On May 15, 2026, the Centers for Medicare & Medicaid Services (CMS) issued the final 2027 Notice of Benefit and Payment Parameters (the “NBPP” or “final rule”), which establishes a notable structural change to the Affordable Care Act (ACA) marketplaces.
For the first time, plans that do not use a provider network (“non-network plans”) may be certified as qualified health plans (QHPs) and offered on the Health Insurance Exchanges. This is one of several provisions in the final rule with the potential to reshape the federal ACA marketplace, with states operating their own Exchanges potentially following suit. With roughly 10 percent of enrollees dropping their plans in 2026 after losing subsidies, these changes presumably aim to address gaps in coverage and affordability.
What You Need to Know
- Effective Dates. Under the NBPP, non-network plans may appear on the Exchanges as early as plan year (PY) 2027 for states that operate their own Exchanges, and no later than PY 2028 for states that rely on the federal Exchange platform.
- QHP Requirements Still Apply. Non-network plans are not exempt from QHP requirements. They must cover essential health benefits (EHB), comply with cost-sharing limits, satisfy No Surprises Act balance-billing protections, and meet a modified provider-access standard in lieu of a contracted network.
- Subsidy Implications. Lower-cost non-network silver plans could depress the “benchmark” (the second-lowest-cost silver plan), reducing premium tax credit amounts for all subsidized enrollees in affected rating areas.
- Provider Reimbursement Risk. Providers face heightened exposure to reference-based reimbursement disputes. Non-network plans pay a defined benefit amount rather than contracted rates, and the proliferation of these plans on the Exchanges will make it harder for providers to identify and challenge below-market reimbursement.
- Employer and Consumer Interest. Employers and individuals may find non-network plans attractive as lower-premium Exchange options, including employers offering individual coverage health reimbursement arrangements (ICHRAs).
The New Non-Network QHP Policy
CMS finalized a new policy permitting plans that do not rely on a contracted provider network to receive QHP certification. Rather than demonstrating an adequate network of contracted providers, a non-network QHP must instead demonstrate sufficient access to a range of providers who will accept the plan’s benefit amount as payment in full. CMS specified that this required range of providers must include essential community providers (those serving predominantly low-income, medically underserved individuals) and providers specializing in mental health and substance use disorder services, so that covered services remain accessible without unreasonable delay.
Importantly, non-network plans remain subject to all general QHP certification criteria, including the requirement to cover EHB with the associated cost-sharing limits, and compliance with the consumer protections applicable to individual and small-group coverage. The non-network designation changes how a plan demonstrates provider access but does not exempt the plan from substantive QHP standards.
Key Changes from the Proposed Rule
CMS did not finalize the non-network proposal as drafted. Several modifications are material to compliance planning:
1. Delayed Effective Date—PY 2028, Not 2027
CMS finalized non-network QHP certification effective for PY 2028, rather than 2027 as originally proposed. State-based Exchanges (SBEs), which states operate themselves, including their own enrollment platform, and State-based Exchanges on the Federal platform (SBE-FPs), under which a state performs Exchange functions such as plan certification but relies on the federal HealthCare.gov platform for eligibility and enrollment, retain the ability to permit non-network plans beginning in PY 2027. For the federally facilitated Exchange (FFE), which CMS operates on the federal platform for states that have not established their own Exchange, the policy is effective in PY 2028. This delay gives issuers, states, and providers additional lead time before non-network products can appear on the federal platform.
2. No Surprises Act Protections Expressly Apply
CMS confirmed that non-network plans must abide by the patient protections embedded in the No Surprises Act, including the prohibition on balance billing. Because non-network plans pay a defined benefit amount rather than contracted network rates, balance-billing exposure was a central concern raised by commenters. CMS’s confirmation that No Surprises Act protections apply meaningfully constrains the out-of-pocket risk these plans can shift onto enrollees in protected circumstances.
3. New Consumer-Navigation Requirement
CMS added a requirement that non-network plans implement a strategy for providing consumer-friendly information to enrollees on how to navigate an episode of care involving multiple providers. CMS explained that this information is intended to help enrollees avoid balance billing and unanticipated out-of-pocket costs when a single course of care triggers multiple benefit amounts that could not reasonably have been anticipated.
4. ECP Threshold Unchanged at 35 Percent
Although not limited to non-network plans, one widely watched proposal would have reduced the minimum essential community provider (ECP) contracting threshold from 35 percent to approximately 20 percent. CMS did not finalize that reduction, and issuers must continue to meet the existing 35 percent ECP threshold, applied to the overall ECP requirement and, separately, to the federally qualified health center and family planning provider thresholds.
