FINAL SURPRISE BILLING RULES

Final Surprise Billing Rules

On August 26, 2022, federal agencies issued Requirements Related to Surprise Billing final rules which apply to items or services provided on or after October 25, 2022, for plan years beginning on or after January 1, 2022.

Additional Information to Providers, Facilities and Air Ambulances, if QPA Based on Downcoded Service Code or Modifier

The final rules added a new section requiring the plan or insurer to provide additional information to the provider/facility/air ambulance provider. If the qualifying payment amount (QPA) is based on a downcoded service code or modifier, the plan or insurer must provide in writing, in paper or electronic form, to the provider/facility/air ambulance provider, as applicable–

(A) A statement that the service code or modifier billed by the provider, facility, or provider of air ambulance services was downcoded;

(B) An explanation of why the claim was downcoded, which must include a description of which service codes were altered, if any, and a description of which modifiers were altered, added, or removed, if any; and

(C) The amount that would have been the QPA had the service code or modifier not been downcoded.

Definitions – Downcode means the alteration, by a plan or insurer, of a service code to another service code, or the alteration, addition, or removal by a plan or insurer of a modifier, if the changed code or modifier is associated with a lower QPA amount than the service code or modifier billed by the provider/facility/air ambulance provider.

Independent Dispute Resolution Entity Process for Selecting an Offer

The final rules also added various factors that the independent dispute resolution (“IDR”) entity must consider in determining which offer to select from the plan/insurer and the provider/facility:

(A) The QPAs for the applicable year for the same or similar item or service; and

(B) Except for air ambulance providers, information submitted by a party that relates to the following circumstances:

  1. The level of training, experience, and quality and outcomes measurements of the provider or facility that furnished the qualified IDR item or service.
  2. The market share held by the provider, facility, plan or insurer in the geographic region in which the item or service was provided.
  3. The acuity of the participant receiving the item or service, or the complexity of furnishing the item or service to the participant.
  4. The teaching status, case mix, and scope of services of the facility that furnished the qualified IDR item or service, if applicable.
  5. Demonstration of good faith efforts (or lack thereof) made by the provider/ or the plan/insurer to enter into network agreements with each other, and if applicable, contracted rates between the provider/facility, as applicable, and the plan/insurer, as applicable, during the previous 4 plan years.

(C) Information provided by a party in response to a request by the IDR entity about the offer.

(D) Additional information submitted by a party that relates to the offer other than usual and customary charges (including payment or reimbursement rates expressed as a proportion of usual and customary charges), the amount that would have been billed had the No Surprises Act not been enacted, or public payor rates such as Medicare, Medicaid, CHIP or TRICARE.

(E) In weighing the considerations described in paragraphs (B) through (D) above and (F) below, the IDR entity should evaluate whether the information is credible and relates to the offer submitted for the payment amount to the qualified IDR item or service that is the subject to the payment determination.

(F) For air ambulance services, the certified IDR entity must considering information submitted by a party that relates to the following circumstances:

  1. The quality and outcomes measurements of the provider that furnished the services.
  2. The acuity of the condition of the participant or beneficiary receiving the service, or the complexity of furnishing the service to the participant or beneficiary.
  3. The training, experience, and quality of the medical personnel that furnished the air ambulance services.
  4. Ambulance vehicle type, including the clinical capability level of the vehicle.
  5. Population density of the point of pick-up for the air ambulance (such as urban, suburban, rural, or frontier).
  6. Demonstrations of good faith efforts (or lack thereof) made by the nonparticipating provider of air ambulance services or the plan to enter into network agreements with each other and, if applicable, contracted rates between the provider of air ambulance services and the plan during the previous 4 plan years.

The IDR entity’s written decision must include:

  1. An explanation of its determination, including what information the certified IDR entity determined demonstrated that the offer selected best represents the value of the item or service, including the weight given to the QPA and any additional credible information under paragraphs B through D or F above.
  2. If the IDR entity relied on information described under paragraphs (B) through (D) and (F) above in selecting an offer, the written decision must include an explanation of why the certified IDR entity concluded that this information was not already reflected in the QPA.
  3. The rationale for the certified IDR entity decision, including the extent to which the decision relied on the criteria in paragraphs (B) through (D) and (F) above.