Collapse to view only § 9812. Parity in mental health and substance use disorder benefits
- § 9811. Standards relating to benefits for mothers and newborns
- § 9812. Parity in mental health and substance use disorder benefits
- § 9813. Coverage of dependent students on medically necessary leave of absence
- § 9815. Additional market reforms
- § 9816. Preventing surprise medical bills
- § 9817. Ending surprise air ambulance bills
- § 9818. Continuity of care
- § 9819. Maintenance of price comparison tool
- § 9820. Protecting patients and improving the accuracy of provider directory information
- § 9822. Other patient protections
- § 9823. Air ambulance report requirements
- § 9824. Increasing transparency by removing gag clauses on price and quality information
- § 9825. Reporting on pharmacy benefits and drug costs
§ 9811. Standards relating to benefits for mothers and newborns
(a) Requirements for minimum hospital stay following birth
(1) In generalA group health plan may not—
(A) except as provided in paragraph (2)—
(i) restrict benefits for any hospital length of stay in connection with childbirth for the mother or newborn child, following a normal vaginal delivery, to less than 48 hours, or
(ii) restrict benefits for any hospital length of stay in connection with childbirth for the mother or newborn child, following a caesarean section, to less than 96 hours; or
(B) require that a provider obtain authorization from the plan or the issuer for prescribing any length of stay required under subparagraph (A) (without regard to paragraph (2)).
(2) Exception
(b) ProhibitionsA group health plan may not—
(1) deny to the mother or her newborn child eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the plan, solely for the purpose of avoiding the requirements of this section;
(2) provide monetary payments or rebates to mothers to encourage such mothers to accept less than the minimum protections available under this section;
(3) penalize or otherwise reduce or limit the reimbursement of an attending provider because such provider provided care to an individual participant or beneficiary in accordance with this section;
(4) provide incentives (monetary or otherwise) to an attending provider to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this section; or
(5) subject to subsection (c)(3), restrict benefits for any portion of a period within a hospital length of stay required under subsection (a) in a manner which is less favorable than the benefits provided for any preceding portion of such stay.
(c) Rules of construction
(1) Nothing in this section shall be construed to require a mother who is a participant or beneficiary—
(A) to give birth in a hospital; or
(B) to stay in the hospital for a fixed period of time following the birth of her child.
(2) This section shall not apply with respect to any group health plan which does not provide benefits for hospital lengths of stay in connection with childbirth for a mother or her newborn child.
(3) Nothing in this section shall be construed as preventing a group health plan from imposing deductibles, coinsurance, or other cost-sharing in relation to benefits for hospital lengths of stay in connection with childbirth for a mother or newborn child under the plan, except that such coinsurance or other cost-sharing for any portion of a period within a hospital length of stay required under subsection (a) may not be greater than such coinsurance or cost-sharing for any preceding portion of such stay.
(d) Level and type of reimbursements
(e) Preemption; exception for health insurance coverage in certain StatesThe requirements of this section shall not apply with respect to health insurance coverage if there is a State law (including a decision, rule, regulation, or other State action having the effect of law) for a State that regulates such coverage that is described in any of the following paragraphs:
(1) Such State law requires such coverage to provide for at least a 48-hour hospital length of stay following a normal vaginal delivery and at least a 96-hour hospital length of stay following a caesarean section.
(2) Such State law requires such coverage to provide for maternity and pediatric care in accordance with guidelines established by the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, or other established professional medical associations.
(3) Such State law requires, in connection with such coverage for maternity care, that the hospital length of stay for such care is left to the decision of (or required to be made by) the attending provider in consultation with the mother.
(Added Pub. L. 105–34, title XV, § 1531(a)(4), Aug. 5, 1997, 111 Stat. 1081; amended Pub. L. 105–206, title VI, § 6015(e), July 22, 1998, 112 Stat. 821.)
§ 9812. Parity in mental health and substance use disorder benefits
(a) In general
(1) Aggregate lifetime limitsIn the case of a group health plan that provides both medical and surgical benefits and mental health or substance use disorder benefits—
(A) No lifetime limit
(B) Lifetime limitIf the plan includes an aggregate lifetime limit on substantially all medical and surgical benefits (in this paragraph referred to as the “applicable lifetime limit”), the plan shall either—
(i) apply the applicable lifetime limit both to the medical and surgical benefits to which it otherwise would apply and to mental health and substance use disorder benefits and not distinguish in the application of such limit between such medical and surgical benefits and mental health and substance use disorder benefits; or
(ii) not include any aggregate lifetime limit on mental health or substance use disorder benefits that is less than the applicable lifetime limit.
(C) Rule in case of different limits
(2) Annual limitsIn the case of a group health plan that provides both medical and surgical benefits and mental health or substance use disorder benefits—
(A) No annual limit
(B) Annual limitIf the plan includes an annual limit on substantially all medical and surgical benefits (in this paragraph referred to as the “applicable annual limit”), the plan shall either—
(i) apply the applicable annual limit both to medical and surgical benefits to which it otherwise would apply and to mental health and substance use disorder benefits and not distinguish in the application of such limit between such medical and surgical benefits and mental health and substance use disorder benefits; or
(ii) not include any annual limit on mental health or substance use disorder benefits that is less than the applicable annual limit.
