A Year of “No Surprises” – Will There Be Surprises in 2023?

January 19, 2023

The regulations implementing the No Surprises Act, which prohibits balance billing in many circumstances, went into effect on January 1, 2022. Many questions remain on how to comply with these rules, as well as what is (and is not) changing as we move into 2023. This summary is intended to serve as an overview of what requirements are currently in place and the changes on the horizon.

Prohibition Against Balance Billing

The No Surprises Act prohibits the practice of “balance billing” or “surprise billing” – billing a patient for the difference between the billed charge and the amount paid by their plan or insurance (usually for out-of-network charges). It does not apply to patients with coverage such as Medicare, Medicaid, or other governmental payors, which already have balance billing prohibitions in place. The regulations also require specific notice requirements and good faith estimates for some patients, which are both described in detail below.

Surprise billing is prohibited for patients in employer-sponsored and individual health plans who:

  1. Receive emergency care;
  2. Receive non-emergency care from out-of-network providers at in-network facilities (for example, anesthesia or radiology providers); and
  3. Receive air ambulance services from out-of-network providers.                                                                                          


In very limited exceptions, balance billing may be allowed where the patient has received notice in the form issued by the Department of Health and Human Services and granted consent to receive the additional billed amount. This exception is very narrow and must be documented on Department-issued standard forms. Additional information about this exception and the required forms if applicable, are available here.


Good Faith Estimates Required

 A good faith estimate must be furnished to uninsured or self-pay patients. If the service is scheduled at least 3 business days in advance of the service, the good faith estimate must be provided no later than 1 business day after scheduling. If the service is scheduled at least 10 business days in advance, the good faith estimate must be provided no later than 3 business days after scheduling.

A template good faith estimate is available here. The good faith estimate must include the following:

  • A list of items and services that the scheduling provider or facility reasonably expects to provide for that period of care;
  • Applicable diagnosis codes and service codes;
  • Expected charges or costs associated with each item or service from each provider and facility;
  • A notification that if the billed charges are higher than the good faith estimate, you can ask your provider or facility to update the bill to match the good faith estimate, ask to negotiate the bill, or ask if there is financial assistance available; and
  • Information on how to dispute your bill if it as least $400 higher for any provider or facility than the good faith estimate you received from that provider or facility.

Originally, beginning in 2023, the rule required the provider to include a list of items and services and their associated costs that can be reasonably expected to be furnished by another provider or facility involved (a co-provider or co-facility). For example, the good faith estimate would also need to include costs associated with services such as anesthesia or radiology furnished by a co-provider.

CMS issued an FAQ on December 2, 2022, extending the period of enforcement discretion for situations where good faith estimates do not include expected charges from co-providers or co-facilities in response to feedback that compliance with this provision was likely not possible by January 1, 2023, given the complexities involved with developing the technical infrastructure and business practices necessary for convening providers and facilities to exchange good faith estimate data with co-providers and co-facilities. This enforcement discretion will remain in place until the Department has established a standard technology or transaction to automate the creation of the comprehensive good faith estimates and given providers and facilities sufficient time to implement such standards. Until such time, the patient may request a good faith estimate directly from the co-provider or co-facility.


Required Notice Documents

Right to Receive a Good Faith Estimate of Expected Charges – this notice must be provided to uninsured or self-pay patients, prominently displayed on the provider’s website, and must be prominently displayed onsite where scheduling or questions about the cost of healthcare items or services occur. Good Faith Estimate standard notices may be downloaded here.

Model Disclosure Notice Regarding Patient Protections Against Surprise Billing – this notice must be prominently displayed at the facility, such as where individuals schedule care, check in for appointments or pay bills. This notice must also be displayed on a searchable homepage of the facility’s website. Finally, this notice must be given to individuals who are participants, beneficiaries, or enrollees of a group health plan or group or individual health insurance coverage offered by a health insurance issuer to whom they furnish items or services. This notice should not be provided to individuals who have Medicare, Medicaid, other federal health care programs, or an uninsured individual. This standard notice may be downloaded here.

Additional resources on the No Surprises Act, including Frequently Asked Questions, Fact Sheets, and information on the Independent Dispute Resolution Process for resolving disputes created by these requirements, are available here