WASHINGTON – The Biden-Har­ris admin­is­tra­tion – through the depart­ments of Labor, Health and Human Ser­vices, Trea­sury and the Office of Per­son­nel Man­age­ment – today issued an inter­im final rule with com­ment peri­od to con­tin­ue imple­men­ta­tion of the No Sur­pris­es Act, a con­sumer pro­tec­tion law that helps curb the prac­tice known as “sur­prise billing” for med­ical care.

The inter­im final rule details the fed­er­al arbi­tra­tion process – or the inde­pen­dent dis­pute res­o­lu­tion process as it’s also known – that providers, facil­i­ties or providers of air ambu­lance ser­vices, and health plans or issuers will use to deter­mine final pay­ment beyond allow­able patient cost-shar­ing for cer­tain out-of-net­work health­care ser­vices in sit­u­a­tions where the No Sur­pris­es Act pro­hibits sur­prise billing. The rule also requires that cer­tain providers and facil­i­ties pro­vide a good faith esti­mate of the charges to unin­sured (or self-pay) indi­vid­u­als so they can know what costs to expect when seek­ing healthcare.

Today’s rule is the third in a series that the depart­ments are using to imple­ment the No Sur­pris­es Act, a pri­or­i­ty for Pres­i­dent Biden. In July, the Pres­i­dent direct­ed HHS to pri­or­i­tize and imple­ment this law as part of the Exec­u­tive Order on Pro­mot­ing Com­pe­ti­tion in the Amer­i­can Econ­o­my. In the same month, the depart­ments issued an inter­im final rule on con­sumer pro­tec­tions against sur­prise billing. In ear­ly Sep­tem­ber, they issued a pro­posed rule to help col­lect data on the air ambu­lance provider indus­try. The two inter­im final rules take effect on Jan. 1, 2022, and ban sur­prise billing for emer­gency ser­vices and ancil­lary care at in-net­work facil­i­ties, and lim­it high out-of-net­work cost shar­ing for emer­gency and non-emer­gency ser­vices, such that it can­not be high­er than if such ser­vices were pro­vid­ed in-network.

“Fear of sur­prise billing should nev­er be a bar­ri­er to receiv­ing med­ical care,” said U.S. Sec­re­tary of Labor Mar­ty Walsh. “At the Depart­ment of Labor, we are com­mit­ted to empow­er­ing all work­ers and their fam­i­lies, includ­ing by help­ing to make sure they receive the health­care ben­e­fits they are legal­ly enti­tled to. Today’s rule­mak­ing is anoth­er step by the Biden-Har­ris admin­is­tra­tion that will help pro­tect Amer­i­cans from sur­prise billing that can dis­cour­age need­ed med­ical care or lead to finan­cial peril.”

“No one should have to go bank­rupt over a sur­prise med­ical bill,” said U.S. Sec­re­tary of Health and Human Ser­vices Xavier Becer­ra. “Today’s rule helps ensure that Amer­i­cans get a bet­ter deal from a more com­pet­i­tive health­care sys­tem. We are build­ing on our ongo­ing efforts to deliv­er on Pres­i­dent Biden’s Com­pe­ti­tion Exec­u­tive Order by pro­mot­ing trans­par­ent out-of-net­work costs, expos­ing inflat­ed health care costs and tak­ing con­sumers out of the mid­dle ulti­mate­ly to help low­er their bills.”

To pro­tect patients from sur­prise bills and remove them from the mid­dle of pay­ment dis­putes between out-of-net­work providers, facil­i­ties, or providers of air ambu­lance ser­vices and health plans or issuers, on July 1, 2021, the depart­ments and OPM issued an inter­im final rule with com­ment peri­od. The inter­im final rule states that, begin­ning in 2022, patients will only be required to pay cost shar­ing based on in-net­work rates for cer­tain out-of-net­work emer­gency ser­vices, out-of-net­work non-emer­gency ser­vices at in-net­work facil­i­ties and out-of-net­work air ambu­lance services.

Today’s rule builds on this work and details how the total pay­ment to an out-of-net­work provider or facil­i­ty will be deter­mined. In some cas­es – based on the law – state law or appli­ca­tion of a state All-Pay­er Mod­el Agree­ment will deter­mine this amount. Where nei­ther applies, the rule sets forth the fed­er­al process that will apply for deter­min­ing the amount. When a pay­ment dis­pute for items/services that fall under sur­prise billing pro­tec­tions occur, either a provider, facil­i­ty, or air ambu­lance provider or plan/issuer may ini­ti­ate a 30-day open nego­ti­a­tion peri­od. If open nego­ti­a­tion fails, either par­ty may ini­ti­ate the fed­er­al inde­pen­dent dis­pute res­o­lu­tion process. This rule details how this process ini­ti­ates, what is eli­gi­ble for this process and how inde­pen­dent dis­pute res­o­lu­tion enti­ties should con­sid­er fac­tors when deter­min­ing a pay­ment amount.

The depart­ments will cer­ti­fy inde­pen­dent dis­pute res­o­lu­tion enti­ties on a rolling basis. Enti­ties seek­ing cer­ti­fi­ca­tion by Jan. 1, 2022 should sub­mit their appli­ca­tion by Nov. 1, 2021. Learn more about the cer­ti­fi­ca­tion process or apply to be a cer­ti­fied inde­pen­dent dis­pute res­o­lu­tion entity.

In added con­sumer pro­tec­tions, today’s rule out­lines key require­ments relat­ed to unin­sured (or self-pay) indi­vid­u­als (self-pay indi­vid­u­als are indi­vid­u­als who have cov­er­age but do not choose to have their care billed to their health plan or issuer). When indi­vid­u­als sched­ule an item or ser­vice with cer­tain providers and facil­i­ties, those providers and facil­i­ties will be required to inquire about the individual’s health cov­er­age sta­tus, and if the indi­vid­ual wants their care billed to their health plan or issuer.

The provider or facil­i­ty must pro­vide a good faith esti­mate of expect­ed charges for the care they are sched­ul­ing for indi­vid­u­als deemed unin­sured (or self-pay). An unin­sured (or self-pay) indi­vid­ual may also request a good faith esti­mate, with­out sched­ul­ing an item or ser­vices. The rule also estab­lish­es a process for unin­sured (or self-pay) indi­vid­u­als to ini­ti­ate a pay­ment dis­pute res­o­lu­tion process if they are ulti­mate­ly billed sub­stan­tial­ly in excess of the good faith esti­mate they received.

To find fact sheets on today’s rule, visit:

Require­ments Relat­ed to Sur­prise Billing Part II IFR with com­ment period.
What you Need to Know about the Biden-Har­ris Admin­is­tra­tion’s Actions to Pre­vent Sur­prise Billing

Orig­i­nal­ly post­ed on U.S. Depart­ment of Labor