the official SGML-based PDF version on govinfo.gov, those relying on it for (C) The amount that would have been the qualifying payment amount had the service code or modifier not been downcoded; (f) The Departments intend to address comments related to other provisions of the July 2021 and October 2021 interim final rules, including comments received in response to the July 2021 interim final rules related to the disclosure requirements that are not specifically related to downcoded service codes, at a later date. Examples. 601 The preamble to the The annual per-claim cost for small providers of air ambulance services is estimated as: $62,530/1,114 providers of air ambulance services = $56.13. The October 2021 interim final rules provide that, not later than 30 business days after the selection of the certified IDR entity, the certified IDR entity must select one of the offers submitted by the plan or issuer or the provider, facility, or provider of air ambulance services as the out-of-network rate for the qualified IDR item or service. 96. For more information on this calculation, please refer to the Paperwork Reduction Act analysis, found in section V of this preamble. Start Printed Page 52647 2) that relates to the offer for the payment amount for the qualified IDR item or service that is the subject of the payment determination and that does not include information on factors described in 54.9816-8T(c)(4)(v). Start Printed Page 52646 information related to the additional circumstances as part of their offer. The Departments estimate that, on average, it will take a physician and medical billing specialist working for the certified IDR entity 0.5 hour to prepare the notice of the certified IDR entity's determination at a composite hourly wage rate of $136.81. Additionally, this document finalizes select provisions under the October 2021 interim final rules, titled 2), 29 CFR 2590.716-8(c)(4)(i)(A)( ( [8] In addition to the information already required to be provided with an initial payment or notice of denial of payment under the July 2021 interim final rules, including the QPA, these final rules require that a plan or issuer must provide, if applicable, an acknowledgement if all or any portion of the claim was downcoded; an explanation of why the claim was 1) This information is determined to be credible by the certified IDR entity. For this purpose, the Departments understand that information requested by a certified IDR entity, or submitted by a party, would be information relating to a party's offer if it tends to show that the offer best represents the value of the item or service under dispute. The Departments estimate that of the 183 million individuals with employment-related health insurance and 33.2 million individuals with other private coverage, there are 33.3 air transports per 100,000 individuals, of which 69 percent result in an out-of-network bill. In these cases, because contracting parties have chosen to set their rates in this way, the contracted rates represent an independent decision by contracting parties. 99. Example 1), the certified IDR entity must consider the qualifying payment amount. [57] ( In general. H.R. Interim Final Rules: Requirements Related to Surprise Billing; Part II, 5 CFR Part 890, 26 CFR Part 54, 29 CFR Parts 2510 and 2590, 45 CFR Parts 147 and 149, 86 Fed. 115. If the certified IDR entity makes such a determination, then the amount that would have been the QPA had the service code or modifier not been downcoded may be relevant to the certified IDR entity in determining which offer best represents the value of the qualified IDR item or service. Further, the facility submits additional information showing the contracted rates used to calculate the qualifying payment amount for the qualified IDR item or service were based on a level of service that is typical in cases in which the services are delivered by a facility that is not a level 1 trauma center and that does not have the capability to provide the scope of services provided by a level 1 trauma center. Independent dispute resolution process for air ambulance services. Population density of the point of pick-up (as defined in 42 CFR 414.605) for the air ambulance (such as urban, suburban, rural, or frontier). submissions for the 2020 MLR reporting year, approximately 78 out of 481 issuers of health insurance coverage nationwide had total premium revenue of $41.5 million or less. 30. Methodology for calculating qualifying payment amount (temporary). See26 CFR 54.9816-3T; 29 CFR 2590.716-3; and 45 CFR 149.30. These final rules also specify that, if a QPA is based on a downcoded service code or modifier, in addition to the information already required to be provided with an initial payment or notice of denial of payment, a plan or issuer must provide a statement that the service code or modifier billed by the provider, facility, or provider of air ambulance services was downcoded; an explanation of why the claim was downcoded, including a description of which service codes were altered, if any, and which modifiers were altered, added, or removed, if any; and the amount that would have been the QPA had the service code or modifier not been downcoded. Plaintiffs argued that the interim final rules ignored Congress's intent that certified IDR entities weigh the QPA and other factors without favoring any factor, and they asserted that, as a result, the rules would skew IDR results in favor of plans and issuers. For each small issuer and TPA, this results in an estimated annual cost of $16.98. [85], The total annual cost burden for certified IDR entities to provide the payment determination notices regarding Federal IDR claims will be $1,192,641. 