States Begin to Issue Guidance on Implementing the No Surprises Act: Are You Ready?

Health Highlights

Click Here to Download Your Free Checklists for Payers and Providers to Be Sure You’re Ready to Meet the New NSA Requirements

The No Surprises Act (NSA), which was enacted in December 2020 as part of the Consolidated Appropriations Act, 2021, protects patients from surprise medical bills for emergency services and when they are treated by out-of-network providers in an in-network facility in certain circumstances. The NSA also sets a methodology that will be used to determine out-of-network enrollee cost-sharing and provider reimbursement in those situations—at least when state law does not determine those amounts.

Because most states already have some form of patient protections for surprise medical bills, the NSA creates a complex landscape of state-federal law interactions. Health plans, health care providers, and hospitals and other facilities will need to analyze carefully what law applies to particular out-of-network claims. Because the answer varies depending on the scope of state laws, a health plan could be forced to reimburse some claims under state methodologies and other claims under federal methodologies. It is even possible that different parts of the same hospital stay could be reimbursed under different laws.

The federal government has issued two interim final regulations already on these issues, and plans to issue additional rules, likely in 2022. (See Manatt’s analysis of the first and second interim regulations.) State insurance and health regulators will also play an important role in interpreting and enforcing the NSA and corresponding state laws.

The State of Washington Issues First Comprehensive NSA Guidance

The state of Washington was the first to issue comprehensive guidance explaining how it intends to apply the NSA to insurers in its state and how the NSA will interact with its existing surprise medical billing law. Washington’s guidance demonstrates the complexity that states, health plans and providers will need to continue to wrestle with as full implementation of the NSA approaches on January 1, 2022.

Issued by the Washington Office of the Insurance Commissioner (OIC), the guidance explains how OIC will enforce the NSA, including prohibitions on balance billing that are broader than state law. The federal methodology for determining cost-sharing and provider reimbursement will apply to situations covered by the NSA but not existing state balance billing law (e.g., grandfathered health plans and nonemergency services by neonatologists and intensivists). State requirements that will continue to apply include state requirements for electronic transactions, provider directories, enrollee cost-sharing, provider reimbursement and dispute resolution.

OIC will not enforce the NSA against air ambulances, self-funded group health plans that have not elected to be subject to state law, and health care providers and facilities. OIC is deferring enforcement of the NSA price comparison tool and advanced explanation of benefits requirements consistent with August 2021 federal guidance but will be enforcing ID card, provider directory, balance billing enrollee disclosures and continuity of care requirements consistent with the August 2021 guidance. OIC has developed a consumer notice that plans subject to OIC jurisdiction should use.

Many states are working on guidance that is likely to be released through the end of the year. Manatt on Health is tracking state guidance as it is released and will be updating our tracker for subscribers to this premium service on a biweekly basis.  

New NSA Toolkit Guides You Through the Complexities of the NSA 

To help you navigate the challenges and complexities that the NSA introduces, Manatt Health is launching a No Surprises Act Toolkit that includes four high-value components to be delivered across the next six months:

  1. An NSA Tracker that will track guidance from state and federal regulators on how state and federal laws apply. Updated every two weeks to keep pace with new developments, the tracker will provide brief summaries as well as links to each state regulation, bulletin or other guidance.
  2. Deep-dive analyses of all new NSA-related regulations and their implications.
  3. Detailed checklists for providers and payers, providing a step-by-step roadmap to compliance requirements.
  4. Access to Manatt on Health: Insights You Trust, Manatt’s premium information service that delivers in-depth insights and analysis focused on the legal, policy and market developments that matter to you, keeping you ahead of the trends shaping our evolving health ecosystem. Manatt on Health includes weekly analyses of federal and state health reform activity; detailed regulatory and guidance summaries and analyses of key federal legislation; and 50-state trackers of state actions across a range of key topics, from telehealth changes to 340B to Drivers of Health. The NSA offering gives you three options for accessing Manatt on Health—a full 12-month subscription at a 10% discount, a six-month subscription or a one-month free trial.

Our NSA Toolkit delivers information that is essential for both health plans and providers—particularly those operating across multiple states. Fully understanding state and federal guidance—and the interactions between them—will be imperative for ensuring that providers’ billing practices and plans’ processing practices are compliant. With guidance remaining in flux, Manatt’s NSA offering ensures that plans and providers have clear, complete and up-to-date information on what regulators are saying, so they are prepared to implement the law.

Click here to download your free checklists for payers and providers to be sure you are ready for the NSA’s new requirements. To get more information or schedule a demo of Manatt on Health, contact Barret Jefferds at



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