Federal Agencies Release Second Set of Interim Final Rules for No Surprises Act

October 13, 2021

On September 30, 2021, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (collectively the Departments), along with the Office of Personnel Management (OPM), released its second interim final rule (IFR) entitled “Requirements Related to Surprise Billing; Part II.” It implements additional protections for consumers against surprise medical bills under the No Surprises Act (NSA), including provisions related to the independent dispute resolution (IDR) process, good faith estimates for uninsured (or self-pay) individuals, the patient-provider dispute resolution process, and expanded rights to external review. WSHA will be commenting on the IRF in coordination with the American Hospital Association. We are concerned about the IDR provision that would make the insurer’s own median payment rates the reference point rather than the BBPA’s “commercially reasonable” standard and expressed this concern in our comments on the first interim final rule. We are also concerned about the provision that allows patients to dispute charges that are $400 or more than the good faith estimate, essentially turning the good faith estimate into a guaranteed maximum charge. Because of differences in patient condition, duration of surgery, and other factors, patient-specific costs of care and charges often cannot be accurately predicted in advance of the services being performed. Comments on the IFR are due by December 6, 2021.

WSHA and hospitals are also actively involved in a stakeholdering process with the state’s Office of the Insurance Commissioner (OIC) to reconcile the NSA provisions with the state’s existing Balance Billing Protection Act (BBPA). It is not yet known whether OIC will provide a standard notice of patient rights for the NSA as it has done for the BBPA. WSHA will provide additional information as it becomes available. (Andrew Busz, AndrewB@wsha.org)


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