10. regulatory information on FederalRegister.gov with the objective of documents in the last year, 905 As stated earlier in this preamble, on February 23, 2022 and July 26, 2022, the District Court in Start Printed Page 52640 The Certified IDR Entity's Written Decision, E. Litigation Regarding Requirements Related to Surprise Billing; Part II, A. et seq. The composite wage rate is estimated in the following manner: ($192.37 ( Nonetheless, the Departments acknowledge that the additional factors may be relevant in determining the appropriate out-of-network rate, because the QPA may not account for information specific to a particular item or service. If there is no underlying fee schedule rate for an item or service, the plan or issuer must calculate the QPA Federal Register The certified IDR entity should not give weight to information to the extent it is not credible, it does not relate to either party's offer for the payment amount for the qualified IDR service, or it is already accounted for by the qualifying payment amount under 149.510(c)(4)(iii)(A) or other credible information under 149.510(c)(4)(iii)(B) through (D), except that the additional circumstances in 149.510(c)(4)(iii)(B) shall be understood to refer to paragraph (b)(2) of this section. 06/12/2023, 228 Texas Medical Association The IFC amends and adds to existing . 645 (42 U.S.C. For additional information, contact James Butikofer, Office of Research and Analysis, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW, Room N-5718, Washington, DC 20210; or sent to (4) For further guidance see 54.9816-8T(c)(4) introductory text through (c)(4)(ii) introductory text. The facility submits an offer that is higher than both the qualifying payment amount and the contracted rate (adjusted for inflation) for the previous year with the issuer for the qualified IDR service. https://www.definitivehc.com/blog/how-many-ascs-are-in-the-us. 2) The issuer also submits additional written information that includes the documentation disclosed to the nonparticipating provider under 54.9816-6(d)(1)(ii) at the time of the initial payment (which describes why the service code was downcoded). The Public Inspection page [34] Over 10 years, the associated costs will be approximately $44.1 million with an annualized cost of $5.9 million, using a 7 percent discount rate.[75]. LifeNet The Departments note that these final rules are not intended to impose a rebuttable presumption for payment determinations in the Federal IDR process. et seq. In the fourth new example, the issuer submits an offer that is higher than the QPA and that is equal to the nonparticipating emergency facility's prior contracted rate (adjusted for inflation) with the issuer for the previous year for the qualified IDR service. Independent dispute resolution process (temporary). [82] [12] Section 3(f) of the Executive order defines a significant regulatory action as an action that is likely to result in a rule: (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, In this Issue, Documents 8904(b) and 5 CFR part 890, subpart I. The provider also submits additional written information that includes the documentation disclosed to the nonparticipating provider under 54.9816-6(d)(1)(ii) at the time of the initial payment. Section 102(d)(1) of the No Surprises Act amended the Federal Employees Health Benefits Act, 5 U.S.C. In addition, prior to vacatur in the United States District Court for the Eastern District of Texas, in the cases of The certified IDR entity determines this information to be credible and that it relates to the offer for the payment amount for the qualified IDR service that is the subject of the payment determination. Neither party submits any additional information. [47] The appropriate out-of-network rate must be the offer that the certified IDR entity determines best represents the value of the qualified IDR item or service. Start Printed Page 52642 The issuer also submits additional written information that includes the documentation disclosed to the nonparticipating provider under 2590.716-6(d)(1)(ii) at the time of the initial payment (which describes why the service code was downcoded). A nonparticipating emergency facility and an issuer are parties to a payment determination in the Federal IDR process. 35. and the Departments have committed to conducting audits. This approach will ensure uniformity and predictability in standards for qualified IDR items and services (including between non-air ambulance items and services and air ambulance services, to the extent applicable), and will allow time for the Departments to provide updated guidance to certified IDR entities and stakeholders. additional credible information submitted by the facility demonstrates that the facility's offer best represents the value of the qualified IDR item or service, the certified IDR entity should select the facility's offer. [83] Diagnostic & Medical Laboratories Industry in the USMarket Research Report? (May 2021). 15. (the Departments) previously issued interim final rules implementing provisions of sections 9816 and 9817 of the Code, sections 716 and 717 of ERISA, and sections 2799A-1 and 2799A-2 of the PHS Act to protect consumers from surprise medical bills for emergency services, non-emergency services furnished by nonparticipating providers with respect to patient visits to participating facilities in certain circumstances, and air ambulance services furnished by nonparticipating providers of air ambulance services. October 2021 interim final rules noted that the Departments are aware that some plans and issuers review claims and alter the service code or modifier submitted by the provider or facility to another service code or modifier that the plan or issuer determines to be more appropriate (a practice commonly referred to as downcoding when the adjustment results in a lower reimbursement, as noted in the preamble to the October 2021 interim final rules). LifeNet 85,303 hours $50.76 = $4,329,980. IDR Payment Determination Notification (section 716(c)(5)(A) of ERISA). 