(C) Rule in case of different limits
(3) Financial requirements and treatment limitations
(A) In generalIn the case of a group health plan that provides both medical and surgical benefits and mental health or substance use disorder benefits, such plan shall ensure that—
(i) the financial requirements applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan, and there are no separate cost sharing requirements that are applicable only with respect to mental health or substance use disorder benefits; and
(ii) the treatment limitations applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits covered by the plan and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.
(B) DefinitionsIn this paragraph:
(i) Financial requirement
(ii) Predominant
(iii) Treatment limitation
(4) Availability of plan information
(5) Out-of-network providers
(6) Compliance program guidance document
(A) In general
(B) Examples illustrating compliance and noncompliance
(i) In generalThe compliance program guidance document required under this paragraph shall provide illustrative, de-identified examples (that do not disclose any protected health information or individually identifiable information) of previous findings of compliance and noncompliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable, based on investigations of violations of such sections, including—(I) examples illustrating requirements for information disclosures and nonquantitative treatment limitations; and(II) descriptions of the violations uncovered during the course of such investigations.
(ii) Nonquantitative treatment limitations
(iii) Access to additional information regarding complianceIn developing and issuing the compliance program guidance document required under this paragraph, the Secretaries specified in subparagraph (A)—(I) shall enter into interagency agreements with the Inspector General of the Department of Health and Human Services, the Inspector General of the Department of Labor, and the Inspector General of the Department of the Treasury to share findings of compliance and noncompliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable; and(II) shall seek to enter into an agreement with a State to share information on findings of compliance and noncompliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable.
(C) Recommendations
(D) Updating the compliance program guidance document
(7) Additional guidance
(A) In general
(B) Disclosure
(i) Guidance for plans
(ii) Documents for participants, beneficiaries, contracting providers, or authorized representativesThe guidance issued under this paragraph shall include clarifying information and illustrative examples of methods that group health plans may use to provide any participant, beneficiary, contracting provider, or authorized representative, as applicable, with documents containing information that the health plans are required to disclose to participants, beneficiaries, contracting providers, or authorized representatives to ensure compliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable, compliance with any regulation issued pursuant to such respective section, or compliance with any other applicable law or regulation. Such guidance shall include information that is comparative in nature with respect to—(I) nonquantitative treatment limitations for both medical and surgical benefits and mental health and substance use disorder benefits;(II) the processes, strategies, evidentiary standards, and other factors used to apply the limitations described in subclause (I); and(III) the application of the limitations described in subclause (I) to ensure that such limitations are applied in parity with respect to both medical and surgical benefits and mental health and substance use disorder benefits.
(C) Nonquantitative treatment limitationsThe guidance issued under this paragraph shall include clarifying information and illustrative examples of methods, processes, strategies, evidentiary standards, and other factors that group health plans may use regarding the development and application of nonquantitative treatment limitations to ensure compliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable, (and any regulations promulgated pursuant to such respective section), including—
(i) examples of methods of determining appropriate types of nonquantitative treatment limitations with respect to both medical and surgical benefits and mental health and substance use disorder benefits, including nonquantitative treatment limitations pertaining to—(I) medical management standards based on medical necessity or appropriateness, or whether a treatment is experimental or investigative;(II) limitations with respect to prescription drug formulary design; and(III) use of fail-first or step therapy protocols;
(ii) examples of methods of determining—(I) network admission standards (such as credentialing); and(II) factors used in provider reimbursement methodologies (such as service type, geographic market, demand for services, and provider supply, practice size, training, experience, and licensure) as such factors apply to network adequacy;
(iii) examples of sources of information that may serve as evidentiary standards for the purposes of making determinations regarding the development and application of nonquantitative treatment limitations;
(iv) examples of specific factors, and the evidentiary standards used to evaluate such factors, used by such plans in performing a nonquantitative treatment limitation analysis;
(v) examples of how specific evidentiary standards may be used to determine whether treatments are considered experimental or investigative;
(vi) examples of how specific evidentiary standards may be applied to each service category or classification of benefits;
(vii) examples of methods of reaching appropriate coverage determinations for new mental health or substance use disorder treatments, such as evidence-based early intervention programs for individuals with a serious mental illness and types of medical management techniques;
(viii) examples of methods of reaching appropriate coverage determinations for which there is an indirect relationship between the covered mental health or substance use disorder benefit and a traditional covered medical and surgical benefit, such as residential treatment or hospitalizations involving voluntary or involuntary commitment; and
(ix) additional illustrative examples of methods, processes, strategies, evidentiary standards, and other factors for which the Secretary determines that additional guidance is necessary to improve compliance with this section, section 2726 of the Public Health Service Act, or section 712 of the Employee Retirement Income Security Act of 1974, as applicable.
(D) Public comment
(8) Compliance requirements
(A) Nonquantitative treatment limitation (NQTL) requirementsIn the case of a group health plan that provides both medical and surgical benefits and mental health or substance use disorder benefits and that imposes nonquantitative treatment limitations (referred to in this section as “NQTLs”) on mental health or substance use disorder benefits, such plan shall perform and document comparative analyses of the design and application of NQTLs and, beginning 45 days after the date of enactment of the Consolidated Appropriations Act, 2021, make available to the Secretary, upon request, the comparative analyses and the following information:
(i) The specific plan terms or other relevant terms regarding the NQTLs and a description of all mental health or substance use disorder and medical or surgical benefits to which each such term applies in each respective benefits classification.
(ii) The factors used to determine that the NQTLs will apply to mental health or substance use disorder benefits and medical or surgical benefits.
