Comments Sought in Implementation No Surprises Act

On Monday, a new regulation was posted for publication jointly by the Departments of the Treasury, Labor, and Health and Human Services as well as the Internal Revenue Service and the Office of Personnel Management. The regulation has been posted for comments in response to the No Surprises Act. The rules are designed to implement protections for participants, beneficiaries, and enrollees in group health plans and health insurance coverage from surprise medical bills .

The interim final rules are designed to protect patients from surprise billing when they receive emergency services, non-emergency services from nonparticipating providers at participating facilities, and air ambulance services from nonparticipating providers of air ambulance services, under certain circumstances.

The Federal Register noted that when a patient receives treatment in a hospital or stand alone facility, the treatment actually generates two bills: one for the use of the facility and one (or more) for the professional services of the physicians involved in the treatment. When a patient goes to an in-network facility, the contractual status of the treating physicians might not match that of the network and in fact be out of network.

In the past this has led to situations where the patient might be responsible for the entirety of a bill, or for a larger than normal portion of the bill through the practice known as balance billing, where the portion paid by the insurance company is minimal and the treating physician bills for the remaining balance from the total charges directly to the patient. This “surprise” billing most frequently occur as a result of lower cost health plans, who also are less able to whether a higher unexpected patient responsibility.

The new regulations apply to all insurance types and include rules waiving provisions that would otherwise hinder these plans from complying with the No Surprise Act.

The regulation noted that the current requirements for emergency or labor conditions under the Emergency Medical Treatment and Labor Act (EMTALA) require that an insurance company pay an out-of-network provider a minimum of: (1) the median amount negotiated with in-network providers for the emergency service; (2) the amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services, or (3) the amount that would be paid under Medicare Part A or Part B for the emergency service (collectively, minimum payment standards).

Many plans had plan specific exclusions that could be used to avoid minimum payment standards, which allowed the patient to be responsible for the full bill unexpectedly. The new regulations under the No Surprises Act mandate that the EMTALA coverage be applied regardless of those exclusions. The new regulations also limit the amount that an out of network provider can balance bill so long as the minimum payment standards have been met by the insurance company.

Finally, the new rules include requirements that any portion of a bill that is assigned to patient responsibility must count toward the patient’s annual caps for patient responsibility, even if there normally would not be coverage for that type of service.