Surprise Billing Interim Final Rule Released

The Interim Final Rule, Part I, implementing the No Surprises Act was released last week and is applicable to plan years beginning on or after January 1, 2022. This rule focuses on many of the Act’s provisions related to the prohibition on surprise billing, including how to calculate the qualifying payment amount. The qualifying payment amount is what will be used in many cases to determine the cost-sharing allowed for emergency services, air ambulance services, and non-emergency out-of-network services provided at in-network facilities. The rule also contains details on determining the median contracted rate – which is used to calculate the qualifying payment amount – and the required disclosures that must be made with the initial payment to out-of-network providers for the services protected by the Act.

The rule is scheduled for official publication in the Federal Register next week, and comments are due September 7, 2021. Although we are still reviewing the rule for employer impacts, please note these several important issues related to transparency requirements:

  • There is no delay of the transparency regulations that are effective January 1, 2022.
  • There is a model notice describing rights related to the restrictions on balance billing that, similar to the machine readable files, must be posted on a public website for the plan.
  • The regulators intend to issue guidance on several No Surprises Act provisions by the end of the year, including:
  • The federal IDR process (sections 103 and 105 of Division BB),
  • Patient protections through transparency and the patient-provider dispute resolution process (section 112),
  • Price comparison tools (section 114),
  • Air ambulance reporting,
  • To implement requirements on health insurance issuers offering individual health insurance coverage or short term, limited-duration insurance to disclose and report information regarding direct or indirect compensation provided to agents and brokers (section 202(c)),
  • Provisions related to HHS enforcement of requirements on issuers, non-federal governmental group health plans, providers, facilities, and providers of air ambulance services.
  • The regulators intend to issue guidance on the following provisions likely after the end of this year, but good faith compliance will be required in the interim:
  • Transparency in plan and insurance identification cards (section 107),
  • Continuity of care (section 113),
  • Accuracy of provider network directories (section 116),
  • Prohibition on gag clauses (section 201), and
  • Pharmacy benefit and drug cost reporting (section 204) that is required by December 27, 2021.

Guidance on good faith compliance with these rules is expected in the near future.

Cheryl Hughes
by Cheryl Hughes

Principal, Mercer’s Law & Policy Group

Katharine Marshall
by Katharine Marshall

Principal, Mercer's Law & Policy Group

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