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Agencies Issue Regulations Restricting Surprise Billing

On Behalf of | Jul 7, 2021 |

The Biden administration, through HHS, DOL, IRS and the Office of Personnel Management (collectively, the “Agencies”), issued an interim final rule that aims to restrict excessive out-of-pocket costs from “surprise billing” and balance billing. Beginning in 2022, the interim final rule bans surprise out-of-network and balance billing for individuals enrolled in employer-sponsored or marketplace health plans.

Background. Surprise out-of-network billing happens when a patient unknowingly receives medical care from health care providers that are outside their health plan’s network, whether in emergency and non-emergency settings. Balance billing happens when a health care provider charges a patient the remainder of what their insurance does not pay.

The ACA requires both fully-insured and self-insured group health plans to administer its emergency services benefits without requiring prior authorization and without regard to the network status of the healthcare provider that provides the emergency services. The No Surprises Act enhances the ACA’s consumer protections by prohibiting balance billing in many situations and limiting out-of-network cost sharing in circumstances where surprise billing typically occurs.

The Agencies’ interim final rule implements some provisions of the No Surprises Act that protect participants, beneficiaries and enrollees in group health plans and individual coverage from surprise medical bills when they receive emergency services, nonemergency services from nonparticipating providers at participating facilities, and air ambulance services from nonparticipating providers of air ambulance services, under certain circumstances.

Interim Final Rule. Among other things, the Agencies’ interim final rule: 

  • 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 co-insurance or deductible must be based on in-network provider rates.
  • Bans out-of-network charges for ancillary care (g., 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 Agencies’ interim final rule is available for review at: