secretary of the Treasury, or an applicable
state authority. The audit’s purpose is to ensure that
such plans and coverage comply with the requirement
to apply a qualifying payment amount when making a
payment for certain items and services.
The Secretaries of HHS and the Treasury are required
Annual basis beginning with
Section 102(a) [1579]
PHSA Section 2799A-1(a)(2)(A)(i )
to conduct audits of a sample of claims data from up to
2022
Section 102(c) [1605]
IRC Section 9816(a)(2)(A)(i )(I)
25 health plans and issuers annual y.
The Secretaries of HHS and the Treasury are required
Annual basis beginning with
Section 102(a) [1580]
PHSA Section 2799A-1(a)(2)(A)(i i)
to annual y submit to Congress reports on the number
2022
Section 102(c) [1605]
IRC Section 9816(a)(2)(A)(i i)
of plans and issuers that were audited during such year.
The Secretaries of HHS, Labor, and the Treasury are
Not later than July 1, 2021
Section 102(a) [1580]
PHSA Section 2799A-1(a)(2)(B)
required to establish through rulemaking (I) the
Section 102(b) [1593]
ERISA Section 716(a)(2)
methodology that health plans and issuers are required
to use to determine the qualifying payment amount; (2)
Section 102(c) [1605]
IRC Section 9816(a)(2)(B)
the information that such plans or issuers are required
to share with a nonparticipating provider or facility, as
applicable, when making such a determination; (3) the
geographic regions applied to determine the qualifying
payment amount; and (4) a process to receive
complaints of violations of the audit requirements
related to qualifying payment amounts.
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 102(a) [1582]
PHSA Section 2799A-1(a)(3)(C)(i )((II)(cc)
required to issue guidelines pursuant to rulemaking that
Section 102(b) [1595]
ERISA Section 716(a)(3)(C)(i )(II)(cc)
address the health condition that an individual is
Section 102(c) [1607]
IRC Section 9816(a)(3)(C)(i )(II)(cc)
CRS-28

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
required to be in to receive notice and to provide
informed consent regarding emergency services.
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 102(a) [1583]
PHSA Section 2799A-1(a)(3)(E)(i )
required to establish a methodology for determining
Section 102(b) [1596]
ERISA Section 716(a)(3)(E)(i )
the qualifying payment amount for the first year during
which new plans and coverage are offered by health
Section 102(c) [1608]
IRC Section 9816(a)(3)(E)(i )
plans and issuers that did not offer any coverage in a
geographic area during 2019.
Section 103. Determination of Out-of-Network Rates to Be Paid by Health Plans; Independent Dispute Resolution Process
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1617]
PHSA Section 2799A-1(c)(1)(B)
required to specify the information within the IDR
Section 103(b) [1626]
ERISA Section 716(c)(1)(B)
process initiation notice that is required to be sent by
the party seeking to initiate the IDR process to the
Section 103(c) [1635]
IRC Section 9816(c)(1)(B)
other party and the Secretaries.
The Secretaries of HHS, Labor, and the Treasury are
Not later than one year after
Section 103(a) [1617]
PHSA Section 2799A-1(c)(2)(A)
required to jointly establish by regulation a single IDR
enactment of the subsection
Section 103(b) [1626]
ERISA Section 716(c)(2)(A)
process under which a certified IDR entity determines
(i.e., December 27, 2021)
the amount for specified surprise bil ing items or
Section 103(c) [1635]
IRC Section 9816(c)(2)(A)
services.
Under the IDR process, the Secretaries of HHS, Labor,
No specified deadline
Section 103(a) [1618]
PHSA Section 2799A-1(c)(3)
and the Treasury are required to specify the criteria
Section 103(b) [1627]
ERISA Section 716(c)(3)
under which multiple IDR dispute items can be
considered jointly as part of a batch.
Section 103(c) [1635]
IRC Section 9816(c)(3)
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1619]
PHSA Section 2799A-1(c)(4)(A)
required to establish a process to certify (including to
Section 103(b) [1627]
ERISA Section 716(c)(4)(A)
recertify) entities as IDR entities.
Section 103(c) [1636]
IRC Section 9816(c)(4)(A)
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1619]
PHSA Section 2799A-1(c)(4)(A)(v)
required to promulgate regulations that specify how a
Section 103(b) [1628]
ERISA Section 716(c)(4)(A)(v)
certified IDR entity is required to maintain
confidentiality of individual y identifiable health
Section 103(c) [1636]
IRC Section 9816(c)(4)(A)(v)
information in the course of conducting an IDR
determination.
CRS-29

