Final Rules to Clarify Federal Process to Protect Against Surprise Billing

Rules provide key guidance for arbitrators; additional disclosure to providers, facilities

The U.S. Departments of Labor (@USDOL), Health and Human Services (@HHSGov), and the Treasury (@USTreasury) issued final rules concerning standards related to the arbitration process implementing the No Surprises Act, a bipartisan law to protect consumers against surprise medical bills.

The departments continue to work to implement and put into effect the Jan. 1, 2022, consumer protection law to help curb surprise billing for medical care. The final rules will make certain medical claims payment processes more transparent for providers and clarify the process for providers and health insurance companies to resolve their disputes.

In July 2021, interim final rules were issued that included requirements for plans and issuers to furnish providers and facilities with certain information about their billed claims and the payment process. With these final rules, in the event a plan or issuer changes a provider or facility’s service code used for billing purposes to one of lesser value – which would reduce the payment to the provider or facility – the plan or issuer must now provide additional information when submitting an initial payment or a notice of denial of payment for items and services covered by the No Surprises Act.

The increased transparency required under these final rules will help providers, facilities and air ambulance providers engage in more meaningful open negotiations with plans and issuers and will help inform the offers they submit to certified independent entities to resolve claim disputes.

The rules also finalize some aspects of the arbitration process afforded by the No Surprises Act. Parties or providers (including air ambulance providers), facilities, plans and issuers may use an arbitration process known as the Independent Dispute Resolution process, also known as the federal IDR process, to determine the total payment amount for out-of-network healthcare services for which the act prohibits surprise billing. The final rules include guidance for certified IDR entities on how to make payment determinations and instructs these entities that they must provide additional information and rationale in their written decisions.

These final rules address certain provisions of the July 2021 and October 2021 interim final rules that are relevant to the operation of the federal IDR process and revise certain provisions in light of two recent federal court decisions in challenges filed by the Texas Medical Association and LifeNet Inc.

In addition to issuing the final rules, the departments are issuing Frequently Asked Questions Part 55 with guidance on implementing the requirements of the No Surprises Act, including those related to surprise billing protections, open negotiation and the federal IDR process.