HR Policy Submits Recommendations on Surprise Medical Billing Law

September 10, 2021

HR Policy Association stressed the importance of implementing the surprise billing law in a way which not only protects patients from balance bills but also lowers overall health care costs in comments on the first interim final rule (IFR) implementing the complex new law.

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.

HR Policy thanked the Departments of Health and Human Services, Labor, and Treasury for including provisions that protect patients from surprise medical bills.  In addition, we offered further guidance on how to preserve the intent of the No Surprises Act by implementing it in a way that reduces overall health care costs. 

Our comments focused on several areas of the statute including:

  • Initial payment amount:  HR Policy recommended the Departments not establish any standard regarding the initial payment amount employers are required to make.  The Association argued that the existing private sector process for handling out-of-network bills will more effectively limit the arbitration process than a one-size-fits all initial payment.

  • Qualifying payment amount (QPA):  HR Policy applauded the Departments for defining the QPA as the median of contracted rates for a same or similar services in a geographic area as this method is “mathematically sound, administratively feasible, and likely to keep patient costs low by reducing the cost sharing based on provider billed charges.”

  • Use of third-party databases:  HR Policy recommended the Departments limit the use of third-party databases to determine the QPA.  Such databases should only be used independently of health insurers, providers and facilities, and should “have access to network amounts paid by geographic region.”

  • ERISA preemption:  HR Policy stressed that regulations must continue to preserve ERISA preemption when state law governs out-of-network payments. 

  • Employer disclosure requirements:  The No Surprises Act states employer health plans must provide information in plain language on the prohibition against balance billing, as well as information on how to contact state or federal agencies in the case that a provider or facility has violated the Act.  The Association thanked the Departments for providing model notices so that employers are considered in good faith compliance when using the model notices. 

Outlook:  The interim final rule is effective for plan years beginning on or after January 1, 2022.  A second interim final rule implementing the arbitration provisions is expected in the coming weeks, which will significantly impact how employers pay for emergency out-of-network services.  HR Policy will be submitting comments on the next IFR and will continue engaging with the Biden administration on upcoming rulemakings.