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1620]
PHSA Section 2799A-1(c)(4)(F)
required to establish a method for the selection of a
Section 103(b) [1628]
ERISA Section 716(c)(4)(F)
certified IDR entity by the parties involved in the IDR
process.
Section 103(c) [1637]
IRC Section 9816(c)(4)(F)
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1620]
PHSA Section 2799A-1(c)(4)(F)(i)(I I)
required to specify a process for determining that a
Section 103(b) [1629]
ERISA Section 716(c)(4)(F)(i)(I I)
certified IDR entity does not have a conflict of interest
with a party subject to the determination of the
Section 103(c) [1637]
IRC Section 9816(c)(4)(F)(i)(II )
amount of payment for an item or service.
There is a requirement to suspend subsequent IDR
Interim Report: Not later
Section 103(a) [1623]
PHSA Section 2799A-1(c)(5)(E)(iv)
requests 90 days fol owing an initial determination if the than two years from
Section 103(b) [1631]
ERISA Section 716(c)(5)(E)(iv)
subsequent IDR requests involve the same parties and
implementation of the IDR
an item or service that was the subject of the initial
process (i.e., December 27,
Section 103(c) [1640]
IRC Section 9816(c)(5)(E)(iv)
determination. The Secretaries of HHS, Labor, and the
2023)
Treasury are required to examine and submit to

Congress a report on the impact of the requirement.
Final Report: Not later than
four years from implementation
of the IDR process (i.e.,
December 27, 2025)
The Secretaries of HHS, Labor, and the Treasury are
Each calendar quarter in 2022
Section 103(a) [1623]
PHSA Section 2799A-1(c)(7)(A)
required to make publicly available on the
and each calendar quarter in
Section 103(b) [1632]
ERISA Section 716(c)(7)(A)
corresponding department’s website data regarding the
each subsequent year
IDR process, including, for each calendar quarter, (1)
Section 103(c) [1641]
IRC Section 9816(c)(7)(A)
the number of times the IDR process was initiated and
a payment determination was made by a certified IDR
entity, (2) the size of the provider practices and
facilities using the IDR process, (3) the number of times
the payment determination exceeded the qualifying
payment amount, (4) the amount of expenditures made
by the Secretaries in carrying out the IDR process, (5)
the amount of IDR process administrative fees paid,
and (6) the total amount of compensation paid to
certified IDR entities.
CRS-30

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1624]
PHSA Section 2799A-1(c)(7)(C)
required to specify what information an IDR entity is
Section 103(b) [1633]
ERISA Section 716(c)(7)(C)
required to submit to each Secretary as a condition of
IDR entity certification.
Section 103(c) [1642]
IRC Section 9816(c)(7)(C)
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 103(a) [1625]
PHSA Section 2799A-1(c)(8)(A)
required to specify the time and manner in which the
Section 103(b) [1633]
ERISA Section 716(c)(8)(A)
IDR administrative fee is required to be paid to the
Secretaries.
Section 103(c) [1642]
IRC Section 9816(c)(8)(A)
The Secretaries of HHS, Labor, and the Treasury are
Annual y
Section 103(a) [1625]
PHSA Section 2799A-1(c)(8)(B)
required to annual y specify the amount of the IDR
Section 103(b) [1634]
ERISA Section 716(c)(8)(B)
administrative fee.
Section 103(c) [1642]
IRC Section 9816(c)(8)(B)
Section 104. Health Care Provider Requirements Regarding Surprise Billing
The HHS Secretary is required to specify other items
No specified deadline
Section 104(a) [1644]
PHSA Section 2799B-2(b)(1)(C)
and services provided by specialty practitioners that are
considered ancil ary services subject to balance bil ing
protections for consumers.
The HHS Secretary is required to issue guidance (which Not later than July 1, 2021
Section 104(a) [1645]
PHSA 2799B-2(d)(1)(A)
is to be updated as determined necessary by the
Secretary) on the advance notice that is required to be
provided to an individual prior to being treated by a
nonparticipating provider or at a nonparticipating
facility.
The HHS Secretary, in consultation with the Secretary
No specified deadline
Section 104(a) [1646]
PHSA 2799B-2(d)(3)
of Labor, is required to specify, through guidance, the
consent document for individuals seeking to receive
services from a nonparticipating provider or
nonparticipating facility.
The HHS Secretary is required, through rulemaking, to
No specified deadline
Section 104(a) [1649]
PHSA 2799B-4(b)(3)
establish a process to receive consumer complaints of
violations of specified provider surprise bil ing
requirements.
CRS-31

