Under the ACA, as additional background, all non-grandfathered group health plans must ensure that any annual cost-sharing imposed under the plan does not exceed certain statutory limits (under ACA Section 1302(c)(1)) (Section 2707(b) of the Public Health Service Act (PHSA) (42 U.S.C. § 300gg-6(b); see Practice Note, Cost-Sharing Restrictions Under the ACA). These limits apply to an individual's cost-sharing for a plan year for essential health benefits (EHBs) (see Practice Note, Lifetime Limits, Annual Limits, and Essential Health Benefits Under the ACA). For plan years beginning in 2014, the maximum annual limit on an individual's cost-sharing (that is, the maximum out-of-pocket (MOOP) limit) was set by reference to limits for high-deductible health plans (HDHPs) under the Internal Revenue Code's (Code's) rules for health savings accounts (HSAs) (26 U.S.C. § 223(c)(2)(A)(ii)). For plan years after that, the MOOP limit is increased by a premium adjustment percentage.

Cost-sharing includes deductibles, coinsurance, copayments, or similar charges, and any other outlays required of an individual that are qualified medical expenses regarding EHBs covered under the plan (see 26 U.S.C. § 223(d)(2) (defining qualified medical expenses)). However, cost-sharing does not include:

For plans with a network of providers, cost-sharing that is paid by (or on behalf of) a participant for OON benefits is not required to be counted toward the annual cost-sharing limit (45 C.F.R. § 156.130). In prior guidance, the Departments clarified that a plan with a network of providers, may—but is not required to—count an individual's out-of-pocket spending for OON items and services toward the MOOP limit (FAQ guidance (Jan. 9, 2014); see Legal Update, ACA FAQs Address Wellness Programs, Preventive Services, Expatriate Plans and More).

For purposes of the MOOP limit, an OON provider is a provider or facility with which the plan or insurer does not have a contractual arrangement directly or indirectly regarding the plan or coverage. By contrast, an in-network provider is a provider or facility with which the plan or insurer does have a contractual arrangement directly or indirectly regarding the plan or coverage.

The Departments' FAQs clarify that cost-sharing for services furnished by an OON provider, facility, or provider of air ambulance services (as defined under the NSA) is considered cost-sharing for benefits provided outside of a plan's network for purposes of the MOOP limit. In addition, cost-sharing for services furnished by a provider, facility, or provider of air ambulance services that is "participating" for NSA purposes is considered cost-sharing for benefits provided within a plan's network for purposes of the MOOP limit.

In other words, cost-sharing for services provided by:

According to the Departments, some plans and insurers have contractual relationships with providers, facilities, or providers of air ambulance services that the plans and insurers do not consider to be part of their network. The FAQs therefore clarify that a plan or insurer may not treat a provider, facility, or provider of air ambulance services with which it has a contractual relationship as OON for purposes of the MOOP limit (under PHSA Section 2707 and ACA Section 1302(c)) while also treating the provider or facility as participating for NSA purposes.

The FAQs also address the situation where a plan or insurer has a direct or indirect contractual relationship with a provider, facility, or provider of air ambulance services that sets forth the terms and conditions on which an item or service is furnished to participants or beneficiaries under the plan or coverage. In this situation, the provider, facility, or provider of air ambulance services:

As a result, for emergency services, non-emergency services furnished by a provider regarding a visit to a participating health care facility, and air ambulance services, either:

Under no circumstance can an emergency facility providing emergency services to a participant or beneficiary be OON for purposes of the MOOP limit and simultaneously be a participating emergency facility for purposes of the NSA's balance billing and cost-sharing protections.

As background, the ACA's TiC rules require plans and insurers to make price comparison information available to participants and beneficiaries, on request, using an internet-based self-service tool and in paper form. This information must be available:

(For more information, see Content Requirements for Health Plan Coverage Transparency Cost Disclosures Under the ACA Checklist: Internet-Based Self-Service Tool.)

Effective for plan years beginning on or after January 1, 2022, the NSA imposes certain requirements on health providers and facilities when an individual schedules items or services (or on request by an individual). Specifically, the health provider or facility must:

(PHSA § 2799B-6 (42 U.S.C. § 300gg-136).)

The provider must furnish the GFE notice to the individual's plan or coverage if the individual is enrolled in a plan or coverage and wishes to have a claim for the item or service submitted to the plan or coverage. The provider furnishes the GFE notice directly to the individual if the individual either:

Upon receiving a GFE notice, a plan or insurer must send the participant or beneficiary an advanced explanation of benefits (AEOB) in clear and understandable language.

(ERISA § 716(f) (29 U.S.C. § 1185e(f)); Code § 716(f) (26 U.S.C. § 9816(f)); PHSA § 2799A-1(f) (42 U.S.C. § 300gg-111(f)).)

The GFE notice must include, among other information:

In previous guidance, HHS:

For more information, see Practice Note, Health Plan Disclosure Requirements Under the CAA-21: Implementing Regulations and Deferred Enforcement.

According to the Departments, individuals are increasingly being charged facility fees for health care received outside of hospital settings. The FAQs therefore clarify that if facility fees are covered by a participant's plan in connection with EHBs provided in-network, cost-sharing for the fees is subject to the MOOP limit under the ACA's cost-sharing rules. By contrast, if the facility fees are not covered by the individual's plan in connection with EHBs, the fees:

Some states are taking steps (or have already taken steps) to prohibit, restrict, or increase transparency around facility fees.

The Departments are actively monitoring facility fee issues, and encouraged plans, insurers, providers, and facilities to reduce the financial burden to participants and beneficiaries resulting from facility fees.

In the Departments' view, facility fees are included in the definition of "items and services" for purposes of both the TiC implementing regulations and the NSA's GFE requirements. This means that plans and insurers must make available price comparison information for covered facility fees to participants and beneficiaries using an internet-based self-service tool and in paper form, upon request. In addition, providers and facilities must furnish GFEs to uninsured (or self-pay) individuals regarding facility fees (see Practice Note, Surprise Medical Billing for Providers and Facilities: Good Faith Estimates and the Patient-Provider Dispute Resolution Process: Good Faith Estimates for Uninsured or Self-Pay individuals).

The Departments acknowledged that they have not yet provided NSA implementing regulations concerning the AEOB and GFE provisions for individuals who are either:

The Departments indicated that future proposed regulations will address facility fees regarding these provisions.