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HHS Issues Interim Final Rule on Surprise Medical Bills


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The interim final rule implements some provisions of the federal No Surprises Act passed in 2020, such as banning surprise billing for emergency services and high out-of-network cost-sharing for emergency and non-emergency services. Comments on the rule are due Sept. 7.

7/12/2021 8:00

The U.S. Department Health and Human Services (HHS), under the leadership of the Biden-Harris administration appointee Secretary Xavier Becerra, in July issued an interim final rule to restrict surprise medical bills and balance billing from health care providers.

The interim final rule, “Requirements Related to Surprise Billing; Part I,” was also issued in partnership with the U.S. Departments of Labor, Treasury and the Office of Personnel Management (OPM).

It is scheduled to be published in the Federal Register July 13 and the opportunity to submit comments is open through Sept. 7, 2021.

According to HHS, the interim final rule “will restrict surprise billing for patients in job-based and individual health plans and who get emergency care, non-emergency care from out-of-network providers at in-network facilities, and air ambulance services from out-of-network providers.”

The No Surprises Act federal legislation, designed to ensure protections not covered by various state laws on surprise medical bills, was enacted by Congress in 2020 and will take effect Jan. 1, 2022.

The regulations in the HHS interim final rule implement provisions of the No Surprises Act and “apply to group health plans and health insurance issuers for plan and policy years beginning on or after Jan. 1, 2022. The HHS-only regulations that apply to health care providers, facilities, and providers of air ambulance services are applicable beginning on Jan. 1, 2022.”

Regulations from the OPM under the Federal Employees Health Benefit Program will apply to contract years beginning on or after Jan. 1, 2022, according to HHS.

Thirty-three states have enacted laws on balance billing but the scope of the requirements and consumer protections varies, according to research from The Commonwealth Fund.

Surprise billing typically occurs when an insured patient receives emergency care from an out-of-network provider or when an insured patient receives elective non-emergency care at an in-network facility but is inadvertently (and often unknowingly) treated by an out-of-network health care provider.

Balance billing often results from charges to a patient for what their insurance does not pay. It is prohibited in Medicare and Medicaid.

According to a February 2020 study by the Kaiser Family Foundation, two in three adults worry about unexpected health care bills, which is more than the number who said they worry about paying for other medical or household expenses.

More than seven in 10 insured adults aged 18-64 with household incomes of $90,000 or more surveyed said they would pay their health care bill at the time of service or use a credit card and pay it by their next statement due date, according to the Kaiser Family Foundation study. However, results from seven of 10 of adults from that age group with household incomes under $40,000 said they would not be able to afford a $500 unexpected health care bill.

To help curb these expenses, according to HHS, the interim final rule, among other requirements, would:

  • Ban 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.
  • Ban 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 doctor, and any coinsurance or deductible must be based on in-network provider rates.
  • Ban out-of-network charges for ancillary care (like an anesthesiologist or assistant surgeon) at an in-network facility in all circumstances.
  • Ban other out-of-network charges without advance notice. Health care 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.

HHS is seeking comments from stakeholders on implementing these requirements in the No Surprises Act.

How to file comments on the interim final rule by Sept. 7, 2021:

Written comments may be submitted to the addresses specified below. Any comment that is submitted will be shared among HHS, the Treasury and Labor Departments and OPM.

  • Submit electronic comments on this regulation at https://www.regulations.gov by entering the file code file code CMS-9909-IFC in the search window and then clicking on “Comment.”
  • Mail written comments to the following address: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9909-IFC, P.O. Box 8016, Baltimore, MD 21244-8016.  Allow sufficient time for processing written comments before the Sept. 7 deadline.
  • Send written comments by express or overnight mail to: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9909-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850

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