US Releases First Rule to Protect Against Surprise Medical Bills

The measure is designed to end surprise medical billing and balance billing, taking the first step to implement the so-called No Surprises Act that passed Congress at the end of last year.

The Biden administration announced an interim final rule Thursday designed to end surprise medical billing and balance billing, taking the first step to implement the so-called No Surprises Act that passed Congress at the end of last year.

“No patient should forgo care for fear of surprise billing,” said HHS Secretary Xavier Becerra in a statement. “Health insurance should offer patients peace of mind that they won’t be saddled with unexpected costs.”

These out-of-pocket costs stem from health care provided in emergency and nonemergency situations from clinicians who are out of the consumer’s network in employer-sponsored and commercial health plans.

Balance billing, which is already prohibited in both Medicare and Medicaid, is when a provider charges the remainder of what an insurance plan did not pay.

As noted in a recent article in The American Journal of Managed Care®, the issue has broad bipartisan appeal, as two-thirds of commercially insured adults worry about unexpected medical bills, the COVID-19 pandemic has created new medical needs, and narrow networks are becoming more common.

The interim final rule bans:

  • Surprise billing for emergency services, which must be treated on an in-network basis without requirements for prior authorization no matter where they are provided.
  • High out-of-network cost-sharing (coinsurance or a deductible) for emergency and nonemergency services; any cost-sharing cannot be higher than if such services were provided in-network.
  • Out-of-network charges for ancillary care, such as an anesthesiologist or assistant surgeon, at an in-network facility in all circumstances.
  • Out-of-network charges without advance notice, meaning that 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."

Other rulemaking will address the arbitration process, which will use an independent dispute resolution process. Arbitrators will be able to consider in-network benchmarks, and prohibits them from considering either billed charges or public payer rates. They can also take into account a physician’s training and experience, as well as the acuity of their patients and complexity of their case mix.

The 411-page interim final rule will be open for 60 days for public comment following its publication in the Federal Register and will take effect for group health plans and health insurance issuers on or after January 1, 2022.