Oct 14, 2021
On September 30, 2021, the Departments of Health and Human Services ("HHS"), Labor ("DOL"), and the Treasury (collectively, "the Departments") jointly published additional interim final rules implementing provisions of the No Surprises Act ("NSA"). This is the second set of regulations to address the NSA ("Part II Regulations").
Briefly, as related to group health plans, previously-released "Part I Regulations" addressed, among other things, the following:
As anticipated, the new Part II Regulations primarily provide guidance on a Federal IDR process. Additional guidance, also issued on September 30, 2021, provides information on fees related to the Federal IDR process for calendar year 2022.
Further, the Part II Regulations address how the NSA interacts with the external review process mandated under the Affordable Care Act and related regulations. This includes expanding claims eligible for external review with respect to NSA-related adverse benefit determinations, with examples, and directing the applicability of such determinations to grandfathered health plans.
Of particular note:
The Departments request comments on the Part II Regulations by December 6, 2021.
As previously reported, the plan will determine whether the services are covered by the plan. Within 30 days of receipt of a "clean claim," the plan must send the provider an initial payment or notice of denial of the payment.
The total amount paid by a plan for items and services is referred to as the "OON Rate." Assuming state law and the APMA do not apply, the plan must make a total payment equal to one of the following amounts, less any cost sharing from the participant, beneficiary, or enrollee:
If the initial payment or denial of payment is disputed, the parties will commence an open negotiation period of 30 business days, beginning on the day the plan sends the provider an initial payment or notice of denial of the payment.
Under the Part II Regulations, the steps to the Federal IDR Process are as follows:
The table below provides further details on various deadlines in the Federal IDR process.
Independent Dispute Resolution Action | Timeline |
---|---|
Initiate 30-business-day open negotiation period | 30 business days, starting on the day of initial payment or notice of denial of payment |
Initiate IDR process following failed open negotiation | 4 business days, starting the business day after the open negotiation period ends |
Mutual agreement on certified IDR entity selection | 3 business days after the IDR initiation date |
Departments select certified IDR entity in the case of no conflict-free selection by parties | 6 business days after the IDR initiation date |
Submit payment offers and additional information to certified IDR entity | 10 business days after the date of certified IDR entity selection |
Payment determination made | 30 business days after the date of certified IDR entity selection |
Payment submitted to the applicable party | 30 business days after the payment determination |
The rule includes details on how entities can become certified as independent IDR entities. To be certified by January 1, 2022, such entities should submit their applications by November 1, 2021. Such entities will be certified by the Departments on a rolling basis.
Certified IDR entities must meet monthly reporting requirements on payment determinations to ensure transparency in the IDR process.
The Affordable Care Act, and accompanying regulations, require non-grandfathered group health plans to provide an external review process for disputing denied claims, which generally include the use of an "Independent Review Organization" (IRO). Such denied claims can occur, for example, when a plan administrator determines an item or service is not covered, is subject to restrictions on coverage, or is considered not medically necessary.
The Part II Regulations specifically provide that all plan coverage decisions pertaining to NSA protections in compliance with surprise billing and cost-sharing protections are eligible for external review. They also add several new examples to existing external review regulations, which address where external review would be available under various NSA-related plan determinations where higher cost-sharing was generally applied, including:
The Part II Regulations also provide that grandfathered plans will be subject to external review requirements with respect for NSA-related coverage decisions.
Employers with self-funded group health plans should continue to review NSA requirements with their TPAs for compliance, effective with the first plan year that begins on or after January 1, 2022. That should include confirming that the TPA:
TPAs may pass costs associated with the IDR process on to plan sponsors.
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You should not act or rely
on any information contained herein without seeking the advice of an attorney or tax professional. © My Benefit Advisor. All Rights Reserved. CA Insurance License #0G33244
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