July 7, 2021

On July 1, 2021, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury released an interim final rule (IFR) that acted to flesh out some of the provisions of the No Surprises Act (NSA), scheduled to go into effect next year. Entitled “Requirements Related to Surprise Billing; Part I,” the IFR provides further details concerning the implementation of the NSA we did not have previously, but also promises that further details will emerge. After all, if this constitutes only “Part I,” we can expect further rulemaking.

As you’ll recall from our previous alerts, the NSA—which will become effective January 1, 2022—establishes new protections from exorbitant medical bills sent to patients by out-of-network providers. The “surprise” in the No Surprises Act refers to patients who were unaware at the time of service of one of their provider’s non-participating status with the patient’s insurance plan and the unexpectedly large bill. According to a CMS fact sheet released last week, the IFR “implements many of the law’s requirements for group health plans, health insurance issuers, carriers under the Federal Employees Health Benefits (FEHB) Program, health care providers and facilities, and air ambulance service providers.”

So, what does the IFR call for and how does it further specify the provisions of the NSA? The following will act to summarize the highlights.

Emergency Services

From a definitional perspective, the IFR deems emergency services to “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.” If an individual’s health plan provides benefits for emergency services, the IFR requires emergency services to be covered:

Without any prior authorization (i.e., approval beforehand).

Regardless of whether the provider is an in-network provider or an in-network emergency facility.

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.
The IFR also limits cost sharing for out-of-network services subject to these protections to no higher than in-network levels. Furthermore, it requires such cost sharing to count toward any in-network deductibles and out-of-pocket maximums, and it also 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.

Cost-Sharing Amounts

The IFR fact sheet specifies that patient cost-sharing amounts for emergency services provided by out-of-network emergency facilities and out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, must be calculated based on an amount determined by an applicable All-Payer Model Agreement (APMA) under section 1115A of the Social Security Act. If there is no such applicable APMA, an amount determined under a specified state law would be used. If neither of these solutions apply, the cost-sharing amount would be based on the lesser amount of either the billed charge or the qualifying payment amount, which is generally the plan’s median contracted rate.

Out-of-Network Rates

The IFR indicates that the total amount to be paid to the provider or facility, including any cost sharing, is based on an amount determined by an applicable APMA. If there is no applicable APMA, such payment would be based on an amount determined by a specified state law. If neither of these solutions apply, an amount agreed upon by the plan and the provider or facility would prevail. Finally, if none of these three conditions should apply, the amount to be paid would be determined by an independent dispute resolution (IDR) entity. The Departments responsible for this IFR have plans to issue further regulations concerning IDR entities and the IDR process.

Notice Requirements

The IFR requires certain healthcare providers and facilities to provide a one-page notice for consumers containing information that covers:

The requirements and prohibitions applicable to the provider or facility under Public Health Service Act sections 2799B-1 and 2799B-2 and their implementing regulations.

Any applicable state balance-billing limitations or prohibitions.

How to contact appropriate state and federal agencies if someone believes the provider or facility has violated the requirements described in the notice.
The notice must also be published on the provider’s or facility’s website.

In limited cases, a provider or facility can provide notice to a person regarding potential out-of-network care, and obtain the individual’s consent for such care and the resultant costs. Significantly, this exception does not apply to anesthesiology or radiology services provided at an in-network healthcare facility.

The IFR comes with a 60-day period for submitting comments. If you wish to respond to these interim provisions, you must submit your comments before “5 p.m. 60 days after display in the Federal Register to be considered.” For more information on this IFR, please go to the following link: CMS-9909- Surprise Billing disclaimer.

If you wish to contact us about this topic or our services, you can go to info@miramedgs.com.