ASH Summary on the Surprise Billing Interim Final Rule

On July 1, 2021, HHS issued an interim final rule with comment period (IFC) to begin the implementation of the No Surprises Act (NSA) which is the law banning “surprise billing” that was enacted by Congress in December 2020.  NSA prohibits balance billing in certain circumstances, creates rules around cost-sharing for emergency services provided by out-of-network providers, adds new transparency requirements for insurance company directories, and creates an independent dispute resolution (IDR) process to resolve claims between insurers and providers for out-of-network care.

The IFC released last week implements some of these key policies – such as how the payment rate will be determined and how and when a patient could consent to being balanced billed. However, a second regulation is expected by Oct. 1, 2021, to establish an audit process, and a third regulation is expected by Dec. 27, 2021, to detail the IDR process. The IFC’s provisions apply to private insurance and applicable healthcare facilities, which include hospitals, hospital outpatient departments, critical access hospitals and ambulatory surgical centers. The IFC goes into effect 60 days after publication, but most provisions are not applicable until January 1, 2022.

More specifically, the IFC prohibits:

• Surprise billing for emergency services. Emergency services, regardless of where they are provided, must be treated on an in-network basis without requirements for prior authorization. The IFC defines emergency services to include pre-stabilization and post-stabilization services.
• High out-of-network cost-sharing for emergency and non-emergency services. Patient cost-sharing, such as co-insurance or a deductible, cannot be higher than if such services were provided by an in-network provider.
• Out-of-network charges for ancillary care (like an anesthesiologist or assistant surgeon) at an in-network facility in all circumstances.
• Other out-of-network charges without advance notice. Healthcare providers and facilities must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an out-of-network basis before that provider can bill at the higher out-of-network rate.

This IFC prohibits balance billing to patients and limits the total amount paid to the provider or facility, including any cost-sharing, to:

• An amount determined by an applicable All-Payer Model Agreement;
• An amount determined by specified state law;
• An amount agreed upon by the plan/issuer and provider/facility; or (if none of the above apply)
• An amount determined by an independent dispute resolution (IDR) entity

Patients can consent to out-of-network charges in certain circumstances if providers/facilities provide appropriate notice and retain documentation of such consent. The notice must list the provider's name, include a good faith estimate of costs, and clearly state that the patient is not required to consent. The notice and consent document must be made available in the 15 most common languages in the geographic region. Facilities and providers are required to retain written notice and consent documents for at least seven years after the date on which the item or service was furnished.

Providers and facilities are expressly prohibited from seeking consent from individuals to pay out-of-network rates in certain circumstances, including for ancillary services, such as anesthesiology, pathology and radiology, or for items or services furnished due to unforeseen, urgent medical needs that arise at the time an item or service is furnished. Meaning, even for non-emergency services, the prohibition on balance billing and the limitations on cost-sharing requirements apply with respect to pathology services. This policy is delineated in text of the NSA, providing little discretion for CMS to implement alternate interpretations.

Healthcare facilities/providers also must post in a prominent location and on a public website the following information:

• Applicable requirements and prohibitions under the No Surprises Act and implementing regulations;
• Any applicable state balance billing requirements; and
• How to contact appropriate state and federal agencies if the individual believes the provider or facility has violated any of these requirements.

Comments on the IFC are due September 7, 2021.