(iii) The evidentiary standards used for the factors identified in clause (ii), when applicable, provided that every factor shall be defined, and any other source or evidence relied upon to design and apply the NQTLs to mental health or substance use disorder benefits and medical or surgical benefits.
(iv) The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to mental health or substance use disorder benefits, as written and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical or surgical benefits in the benefits classification.
(v) A disclosure of the specific findings and conclusions reached by the group health plan, including any results of the analyses described in this subparagraph that indicate that the plan is or is not in compliance with this section.
(B) Secretary request process
(i) Submission upon request
(ii) Additional information
(iii) Required action(I) In generalIn instances in which the Secretary has reviewed the comparative analyses described in subparagraph (A), as requested under clause (i), and determined that the group health plan is not in compliance with this section, the plan—(aa) shall specify to the Secretary the actions the plan will take to be in compliance with this section and provide to the Secretary additional comparative analyses described in subparagraph (A) that demonstrate compliance with this section not later than 45 days after the initial determination by the Secretary that the plan is not in compliance; and(bb) following the 45-day corrective action period under item (aa), if the Secretary makes a final determination that the plan still is not in compliance with this section, not later than 7 days after such determination, shall notify all individuals enrolled in the plan that the plan has been determined to be not in compliance with this section.(II) Exemption from disclosure
(iv) ReportNot later than 1 year after the date of enactment of this paragraph, and not later than October 1 of each year thereafter, the Secretary shall submit to Congress, and make publicly available, a report that contains—(I) a summary of the comparative analyses requested under clause (i), including the identity of each group plan that is determined to be not in compliance after the final determination by the Secretary described in clause (iii)(I)(bb);(II) the Secretary’s conclusions as to whether each group health plan submitted sufficient information for the Secretary to review the comparative analyses requested under clause (i) for compliance with this section;(III) for each group health plan that did submit sufficient information for the Secretary to review the comparative analyses requested under clause (i), the Secretary’s conclusions as to whether and why the plan is in compliance with the disclosure requirements under this section;(IV) the Secretary’s specifications described in clause (ii) for each group health plan that the Secretary determined did not submit sufficient information for the Secretary to review the comparative analyses requested under clause (i) for compliance with this section; and(V) the Secretary’s specifications described in clause (iii) of the actions each group health plan that the Secretary determined is not in compliance with this section must take to be in compliance with this section, including the reason why the Secretary determined the plan is not in compliance.
(C) Compliance program guidance document update process
(i) In general
(ii) Guidance and regulations
(iii) State
(b) ConstructionNothing in this section shall be construed—
(1) as requiring a group health plan to provide any mental health or substance use disorder benefits; or
(2) in the case of a group health plan that provides mental health or substance use disorder benefits, as affecting the terms and conditions of the plan relating to such benefits under the plan, except as provided in subsection (a).
(c) Exemptions
(1) Small employer exemption
(A) In general
(B) Small employer
(2) Cost exemption
(A) In general
(B) Applicable percentageWith respect to a plan, the applicable percentage described in this subparagraph shall be—
(i) 2 percent in the case of the first plan year in which this section is applied; and
(ii) 1 percent in the case of each subsequent plan year.
(C) Determinations by actuaries
(D) 6-month determinations
(E) Notification
(i) In general
(ii) RequirementA notification to the Secretary under clause (i) shall include—(I) a description of the number of covered lives under the plan involved at the time of the notification, and as applicable, at the time of any prior election of the cost-exemption under this paragraph by such plan;(II) for both the plan year upon which a cost exemption is sought and the year prior, a description of the actual total costs of coverage with respect to medical and surgical benefits and mental health and substance use disorder benefits under the plan; and(III) for both the plan year upon which a cost exemption is sought and the year prior, the actual total costs of coverage with respect to mental health and substance use disorder benefits under the plan.
(iii) ConfidentialityA notification to the Secretary under clause (i) shall be confidential. The Secretary shall make available, upon request and on not more than an annual basis, an anonymous itemization of such notifications, that includes—(I) a breakdown of States by the size and type of employers submitting such notification; and(II) a summary of the data received under clause (ii).
(F) Audits by appropriate agencies
(d) Separate application to each option offered
(e) DefinitionsFor purposes of this section:
(1) Aggregate lifetime limit
(2) Annual limit
(3) Medical or surgical benefits
(4) Mental health benefits
(5) Substance use disorder benefits
(Added Pub. L. 105–34, title XV, § 1531(a)(4), Aug. 5, 1997, 111 Stat. 1083; amended Pub. L. 107–116, title VII, § 701(c), Jan. 10, 2002, 115 Stat. 2228; Pub. L. 107–147, title VI, § 610(a), Mar. 9, 2002, 116 Stat. 60; Pub. L. 108–311, title III, § 302(a), Oct. 4, 2004, 118 Stat. 1178; Pub. L. 109–151, § 1(c), Dec. 30, 2005, 119 Stat. 2886; Pub. L. 109–432, div. A, title I, § 115(a), Dec. 20, 2006, 120 Stat. 2941; Pub. L. 110–245, title IV, § 401(a), June 17, 2008, 122 Stat. 1649; Pub. L. 110–343, div. C, title V, § 512(c), (g)(3)(A), Oct. 3, 2008, 122 Stat. 3888, 3892; Pub. L. 115–141, div. U, title IV, § 401(a)(349), Mar. 23, 2018, 132 Stat. 1201; Pub. L. 116–260, div. BB, title II, § 203(a)(3), Dec. 27, 2020, 134 Stat. 2910.)
