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Surprise Billing Interim Final Rule Released

July 9, 2021

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CONTACTS
Mary Mullaney, Director, Hospital Payment Policies
Gayle Lee, Director, Physician Payment & Quality

On July 1, the Department of Health and Human Services, the Department of Labor, and the Department of Treasury released an interim final rule with comment (IFC) that implements some aspects of the No Surprises Act, which was included as part of the Consolidated Appropriations Act, 2021 (P.L. 116-260).

The IFC bans surprise billing in certain circumstances and requires a provider to obtain consent from the patient to be permitted to balance bill a patient for out-of-network services. The AAMC submitted comments prior to the release of the IFC [refer to Washington Highlights, May 13].

The regulation prohibits surprise billing for emergency services, which must be considered in-network regardless of place of service and cannot be subject to prior authorization restrictions. For out-of-network emergency and nonemergency services, patient cost sharing cannot be higher than if the services were furnished by an in-network provider. A provider may not bill a patient for out-of-network charges without first obtaining advance notice from the patient. Providers of out-of-network ancillary services, such as anesthesia, must be treated as in-network in all circumstances and are prohibited from balance billing patients.

For all emergency services and some nonemergency services furnished by out-of-network providers at in-network facilities, patient cost sharing will be limited to in-network rates and must count toward deductibles and out-of-pocket maximums. The rule states that cost sharing in these scenarios must be calculated in order based on the following mechanisms: an applicable All-Payer Model Agreement; an amount established by state law; or the lesser of the billed charge or the median contracted rate of the insurer, otherwise known as the “qualifying amount.”

The provisions in the rule are effective and applicable to providers and facilities beginning Jan. 1, 2022. The regulations are generally applicable to group health plans and health insurance issuers, including the Federal Employees Health Benefits program, for plan years beginning on or after Jan. 1, 2022.

Comments on the rule are due by Sept. 7.

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