1/3 ( Furthermore, the requirement to disclose this additional information will increase transparency by ensuring that the provider, facility, or provider of air ambulance services has sufficient information about the QPA to submit an informed offer, including how it relates to the billed claim. The OMB will consider all written comments that they receive on or before September 26, 2022. and The facility also submits additional written information, with the intent to show that the case mix and scope of services available at the facility were integral to the service provided. Pursuant to the Congressional Review Act, OMB has designated these final rules as a major rule, as defined by 5 U.S.C. Estimated Total Annual Burden Hours: After the certified IDR entity has reviewed and selected the offer it determines best represents the value of the qualified IDR item or service as the out-of-network rate, the certified IDR entity must explain its determination in a written decision submitted to the parties and the Departments, in a form and manner specified by the Departments. The level of training, experience, and quality and outcomes measurements of the provider or facility that furnished the qualified IDR item or service (such as those endorsed by the consensus-based entity authorized in section 1890 of the Social Security Act). Rep. No. defines small businesses and issues size standards by industry. This PDF is These final rules provide a market-based approach that will help encourage plans and issuers, and providers, facilities, and providers of air ambulance services to arrive at reasonable payment rates. ( 1) (1980). The Departments are of the view that, in these cases, the certified IDR entity should provide this additional explanation so that the Departments may fulfill their statutory functions to monitor and to report on how often, and why, an offer that is selected exceeds the QPA for a given qualified IDR item or service. The Departments also note that the credibility requirement is designed to ensure that certified IDR entities have clear guidance on how to evaluate potentially voluminous and complex information in a methodical and consistent manner. The rules of paragraph (c)(4)(iii) of this section are illustrated in the following paragraphs. A nonparticipating provider and an issuer are parties to a payment determination in the Federal IDR process. Start Printed Page 52621 In particular, the No Surprises Act added new provisions applicable to group health plans and health insurance issuers offering group or individual health insurance coverage to Subchapter B of chapter 100 of the Internal Revenue Code (Code), Part 7 of the Employee Retirement Income Security Act (ERISA), and Part D of title XXVII of the Public Health Service Act (PHS Act). ( Some commenters felt the degree of disclosure was insufficient, and that it provided too much power and discretion to plans and issuers. (1) The Federal IDR portal is available at Under section 9817(b)(5)(C) of the Code, section 717(b)(5)(C) of ERISA, and section 2799A-2(b)(5)(C) of the PHS Act, those six additional circumstances are: (1) the quality and outcomes measurements of the provider that furnished such services; (2) the acuity of the individual receiving such services or the complexity of furnishing such services to such individual; (3) the training, experience, and quality of the medical personnel that furnished such services; (4) the ambulance vehicle type, including the clinical capability level of such vehicle; (5) population density of the point of pick-up (such as urban, suburban, rural, or frontier); and (6) demonstrations of good faith efforts (or lack of good faith efforts) made by the nonparticipating provider or nonparticipating facility or the plan or issuer to enter into network agreements and, if applicable, contracted rates between the provider and the plan or issuer, as applicable, during the previous 4 plan years. provide legal notice to the public or judicial notice to the courts. 26 CFR 54.9816-6T(b)(2)(iii), 29 CFR 2590.716-6(b)(2)(iii), 45 CFR 149.140(b)(2)(iii). 8902. The number of claims in the Federal IDR process is calculated in the following manner: 1,000/0.057= 17,435. $555,427. The annual per-claim cost for small physicians is estimated as: $219,446/64,232 small physicians = $3.42. 08/24/2022 at 11:15 am. These final rules add additional burdens to the ICR presented in the October 2021 interim final rules. https://www.naics.com/business-lists/counts-by-naics-code/.). www.dol.gov/agencies/ebsa). Numerous comments received on the October 2021 interim final rules highlighted that in many cases, certain factors, such as patient acuity or the complexity of furnishing the qualified IDR item or service to the participant, beneficiary, or enrollee, will already be accounted for in the calculation of the QPA. As described earlier in this preamble, the July 2021 interim final rules require plans and issuers to make certain disclosures with each initial payment or notice of denial of payment in cases in which the recognized amount with respect to an item or service furnished by a nonparticipating provider or nonparticipating emergency facility, or the amount upon which cost sharing is based for air ambulance services furnished by a nonparticipating provider of air ambulance services, is the QPA. and OMB 0938-1401. See86 FR 36872 for more information on this estimate. To estimate the proportion of the total costs that would fall onto small entities, the Departments assume that the proportion of costs is proportional to the industry receipts. , while others would not. The plan or issuer must provide contact information, including a telephone number and email address, for the appropriate office or person for the provider, facility, or provider of air ambulance services to contact to initiate open negotiation for purposes of determining an amount of payment (with the amount including cost sharing) for the item or service. Section 54.9817-2 is added to read as follows: (a) For further guidance see 54.9817-2T(a). Final Rules on Payment Determinations Under the Federal IDR Process, i. Based on data from the NAICS Association for NAICS code 524292, the Departments estimate the percent of businesses within the industry of Third Party Administration of Insurance and Pension Funds with less than $40 million in annual sales. In considering this additional information, the certified IDR entity should evaluate whether information that is offered is credible and should not give weight to information that is not credible. 26 CFR 54.9816-8T(a)(2)(v), 29 CFR 2590.716-8(a)(2)(v), and 45 CFR 149.510(a)(2)(v). OPM will account for a cost burden of $59,632. (F) For further guidance see 54.9816-8(f)(1)(v)(F); (h) Texas Medical Association www.reginfo.gov/public/do/PRAMain. The Departments estimate that of the 216.2 million individuals with employer-sponsored and other private health coverage (183 million (F) The rationale for the certified IDR entity's decision, including the extent to which the decision relied on the criteria in paragraphs (c)(4)(iii)(B) through (D) of this section.
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