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
The Secretary of Labor is required to ensure a process
Not later than January 1, 2022
Section 104(b) [1650]
ERISA Section 522(b)
that al ows the Secretary to receive complaints from
private health insurance enrol ees regarding violations
of specified provider surprise bil ing requirements and
to transmit such complaints to states or the HHS
Secretary for potential enforcement.
Section 105. End Surprise Air Ambulance Bills
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 105(a)(1) [1651]
PHSA Section 2799A-2(b)(1)(B)
required to specify the information within the air
Section 105(a)(2)(A) [1658]
ERISA Section 717(b)(1)(B)
ambulance IDR process initiation notice.
Section 105(a)(3)(A) [1665]
IRC Section 9817(b)(1)(B)
The Secretaries of HHS, Labor, and the Treasury are
Not later than one year after
Section 105(a)(1) [1652]
PHSA Section 2799A-2(b)(2)(A)
required to jointly establish by regulation a single IDR
enactment of the subsection
Section 105(a)(2)(A) [1658]
ERISA Section 717(b)(2)(A)
process for air ambulance services.
(i.e., December 27, 2021)
Section 105(a)(3)(A) [1665]
IRC Section 9817(b)(2)(A)
The Secretaries of HHS, Labor, and the Treasury are
Each calendar quarter in 2022
Section 105(a)(1) [1655]
PHSA Section 2799A-2(b)(7)(A)
required to publish on the public website of their
and each calendar quarter in a
Section 105(a)(2)(A) [1662]
ERISA Section 717(b)(7)(A)
respective departments specified data regarding the air
subsequent year
ambulance IDR process.
Section 105(a)(3)(A) [1668]
IRC Section 9817(b)(7)(A)
The Secretaries of HHS, Labor, and the Treasury are
No specified deadline
Section 105(a)(1) [1656]
PHSA Section 2799A-2(b)(8)(A)
required to specify the time and manner in which the
Section 105(a)(2)(A) [1663]
ERISA Section 717(b)(8)(A)
air ambulance IDR process administrative fee must be
paid to the Secretaries.
Section 105(a)(3)(A) [1669]
IRC 9817(b)(8)(A)
The Secretaries of HHS, Labor, and the Treasury are
Annual y
Section 105(a)(1) [1656]
PHSA Section 2799A-2(b)(8)(B)
required to annual y specify the amount of the air
Section 105(a)(2)(A) [1663]
ERISA Section 717(b)(8)(B)
ambulance IDR process administrative fee.
Section 105(a)(3)(A) [1669]
IRC Section 9817(b)(8)(B)
Section 106. Reporting Requirements Regarding Air Ambulance Services
The HHS Secretary, in consultation with the Secretary
Not later than March 31, 2025
Section 106(c)(1) [1674]
Not applicable
of Transportation, is required to develop and make
publicly available a comprehensive report summarizing
specified air ambulance data submitted by air ambulance
providers and plans and issuers, including claims data.
CRS-32

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
The HHS Secretary, in consultation with the Secretary
Not later than one year after
Section 106(d) [1675]
Not applicable
of Transportation, is required, through notice and
enactment of the act (i.e.,
comment rulemaking, to specify the form and manner
December 27, 2021)
in which air ambulance service reporting is to be
submitted. This includes reporting by air ambulance
providers to the Secretaries of HHS and
Transportation, as wel as reporting by plans and
issuers to the Secretaries of HHS, Labor, and the
Treasury.
The Secretaries of HHS and Transportation are
Not later than 60 days after
Section 106(g)(1) [1676]
Not applicable
required to establish an Advisory Committee on Air
enactment of the act (i.e.,
Ambulance Quality and Patient Safety.
February 25, 2021)
The Advisory Committee on Air Ambulance Quality
Not later than 90 days after
Section 106(g)(3) [1676]
Not applicable
and Patient Safety is required to hold its first meeting.
enactment of the act (i.e., March
27, 2021)
The Advisory Committee on Air Ambulance Quality
Not later than 180 days after
Section 106(g)(5) [1677]
Not applicable
and Patient Safety, in consultation with experts and
the first meeting of the
stakeholders, is required to develop and make publicly
Advisory Committee on Air
available a report on recommendations on specified
Ambulance Quality and Patient
aspects of air ambulance services.
Safety (i.e., not later than
September 23, 2021)
Section 108. Implementing Protections Against Provider Discrimination
The Secretaries of HHS, Labor, and the Treasury are
Proposed Rule: Not later than Section 108 [1678]
Not applicable
required to issue a rule implementing the protections
January 1, 2022 (the Secretaries
regarding nondiscrimination in health care in PHSA
are required to consider public
Section 2706(a). These protections prevent health plans comments for 60 days after
and issuers from discriminating with respect to
issuance)
provider network participation against any health care

provider that is acting within the scope of that
provider’s license or certification under applicable state
Final Rule: Not later than six
law.
months after the conclusion of
the 60-day comment period
that begins after issuance of the
proposed rule (i.e., September
2, 2022)
CRS-33

