October 1, 2021

In This Issue
Fast Facts
Federal Agencies Release Second Installment of Surprise-Billing Regulations
Democratic Infighting Delays Reconciliation Process
Urge Your Members of Congress to Support the Commonsense Reporting Act
Plan-Year 2022 Marketplace Registration and Training for New Agents and Brokers
Please Submit Any Follow-Up Info from Your In-District Meetings
State Spotlight: Four States Chosen for New CMS Innovation Model Aimed at Rural Healthcare
Healthcare Happy Hour: Employer Reporting Bill Introduced as Democrats Continue Reconciliation Debate
HUPAC Roundup: Virginia Elections Slowly Drift Toward a Toss-up
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Federal Agencies Release Second Installment of Surprise-Billing Regulations

HHS, DOL and the Treasury Department released “Part 2” of the regulations surrounding the ban on balance-billing that was included in the Consolidated Appropriations Act (CAA) of 2021. The first interim final rule (IFR) primarily dealt with notices to consumers, post-stabilization services and how qualified payment amounts would be calculated. The second interim final rule released yesterday mainly deals with the process to settle out-of-network payment disputes that will arise between providers and payers in addition to outlining requirements for healthcare cost estimates for uninsured individuals.

Surprise medical billing, or balance-billing of out-of-network medical care, is one of the most pressing health and affordability challenges facing patients and their families, and an issue that NAHU has been working on for quite some time. The CAA, passed at the end of 2020, included the No Surprises Act, which holds patients harmless from surprise medical bills, including from air ambulance providers, by ensuring they are only responsible for their in-network cost-sharing amounts in both emergency situations and certain non-emergency situations where patients do not have the ability to choose an in-network provider. For other claims, this new surprise-billing agreement utilizes an arbitration process, with some patient safeguards.

The IFR released this week provides much-anticipated details about this arbitration process. According to the IFR, if a provider and insurer dispute the cost of a certain procedure that is considered under this law, they must begin with a 30-day negotiation process to try to agree on a payment rate. If they cannot reach an agreement, either side can begin what is referred to as a “federal independent dispute resolution” process. This process brings in an outside arbiter to weigh their cases. The two sides would submit their payment offers, who would then issue a binding determination selecting one of the parties’ offers. The IFR provides guidance that the winning bid should typically be the offer closest to the median in-network rate for the procedure, unless one side can prove the value of that procedure was significantly different than normal. Both parties must pay an administrative fee ($50 each for 2022), and the losing party is responsible for the certified independent dispute resolution entity fee for the use of this process.


CMS also released a chart detailing the dispute resolution timeline:

Independent Dispute Resolution Action


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


Regarding uninsured or self-paying individuals, the provider must provide a “good-faith estimate” of anticipated charges for the care that the individual is seeking. Individuals who fall under this category include those who are uninsured and those who are covered under some sort of group health plan but do not have a claim submitted to their issuer. The good-faith estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities. CMS provides the example of a surgery, where the good-faith estimate might include the cost of the surgery, any labs or tests, and the anesthesia that might be used during the operation. If an item or service is something that isn’t scheduled separately from the surgery itself, it will generally be included in the good-faith estimate. Other items or services related to the surgery that might be scheduled separately, like pre-surgery appointments or physical therapy in the weeks after the surgery, are not expected to be included in the good-faith estimate.

The regulations are applicable to group health plans and health insurance issuers for plan and policy years beginning on or after January 1, 2022. The HHS-only regulations that apply to healthcare providers, facilities and providers of air ambulance services are applicable beginning on January 1, 2022. The OPM-only regulations that apply to carriers under the FEHB program are applicable to contract years beginning on or after January 1, 2022. The rules regarding the certification of IDR entities and SDR entities are effective from the date the rule is published in the Federal Register. As we did with the first interim final rule, NAHU will be submitting comments to the administration with questions and concerns ahead of final implementation.

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