Health Law Monitor

"Play Ball" - The No Surprises Act and Requirements Related to Surprise Billing: The Second Installment

August 17, 2021

As detailed in an earlier blog post, Congress enacted the No Surprises Act (“Act”) to protect patients against “surprise bills.” A surprise bill occurs when a patient receives health care services from an out-of-network provider. It can occur in both emergency and non-emergency situations, although frequently it occurs during emergency situations when a patient does not choose the facility or provider where he or she receives care. In this blog post, we discuss the Act’s recently issued Interim Final Rules (“Interim Rules”).

On July 13, 2021, the Centers of Medicare & Medicaid Services (“CMS”), together with other federal agencies, issued Interim Rules for the Act. Below we highlight some significant provisions contained within the Interim Rules:

1. In limited situations, an individual may waive the Act’s protections provided that the facility covered under the Act provides notice to the patient and receives his or her consent. But, notice or consent cannot be obtained with respect to items or services not foreseen in the course of treatment. 
2. Providers must “provide disclosures regarding patient protections against balance billing” to patients, in what can be characterized as consumer disclosures. 
3. Limits the cost-sharing amount (otherwise known as a deductible, copayment, or coinsurance) for surprise bills to an amount determined by: i) the All-Payer Model Agreement (“Model Agreement”) under Section 1115A of the Social Security Act, a system in which the reimbursement rate is the same for all patients receiving the same service or treatment from the same provider;  ii) (if no Model Agreement) state law; or iii) (if no state law) the median contracted rate for the item or service in a given geographic region (also known as the qualifying payment amount, “QPA”). The intended effect of this methodology is to lower contracted rates below applicable median provider-charged rates.  
4. When making an initial payment or notice of denial, health plans and health insurance issuers must provide certain information regarding the QPA to nonparticipating providers or facilities. 
5. Clarifies that certain patient protections in the Affordable Care Act and the No Surprises Act apply to grandfathered health plans. 

The Interim Rules are generally effective on September 13, 2021.  As we await the Act’s Final Rules, Jackson Kelly’s attorneys and staff are dedicated to helping you meet all of your health care compliance needs.

¹   No Surprises Act § 2799A (2021).

²  The Office of Personnel Management (“OPM”) together with the Internal Revenue Service (“IRS”), Department of the Treasury, Employee Benefits Security Administration, Department of Labor (“DOL”), and the Department of Health and Human Services (“HHS”)
³  Requirements Related to Surprise Billing: Part I, 86 Fed. Reg. 131 (July 13, 2021) (to be codified at 5 C.F.R. pt. 890, 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, 45 C.F.R. pts. 144, 147, 149, and 156). The DOL and Treasury Department jointly have authority over private sector health plans; the IRS over church plans; HHS over state and local health plans; and OPM over federal government plans, otherwise known as FEHB plans. Id. at 36899.
⁴  Id. at 36906.
⁵  Id. 36911.
⁶  Id. at 36912.
⁷  National Conference of State Legislatures Equalizing Health Provider Rates: All-Payer Rate Setting (Aug. 17, 2021, 9:59 AM), https://www.ncsl.org/research/health/equalizing-health-provider-rates-all-payer-rate.aspx. Absent a Model Agreement, most patients “are charged the same amount on paper (i.e., list price), actual payments vary widely based on negotiated discounts.” Id.
⁸  Id. at 36877.
⁹  Jonathan Braunstein and Kevin Mahoney, No More Surprises: First Rules from No Surprises Act Released (July 29, 2021, 9:34 AM), https://www.jdsupra.com/legalnews/no-more-surprises-first-rules-from-no-8168722/.
¹⁰  Id. at 36933.
¹¹  Id. at 36876. The “No surprises Act extends the applicability of the patient protections for choice of health care professionals to grandfathered health plans.” Id. at 36903.
¹²  The Interim Rules are generally applicable for plan years beginning on January 1, 2022. Id. at 36872. The HHS-only and OPM-only provisions are effective January 1, 2022. Id. at 36872.