CMS unveils another surprise-billing rule: 12 things to know

Alia Paavola

CMS unveiled Sept. 30 another rule aimed at protecting patients from surprise billing. 

The new interim final rule addresses several provisions in the No Surprises Act passed by Congress last year. The rule outlines the federal independent dispute resolution process, good faith estimate requirements for uninsured patients, when patient-provider dispute resolution process can be initiated and new external review provisions. CMS is accepting comments on the interim final rule for 60 days. 

HHS already released two rules earlier this summer implementing parts of the law. In July, CMS issued the first rule, which discussed consumer protections from balance billing and outlawed retroactive emergency department denial policies. On Sept. 10, CMS issued a notice of proposed rulemaking that would change reporting requirements for air ambulance services and add financial disclosure rules for insurance brokers.

The provisions outlined in the three rules are effective Jan. 1, 2022.

Twelve things to know about CMS' latest surprise billing rule:

Federal independent dispute resolution process

1. Before initiating a federal independent dispute resolution process, a provider and insurer must start a 30-day "open negotiation" period. If no agreement is reached at the end of the 30 days, either party may initiate an independent dispute resolution process. This must be done within four business days after the open negotiation period ends.

2. Disputing entities will first have the option to jointly select a certified independent dispute resolution entity to take on the case, but if no mutual decision is reached CMS will select the entity for them.

3. Once an independent dispute resolution entity is selected, the disputing parties will submit their payment offers and supporting documentation. This documentation must be submitted 10 business days after the certified independent dispute resolution entity is selected.

4. The independent dispute resolution entity has 30 business days after it is selected to take on the dispute to make a payment determination. The entity will select one of the parties' payment offers and must take into account the qualifying payment amount, defined by CMS as the issuer's median in-network rate for 2019, trended forward.

5. Both parties must pay a $50 administrative fee to enter the process. The losing party must also pay a fee to the independent dispute resolution entity.

Good faith estimates for uninsured or self-pay patients

6. Providers must furnish a good faith estimate of expected charges to uninsured or self-pay patients. The estimate must include expected charges for all items or services "reasonably expected" to be provided, including services that may be provided at another facility or a different provider.

7. HHS said it will exercise its enforcement discretion as it "understands that it may take time for providers and facilities to develop systems and processes for providing and receiving the required information from others."

Patient-provider dispute resolution

8. A patient's bill is eligible for a dispute resolution process if the patient is billed "substantially in excess" of the good faith estimate and the process is initiated 120 calendar days after the patient received the bill. CMS defines "substantially in excess" as billed charges being at least $400 more than the estimate.

9. For the first year, it is $25 to initiate a patient-provider dispute resolution process.

Becoming a certified IDR entity

10. CMS is accepting applications to become a certified IDR entity and will certify entities on a rolling basis. Those that want to be certified by Jan. 1, must submit their application by Nov. 1.

11. Providers, facilities, air ambulance services, health plans and other members of the public can petition for the denial or revocation of certification of an IDR entity. 

External review

12. CMS expanded the scope of what it can review. In particular, it can now review whether a plan or insurer is complying with the surprise billing and cost-sharing protections under the No Surprises Act.