New surprise billing rule takes effect soon. Find out if it applies to you

Several federal agencies have released an interim final rule, effective Sept. 13, to protect patients from surprise billing. It’s the first in a series of rules implementing the No Surprises Act (NSA), and largely focuses on emergency services and facility-based care, so it won’t apply to many family medicine practices.

The NSA applies to payers, facilities, air ambulances, physicians, and other clinicians. It protects patients who have commercial health coverage through their employer or the Affordable Care Act’s individual marketplace. Government health plans such as Medicare and Medicaid already prohibited balance billing before the bill passed.

The legislation prevents surprise bills for emergency care provided by an out-of-network physician or air ambulance. Patients cannot be billed for cost-sharing beyond what they would have paid for care from an in-network physician or air ambulance. The new rule establishes a policy to calculate the rate to be paid.

The rule also lays out several requirements for insurers regarding coverage of emergency services. It prohibits payers from limiting what constitutes a medical emergency based only on diagnosis codes. It stipulates that emergency services must include pre-stabilization care provided after patients are moved out of the emergency department and admitted to the hospital. It also requires coverage of post-stabilization services, except in certain circumstances.

The rule also protects patients from balance billing for non-emergency services from out-of-network physicians and clinicians at certain in-network facilities. Those facilities include hospitals (including hospital outpatient departments and critical access hospitals) and ambulatory surgical centers. In certain instances, physicians or clinicians may obtain consent from patients for out-of-network care and its associated extra costs. But this exception does not apply to services that commonly incur surprise bills, such as out-of-network anesthesiology or radiology services provided at an in-network facility.

Physicians, facilities, and others subject to this rule must post a publicly available notice about the NSA’s patient protections and balance billing requirements.

The interim final rule indicates state laws on surprise billing preempt federal law when either a set payment amount or dispute resolution process is in place for state-regulated plans and when self-funded Employee Retirement Income Security Act plans opt in to the state law.

Additional information on the interim final rule is available at:

• Overview of rules and fact sheets (FAQs)
• HHS Announces Rule to Protect Consumers from Surprise Medical Bills (Press Release)
• What You Need to Know about the Biden-Harris Administration’s Actions to Prevent Surprise Billing (Fact Sheet)
• Requirements Related to Surprise Billing; Part I Interim Final Rule with Comment Period (Fact Sheet)
• Additional Resources on the CMS website.

— Erin Solis, manager of practice and payment, American Academy of Family Physicians