Agencies Issue FAQs (Part 55) With Wide-Ranging Surprise Medical Billing and Transparency Guidance

The DOL, HHS, and IRS have released FAQs (Part 55) addressing a wide variety of issues raised by the surprise medical billing rules enacted as part of the Consolidated Appropriations Act, 2021 (CAA). (The agencies simultaneously released surprise billing final regulations addressing a narrow set of independent dispute resolution (IDR) issues. See our Checkpoint article for details on the final regulations and background on the CAA surprise billing provisions.) The FAQs also address certain disclosure issues arising from the CAA’s transparency requirements and the overlapping transparency in coverage (TiC) regulations. Here are highlights of the FAQs:

• No-Network and Closed-Network Plans. Q/A-1 reiterates that the CAA’s prohibition against balance billing applies to emergency facilities and air ambulance service providers when providing emergency and air ambulance services to an individual covered under a plan that does not have a provider network (e.g., a plan that uses reference-based pricing). However, the prohibitions on balance billing for non-emergency services provided by nonparticipating providers at participating facilities would never be triggered if a plan does not have a network of participating facilities. Similarly, Q/A-2 explains that the CAA provisions that limit cost-sharing for non-emergency services provided by nonparticipating providers at participating facilities would never be triggered if a plan does not have a network of participating facilities. Other Q/As address how no-network plans calculate the out-of-network rate and cost-sharing for out-of-network items and services that are subject to the surprise billing requirements. And Q/A-6 concludes that the protections for emergency services, non-emergency services furnished by a nonparticipating provider at a participating facility, and air ambulance services apply if the services are otherwise covered under the plan, even if the plan otherwise does not provide coverage for out-of-network items or services.
• Balance Billing Protections Disclosures. Addressing the requirement that health plans and insurers make specific disclosures about the CAA’s balance billing protections, Q/A-11 confirms that if a plan does not have a website, the plan may satisfy the requirements to post certain information on its public website by entering into a written agreement under which a plan’s insurer or TPA posts the information on its public website where information is normally made available to participants, beneficiaries, and enrollees on the plan’s behalf. The agencies clarify that this guidance applies where the plan sponsor maintains a public website, but the health plan does not. If the insurer or TPA fails to post the required information (despite its agreement), the plan will be in violation of the disclosure requirements.
• Revised Model Notices. Q/A-13 advises that HHS has revised its standard notice and consent form that providers and facilities must use when providing notice and seeking consent from individuals who want to waive their protections against the CAA’s surprise billing protections, as well as its model disclosure notice that providers, facilities, plans, and insurers may use to notify individuals of their protections against balance billing. Providers and facilities generally may use either the initial or revised versions during 2022, but only the revised version on or after January 1, 2023.
• IDR Process. Several Q/As address the IDR process timeframes. For instance, Q/A-17 explains that providers and facilities may not initiate open negotiation before receiving an initial payment or notice of denial of payment for items and services subject to the surprise billing protections, and the 30-business-day timeline to initiate open negotiations will not begin until an initial payment or notice of denial of payment is made. However, Q/A-20 explains that if a plan or insurer fails to disclose the required information when making an initial payment or sending a notice of denial of payment, a provider or facility may either initiate an open negotiation period and proceed to the IDR process or request an extension to initiate the IDR process. Q/A-21 tackles issues arising when a plan or insurer creates its own online portal for initiating negotiations.
• TiC Disclosures. With regard to the internet-based self-service tool required by the TiC rules (see our Checkpoint article), Q/A-23 points out that the list of 500 items and services that must be included in the first phase of implementation of the tool can now be found on the HHS TiC webpage. The agencies will update the list quarterly to reflect the retirement of codes and will provide a reasonable period for plans and insurers to update their tools to reflect the current codes. Plans and insurers are advised to refer to this webpage for the most up-to-date list of codes for plan years beginning on or after January 1, 2023, and before January 1, 2024.

EBIA Comment: These FAQs cover a wide range of surprise billing and transparency issues, including specific guidance for air ambulance services and emergency services furnished in a behavioral health crisis facility. Although the agencies have touched on some of the issues before, the FAQs provide much needed clarifications and details as the various compliance deadlines loom (see our Checkpoint article). For more information, see EBIA’s Health Care Reform manual at Sections XII.B.3 (“Surprise Medical Billing: Emergency and Non-Emergency Services”), XII.B.4 (“Surprise Air Ambulance Billing”), XXXVII.D (“Transparency in Coverage Cost-Sharing Disclosures”), and XXXVII.E (“Surprise Medical Billing Transparency Disclosures”). See also EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”) and EBIA’s Self-Insured Health Plans manual at Sections XIII.C (“Federally Mandated Benefits”) and XXVIII.I (“Surprise Medical Billing Transparency Disclosures”).

Contributing Editors: EBIA Staff.