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
Section 109. Reports
The HHS Secretary, in consultation with the Federal
Not later than January 1, 2023,
Section 109(a)(1) [1678]
Not applicable
Trade Commission and the attorney general, is
and annual y thereafter for four
required to conduct a study on the effects of the
years
surprise bil ing provisions in the No Surprises Act.
The HHS Secretary, in consultation with the Federal
Not later than January 1, 2023,
Section 109(a)(2) and (3)
Not applicable
Trade Commission and the attorney general, is
and annual y thereafter for four
[1679]
required to submit a report on the study regarding the
years
effects of the surprise bil ing provisions in the No
Surprises Act.
As part of this report, the HHS Secretary, in
consultation with the Secretaries of Labor and the
Treasury, is required to make recommendations for
the effective enforcement of requirements related to
health plan or issuer payment for emergency and
applicable nonemergency services, including with
respect to potential chal enges to addressing
anticompetitive consolidation.
The comptrol er general is required to submit to
Not later than January 1, 2025
Section 109(b) [1679]
Not applicable
Congress a report summarizing the effects of the
surprise bil ing provisions in the No Surprises Act on
changes in health plan and issuer provider networks, in
fee schedules and amounts for health care services, and
to contracted rates.
The comptrol er general is required to submit to
Not later than January 1, 2023
Section 109(c) [1680]
Not applicable
Congress, and make publicly available, a report on the
adequacy of provider networks, including legislative
recommendations to improve the adequacy of such
networks.
The comptrol er general is required to conduct a study
Not later than December 31,
Section 109(d) [1680]
Not applicable
and submit to Congress a report on the IDR process,
2023
including an analysis of potential financial relationships
between providers and facilities that use the IDR
process and private equity firms.
CRS-34

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
Section 112. Patient Protections Through Transparency and Patient-Provider Dispute Resolution
The HHS Secretary is required to establish a patient-
Not later than January 1, 2022
Section 112 [1686]
PHSA Section 2799B-7(a)
provider dispute resolution process under which an
uninsured individual who was bil ed substantial y more
than a good-faith estimate for an item or service may
seek a determination from an entity regarding the
charges to be paid by the uninsured individual.
Under the patient-provider dispute resolution process,
No specified deadline
Section 112 [1686]
PHSA Section 2799B-7(b)
the HHS Secretary is required to provide for a method
to select an entity, including conflict of interest
standards, and to provide notice to the uninsured
individual and the applicable provider or facility that is
party to the determination.
The HHS Secretary is required to establish a fee to
No specified deadline
Section 112 [1687]
PHSA Section 2799B-7(c)
participate in the patient-provider dispute resolution
process in such a manner as to not create a barrier to
an uninsured individual’s access to the process.
The HHS Secretary is required to establish or
No specified deadline
Section 112 [1687]
PHSA Section 2799B-7(d)
recognize a process to certify entities for the patient-
provider dispute resolution process.
Section 115. State All-Payer Claims Databases
The HHS Secretary is required to make one-time
No specified deadline
Section 115(a) [1694]
PHSA Section 320B(a)
grants to eligible states to establish or improve a state
al -payer claims database.
The HHS Secretary is required to specify the timing,
No specified deadline
Section 115(a) [1694]
PHSA Section 320B(c)
manner, and contents of an application for states to
apply for grants to establish a new or improve an
existing state al -payer claims database.
The Secretary of Labor is required to establish (and
Not later than one year after
Section 115(b) [1696]
ERISA Section 735(a)
periodical y update) a standardized reporting format for
enactment of the section (i.e.,
the voluntary reporting of group health plans to state
December 27, 2021) and
al -payer claims databases. The Secretary of Labor is
periodical y thereafter
CRS-35

