First rules implementing surprise medical billing law issued

On July 1, 2021, the U.S. Departments of Labor, Treasury, and Health and Human Services (HHS) issued the first rules implementing the No Surprises Act, which prohibits health care providers from billing patients more than they would be paid for in-network services in emergencies or other circumstances when out-of-network physicians are used. The interim final rule, which is the first of several expected this year, focuses on how rates will be calculated to determine how much out-of-network providers will be paid.

The three agencies issued rules with largely parallel provisions that apply to group health plans and health insurance issuers offering group or individual health insurance coverage, and HHS also issued a rule that applies to hospitals and other health care providers and facilities.

The rules prohibit surprise billing for emergency services, and emergency services must be treated on an in-network basis without prior authorization requirements, regardless of where the services are provided. High out-of-network cost sharing for emergency and non-emergency services is also banned under the rules. Patient cost sharing (e.g., deductibles or co-insurance) cannot be higher than if the services were provided by an in-network physician, and all such cost sharing must be based on in-network provider rates.

Out-of-network charges for ancillary care (such as anesthesiologists or assistant surgeons) at an in-network facility are prohibited in all circumstances. For other out-of-network charges, providers must give patients a plain language consumer notice explaining that patient consent is required in order to receive care on an out-of-network basis before the provider can bill at the higher out-of-network rate.

In the joint press release announcing the rules, the agencies stated that the rules would “protect consumers from financial ruin simply because they could not ask for an in-network provider during their treatment.” Secretary of Labor, Marty Walsh, stated, “[t]oday's Interim Final Rule is a major step in implementing the bipartisan No Surprises Act that will protect Americans from exorbitant health costs for unknowingly receiving care from out-of-network providers.”

The agencies requested comments on a number of issues identified in the rule, and the comment period will remain open for 60 days following publication of the rule. Still forthcoming are additional regulations that will address the provider-payer independent dispute resolution process set forth in the No Surprises Act.