§ 9813. Coverage of dependent students on medically necessary leave of absence
(a) Medically necessary leave of absence
In this section, the term “medically necessary leave of absence” means, with respect to a dependent child described in subsection (b)(2) in connection with a group health plan, a leave of absence of such child from a postsecondary educational institution (including an institution of higher education as defined in section 102 of the Higher Education Act of 1965), or any other change in enrollment of such child at such an institution, that—
(1) commences while such child is suffering from a serious illness or injury;
(2) is medically necessary; and
(3) causes such child to lose student status for purposes of coverage under the terms of the plan or coverage.
(b) Requirement to continue coverage
(1) In general
In the case of a dependent child described in paragraph (2), a group health plan shall not terminate coverage of such child under such plan due to a medically necessary leave of absence before the date that is the earlier of—
(A) the date that is 1 year after the first day of the medically necessary leave of absence; or
(B) the date on which such coverage would otherwise terminate under the terms of the plan.
(2) Dependent child described
A dependent child described in this paragraph is, with respect to a group health plan, a beneficiary under the plan who—
(A) is a dependent child, under the terms of the plan, of a participant or beneficiary under the plan; and
(B) was enrolled in the plan, on the basis of being a student at a postsecondary educational institution (as described in subsection (a)), immediately before the first day of the medically necessary leave of absence involved.
(3) Certification by physician
(c) Notice
(d) No change in benefits
(e) Continued application in case of changed coverage
If—
(1) a dependent child of a participant or beneficiary is in a period of coverage under a group health plan, pursuant to a medically necessary leave of absence of the child described in subsection (b);
(2) the manner in which the participant or beneficiary is covered under the plan changes, whether through a change in health insurance coverage or health insurance issuer, a change between health insurance coverage and self-insured coverage, or otherwise; and
(3) the coverage as so changed continues to provide coverage of beneficiaries as dependent children,
this section shall apply to coverage of the child under the changed coverage for the remainder of the period of the medically necessary leave of absence of the dependent child under the plan in the same manner as it would have applied if the changed coverage had been the previous coverage.
(Added Pub. L. 110–381, § 2(c)(1), Oct. 9, 2008, 122 Stat. 4084.)
§ 9815.1
1 So in original. No section 9814 has been enacted.
Additional market reforms(a) General rule
Except as provided in subsection (b)—
(1) the provisions of part A of title XXVII of the Public Health Service Act (as amended by the Patient Protection and Affordable Care Act) shall apply to group health plans, and health insurance issuers providing health insurance coverage in connection with group health plans, as if included in this subchapter; and
(2) to the extent that any provision of this subchapter conflicts with a provision of such part A with respect to group health plans, or health insurance issuers providing health insurance coverage in connection with group health plans, the provisions of such part A shall apply.
(b) Exception
(Added Pub. L. 111–148, title I, § 1563(f), formerly § 1562(f), title X, § 10107(b)(1), Mar. 23, 2010, 124 Stat. 270, 911.)
§ 9816. Preventing surprise medical bills
(a) Coverage of emergency services
(1) In generalIf a group health plan provides or covers any benefits with respect to services in an emergency department of a hospital or with respect to emergency services in an independent freestanding emergency department (as defined in paragraph (3)(D)), the plan shall cover emergency services (as defined in paragraph (3)(C))—
(A) without the need for any prior authorization determination;
(B) whether the health care provider furnishing such services is a participating provider or a participating emergency facility, as applicable, with respect to such services;
(C) in a manner so that, if such services are provided to a participant or beneficiary by a nonparticipating provider or a nonparticipating emergency facility—
(i) such services will be provided without imposing any requirement under the plan for prior authorization of services or any limitation on coverage that is more restrictive than the requirements or limitations that apply to emergency services received from participating providers and participating emergency facilities with respect to such plan;
(ii) the cost-sharing requirement is not greater than the requirement that would apply if such services were provided by a participating provider or a participating emergency facility;
(iii) such cost-sharing requirement is calculated as if the total amount that would have been charged for such services by such participating provider or participating emergency facility were equal to the recognized amount (as defined in paragraph (3)(H)) for such services, plan, and year;
(iv) the group health plan—(I) not later than 30 calendar days after the bill for such services is transmitted by such provider or facility, sends to the provider or facility, as applicable, an initial payment or notice of denial of payment; and(II) pays a total plan payment directly to such provider or facility, respectively (in accordance, if applicable, with the timing requirement described in subsection (c)(6)) that is, with application of any initial payment under subclause (I), equal to the amount by which the out-of-network rate (as defined in paragraph (3)(K)) for such services exceeds the cost-sharing amount for such services (as determined in accordance with clauses (ii) and (iii)) and year; and
(iv) any cost-sharing payments made by the participant or beneficiary with respect to such emergency services so furnished shall be counted toward any in-network deductible or out-of-pocket maximums applied under the plan (and such in-network deductible and out-of-pocket maximums shall be applied) in the same manner as if such cost-sharing payments were made with respect to emergency services furnished by a participating provider or a participating emergency facility; and
(D) without regard to any other term or condition of such coverage (other than exclusion or coordination of benefits, or an affiliation or waiting period, permitted under section 2704 of the Public Health Service Act, including as incorporated pursuant to section 715 of the Employee Retirement Income Security Act of 1974 and section 9815 of this Act, and other than applicable cost-sharing).