Legislative Citation
Requirement
Deadline
[Page Number]
Statutory Citation
also required to provide guidance to states on
col ecting such data.
The Secretary of Labor is required to appoint and
Not later than 90 days after
Section 115(b) [1696]
ERISA Section 735(b)
convene an Advisory Committee to advise the
enactment of the section (i.e.,
Secretary of Labor regarding the reporting format and
March 27, 2021)
guidance for the voluntary reporting of group health
plans data to state all-payer claims databases.
The Advisory Committee is required to report, to the
Not later than 180 days after
Section 115(b) [1697]
ERISA Section 735(b)(3)
Secretary of Labor and to Congress, recommendations
enactment of the section (i.e.,
on the establishment of the format and guidance for the June 25, 2021)
voluntary reporting of group health plan data to state
al -payer claims databases.
Section 117. Advisory Committee on Ground Ambulance and Patient Billing
The Secretaries of HHS, Labor, and the Treasury are
Not later than 90 days after
Section 117(a) [1707]
Not applicable
required to jointly establish an Advisory Committee on
enactment of the act (i.e., March
Ground Ambulance and Patient Bil ing.
27, 2021)
The Advisory Committee on Ground Ambulance and
Not later than 180 days after
Section 117(e) [1708]
Not applicable
Patient Bil ing is required to submit a report containing
the date of the first meeting of
specific recommendations to the Secretaries of HHS,
the Advisory Committee on
Labor, and the Treasury and to Congress.
Ground Ambulance and Patient
Bil ing
Section 118. Implementation Funding
The Secretaries of HHS, Labor, and the Treasury are
Annual y
Section 118(c) [1709]
Not applicable
each required to submit to Congress a report on funds
expended pursuant to the funds appropriated to carry
out the implementation aspects of Title I (the No
Surprises Act) and Title II of Division BB of the
Consolidated Appropriations Act, 2021 (P.L. 116-260).
Source: Congressional Research Service analysis of the No Surprises Act (Title I of Division BB of the Consolidated Appropriations Act, 2021 [P.L. 116-260]), at
https://www.congress.gov/116/bil s/hr133/BILLS-116hr133enr.pdf.
Notes: ERISA = Employee Retirement Income Security Act of 1974; HHS = U.S. Department of Health and Human Services; IDR = independent dispute resolution; IRC
= Internal Revenue Code; PHSA = Public Health Service Act. Unless otherwise indicated, health plans and issuers refers to group health plans and health insurance issuers
CRS-36

offering group or individual health insurance coverage. For requirements that state “No specified deadline,” it means the provision containing the requirement did not
specify an explicit deadline.
CRS-37

link to page 32 Surprise Billing in Private Health Insurance

Appendix B. Other Provisions of the
No Surprises Act
Federal surprise bil ing requirements were established as part of the No Surprises Act, which was
included as Title I of Division BB of the Consolidated Appropriations Act, 2021 (P.L. 116-260).
The No Surprises Act also included other provisions that relate to the topic of surprise bil ing but
do not directly relate to the requirements on insurers and providers regarding the cost of, and
payment for, services provided in surprise bil ing situations. Some of these other provisions that
have not been discussed or referenced in the body of this report are summarized below, by topic
area in alphabetical order.85
Air Ambulance Reporting Requirements
The No Surprises Act required insurers and providers to submit information on air ambulance
services to the federal government.
Requirements on Insurers
The act required insurers to report specified information to the Secretaries of Health and Human
Services (HHS), Labor, and the Treasury for two consecutive years.86 The first year of this
requirement applies to plan years occurring during the first calendar year that begins after the
HHS Secretary, in consultation with the Secretary of Transportation, issues rules regarding the air
ambulance reporting requirements.
Requirements on Providers
The act required air ambulance providers to report specified information to the Secretaries of
HHS and Transportation for two consecutive years.87 The Secretary of Transportation may use
this information to determine whether air ambulance providers have engaged in unfair and
deceptive practices and methods of competition.88 The first year of this requirement applies to
plan years occurring during the first calendar year that begins after the HHS Secretary, in
consultation with the Secretary of Transportation, issues rules regarding the air ambulance
reporting requirements.
All-Payer Claims Databases
The No Surprises Act established a grant program to help states create or improve al -payer
claims databases.89 Grants awarded under the program would be for $2.5 mil ion and would be
available to the state for three years. (Portions of the grant awards would be distributed to the
states in each year.) Once the database is established, non-state entities would be al owed to

