The Biden administration has released an interim final rule that bans surprise billing and certain out-of-network charges, implementing a law passed by Congress late last year. The 411-page interim final rule released by the departments of Health and Human Services (HHS), Labor and Treasury will go into effect on Jan. 1, 2022, for providers and for insurance plans that begin on or after Jan. 1, 2022. The regulation is the first part to address surprise billing and affects people enrolled in employer-sponsored or individual market plans.
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The interim final rule implements several provisions of the No Surprises Act. Generally, individuals covered by the interim final rule are protected from surprise medical bills for emergency services, air ambulance services provided by out-of-network providers, and non-emergency services provided by out-of-network providers at in-network facilities in certain circumstances. Under the rule, a plan or issuer providing coverage of emergency services must do so without the individual or the health care provider having to obtain prior authorization — including when the emergency services are provided out-of-network and without regard to whether the health care provider furnishing the emergency services is in-network or out-of-network.
There are several other notable provisions in the rule. First, the rule prohibits balanced billing for emergency services, Nonparticipating providers, health care facilities, and providers of air ambulance services may only balance bill enrollees in certain situations if certain notice and consent requirements are met. Furthermore, according to the rule, consumer cost-sharing amounts for certain services —emergency services provided by an out-of-network emergency facility and provider, and certain non-emergency services provided by out-of-network providers at certain in-network facilities — must be calculated as if the total amount that would have been charged for the services by a participating emergency facility or participating provider were equal to the recognized amount for such services as defined by the rule.
The interim final rule also includes provisions for how the total amount paid to the provider or facility, including any cost sharing, should be determined. CMS has indicated that it intends to issue regulations at a later date regarding the independent dispute resolution process for when the conditions described in the rule to determine payment do not apply. The interim final rule also requires certain health care providers to publicly post and make available information regarding the requirements and prohibitions covered by the interim final rule, applicable state balance billing limitations, and information on how to contact appropriate state and federal agencies if an individual believes the provider has violated the requirements in the notice.
The rule states that the Biden-Harris Administration is intending to issue further additional regulations regarding surprise billing throughout several phases of this year and into 2022. These future regulations would address: 1) patient protections through transparency; 2) the patient-provider dispute resolution process; 3) price comparison tools; 4) reporting requirements for plans, issuers, and providers of air ambulance services; 5) reporting requirements regarding agent and broker compensation for issuers offering short-term, limited-duration plans, and; 6) transparency provisions for insurance identification card, continuity of care, accuracy of provider network directories, and prohibition on gag clauses.