Keeping Up With No Surprises
Two sets of rules were issued last month by federal agencies as part of the No Surprises Act.
- The proposed rules come into play when an individual receives out-of-network care in at least one of the following situations: in an emergency, when an out-of-network provider furnishes services in connection with care provided by an in-network facility, and when care is provided by an out-of-network air ambulance service.
- The rules offer guidance for determining how much group health plans and insurers will pay in circumstances covered by the No Surprises Act and the process to be followed in reaching that determination.
- The new rules also provide guidance on the availability of external appeals for certain No Surprises Act determination, various reporting requirements, and governmental enforcement actions with regard to the new requirements.
The Bottom Line
Employers should make necessary changes to their plan documents and vendor contracts to address the new rules.
Two sets of rules were issued last month by federal agencies as part of the No Surprises Act. Released by the Departments of the Treasury, Labor, and Health and Human Services, along with the Office of Personnel Management for federal employee health plans, the new rules follow up on the proposed regulations issued in July. That guidance focused principally on the costs that individuals would be required to bear when receiving out-of-network care in certain circumstances and began to address how much plans would pay in those situations. These rules come into play when an individual receives out-of-network care in three different situations: in an emergency, when an out-of-network provider furnishes services in connection with care provided by an in-network facility, and when care is provided by an out-of-network air ambulance service.
The first set of September regulations includes proposed rules on:
- The reporting of air ambulance claims data;
- The reporting and disclosure of the compensation that individual health insurers and short-term, limited duration insurance carriers pay to brokers; and
- The process that government agencies will follow in enforcing the new rules.
The second set of September regulations includes interim final rules that have drawn more attention, particularly for their guidance on the process for determining how much group health plans and insurers will pay in circumstances covered by the No Surprises Act. The determination starts with a negotiation between the plan or insurer and the health care provider seeking payment. If the negotiation does not resolve the issue, the matter will be decided through an independent dispute resolution (IDR) process. The new regulations set forth timing requirements for a fast IDR process, furnishing guidance on the initiation of the process and the selection of the certified IDR entity that will decide the amount. The IDR process requires each side to submit an amount accompanied by certain information, and the IDR entity must choose one of the two amounts.
Most of the attention has focused on the criteria that the IDR entity is to apply in selecting between the two offers. In most cases, the amount chosen by the IDR entity will be the amount closest to the qualified payment amount (QPA). The QPA is the median amount that the plan or insurer has negotiated with in-network providers in the applicable geographic area to pay for the particular service. Any decision by an IDR entity to choose the amount that diverges more from the QPA must be based on credible information that clearly demonstrates that the proffered amount is more appropriate. This evidence must draw on a set of specified factors. The rules require the IDR entity to provide a written decision accompanied by its rationale within 30 business days of its selection. Each party must pay two fees to the IDR entity. One fee will go to the Departments for their administration of the process (the offers and other information is to pass through a portal that will be established by the Departments). The second fee goes to the IDR entity, which will return the fee to the prevailing party and retain the other party’s payment.
The interim final rules also address:
- The certification and possible decertification of IDR entities
- When an IDR entity may not review a case because of a conflict of interest,
- Information that IDR entities must provide to the Departments,
- Batching items and services together for what could be a single IDR decision,
- The application of external appeal rules to adverse determinations under the No Surprises rules,
- The requirement for a provider to furnish a good faith estimate of its charges on request or on scheduling for an item or service to individuals who do not have coverage or do not plan to submit claims for benefits, and
- A dispute resolution process for providers and individuals who do not have health coverage or have decided to pay for the care themselves.
The new rules do not provide guidance on the provision of a good faith estimate to plans or insurers when an individual does submit a claim to a group health plan or insurer. This information will, in turn, be used by the plan or insurer to provide individuals with an advanced explanation of their cost-sharing obligations, as required by the No Surprises Act. Guidance on this subject will not be issued until some time in the future, and the Departments have announced a delay in their enforcement of these requirements, pending the issuance of that guidance.
Employers that sponsor health plans should consider the new guidance and make the changes needed to vendor contracts and plan documents.
Copyright © 2022 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.