85 Federal government reporting and publication requirements and other implementation -related provisions are not
discussed in this appendix but generally can be found in Table A-1.
86 42 U.S.C. §300gg-118.
87 §106(a), T itle I of Division BB of P.L. 116-260.
88 §106(f), T itle I of Division BB of P.L. 116-260.
89 An all-payer claims database is a large-scale database that collects health care claims from a variety of providers and
payers. 42 U.S.C. §247d-11.
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request access to al -payer claims database data for specified purposes (e.g., research, quality
improvement, cost containment).
To be eligible for grant funding under this program, states must submit an application to the HHS
Secretary.90 As part of this application, states must indicate how they wil ensure uniform data
collection and the privacy and security of the data.
The No Surprises Act authorized the appropriation of $50 mil ion for each of FY2022 and
FY2023 and $25 mil ion for FY2024. Amounts are authorized to remain available until expended.
Appropriations
The No Surprises Act included $500 mil ion in appropriations for FY2021 through FY2024.91
The funds were appropriated to the Secretaries of HHS, Labor, and the Treasury for specified
implementation purposes regarding the No Surprises Act and Title II of Division BB of the
Consolidated Appropriations Act, 2021 (P.L. 116-260).
External Review Process in Cases of Certain Surprise Medical Bills
The No Surprises Act required insurers to implement an external review process for coverage
determinations and claims.92 The external review process must meet applicable state or federal
standards.
The No Surprises Act specified that the external review process applies to any adverse
determinations made by insurers with respect to specified surprise bil ing situations (including
whether a specific service is a surprise bil ing service).93 This requirement wil apply not later
than January 1, 2022.
General Informational Requirements to Assist Consumers
The No Surprises Act imposed requirements on insurers and providers regarding the provision of
various pieces of information to consumers. These requirements were in addition to the
informational protections that are directly related to specific surprise bil ing situations (see
“Informational Protections”) and are more general in nature.
Requirements on Insurers
The act required insurers to make publicly available, post on a website, and include in each plan
an explanation of benefits, information on federal balance bil ing prohibitions in certain surprise
bil ing situations, applicable state law balance bil ing prohibitions, and specified surprise bil ing

90 T he HHS Secretary is allowed to prioritize applications that indicate a willingness to work with other states to
establish a single application for data access or indicate that a specific self -insured group health plan reporting format
will be implemented.
91 §118, T itle I of Division BB of P.L. 116-260.
92 42 U.S.C. §300gg-19(b).
93 Specified surprise billing situations include out -of-network emergency services; out -of-network services provided to
a consumer during an outpatient observation stay or an inpatient or outpatient stay during the visit in which a consumer
receives emergency services; out -of-network nonemergency, non-ancillary services provided at an in-network facility;
out-of-network nonemergency, ancillary services provided at an in -network facility; out -of-network air ambulance
services; and services scheduled at least three business days in advance. §110(a), T itle I of Division BB of P.L. 116-
260.
Congressional Research Service

39

Surprise Billing in Private Health Insurance

requirements.94 In addition, it required insurers to include information on contacting appropriate
state and federal agencies if a consumer believes a provider has violated any of the
aforementioned requirements. This requirement wil apply to plan years beginning on or after
January 1, 2022.
The No Surprises Act also required insurers to include the following information on any physical
or electronic plan documents or insurance cards: the plan’s deductible, the plan’s out-of-pocket
maximum, and a telephone number and website where individuals can receive consumer
assistance information.95 This requirement wil apply to plan years beginning on or after January
1, 2022.
In addition, the act required insurers to maintain a price comparison tool, which consumers would
be able to access via telephone and a website, to compare the amount of cost sharing they would
be responsible for if they received certain services from various providers.96 This requirement wil
apply to plan years beginning on or after January 1, 2022.
Requirements on Providers
The No Surprises Act required providers to make publicly available a one-page notice that
provides, in clear and understandable language, information on specified surprise bil ing
requirements.97 In addition, the notice must contain information on which state and federal
agencies consumers may contact if they believe a provider has violated such a requirement. The
notice must be provided to consumers with private health insurance and posted on a public
website (if applicable). This requirement wil apply not later than January 1, 2022.
Health Savings Accounts and Surprise Billing Requirements
A health savings account (HSA) is a tax-advantaged account that individuals can use to pay for
unreimbursed medical expenses (e.g., deductibles, co-payments, coinsurance, and services not
covered by insurance).98 Individuals are eligible to establish and contribute to an HSA if they
have coverage under an HSA-qualified high-deductible health plan (HDHP), do not have
disqualifying coverage, and cannot be claimed as a dependent on another person’s tax return.
To be HSA qualified, a health plan must meet several tests: it must have a deductible above a
certain minimum level, it must limit out-of-pocket expenditures for covered benefits to no more
than a certain maximum level, and it may cover only preventive care services and (for plan years
beginning on or before December 31, 2021) telehealth services before the deductible is met. If the

