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Health Law Monitor

"Play Ball" - The No Surprises Act Update: Fourth Installment

January 19, 2022

Congress enacted the No Surprises Act (the “Act”) to protect patients against “surprise bills,” while at the same time respecting a provider’s ability to receive remuneration for services rendered. To accomplish this, the Act creates an independent dispute resolution process (“IDR”), whereby the provider and insurance plan negotiate charges for an item or service in a manner similar to major league baseball’s arbitration (more fully described here).

We have three updates regarding the Act.

  1. The Act is now effective as of January 1, 2022.1 
  2. The Department of Health and Human Services (“HHS”) together with the Department of Labor (“DOL”) and the Treasury (collectively, the “Departments”), issued a second interim final rule (the “Second IFR”) relating to the No Surprises Act on September 30, 2021. Most importantly, the Second IFR requires a certified IDR entity (or arbitrator) to select the offer closest to the qualifying payment amount (“QPA”), or the median contracted rate for the item or service in a given geographic region, unless a party can prove “that the QPA is materially different from the appropriate out-of-network rate.”2  In short, the Second IFR creates a rebuttable presumption that the QPA is the correct charge for the item or service in dispute. 
  3. The Departments issued a third interim final rule (the “Third IFR”) on November 17, 2021 which requires plans and issuers to submit prescription drug information including, but not limited to, the 50 most frequently dispensed drugs, the 50 most costly drugs by total annual spending, and certain enrollment and premium information to the Departments.3  

As we await the Act’s Final Rules, Jackson Kelly’s attorneys and staff are dedicated to helping you meet all of your health care compliance needs.

1  It should be noted, however, that parts of the act are being challenged in federal court. Read the complaint here.
2  Requirements Related to Surprise Billing; Part II, 86 Fed. Reg. 192, 55995 (to be codified at 5 C.F.R. pt. 890, 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, 45 C.F.R. pts. 147, 149). The QPA, in the words of the Departments, represents an amount contracted through “arms-length negotiations between providers and facilities and plans and issuers (or their service providers.” Id. at 55996.
3  CMS, PRESCRIPTION DRUG AND HEALTH CARE SPENDING INTERIM FINAL RULE WITH REQUEST FOR COMMENTS (2021), https://www.cms.gov/newsroom/fact-sheets/prescription-drug-and-health-care-spending-interim-final-rule-request-comments



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