On July 1, 2021, the U.S. Department of Health and Human Services ("HHS"), Department of Labor, Internal Revenue Service, and Office of Personnel Management issued their first installment of interim final surprise billing regulations.  As explained in a  prior post, the regulations implement new requirements for group health plans, health insurance issuers, and healthcare providers and facilities that were imposed by the bipartisan No Surprises Act, which was enacted as part of a 2020 appropriations act.  The rules, " Requirements Related to Surprise Billing; Part I," prohibit surprise or balance billing for certain healthcare services.

One important aspect of the new surprise billing regulations for sponsors of group health plans and health insurance companies is its effect on billing for emergency services, out-of-network air ambulance services, and certain out-of-network services provided at an in-network facility.  If a plan or policy provides or covers any emergency services, they must be covered:

  • without any prior authorization;
  • regardless of whether the provider is an in-network provider or an in-network emergency facility; and
  • regardless of any other term or condition of the plan or coverage, other than the exclusion or coordination of benefits or a permitted affiliation or waiting period.

The rules also provide that consumer cost-sharing amounts for out-of-network emergency services must be calculated based on either an amount determined by an All-Payer Model Agreement, under a specified state law, or, if neither of the foregoing applies, the lesser of the billed amount or the qualifying payment amount (generally, the plan's or insurer's median contracted rate).

In addition, the surprise billing regulations establish a complaint process for consumers who think their group health plan, health insurance issuer, or healthcare provider violated the Act's balance billing protections.  The regulations allow consumers to file complaints, which may be resolved by, for example, referring the complainant to a federal or state resolution process, referring the complainant to the state or federal agency with enforcement jurisdiction, or initiating an investigation for enforcement action.

The agencies will accept comments on the interim final rule through September 7, 2021.  Provisions of the regulations applicable to group health plans and health insurance issuers will take effect for plan, policy, or contract years beginning on or after January 1, 2022.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.