94 Specified surprise billing requirements include insurer requirements in the following surprise billing situations: out -
of-network emergency services; out -of-network services provided to a consumer during an outpatient observation stay
or an inpatient or outpatient stay during the visit in which a consumer receives emergency services; out -of-network
nonemergency, non-ancillary services provided at an in-network facility; out -of-network nonemergency, ancillary
services provided at an in-network facility; and services scheduled at least three business days in advance. 42 U.S.C.
§300gg-116(c).
95 42 U.S.C. §300gg-111(e).
96 42 U.S.C. §300gg-114.
97 Specified surprise billing situations include out-of-network emergency services; out -of-network services provided to
a consumer during an outpatient observation stay or an inpatient or outpatient stay during the visit in which a consumer
receives emergency services; out -of-network nonemergency, non-ancillary services provided at an in-network facility;
and out -of-network nonemergency, ancillary services provided at an in -network facility. 42 U.S.C §300gg-133.
98 For more information on health savings accounts, see CRS Report R45277, Health Savings Accounts (HSAs).
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Surprise Billing in Private Health Insurance

plan covered any other services before the deductible is met, the plan would not be considered an
HSA-eligible HDHP.
The No Surprises Act al owed HSA-qualified HDHPs to cover specified surprise bil ing services
before the deductible is met and stil be considered HSA-qualified.99 Relatedly, the act specified
that individuals wil not be disqualified from being HSA-eligible merely because they receive
coverage of specified surprise bil ing services before their deductibles are met. These
requirements wil apply to plan years beginning on or after January 1, 2022.

99 Specified surprise billing services include out -of-network emergency services; out -of-network services provided to a
consumer during an outpatient observation stay or an inpatient or outpatient stay during the visit in which a consumer
receives emergency services; out -of-network nonemergency, non-ancillary services provided at an in-network facility;
out-of-network nonemergency, ancillary services provided at an in -network facility; out -of-network air ambulance
services; services scheduled at least three business days in advance (though insurers are not required to provide benefits
in this situation, see 42 U.S.C. §300gg-111(f)); and any situations subject to state laws providing similar protections.
See 26 U.S.C. §§223(c)(1)(D) and 223(c)(2)(F). §102(c)(1)(4), T itle I of Division BB of P.L. 116-260.
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Surprise Billing in Private Health Insurance

Appendix C. Summary of the Applicability of
Various Requirements in Different Surprise
Billing Situations
The following table summarizes the applicability of various federal surprise bil ing requirements
across different situations, as discussed in this report.