(2) Audit process and regulations for qualifying payment amounts
(A) Audit process
(i) In generalNot later than October 1, 2021, the Secretary, in consultation with the Secretary of Health and Human Services and the Secretary of Labor, shall establish through rulemaking a process, in accordance with clause (ii), under which group health plans are audited by the Secretary or applicable State authority to ensure that—(I) such plans are in compliance with the requirement of applying a qualifying payment amount under this section; and(II) such qualifying payment amount so applied satisfies the definition under paragraph (3)(E) with respect to the year involved, including with respect to a group health plan described in clause (ii) of such paragraph (3)(E).
(ii) Audit samplesUnder the process established pursuant to clause (i), the Secretary—(I) shall conduct audits described in such clause, with respect to a year (beginning with 2022), of a sample with respect to such year of claims data from not more than 25 group health plans; and(II) may audit any group health plan if the Secretary has received any complaint or other information about such plan or coverage, respectively, that involves the compliance of the plan with either of the requirements described in subclauses (I) and (II) of such clause.
(iii) Reports
(B) RulemakingNot later than July 1, 2021, the Secretary, in consultation with the Secretary of Labor and the Secretary of Health and Human Services, shall establish through rulemaking—
(i) the methodology the group health plan shall use to determine the qualifying payment amount, differentiating by large group market and small group market;
(ii) the information such plan or issuer, respectively, shall share with the nonparticipating provider or nonparticipating facility, as applicable, when making such a determination;
(iii) the geographic regions applied for purposes of this subparagraph, taking into account access to items and services in rural and underserved areas, including health professional shortage areas, as defined in section 332 of the Public Health Service Act; and
(iv) a process to receive complaints of violations of the requirements described in subclauses (I) and (II) of subparagraph (A)(i) by group health plans.
Such rulemaking shall take into account payments that are made by such plan that are not on a fee-for-service basis. Such methodology may account for relevant payment adjustments that take into account quality or facility type (including higher acuity settings and the case-mix of various facility types) that are otherwise taken into account for purposes of determining payment amounts with respect to participating facilities. In carrying out clause (iii), the Secretary shall consult with the National Association of Insurance Commissioners to establish the geographic regions under such clause and shall periodically update such regions, as appropriate, taking into account the findings of the report submitted under section 109(a) of the No Surprises Act.
(3) DefinitionsIn this subchapter:
(A) Emergency department of a hospital
(B) Emergency medical condition
(C) Emergency services
(i) In generalThe term “emergency services”, with respect to an emergency medical condition, means—(I) a medical screening examination (as required under section 1867 of the Social Security Act, or as would be required under such section if such section applied to an independent freestanding emergency department) that is within the capability of the emergency department of a hospital or of an independent freestanding emergency department, as applicable, including ancillary services routinely available to the emergency department to evaluate such emergency medical condition; and(II) within the capabilities of the staff and facilities available at the hospital or the independent freestanding emergency department, as applicable, such further medical examination and treatment as are required under section 1867 of such Act, or as would be required under such section if such section applied to an independent freestanding emergency department, to stabilize the patient (regardless of the department of the hospital in which such further examination or treatment is furnished).
(ii) Inclusion of additional services(I) In generalFor purposes of this subsection and section 2799B–1 of the Public Health Service Act, in the case of a participant or beneficiary who is enrolled in a group health plan and who is furnished services described in clause (i) with respect to an emergency medical condition, the term “emergency services” shall include, unless each of the conditions described in subclause (II) are met, in addition to the items and services described in clause (i), items and services—(aa) for which benefits are provided or covered under the plan; and(bb) that are furnished by a nonparticipating provider or nonparticipating emergency facility (regardless of the department of the hospital in which such items or services are furnished) after the participant or beneficiary is stabilized and as part of outpatient observation or an inpatient or outpatient stay with respect to the visit in which the services described in clause (i) are furnished.(II) ConditionsFor purposes of subclause (I), the conditions described in this subclause, with respect to a participant or beneficiary who is stabilized and furnished additional items and services described in subclause (I) after such stabilization by a provider or facility described in subclause (I), are the following;(aa) Such provider or facility determines such individual is able to travel using nonmedical transportation or nonemergency medical transportation.(bb) Such provider furnishing such additional items and services satisfies the notice and consent criteria of section 2799B–2(d) 1
1 See References in Text note below.
with respect to such items and services.(cc) Such individual is in a condition to receive (as determined in accordance with guidelines issued by the Secretary pursuant to rulemaking) the information described in section 2799B–2 1 and to provide informed consent under such section, in accordance with applicable State law.(dd) Such other conditions, as specified by the Secretary, such as conditions relating to coordinating care transitions to participating providers and facilities.(D) Independent freestanding emergency departmentThe term “independent freestanding emergency department” means a health care facility that—
(i) is geographically separate and distinct and licensed separately from a hospital under applicable State law; and
(ii) provides any of the emergency services (as defined in subparagraph (C)(i)).
