Second Surprise Billing Final Rule Includes HR Policy Recommendations

October 01, 2021

The Biden administration adopted a key HR Policy recommendation in its second interim final rule implementing the No Surprises Act, which will significantly impact how employers pay for emergency out-of-network health care services.

Background:  The No Surprises Act bars health providers from billing patients more than what would be reimbursed for in-network services in emergencies or other circumstances when out-of-network clinicians are used.  The Act also creates a process for out-of-network providers and employers to resolve payment disputes.

The interim final rule is effective for plan years beginning on or after January 1, 2022.  Additional rulemakings and guidance are expected before the end of 2021.

The rule focuses on four areas of the statute relevant to employer plans:

  • The federal independent dispute resolution (IDR) process providers can use after the end of an unsuccessful open negotiation period to determine the out-of-network rate for certain services;

  • The requirements for certifying IDR entities without conflicts of interest;

  • The creation of a federal IDR portal to administer the IDR process; and

  • Extending the ACA’s external review requirements for employer health plans to include adverse benefit determinations regarding surprise medical billing protections.

The rule includes several HR Policy recommendations, including:

  • The certified IDR entity must begin with the presumption that the qualifying payment amount is the appropriate out-of-network rate and that this will encourage more predictable outcomes;

  • IDR entities must be free of conflicts of interest and have sufficient expertise regarding the health care industry to make payment determinations; and

  • The IDR process and payment determinations must be transparent so that the statutorily required federal reports on the process are meaningful.

Outlook:  HR Policy will be submitting comments on the IFR and will continue to engage with the Biden administration regarding upcoming rulemakings and guidance implementing the No Surprises Act.