Long-sought restrictions on unanticipated “surprise” health care charges outside the network became law late last year with the Permanent Appropriations Act, 2021 (CAA), which included a revised version of the bipartite law No Surprises Act.

On June 30, the U.S. Departments of Health and Human Services (HHS), Labor, and Treasury, as well as the Office of Personnel Management, released
Surprise billing requirements; Part i, an interim final rule that is the first in a series of regulations to implement the CAA’s surprise billing provisions, the agencies said. The agencies also issued a model notice on new coverage to be posted online, with instructions for group health plans and health insurance issuers.

Most of the new requirements come into effect with plan years starting January 1, 2022.

Surprise medical bills “have been a bane of our nation’s healthcare system for a long time, with the problem reaching crisis levels over the past decade as healthcare costs have skyrocketed,” said Ilyse Schuman, Senior Vice President of Health Policy at the American Benefits Council, a Washington DC-based employee benefits public policy organization. “The ban on surprise billing … and these rules initiating its implementation is a critical step towards a more rational healthcare payment system.”

“Plan sponsors have a lot to do to prepare for these new rules, including updating their plan documents” such as summary plan descriptions and claims and appeal procedures, advised Amy Gordon and Susan Nash, partners in the Chicago office of the law firm Winston & Strawn. . “Plan sponsors will also be required to work with their [third-party administrators (TPAs)] and insurers to ensure they take action to comply with the new rules.

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Unexpected invoices

Costly surprise billing results when patients receive unscheduled care in an off-grid emergency room, or for some ancillary services, such as when, unbeknownst to the patient, an off-grid anesthesiologist assists a surgery performed by a surgeon network in a network hospital. These fees are paid as out-of-pocket expenses by plan members and in part by employers who sponsor self-funded health plans or by insurance companies when a plan is fully insured.

CAA protects patients from most surprise bills, including from expensive air ambulance providers, but does not apply to ground ambulances. Likewise, it prohibits off-grid providers from billing the balance – when doctors or hospitals charge patients the rest of what their insurance does not pay – unless healthcare providers give patients 72 days’ notice. hours on the state of their network and an estimate of the charges. .

The law allows for an independent dispute resolution process to deal with surprise medical billing, with self-insured employers, not contracted insurance companies that operate as APTs, responsible for resolving claims disputes.

[Related SHRM article: Relief from Surprise Medical Billing Becomes Law]

Invoicing prohibited

Among its provisions, the interim rule:

  • Prohibits surprise billing for emergency services. Emergency services, wherever they are provided, should be networked without prior authorization.
  • Prohibits high off-grid cost sharing for emergency and non-emergency services. The sharing of costs by patients, such as coinsurance or a deductible, cannot be higher than if these services were provided by a network physician, and any coinsurance or deductible should be based on the rates of the network provider.
  • Prohibits off-grid charges for attendant care (such as an anesthesiologist or assistant surgeon) in a network establishment under all circumstances.
  • Prohibits other off-grid charges without notice. Healthcare providers and institutions must provide patients with a plain language consumer notice explaining that patient consent is required to receive off-grid care before that provider can bill at the higher off-grid rate.

State level protections

About a third of states already have their own
complete protections for the billing of the balance, according to the Commonwealth Fund, a private foundation that promotes access to affordable health care.

However, “when state and federal regulations conflict,
the more stringent set of regulations will take precedence“noted the Healthcare Financial Management Association (HFMA), a professional organization for hospital CFOs.” For example, some states may prohibit billing of the balance whether or not patient consent is obtained, as described in the new federal rule “, underlined the HFMA.

Areas for further regulation

Upcoming federal regulations are expected to address issues such as the law’s provisions for independent arbitration and dispute resolution between insurers and healthcare providers who might otherwise not be able to resolve their claims, and how plans must disclose – on a public website and in explanations of benefits – surprise billing requirements and prohibitions.

Comments requested

Federal agencies accept comments on the interim rule for a period of 60 days, from the date of publication of the regulations in the
Federal Register. Written comments can be submitted electronically to

The agencies asked interested parties to comment, in particular, on the types of establishments in which surprise bills frequently occur and whether regulations should designate emergency care centers and retail clinics as health care establishments.

Under the interim rule, for example, emergency services provided in state-approved emergency care centers as independent and stand-alone emergency services would be subject to cost-sharing and billing protections. of the balance. However, “in cases where non-emergency services are provided at participating emergency care centers by [non-network] service providers, “those who receive such services would not be protected against surprise billing under the interim rule, the agencies said.

HHS may also expand the definition of ancillary services subject to surprise billing restrictions based on the feedback it receives during the comment period. “In particular, HHS is interested in whether there are other ancillary services over which individuals are likely to have little control over the particular supplier providing the items or services,” the rule says.