(E) Qualifying payment amount
(i) In generalThe term “qualifying payment amount” means, subject to clauses (ii) and (iii), with respect to a sponsor of a group health plan—(I) for an item or service furnished during 2022, the median of the contracted rates recognized by the plan (determined with respect to all such plans of such sponsor that are offered within the same insurance market (specified in subclause (I), (II), or (III) of clause (iv)) as the plan) as the total maximum payment (including the cost-sharing amount imposed for such item or service and the amount to be paid by the plan) under such plans on January 31, 2019 for the same or a similar item or service that is provided by a provider in the same or similar specialty and provided in the geographic region in which the item or service is furnished, consistent with the methodology established by the Secretary under paragraph (2)(B), increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over 2019, such percentage increase over 2020, and such percentage increase over 2021; and(II) for an item or service furnished during 2023 or a subsequent year, the qualifying payment amount determined under this clause for such an item or service furnished in the previous year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year.
(ii) New plans and coverageThe term “qualifying payment amount” means, with respect to a sponsor of a group health plan in a geographic region in which such sponsor, respectively, did not offer any group health plan or health insurance coverage during 2019—(I) for the first year in which such group health plan is offered in such region, a rate (determined in accordance with a methodology established by the Secretary) for items and services that are covered by such plan and furnished during such first year; and(II) for each subsequent year such group health plan is offered in such region, the qualifying payment amount determined under this clause for such items and services furnished in the previous year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year.
(iii) Insufficient information; newly covered items and servicesIn the case of a sponsor of a group health plan that does not have sufficient information to calculate the median of the contracted rates described in clause (i)(I) in 2019 (or, in the case of a newly covered item or service (as defined in clause (v)(III)), in the first coverage year (as defined in clause (v)(I)) for such item or service with respect to such plan) for an item or service (including with respect to provider type, or amount, of claims for items or services (as determined by the Secretary) provided in a particular geographic region (other than in a case with respect to which clause (ii) applies)) the term “qualifying payment amount”—(I) for an item or service furnished during 2022 (or, in the case of a newly covered item or service, during the first coverage year for such item or service with respect to such plan), means such rate for such item or service determined by the sponsor through use of any database that is determined, in accordance with rulemaking described in paragraph (2)(B), to not have any conflicts of interest and to have sufficient information reflecting allowed amounts paid to a health care provider or facility for relevant services furnished in the applicable geographic region (such as a State all-payer claims database);(II) for an item or service furnished in a subsequent year (before the first sufficient information year (as defined in clause (v)(II)) for such item or service with respect to such plan), means the rate determined under subclause (I) or this subclause, as applicable, for such item or service for the year previous to such subsequent year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year;(III) for an item or service furnished in the first sufficient information year for such item or service with respect to such plan, has the meaning given the term qualifying payment amount in clause (i)(I), except that in applying such clause to such item or service, the reference to “furnished during 2022” shall be treated as a reference to furnished during such first sufficient information year, the reference to “on January 31, 2019” shall be treated as a reference to in such sufficient information year, and the increase described in such clause shall not be applied; and(IV) for an item or service furnished in any year subsequent to the first sufficient information year for such item or service with respect to such plan, has the meaning given such term in clause (i)(II), except that in applying such clause to such item or service, the reference to “furnished during 2023 or a subsequent year” shall be treated as a reference to furnished during the year after such first sufficient information year or a subsequent year.
(iv) Insurance marketFor purposes of clause (i)(I), a health insurance market specified in this clause is one of the following:(I) The large group market (other than plans described in subclause (III)).(II) The small group market (other than plans described in subclause (III)).(III) In the case of a self-insured group health plan, other self-insured group health plans.
(v) DefinitionsFor purposes of this subparagraph:(I) First coverage year(II) First sufficient information yearThe term “first sufficient information year” means, with respect to a group health plan—(aa) in the case of an item or service for which the plan does not have sufficient information to calculate the median of the contracted rates described in clause (i)(I) in 2019, the first year subsequent to 2022 for which such sponsor has such sufficient information to calculate the median of such contracted rates in the year previous to such first subsequent year; and(bb) in the case of a newly covered item or service, the first year subsequent to the first coverage year for such item or service with respect to such plan for which the sponsor has sufficient information to calculate the median of the contracted rates described in clause (i)(I) in the year previous to such first subsequent year.(III) Newly covered item or service
(F) Nonparticipating emergency facility; participating emergency facility
(i) Nonparticipating emergency facility
(ii) Participating emergency facility
(G) Nonparticipating providers; participating providers
(i) Nonparticipating provider
(ii) Participating provider
(H) Recognized amountThe term “recognized amount” means, with respect to an item or service furnished by a nonparticipating provider or nonparticipating emergency facility during a year and a group health plan—
(i) subject to clause (iii), in the case of such item or service furnished in a State that has in effect a specified State law with respect to such plan; such a nonparticipating provider or nonparticipating emergency facility; and such an item or service, the amount determined in accordance with such law;
(ii) subject to clause (iii), in the case of such item or service furnished in a State that does not have in effect a specified State law, with respect to such plan; such a nonparticipating provider or nonparticipating emergency facility; and such an item or service, the amount that is the qualifying payment amount (as defined in subparagraph (E)) 2
2 Closing parentheses so in original.
for such year and determined in accordance with rulemaking described in paragraph (2)(B)) 2 for such item or service; or(iii) in the case of such item or service furnished in a State with an All-Payer Model Agreement under section 1115A of the Social Security Act, the amount that the State approves under such system for such item or service so furnished.
