HHS, Treasury And Labor Release First Set Of Surprise Billing Rules

Cozen O'Connor
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Cozen O'Connor

The United States Departments of Health and Human Services, Treasury and Labor released interim final rules (“Rules”) regarding the “No Surprises Act” (“Act”) yesterday. The Rules are effective beginning on January 1, 2022. They cover the requirements for the billing and payment of emergency and air ambulance services by non-participating providers and non-emergency services performed by non-participating providers at participating health care facilities.  The Rules do not detail the independent dispute process between plans and providers (“IDR”), transparency requirements, or price comparison tools that are outlined in the Act. The agencies intend to issue rules covering those aspects of the Act later this year.

While we, along with the plans, providers and patient advocacy groups sift through over 400 pages of preamble and regulations in the coming days and weeks, there are a few items worth noting initially:

  • Patient cost sharing will be determined by the health plan’s median contracted rate.
  • Where the out-of-network rate that is ultimately determined under the Rules (by state law, an agreement between the plan and provider or IDR) exceeds the patient’s cost sharing amount as determined under the Rules, the health plan will be required to pay the excess even when the patient has not met his or her deductible.
  • Urgent care centers that are “geographically separate and distinct from a hospital” and are “permitted to provide emergency services” under state law are covered under the Rules.
  • Post-stabilization services are considered emergency services and are subject to the protections of the Rules unless they meet a host of criteria, including, but not limited to, notice and consent requirements.
  • Health plans must deny or make an initial payment under the rules within 30 days of receiving a “clean claim.”
  • Initial payments under the rules are intended by the agencies to be payments “that the plan or issuer reasonably intends to be payment in full under the relevant facts and circumstances”, not interim payments.

The agencies will be accepting written comments on the Rules for 60 days following their publication in the Federal Register, which is expected to occur in the next several days.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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