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link to page 49 link to page 49
Table C-1. Summary of Various Federal Surprise Billing Requirements, by Situation
Payment
Relationship Between
Methodology
Consumer
Financial and
Interactions with
Consumer Financial
Informational
Information
Payment
State Laws and
Situation
Protections
Protections
Protections
Methodologies
Agreements
Out-of-network
The cost-sharing
None
Not applicable
Initial payment (or notice
Federal methodology
emergency services
requirements cannot be
of denial of payment)
does not apply in states
greater than what they
fol owed by out-of-
with an all-payer model
Out-of-network services
would have been had the
Provider notice
Notification and consent
network provider or
agreement or a surprise
provided to a consumer
service been provided in-
requirements must be
insurer option to initiate
bil ing law in effect with
during an outpatient
network.
met in order for (or as
negotiation. If negotiation
respect to the applicable
observation stay or an
part of criteria for)
The cost-sharing amounts
fails, either party may
plan type, provider type,
inpatient or outpatient
consumer protections to
are to be calculated
initiate an independent
and service
stay during the visit in
not apply
based on the median in-
dispute resolution
which a consumer
network rate for the
process
receives emergency
service or plan (e.g, a
services
20% coinsurance rate
Out-of-network
would be based on the
Provider notice
Notification and consent
nonemergency, non-
median in-network rate).a
requirements must be
ancil ary services
The cost-sharing amounts
met in order for (or as
provided at an in-
count toward the in-
part of criteria for)
network facility
network deductible and
consumer protections to
the out-of-pocket
not apply
maximum.
Out-of-network
None
Not applicable
nonemergency, ancil ary
The consumer cannot be
services provided at an
balance bil ed directly by
in-network facility
the provider.
Out-of-network air
The cost-sharing
None
Not applicable
Initial payment (or notice
Federal methodology
ambulance services
requirements are the
of denial of payment)
does not apply in states
same as what they would
fol owed by out-of-
with an all-payer model
have been had the service
network provider or
agreement or a surprise
been provided in-
insurer option to initiate
bil ing law in effect with
network.
negotiation. If negotiation
respect to the applicable
The coinsurance and
fails, either party may
plan type, provider type,
deductible amounts are
initiate an independent
and serviceb
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link to page 49
Payment
Relationship Between
Methodology
Consumer
Financial and
Interactions with
Consumer Financial
Informational
Information
Payment
State Laws and
Situation
Protections
Protections
Protections
Methodologies
Agreements
to be calculated based on
dispute resolution
in-network rates.
process
The cost-sharing amounts
count toward the in-
network deductible and
the out-of-pocket
maximum.
The consumer cannot be
balance bil ed directly by
the provider.
Services scheduled at
None.
Insurer notice (includes
No financial protections
None specified in statute
Not applicable
least three business days
information received
associated with private
in advance
from provider)
health insurance surprise
bil ing situationc
Out-of-network services
Benefits are provided
Insurer notice
Informs the consumer of
None specified in statute
Not applicable
from a provider who
under the same terms
the option to elect to
initial y was in network
that would have applied
receive financial
but subsequently became
before the change in
protections
out of network during
provider network status.
the course of treatment
The consumer effectively
(i.e., continuity of care)
cannot be balance bil ed
directly by the provider.
Out-of-network services
The cost-sharing
Provider directory
Consumer receives
None specified in statute
Not applicable
from a provider that the
requirements cannot be
financial protections if
consumer assumed was
greater than what they
he/she uses a provider
in network based on
would have been had the
directory (or uses a
incorrect information
service been provided in
phone or electronic
from the plan (e.g.,
network.
methods to communicate
incorrect provider
The cost-sharing amounts
with the insurer), and
directory information)
count toward the in-
receives incorrect
network deductible and
information about the
provider’s network status
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Payment
Relationship Between
Methodology
Consumer
Financial and
Interactions with
Consumer Financial
Informational
Information
Payment
State Laws and
Situation
Protections
Protections
Protections
Methodologies
Agreements
the out-of-pocket
maximum.
The consumer effectively
cannot be balance bil ed
directly by the provider.
Excess amounts paid by
individuals for services
are to be refunded, with
interest.
Source: Congressional Research Service summary of various requirements included in Parts D and E of Subchapter XXV, Part 6A, Title 42, U.S. Code.
Notes: Paral el requirements can be found in the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (IRC).
a. If the service is provided in a state that has an applicable surprise bil ing law or an all-payer model agreement, the cost-sharing amount is to be calculated in
accordance with such law or agreement.
b. Although federal law would defer to state air ambulance surprise bil ing laws in specified instances, states general y have b een limited in their ability to enact air
ambulance surprise bil ing laws as a result of the Airline Deregulation Act of 1978 (P.L. 95-504), which preempts state regulation of payment rates for certain air
transportation carriers (including air ambulances). For a discussion of state attempts to address air ambulance surprise bil ing, see Government Accountability Office,
Air Ambulance: Available Data Show Privately-Insured Patients Are at Financial Risk, GAO-19-292, March 20, 2019, p. 19, at https://www.gao.gov/assets/700/697684.pdf.
c. The financial protections that apply to situations in which services are scheduled three days in advance vary depending on th e consumer’s insurance status. The
financial protections do not apply to consumers with private health insurance who are submitting a claim through their plan; however, the financial protections do
apply to uninsured individuals (defined as individuals who are not enrol ed in a private health insurance plan, federal health care program, or Federal Employees
Health Benefits Program plan and individuals who are enrol ed in a private health insurance plan but are not seeking to have the scheduled service covered by their
plan). Specifical y, uninsured individuals in this situation would have access to a patient-provider dispute resolution process if they were charged an amount that is
“substantial y in excess” of an initial y provided good-faith estimate of costs. Under the patient-provider dispute resolution process, an unaffiliated entity would
determine the charged amount that the individual is responsible for paying. 42 U.S.C. §300gg-137.

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Surprise Billing in Private Health Insurance

Author Information

Ryan J. Rosso
Wen W. Shen
Analyst in Health Care Financing
Legislative Attorney

Noah D. Isserman

Analyst in Health Insurance and Financing

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