Agencies Seek Public Comment on No Surprises Act Good Faith Estimate and Advanced Explanation of Benefits Provisions - Bim Group

Agencies Seek Public Comment on No Surprises Act Good Faith Estimate and Advanced Explanation of Benefits Provisions


Congress enacted the Consolidated Appropriations Act, 2021 (CAA), which includes the No Surprises Act (NSA), in December 2020. The NSA seeks to protect health care consumers against surprise billing and limits out-of-network cost sharing under many of the circumstances in which surprise bills typically arise.

To help accomplish this goal, the NSA requires health care providers and facilities to inquire whether an individual who has scheduled an item or service is enrolled in a group health plan. If so, and the individual plans to submit a claim for such item or service, providers and facilities must provide to the plan, issuer, or carrier a good faith estimate (GFE) of the expected charges for furnishing the scheduled item or service, along with the relevant expected billing and diagnostic codes.

The NSA further requires group health plans that receive a GFE to send a covered individual, by mail or electronically (as requested by the covered individual), an advanced explanation of benefits (AEOB) in clear and understandable language. The AEOB must include:

  • The network status of the provider or facility
  • The contracted rate for the item or service, or if the provider or facility is not a participating provider or facility, a description of how the covered individual can obtain information on providers and facilities that are participating
  • The GFE received from the provider or facility
  • A GFE of the amount the plan or coverage is responsible for paying
  • The amount of any cost sharing which the covered individual would be responsible for paying with respect to the GFE received from the provider or facility
  • A GFE of the amount that the covered individual has incurred toward applicable deductibles and out- of-pocket maximums under the plan as of the date of the AEOB
  • Disclaimers indicating whether coverage is subject to any medical management techniques (e.g., concurrent review, prior authorization, and step-therapy or fail-first protocols)

The AEOB also must state that it is only an estimate based on the items and services reasonably expected to be furnished, at the time of scheduling or requesting an item or service and is subject to change; and any other information or disclaimer the plan, issuer, or carrier determines is appropriate and consistent with NSA’s goals.

Plans must issue an AEOB no later than one business day after receiving a GFE. However, when an item or service is scheduled at least 10 business days before it is to be furnished (or if the covered individual requested the information) the plan must provide an AEOB to the covered individual within three business days after the date on which the plan receives the GFE or request.

These provisions generally apply to plan years beginning on or after January 1, 2022. However, the agencies who oversee and enforce NSA compliance have announced that until they issue final regulations, they will not enforce these provisions.

Plans, carriers, and other stakeholders have raised concerns over the burdens associated with the GFE and AEOB requirements. In response, the agencies enforcing the NSA have sought comments from interested parties that the agencies will consider when drafting final rules to implement these requirements. Specifically, the agencies seek information to help them frame prudent rules to address the following important areas.

HIPAA Considerations

The Agencies are concerned about additional HIPAA risks associated with requiring transfer of protected health information to comply with GFE and AEOB requirements and have asked for comments as to what privacy concerns the transfer of AEOB and GFE data raise, considering these transfers would list the individual’s scheduled (or requested) item or service, including the expected billing and diagnostic codes for that item or service. Further, the Agencies seek to understand whether the exchange of AEOB and GFE data creates new or unique privacy concerns for individuals enrolled in a plan and whether they should weigh special factors for individuals who are enrolled in a plan or coverage along with other members of their household.

Coordination with NSA Price Transparency Tool Requirement

The Agencies recognize that there could be significant overlap in the price transparency tool requirements coming online for plans beginning on or after January 1, 2023, for 500 initially identified items or services, and January 1, 2024, for all other items or services. Thus, they have sought input as to:

  • How the final rule could coordinate with the internet-based self-service tool requirement to help minimize the burden on plans, issuers, and carriers in implementing both.
  • Whether plans, issuers, and carriers can leverage technical work completed to comply with the internet-based self-service tool requirements to help streamline the process for complying with AEOB
  • What, if any, obstacles will plans, issuers, and carriers face if required to provide AEOBs to covered individuals for all covered items or services (rather than a specified subset, as with the first year of the internet-based self-service tool requirement) beginning with the first year of the AEOB

Mandatory AEOB Notice to Provider or Facility

Are there reasons why the Agencies should or should not propose a requirement that plans, issuers, and carriers provide a copy of the AEOB to the provider or facility, as opposed to allowing such a transfer but not requiring it?

Plan Coverage Verification

What, if any, additional burden would be created by requiring providers, facilities, plans, issuers, and carriers to verify:

  • Whether an individual is uninsured, self-pay, or enrolled in a health plan or coverage for AEOB and GFE purposes
  • Coverage for each item or service expected to be included in an AEOB or GFE
  • Coverage from multiple payers

Should the final rules allow providers and facilities, for purposes of verifying coverage, to rely on an individual’s representation regarding whether the individual is enrolled in a health plan or coverage and seeking to have a claim for the items or services submitted to the plan or coverage?

Language Access

Should the Agencies adopt an AEOB language access requirement similar to existing requirements for group health plans and health insurance issuers, such as the internal claims and appeals and external review and Summary of Benefits and Coverage (SBC) requirements to provide oral language services, notices in non- English languages, and non-English language statements in English versions of notices indicating how to access language services? And, if so, what is the best way to ensure information about language access services is communicated with enough time to facilitate the provision of the AEOB in the language that is most accessible to the individual?


The specific areas noted above will shape the final requirements that plans will need to address when the GFE and AEOB rules become final. We expect the agencies also will address the extent to which plans may rely on carriers or third-party administrators to meet these requirements.

The comment period recently closed, so we would expect the agencies to issue final rules in 2023, possibly as early as the first quarter. Having said that, we also would expect that such rules would not be immediately effective or enforceable, and that plan sponsors will have time to digest the final rules and take whatever steps they will need to ensure compliance.


This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.

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