Skip to main content
Article | Insider

New rule on No Surprises Act’s surprise medical billing requirements

Benefits Administration and Outsourcing Solutions|Health and Benefits
N/A

By Anu Gogna and Benjamin Lupin | October 12, 2021

The guidance covers the Federal independent dispute resolution process that can be used to determine out-of-network rates.

The U.S. departments of Health and Human Services, Labor and the Treasury, along with the Office of Personnel Management, have released an interim final rule with comment period (the IFC) titled Requirements Related to Surprise Billing; Part II. The IFC provides guidance on the Federal independent dispute resolution (Federal IDR) process under the surprise medical billing requirements of the No Surprises Act (NSA), which was part of the Consolidated Appropriations Act, 2021.

For plan years beginning in 2022, NSA’s surprise medical billing requirements protect group health plan participants from balance bills when they: (1) seek emergency care, (2) are transported by an air ambulance, or (3) receive non-emergency care at an in-network hospital but are unknowingly treated by an out-of-network physician or laboratory.1

Part I of the guidance was issued earlier this year and included, among other things, details on the methodology for calculating the qualifying payment amount (QPA), which is used to determine the cost-sharing amount an individual must pay.

Federal IDR process

The Federal IDR process can be used by out-of-network providers, facilities, air ambulance services providers, plans, and issuers in the group and individual markets to determine the out-of-network rate for certain items or services if a payment amount cannot be agreed upon during a 30-day open negotiation period. Either party may initiate the Federal IDR process.

The parties then may jointly select a certified IDR entity to select one of the parties’ offers as the binding payment amount. Both parties must pay an administrative fee ($50 each for 2022), with the non-prevailing party responsible for paying the certified IDR entity fee.

Along with the second IFC, the Centers for Medicare and Medicaid Services issued Technical Guidance No. 2021-01 to provide Federal IDR fee guidance for calendar year 2022. 

When making a rate determination, certified IDR entities must begin with the presumption that the QPA is the appropriate out-of-network amount. After that, the entity must consider additional information submitted by any party so long as it is credible. Unless any submitted information clearly demonstrates that the value of the item or service is materially different from the QPA, the entity must select the offer closest to the QPA.

IDR entity certification

The IFC also describes the IDR entity certification process and the information IDR entities must submit to become certified. The departments will certify IDR entities on a rolling basis, and entities that would like to be certified by January 1, 2022, should submit their applications by November 1, 2021.

Federal IDR timeline

Figure 1 was taken from the fact sheet accompanying the IFC.

Figure 1. Open negotiation and IDR deadlines
Important open negotiation and IDR deadlines
Independent dispute resolution action Timeline
Initiate 30-business-day open negotiation period 30 business days, starting on the day of initial payment or notice of denial of payment
Initiate independent dispute resolution process following failed open negotiation 4 business days, starting the business day after the open negotiation period ends
Mutual agreement on certified independent dispute resolution entity selection 3 business days after the independent dispute resolution initiation date
Departments select certified independent dispute resolution entity in the case of no conflict-free selection by parties 6 business days after the independent dispute resolution initiation date
Submit payment offers and additional information to certified independent dispute resolution entity 10 business days after the date of certified independent dispute resolution entity selection
Payment determination made 30 business days after the date of certified independent dispute resolution entity selection
Payment submitted to the applicable party 30 business days after the payment determination

1 For more information on the NSA’s surprise medical billing requirements, see “2020 year-end COVID-19 stimulus law: Health and benefit implications,“ Insider, January 2021.

Authors

Senior Regulatory Advisor, Health and Benefits

Senior Regulatory Advisor, Health and Benefits

Contact Us