5. State Deference on Provider Access Review
The final rule allows states operating FFEs to elect to conduct their own provider access reviews and/or ECP certification reviews, covering plans with or without a provider network, provided the state demonstrates sufficient authority and technical capacity under CMS’s criteria. CMS also removed the requirement that SBEs and SBE-FPs maintain quantitative time-and-distance network adequacy standards at least as stringent as the federal standards, shifting toward a more state-driven “sufficient choice of providers” standard.
6. Extended Duration for Catastrophic Plans
In a related change, the final rule permits catastrophic plans to remain in effect for up to 10 years. The final rule also expands hardship-exemption eligibility to enroll in catastrophic coverage, widening the pool beyond the traditional under-30 and affordability-exemption categories. Together, these changes offer another avenue for product design likely to draw interest from consumers who are otherwise healthy, who qualify under the under-30 or applicable hardship or affordability exemptions, and who cannot afford, or do not wish to purchase, more comprehensive coverage. Combined with the non-network policy, these changes broaden the menu of lower-premium options on the Exchanges.
Market and Subsidy Dynamics
CMS’s stated rationale is that non-network plans can improve price transparency, allow consumers to shop for lower prices and negotiate directly with providers, and reduce the administrative overhead of network management, potentially yielding lower premiums. The model is not new: non-network plans typically rely on reference-based pricing and tight utilization management to control costs, and similar arrangements have become increasingly common in the self-insured employer market over the past several years. They have tended to frustrate hospitals and have produced mixed results in terms of patient satisfaction with access, but they offer relief to employers struggling to contain rising health care costs. Now that these plans can appear on the Exchanges, employers may take a fresh look at them and may also reconsider an ICHRA offering, particularly for employees for whom a non-network plan may make sense.
Non-network plans may expose consumers to higher out-of-pocket costs to the extent providers do not accept the plan’s benefit amount as payment in full, despite EHB cost-sharing limits and No Surprises Act balance-billing protections. Additionally, because premium tax credits are tied to the cost of the benchmark, the entry of lower-cost silver-level products can influence benchmark pricing and, in turn, the size of premium tax credits available to subsidized enrollees. If lower-premium non-network silver products were to depress the benchmark, subsidy amounts for all eligible consumers in the rating area could be affected.
Legal Implications, Litigation, and Next Steps
Because non-network plans are a new product category, they raise legal questions across the regulatory, transactional, and dispute-resolution spectrum. For issuers, questions span QHP certification strategy, the provider-access demonstration, and compliance with EHB, cost-sharing, and No Surprises Act requirements. For providers, they center on the plan's benefit-amount payment model, balance-billing limits, and the reimbursement disputes that may follow. More broadly, we expect this new category to draw renewed interest from employers and individuals seeking lower premiums, and from providers looking to deliver a direct-to-consumer experience and to revisit reference pricing as they continue to grapple with commercial revenue erosion—some, for instance, may pair their own direct primary care model with reference prices on select hospital services where it makes sense.
A coalition of cities and a physician advocacy group has already sued to block the final rule, with a complaint filed June 3, 2026, in the U.S. District Court for the District of Maryland challenging more than a dozen provisions, including the addition of non-network plans, as violations of the ACA and the Administrative Procedure Act. It is the latest in a series of challenges to recent CMS marketplace rulemaking, and the final rule is set to take effect July 20, 2026.
In the meantime, stakeholders weighing this new product category should consider several near-term steps:
- Issuers contemplating a non-network filing should begin scoping their provider-access demonstration now, given the compressed PY 2028 FFE certification timeline, and should track which FFE states elect to run their own provider-access and ECP reviews because those elections will shape the applicable standards market by market.
- Providers should evaluate how the benefit-amount payment model interacts with their charge structures and balance-billing exposure under the No Surprises Act, and should revisit reference-pricing and direct-to-consumer strategies accordingly.
- Employers and benefits advisors should reassess whether a non-network Exchange product, potentially paired with an ICHRA, fits any segment of their workforce.
- All stakeholders should weigh the litigation risk: with the final rule under challenge and set to take effect July 20, 2026, build-out decisions should account for the possibility that some provisions are stayed or vacated.
We will continue to monitor implementation, including ongoing litigation, state-level adoption decisions, and the PY 2027 and PY 2028 QHP certification cycles.
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