On July 1, the Department of Health and Human Services (HHS), the Department of Labor, the Department of the Treasury, and the Office of Personnel Management released an interim final rule with comment period (IFR), Requirements Related to Surprise Billing; Part I. This rule is the first of a series that will implement provisions of the No Surprises Act (NSA) signed into law as part of the 2021 COVID-19 relief bill. It establishes new protections from surprise billing and excessive cost sharing for consumers and implements many of the law’s requirements for group health plans, health insurers, carriers under the Federal Employees Health Benefits (FEHB) Program, health care providers and facilities, and air ambulance service providers. Details include:
Emergency Services
If a plan or coverage provides or covers any benefits for emergency services, the IFR requires emergency services to be covered without prior authorization and regardless of whether the provider is an in-network provider or an in-network emergency facility. It also requires emergency services to be covered regardless of any other term or condition of the plan or coverage other than the exclusion or coordination of benefits, or a permitted affiliation or waiting period. (Note: emergency services include certain services in an emergency department of a hospital or an independent freestanding emergency department, as well as post-stabilization services in certain instances.)
Patient Cost-sharing
The IFR also limits cost sharing for out-of-network services subject to the rule’s protections to no higher than in-network levels, it also requires such cost sharing to count toward any in-network deductibles and out-of-pocket maximums, and it prohibits balance billing. These limitations apply to out-of-network emergency services, air ambulance services furnished by out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, including hospitals and ambulatory surgical centers.
Out-of-Network Rate Determination
The No Surprises Act and the IFR also establish requirements related to the total amount paid by a plan or issuer for items and services subject to the rule’s provision—or the out-of-network rate.
The plan or issuer must make a total payment equal to one of the following amounts, less any cost sharing from the participant, beneficiary, or enrollee: (1) an amount determined by an applicable All-Payer Model Agreement under section 1115A of the Social Security Act; (2) if there is no such applicable All-Payer Model Agreement, an amount determined by a specified state law; (3) in the absence of an applicable All-Payer Model Agreement or specified state law, if the plan or issuer and the provider or facility have agreed on a payment amount, then the agreed upon amount; or (4) if none of those three conditions apply, and the parties enter into the independent dispute resolution (IDR) process and do not agree on a payment amount before the date when the IDR entity makes a determination of the amount, the amount determined by the IDR entity.
Regulations regarding IDR entities and the IDR process will be issued in a separate rule.
Other Provisions
The IFR establishes a complaints process for receiving and resolving complaints related to these new balance billing protections. It also implements the requirement of the NSA that certain health care providers and facilities make publicly available, post on a public website, and provide a one-page notice to individuals regarding: (1) the requirements and prohibitions applicable to the provider or facility under sections 2799B-1 and 2799B-2 of the PHS Act and their implementing regulations; (2) any applicable state balance billing requirements; and (3) how to contact appropriate state and federal agencies if the individual believes the provider or facility has violated the requirements described in the notice.
Regulations established by the IFR are generally applicable beginning on or after January 1, 2022.
ASCO is reviewing the rule and will provide more details on ASCO in Action.
