Biden Administration Releases Part 1 of Policy Targeting Surprise Billing | Mintz – Perspectives on Healthcare


At the end of last week, the departments of Health and Human Services (HHS), Labor and Treasury (collectively, the departments), as well as the Office of Personnel Management (OPM), released the ” Surprise billing requirements; Part I ”Provisional Final Rule (IFR). The IFR implements key provisions of the No Surprise Act, which aims to protect people from surprise bills and off-grid cost sharing important for emergency services, services provided by off-grid providers during ” a visit to the network installations. , and air ambulance services.

The provisions of the IFR apply to group health insurance plans, health insurance issuers offering group or individual health insurance coverage, and insurers under the federal employee health insurance program. (which we will collectively refer to as “health insurance plans”), as well as certain health insurance plans. care facilities. The majority of the IRF requirements will come into effect on January 1, 2022. Below, we describe the main provisions of the IFR.

Emergency services. Under the IFR, if a health care plan provides emergency services, emergency services must be covered without prior authorization, regardless of the state of the emergency facility’s network and without with regard to any other terms or conditions of the plan or coverage (other than certain exceptions). The IFR expands the definition of “emergency services” to include emergency services provided in an independent and independent emergency service, which would support emergency care centers authorized by state laws on licenses to provide emergency services. HHS, however, specifically requested comment on the inclusion of emergency care centers as emergency service providers. The IFR also specifically clarifies that health plans cannot refuse emergency services on the sole basis of a diagnosis, which the HHS notes happens with some regularity.

Post-stabilization services. The IFR also deals with post-stabilization care, specifying that they are subject to the prohibitions on balance billing and off-grid cost sharing of the IFR. Specifically, post-stabilization care provided at an off-grid facility is subject to the cost-sharing protections of the IFR, unless the emergency physician or care provider determines that the recipient is able to travel using non-medical transport to an available location. network installation located at “a reasonable traveling distance”, taking into account the person’s state of health. The facility provider must also provide the appropriate notice to the recipient in a manner that they can understand.

Non-urgent services in networked health establishments. The IFR sets out rules under which healthcare facilities are not allowed to charge off-grid cost-sharing for non-emergency services obtained at a network facility by an off-grid provider. This provision aims to avoid situations where a beneficiary goes to a healthcare establishment in the network, but a member of the care team (for example, the anesthesiologist) is outside the network. The IFR defines “health care facilities” to include hospitals, hospital outpatient departments, critical access hospitals and outpatient surgery centers. The HHS specifically asked for comments on whether there are other facilities that should fall under the definition of “health care facilities”.

The IFR balance billing protections cover all the services provided in the network facility, as well as’ the provision of equipment and devices, telemedicine services, imaging services, laboratory services and services. preoperative and postoperative ”associated with the visit, regardless of whether the supplier providing these items or services is in the facility. This statement captures items and services ordered in the network facility but potentially provided by non-network suppliers. For example, any lab service ordered by the network facility that can be sent to an off-site / off-grid lab would be considered part of the network “visit” and would be covered by the balance billing protections. ‘IFR.

Off-grid tariff paid to facilities. Under the IFR, the total amount paid to the off-grid facility is determined as follows:

  1. The amount authorized under a template agreement applicable to all payers, which some states may have with HHS;
  2. If there is no standard agreement for all payers, an amount determined by state law;
  3. If (1) and (2) do not exist, an amount agreed by the health plan and the provider or establishment; or
  4. If none of the above conditions apply, an amount is determined by an independent dispute resolution body (IDR). Note that this IFR does not spell out the IDR process. New regulations will establish the specifics of the IDR process.

Notice and consent Exception to prohibition of balance billing. The IFR provides an exception to balance billing and cost-sharing protections for certain post-stabilization and non-emergency services, provided the facility meets the notice and consent requirements. To meet these requirements, the facility must provide written notice to the recipient in a form specified by HHS that includes a good faith estimate of the reimbursable expense. The notice must clearly state that the person is not required to consent to receive such items or services from the non-participating supplier or non-participating emergency facility. The facility must also receive consent, via live or electronic signature, on a form specified by the HHS.

Please note that this notice and consent exception does not apply in all situations. More specifically, the notice and consent exception does not apply to: (i) ancillary services, which include items and services related to emergency medicine, anesthesiology, pathology, radiology and neonatology, whether provided by a physician or a non-medical practitioner; (ii) items and services provided by assistant surgeons, hospitalists and intensivists; (iii) diagnostic services, including radiology and laboratory services; and (iv) items and services provided by a non-participating supplier, only if there is no participating supplier that can provide such item or service at such facility.

Comments on the IFR are due 60 days after publication in the Federal Register. This is the first in a series of rules for implementing the No Surprise Act. We will continue to monitor developments in this space, including subsequent rules.

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