US Departments of Health and Human Services, Treasury and Labor, and the Office of Personnel Management release surprise billing interim final rule

On July 1, 2021, the US Departments of Health and Human Services, Treasury and Labor, and the Office of Personnel Management released an interim final rule (IFR) with comment period. This IFR implements portions of the No Surprises Act legislation enacted in December 2020 that bars surprise billing and will become effective on January 1, 2022.

Under the law, which provides a pathway for resolving payer-provider payment disputes using a negotiation and arbitration approach, providers and payers (including hospitals, facilities, individual practitioners, and air ambulance providers) are prohibited from billing patients more than in-network costs. This prohibition is applicable to both emergency and certain non-emergency care situations where patients do not have an ability to choose an in-network provider.

Key takeaways of the IFR: 

• Establishes the methodology for calculating the qualifying payment amount (QPA).
• Broadens the definitions of emergency services and emergency medical conditions, while preventing payers from limiting coverage based on the final diagnosis code alone or general policy exclusions.
• Clarifies that consumers’ cost sharing will be based on an all-payer model agreement amount. If this amount is not available, cost sharing will be determined by existing state law, then by the lessor of the billed charge or the QPA.
• Requires payers to disclose to non-participating providers the QPA for each item or service involved and, upon request, information regarding whether the QPA was based on an underlying fee schedule or derived amount, any alternative service codes, or eligible databases, and whether any contracted rates were not set on a fee-for-service basis.
• Requires payers to act in a timely fashion in issuing an initial payment or notice of denial of payment.
• Begins to outline the consumer complaint processes for reporting payer and provider violations and notes that these processes may be expanded.
• Establishes the content, language and timing standards related to notice and consent forms and how these forms must be delivered.
• Gives states wide discretion in implementing All-Payer Claims Databases, which will be considered categorically eligible to serve as a resource for calculating the QPA.
• Clarifies that the No Surprises Act is not intended to displace states’ balance billing laws and that the departments are exploring options for providing more flexibility for state laws to apply.

AASM staff will review the rule in its entirety and will work with AASM volunteers and leadership to submit comments in response to the IFR.  Comments can be submitted to CMS here until September 7, 2021.

The IFR fact sheet can be accessed here.