No More Surprise Medical Bills: First ‘No Surprises Act’ Rule Issued

On July 1, 2021, the Departments of Health and Human Services, Labor, and Treasury, and the Office of Personnel Management, released a much-anticipated interim final rule designed to protect Americans from surprise medical bills. The rule, which will be subject to a 60-day public comment period, is the Biden Administration’s first major step in implementing the federal No Surprises Act.

A link to the final rule is here.

Passed by Congress late last year, the Act, which covers most health care providers and payers, requires out-of-network providers and health insurers to agree on a fair price for medical care, rather than leaving patients to face unexpected out-of-pocket liability. This rule and others anticipated later this year will also implement an arbitration process for providers to appeal to neutral arbiters when they believe insurers have underpaid.

Notable Provisions

Of particular relevance to providers and insurers alike is the rule’s detailed definition of the “fair” price that functions as a baseline for deciding how much a doctor, facility, or hospital should be paid. Under the rule, the total amount a provider should presumably be paid (including any patient co-payment or deductible amounts) is based on a health plan’s historic median contract rate for similar services in a particular geographic area, adjusted by the consumer price index. Arbitrators tasked with resolving payment disputes and determining appropriate payment amounts under the Act are prohibited from considering either providers’ usual and customary charges or the payment rates of public programs like Medicare and Medicaid.

Additionally, the rule implements additional steps to safeguard patients from surprise billing protections under the Act, including:

  • Requiring that emergency services, regardless of where they are provided, are treated as in-network, without requirements for prior authorization.
  • Mandating that patient cost-sharing amounts, such as co-insurance or deductibles, be no higher for out-of-network patients who receive care at in-network facilities than for in-network patients.
  • Banning out-of-network charges for ancillary care (like that provided by an anesthesiologist or assistant surgeon) at an in-network facility.
  • Ensuring that health care providers and facilities, in non-emergency situations, provide plain-language consumer notices informing patients of their out-of-network status and obtain their consent before treating them or sending a bill.
  • Implementing a complaint system for consumers who believe they were illegally billed, and authorizing the federal government to assess fines of up to $10,000 per violation.

Looking Ahead: More Rule-Making on the Horizon

A 60-day public comment period will commence when the interim final rule is published in the Federal Register, which could prompt changes. And more rule-making is yet to come, as there remain several important provisions of the Act that are without agency rules and regulations. One of the most consequential of the expected rules will concern details of the arbitration process outlined in the Act. With most sections of the Act set to take effect on January 1, 2022, expect to see more rules issued this Fall detailing the dispute resolution process and other requirements.


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