HHS Releases Surprise Billing Interim Final Rule

EDITOR’S NOTE: Former CMS official Matthew Albright, now a legislative consultant for Zelis and a RACmonitor contributor and Monitor Monday’s panelist, will continue his reporting on this developing story. 

As expected, the U.S. Departments of Health and Human Services (HHS), Labor, and Treasury, and the Office of Personnel Management, issued an interim final rule that is expected to restrict excessive out-of-pocket costs to consumers from surprise billing and balance billing.

News of the interim final rule, “Requirements Related to Surprise Billing; Part I,” was announced in an HHS news release on Thursday. Typically, these kinds of announcements are posted on Fridays.

According to HHS, surprise billing happens when people unknowingly get care from providers that are outside of their health plan’s network and can happen for both emergency and non-emergency care. Balance billing, when a provider charges a patient the remainder of what their insurance does not pay, is currently prohibited in both Medicare and Medicaid. This rule, according to HHS, will extend similar protections to Americans insured through employer-sponsored and commercial health plans.

“No patient should forgo care for fear of surprise billing,” said HHS Secretary Becerra, who was quoted in the news release. “Health insurance should offer patients peace of mind that they won’t be saddled with unexpected costs. The Biden-Harris Administration remains committed to ensuring transparency and affordable care, and with this rule, Americans will get the assurance of no surprises.”

Among other provisions in the interim final rule are the following:

• Bans 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.

• Bans 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.

• Bans out-of-network charges for ancillary care (like an anesthesiologist or assistant surgeon) at an in-network facility in all circumstances.

• Bans 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.

The provisions are expected to provide patients with financial peace of mind while seeking emergency care as well as safeguard them from unknowingly accepting out-of-network care and subsequently incurring surprise billing expenses, according to the news release.

“No one should ever be threatened with financial ruin simply for seeking needed medical care,” said U.S. Secretary of Labor Marty Walsh, who was quoted in the news release. “Today’s Interim Final Rule is a major step in implementing the bipartisan No Surprises Act that will protect Americans from exorbitant health costs for unknowingly receiving care from out-of-network providers.”

The interim final rule with request for comments implements the first of several requirements passed with bipartisan support in title I (the “No Surprises Act”) of division BB of the Consolidated Appropriations Act, 2021, according to HHS.

HHS said the regulations issued Thursday will take effect for

healthcare providers and facilities Jan. 1, 2022. For group health plans, health insurance issuers, and Federal Employees Health Benefits Program carriers, the provisions will take effect for plan, policy, or contract years beginning on or after Jan. 1, 2022.

Fact sheets on this interim final rule can be found here and here.

The interim final rule with comment period can be accessed here – PDF.

“This is a complex rule with many moving parts,” said Ronald Hirsch, MD, vice president of the regulations and education group at R1 RCM, Inc., physician advisory services, in a written statement to RACmonitor. “The patient notification requirements are daunting and require another form to be presented to patients with specific parameters. It is under debate as to whether the US has the best health care in the world, but we certainly have the most complex healthcare system in the world, by far,” concluded Hirsch.