Rules of Law No Surprises and Medicare Coverage Methods

This article provides an update of our previous publication summarizing the federal law without surprises and is the second part of a series on the new interim regulations implementing certain requirements of the law without surprises.

In Part 1 of this series, we discussed the recently released Interim Final Rule implementing the No Surprises Act and the protections afforded to patients under emergency services provided by off-grid facilities and providers ( OON) or in connection with emergency services provided by OON providers at certain network facilities.

Here, in Part 2 of the series, we discuss the Interim Final Rule plan coverage requirements, the methodology that a health plan offering group or individual health insurance coverage should use to determine liability. sharing of a patient’s costs; and communications between insurers and providers detailing payment. the amounts.

Plan coverage requirements

Under the Interim Final Rule, health plans providing coverage for emergency services must do so without prior authorization and regardless of whether the services are provided at an OON facility or by an OON provider.

The interim final rule also limits the cost sharing for OON emergency services and certain non-emergency services provided by OON providers at certain network facilities to a maximum of network levels, requires this cost sharing to be taken into account. in any network deductibles and reimbursable ceilings, and prohibits the invoicing of the balance.[1]

Specifically, the amount of consumer cost sharing should be calculated based on the models of all payers (if applicable), state law requirements or, if the former do not apply, the lesser of the Fee charged or the amount of the Qualifying Payment.

Eligible payment amount

The provisional final rule defines the eligible payment amount (QPA), which serves as the basis for any financial liability of the patient, for services provided in 2022 as the median of the contracted rates recognized by a plan as at January 31, 2019, for the same or similar item or service that is provided by a supplier in the same or a similar specialty and provided in a geographic region in which the item or service is provided, increased for inflation. The median contractual rate is determined in relation to all group or individual health insurance coverage offered by the health plan that is offered in the same insurance market.

If the plan does not have sufficient information (defined as at least three contracted rates in the insurance market) to calculate the median contractual rate for an item or service, or in the case of an item or service a newly covered service, the health plan must calculate the QPA by first identifying the rate that is equal to the median of the amounts allowed in the network for an identical or similar item or service provided in the geographic region during the period. ‘year immediately preceding the year in which the item or service is provided, through the use of any qualifying third-party database, and then increasing that rate by the percentage increase of the CPI-U by compared to the previous year.

It should be noted that while the APQ serves as the basis for any patient liability in OON contexts, it does not determine the amount of OON payment to the OON provider.

Initial payment amount

To avoid billing disputes between providers and insurers, the interim final rule requires plans to make an upfront OON payment (or send a denial of payment notice) within 30 calendar days of submitting a valid claim for emergency services or non-emergency services performed by non-participants. providers in participating establishments. The initial payment should reflect the amount the plan intends to pay in full; it is not intended to be a first installment. Although the Interim Final Rule does not provide any guidance on the dollar amount of the initial payment, the agencies asked for comment on whether and how the rate should be set in the future, and noted that some states have already established standards for minimum initial payment amounts, which needs to be followed.

OON payout rate

Under the Interim Final Rule, the OON payment rate is (i) any rate prescribed by state law or the model agreement with all payers, (ii) the amount agreed to by the parties, or (iii) ) the rate determined by an independent dispute resolution (IDR) process contained in the law (i.e. 30 day negotiation period, if no agreement is reached, followed within 4 days of a request of IDR, which is a “baseball” arbitration, the arbitrator choosing one of the parties’ proposals based on the QPA and other factors such as the severity of the disease, university / teacher status, market share and efforts to secure managed care agreements; the IDR process cannot take into account “usual and customary” rates or public payer rates in determining the OON payment amount). Note, however, that regulators have committed to providing additional regulatory guidance on the IDR process.

More soon

The interim final rule is expected to come into effect on January 1, 2022. The No Surprises Act also implements price transparency initiatives and, as noted above, an IDR process, which OON providers can use if they wish. they disagree with a payment made by a health plan for services subject to the surprise billing protections described above. Regulations on this are forthcoming, and we’ll make sure to provide updates in a timely manner.

[1] Keep in mind, however, that in general under the No Surprises Act and the Interim Final Rule, protections that limit cost sharing and prohibit billing of the balance do not apply to certain non-urgent services. provided by OON providers at participating healthcare facilities, if the provider or facility gives notice to the registrant and obtains the individual’s consent to waive balance billing protections. However, providers and facilities may not provide such notice or seek consent from individuals in certain circumstances where surprise bills are likely to occur, such as for ancillary services provided by OON providers as part of non-emergency care. at a participating institution. In such circumstances, billing of the balance is prohibited and other protections of the No Surprises law, such as network cost sharing requirements, continue to apply.

[1] Keep in mind, however, that in general under the No Surprises Act and the Interim Final Rule, protections that limit cost sharing and prohibit billing of the balance do not apply to certain non-urgent services. provided by OON providers at participating healthcare facilities, if the provider or facility gives notice to the registrant and obtains the individual’s consent to waive balance billing protections. However, providers and facilities may not provide such notice or seek consent from individuals in certain circumstances where surprise bills are likely to occur, such as for ancillary services provided by OON providers as part of non-emergency care. at a participating institution. In such circumstances, billing of the balance is prohibited and other protections of the No Surprises law, such as network cost sharing requirements, continue to apply.

© 2021 Proskauer Rose srl. Revue nationale de droit, volume XI, number 195


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