Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit

Practical Law Toolkit w-032-4686 (Approx. 12 pages)

Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit

by Practical Law Employee Benefits & Executive Compensation and Practical Law Health Care

Maintained • USA (National/Federal)

A collection of resources addressing surprise medical billing requirements under the No Surprises Act (NSA), which was enacted in December 2020 as part of the Consolidated Appropriations Act, 2021 (CAA-21). The NSA imposes extensive federal requirements regarding surprise medical billing for group health plans, health insurers, and health care providers and facilities. The NSA has been the topic of significant implementing guidance and related litigation.

Enacted in December 2020, the No Surprises Act (NSA), part of the Consolidated Appropriations Act, 2021 (CAA-21), added extensive federal requirements regarding surprise medical billing for group health plans, health insurers, and health care providers and facilities (Pub. L. No. 116-260 (Dec. 27, 2020)). The NSA's requirements provide protections for plan participants/patients regarding surprise medical billing practices for emergency services and other situations where individuals may otherwise incur large, unexpected medical bills.

The NSA's requirements for plans, insurers, providers, and facilities, which generally became effective beginning in January 2022, are amendments to:

The Employee Retirement Income Security Act of 1974 (ERISA).
The Internal Revenue Code (Code).
The Public Health Service Act (PHSA).

Beginning in 2021, the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (collectively, Departments) implemented the NSA's requirements by issuing proposed and final regulations, model notices, and other guidance. This guidance has included:

Interim final regulations (IFRs) addressing qualifying payment amounts (QPAs), the notice and consent exception process to the balance billing protections, required disclosure notices, and other issues (86 Fed. Reg. 36872 (July 13, 2021) (Part I IFRs)).
Proposed regulations addressing the NSA's air ambulance services requirements and enforcement of the NSA's requirements for providers and facilities (86 Fed. Reg. 51730 (Sept. 16, 2021)).
A second set of IFRs addressing the NSA's independent dispute resolution (IDR) procedures and HHS rules governing good faith estimates of health care items and services for uninsured or self-pay individuals and the patient-provider dispute resolution process (86 Fed. Reg. 55980 (Oct. 7, 2021) (Part II IFRs)).
Final regulations that addressed key issues from the Departments' earlier IFRs and removed/replaced provisions that were invalidated under a Texas district court ruling from February 2022 (87 Fed. Reg. 52618 (Aug. 26, 2022); see Legal Updates, Surprise Medical Billing Guidance Includes Final Regulations, FAQ Guidance, and More and Texas District Court Vacates Rebuttable Presumption Under NSA Regulations).
Additional proposed regulations issued in 2023 addressing:
- administrative and IDR arbitrator fees (88 Fed. Reg. 65888 (Sept. 26, 2023) (see Legal Update, Surprise Billing Regulations Would Set IDR Administrative Fees and IDR Arbitrator Fee Ranges); and
- IDR process communications, IDR eligibility determinations, an IDR registry for health plans and insurers, batching rules, fee provisions, and other topics (88 Fed. Reg. 75744 (Nov. 3, 2023); see Article, Surprise Medical Billing Regulations (Nov. 2023) Would Expand Open Negotiation and Federal Independent Dispute Resolution (IDR) Procedures).
Final regulations that amended existing regulations to provide that the Departments will set their administrative fees for participation in the federal IDR process—and the ranges for certified IDR arbitrator fees for single and batched determinations—through notice and comment rulemaking (88 Fed. Reg. 88494 (Dec. 21, 2023); 89 Fed. Reg. 4547 (Jan. 24, 2024) (technical corrections)).

As noted, the Departments' surprise billing requirements have become the topic of legal challenges—many brought by health providers. In February 2023, for example, a Texas district court invalidated certain portions of the Departments' August 2022 final regulations addressing the federal IDR process (Tex. Med. Ass'n v. HHS, 654 F.Supp.3d 575 (E.D. Tex. Feb. 6, 2023); see Legal Update, Texas District Court Once Again Vacates Departments' No Surprises Act Regulations). Regarding more recent surprise billing litigation and related developments, see Legal Updates:

The NSA's requirements impose substantial compliance burdens on health plans, insurers, providers, and facilities, which, because of the January 2022 effective date, required initial implementation on a compressed timetable. Due to ever-changing regulatory guidance and recent litigation, the NSA's requirements also require ongoing monitoring and updates to surprise billing-related procedures. This includes monitoring the status of the federal IDR portal for surprise billing payment determinations, which the Departments have closed at various times in response to litigation outcomes.

This Toolkit includes a collection of resources to help health plans, insurers, providers, and facilities comply with the NSA's requirements for surprise medical billing.

Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit | Practical Law