(I) Specified State law
(J) Stabilize
(K) Out-of-network rateThe term “out-of-network rate” means, with respect to an item or service furnished in a State during a year to a participant or beneficiary of a group health plan receiving such item or service from a nonparticipating provider or nonparticipating emergency facility—
(i) subject to clause (iii), in the case of such item or service furnished in a State that has in effect a specified State law with respect to such plan; such a nonparticipating provider or nonparticipating emergency facility; and such an item or service, the amount determined in accordance with such law;
(ii) subject to clause (iii), in the case such State does not have in effect such a law with respect to such item or service, plan, and provider or facility—(I) subject to subclause (II), if the provider or facility (as applicable) and such plan or coverage agree on an amount of payment (including if such agreed on amount is the initial payment sent by the plan under subsection (a)(1)(C)(iv)(I), subsection (b)(1)(C), or section 9817(a)(3)(A), as applicable, or is agreed on through open negotiations under subsection (c)(1)) with respect to such item or service, such agreed on amount; or(II) if such provider or facility (as applicable) and such plan or coverage enter the independent dispute resolution process under subsection (c) and do not so agree before the date on which a certified IDR entity (as defined in paragraph (4) of such subsection) makes a determination with respect to such item or service under such subsection, the amount of such determination; or
(iii) in the case such State has an All-Payer Model Agreement under section 1115A of the Social Security Act, the amount that the State approves under such system for such item or service so furnished.
(L) Cost-sharing
(b) Coverage of non-emergency services performed by nonparticipating providers at certain participating facilities
(1) In generalIn the case of items or services (other than emergency services to which subsection (a) applies) for which any benefits are provided or covered by a group health plan furnished to a participant or beneficiary of such plan by a nonparticipating provider (as defined in subsection (a)(3)(G)(i)) (and who, with respect to such items and services, has not satisfied the notice and consent criteria of section 2799B–2(d) of the Public Health Service Act) with respect to a visit (as defined by the Secretary in accordance with paragraph (2)(B)) at a participating health care facility (as defined in paragraph (2)(A)), with respect to such plan, the plan—
(A) shall not impose on such participant or beneficiary a cost-sharing requirement for such items and services so furnished that is greater than the cost-sharing requirement that would apply under such plan had such items or services been furnished by a participating provider (as defined in subsection (a)(3)(G)(ii));
(B) shall calculate such cost-sharing requirement as if the total amount that would have been charged for such items and services by such participating provider were equal to the recognized amount (as defined in subsection (a)(3)(H)) for such items and services, plan, and year;
(C) not later than 30 calendar days after the bill for such items or services is transmitted by such provider, shall send to the provider an initial payment or notice of denial of payment;
(D) shall pay a total plan payment directly, in accordance, if applicable, with the timing requirement described in subsection (c)(6), to such provider furnishing such items and services to such participant or beneficiary that is, with application of any initial payment under subparagraph (C), equal to the amount by which the out-of-network rate (as defined in subsection (a)(3)(K)) for such items and services exceeds the cost-sharing amount imposed under the plan for such items and services (as determined in accordance with subparagraphs (A) and (B)) and year; and
(E) shall count toward any in-network deductible and in-network out-of-pocket maximums (as applicable) applied under the plan, any cost-sharing payments made by the participant or beneficiary (and such in-network deductible and out-of-pocket maximums shall be applied) with respect to such items and services so furnished in the same manner as if such cost-sharing payments were with respect to items and services furnished by a participating provider.
(2) DefinitionsIn this section:
(A) Participating health care facility
(i) In general
(ii) Health care facility describedA health care facility described in this clause, with respect to a group health plan or health insurance coverage offered in the group or individual market, is each of the following:(I) A hospital (as defined in 1861(e) of the Social Security Act).(II) A hospital outpatient department.(III) A critical access hospital (as defined in section 1861(mm)(1) of such Act).(IV) An ambulatory surgical center described in section 1833(i)(1)(A) of such Act.(V) Any other facility, specified by the Secretary, that provides items or services for which coverage is provided under the plan or coverage, respectively.
(B) Visit
(c) Determination of out-of-network rates to be paid by health plans; independent dispute resolution process
(1) Determination through open negotiation
(A) In general
(B) Accessing independent dispute resolution process in case of failed negotiations
(2) Independent dispute resolution process available in case of failed open negotiations
(A) Establishment
(B) Authority to continue negotiations
(C) Clarification
(3) Treatment of batching of items and services
(A) In generalUnder the IDR process, the Secretary shall specify criteria under which multiple qualified IDR dispute items and services are permitted to be considered jointly as part of a single determination by an entity for purposes of encouraging the efficiency (including minimizing costs) of the IDR process. Such items and services may be so considered only if—
(i) such items and services to be included in such determination are furnished by the same provider or facility;
(ii) payment for such items and services is required to be made by the same group health plan or health insurance issuer;
(iii) such items and services are related to the treatment of a similar condition; and
(iv) such items and services were furnished during the 30 day 4
4 So in original. Probably should be “30-day”.
period following the date on which the first item or service included with respect to such determination was furnished or an alternative period as determined by the Secretary, for use in limited situations, such as by the consent of the parties or in the case of low-volume items and services, to encourage procedural efficiency and minimize health plan and provider administrative costs.(B) Treatment of bundled payments
(4) Certification and selection of IDR entities
(A) In generalThe Secretary, jointly with the Secretary of Health and Human Services and the Secretary of Labor, shall establish a process to certify (including to recertify) entities under this paragraph. Such process shall ensure that an entity so certified—
(i) has (directly or through contracts or other arrangements) sufficient medical, legal, and other expertise and sufficient staffing to make determinations described in paragraph (5) on a timely basis;
(ii) is not—(I) a group health plan, provider, or facility;(II) an affiliate or a subsidiary of such a group health plan, provider, or facility; or(III) an affiliate or subsidiary of a professional or trade association of such group health plans or of providers or facilities;
(iii) carries out the responsibilities of such an entity in accordance with this subsection;
(iv) meets appropriate indicators of fiscal integrity;
(v) maintains the confidentiality (in accordance with regulations promulgated by the Secretary) of individually identifiable health information obtained in the course of conducting such determinations;
(vi) does not under the IDR process carry out any determination with respect to which the entity would not pursuant to subclause (I), (II), or (III) of subparagraph (F)(i) be eligible for selection; and
(vii) meets such other requirements as determined appropriate by the Secretary.
