New Law Guidelines with No Surprises – Frequently Asked Questions Reinforce the Final Rule | Jackson Lewis CP

The Law without surprises (Law)which establishes protections for health plan participants against surprise medical billing, was passed in late 2020 as part of the Law of consolidated credits 2021. On October 7, 2021, the Departments of Labor, Treasury, and Health and Human Services (collectively, the Departments) released Provisional Final Rules the application of certain provisions of the law. On February 23, 2022then again on July 26, 2022, the District Court for the Eastern District of Texas struck down several key provisions of the interim final rules. Following the February 23 decision, the departments issued a Memorandum Regarding Continued Consumer Billing Protectionsindicating the departments’ intention to move “quickly” to issue revised guidance under the Act.

Realizing this intention, on August 19, the ministries published the Surprise Billing Requirements: Final Rules (Final Rules) and simultaneously issued guidelines in the form of Frequently Asked Questions (FAQ) to clarify the final rules.

The FAQ covers a range of topics, some of which are summarized below:

Applicability to No-Network Plans

The Act’s protections against surprise billing generally apply when a participant receives emergency or air ambulance services from an out-of-network provider or certain non-emergency services from an out-of-network provider at a network facility. . The FAQ clarifies that, as all emergency and air ambulance services provided under a non-grid plan are necessarily off-grid services, the Act applies to all emergency and ambulance services. overhead provided as part of a networkless plan.

Protections applicable to non-emergency services from an off-grid provider in an in-network facility will never be triggered because a non-network plan has no in-network facilities.

Applicability to Closed Network Plans

The Ministries specify that the requirements of the Act apply to packages that do not cover off-network services. Therefore, a closed network plan may be required to pay for out-of-network emergency or air ambulance services.

Emergency Services Provided in a Behavioral Health Crisis Facility

The departments recognize that people receiving care for a behavioral health crisis may not be best served in a traditional hospital setting. Thus, the FAQ provides that the requirements of the law apply to coverage for emergency services provided in response to a behavioral health crisis at an out-of-network facility licensed by the state to provide services in response to a crisis. behavioral health services, whether or not the facility is not licensed as an emergency service or facility or if the facility’s license includes the term “emergency services”.

QPA determination methodology

Generally, the Qualifying Payment Amount (QPA) is the median contracted rate for a service or item. The APQ can determine the applicable rate for cost sharing. In addition, the QPA will help determine the supplier’s appropriate payment rate during the federal IDR process. The FAQs specify that plans that vary their contract rates by specialty must calculate the QPA separately for each specialty if there is a “material difference” in the median contract rates for a service code between providers of different specialties. Whether there is a “material difference” is a determination of facts and circumstances.

This determination methodology prevents plans from calculating contract rates in a way that artificially lowers values. For example, suppose a plan pays a higher contract rate for an anesthetist to provide anesthesia and a lower contract rate for all other providers to provide anesthesia (because other providers rarely provide anesthesia) . In this case, the plan should only use the anesthetist’s contract rate to determine the APQ of an out-of-network anesthetist providing anesthesia.

Plans have 90 days to comply with this requirement.

Federal IDR Process

The federal IDR process establishes an arbitration process for plans and providers who cannot agree on pricing for out-of-network emergency and air ambulance services and certain out-of-network non-emergency services rendered at facilities of the network. The Interim Final Rules used the QPA as a primary factor in the arbitrator’s decision in the federal IDR process. The District Court for the Eastern District of Texas overturned the presumption in favor of the QPA in the Interim Final Rules. Upon review, the final rules state that arbitrators must “select the offer that best represents the value of the item or service in dispute after reviewing the APQ and all authorized information submitted by the parties.”

The FAQ further expands on the federal IDR process, including requirements for initial payment amounts, time limits for initial payments or denial notices, and other notification requirements.

Transparency in coverage Machine readable files

The Transparency in hedging rules (TiC rules), issued before the law, require plans to publicly post machine-readable files, including negotiated and historical off-grid rates for specific services and procedures beginning July 1, 2022. Departments included the guidelines TiC in the FAQ.

The FAQ clarifies that the TiC rules do not require a plan without a public website to create a website to publish the information required by the TiC rules.

Additionally, the TiC rules do not require an employer to post a link to the machine-readable files on their public customer-facing website. Instead, a plan can satisfy the TiC posting requirement by entering into a written agreement under which a service provider posts the machine-readable files on its public website on behalf of the plan. The plan will remain liable if the service provider fails to comply with the posting requirement.

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