(B) Period of certification
(C) Revocation
(D) Petition for denial or withdrawal
(E) Sufficient number of entities
(F) Selection of certified IDR entityThe Secretary shall, with respect to the determination of the amount of payment under this subsection of an item or service, provide for a method—
(i) that allows for the group health plan and the nonparticipating provider or the nonparticipating emergency facility (as applicable) involved in a notification under paragraph (1)(B) to jointly select, not later than the last day of the 3-business day period following the date of the initiation of the process with respect to such item or service, for purposes of making such determination, an entity certified under this paragraph that—(I) is not a party to such determination or an employee or agent of such a party;(II) does not have a material familial, financial, or professional relationship with such a party; and(III) does not otherwise have a conflict of interest with such a party (as determined by the Secretary); and
(ii) that requires, in the case such parties do not make such selection by such last day, the Secretary to, not later than 6 business days after such date of initiation—(I) select such an entity that satisfies subclauses (I) through (III) of clause (i)); and(II) provide notification of such selection to the provider or facility (as applicable) and the plan or issuer (as applicable) party to such determination.
An entity selected pursuant to the previous sentence to make a determination described in such sentence shall be referred to in this subsection as the “certified IDR entity” with respect to such determination.
(5) Payment determination
(A) In generalNot later than 30 days after the date of selection of the certified IDR entity with respect to a determination for a qualified IDR item or service, the certified IDR entity shall—
(i) taking into account the considerations specified in subparagraph (C), select one of the offers submitted under subparagraph (B) to be the amount of payment for such item or service determined under this subsection for purposes of subsection (a)(1) or (b)(1), as applicable; and
(ii) notify the provider or facility and the group health plan party to such determination of the offer selected under clause (i).
(B) Submission of offersNot later than 10 days after the date of selection of the certifed IDR entity with respect to a determination for a qualified IDR item or service, the provider or facility and the group health plan party to such determination—
(i)(I) an offer for a payment amount for such item or service furnished by such provider or facility; and(II) such information as requested by the certified IDR entity relating to such offer; and
(ii) may each submit to the certified IDR entity with respect to such determination any information relating to such offer submitted by either party, including information relating to any circumstance described in subparagraph (C)(ii).
(C) Considerations in determination
(i) In generalIn determining which offer is the payment to be applied pursuant to this paragraph, the certified IDR entity, with respect to the determination for a qualified IDR item or service shall consider—(I) the qualifying payment amounts (as defined in subsection (a)(3)(E)) for the applicable year for items or services that are comparable to the qualified IDR item or service and that are furnished in the same geographic region (as defined by the Secretary for purposes of such subsection) as such qualified IDR item or service; and(II) subject to subparagraph (D), information on any circumstance described in clause (ii), such information as requested in subparagraph (B)(i)(II), and any additional information provided in subparagraph (B)(ii).
(ii) Additional circumstancesFor purposes of clause (i)(II), the circumstances described in this clause are, with respect to a qualified IDR item or service of a nonparticipating provider, nonparticipating emergency facility, or group health plan, the following:(I) The level of training, experience, and quality and outcomes measurements of the provider or facility that furnished such item or service (such as those endorsed by the consensus-based entity authorized in section 1890 of the Social Security Act).(II) The market share held by the nonparticipating provider or facility or that of the plan or issuer in the geographic region in which the item or service was provided.(III) The acuity of the individual receiving such item or service or the complexity of furnishing such item or service to such individual.(IV) The teaching status, case mix, and scope of services of the nonparticipating facility that furnished such item or service.(V) 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 or facility, as applicable, and the plan or issuer, as applicable, during the previous 4 plan years.
(D) Prohibition on consideration of certain factors
(E) Effects of determination
(i) In generalA determination of a certified IDR entity under subparagraph (A)—(I) shall be binding upon the parties involved, in the absence of a fraudulent claim or evidence of misrepresentation of facts presented to the IDR entity involved regarding such claim; and(II) shall not be subject to judicial review, except in a case described in any of paragraphs (1) through (4) of section 10(a) of title 9, United States Code.
(ii) Suspension of certain subsequent IDR requests
(iii) Subsequent submission of requests permitted
(iv) Reports
(F) Costs of independent dispute resolution processIn the case of a notification under paragraph (1)(B) submitted by a nonparticipating provider, nonparticipating emergency facility, or group health plan and submitted to a certified IDR entity—
(i) if such entity makes a determination with respect to such notification under subparagraph (A), the party whose offer is not chosen under such subparagraph shall be responsible for paying all fees charged by such entity; and
(ii) if the parties reach a settlement with respect to such notification prior to such a determination, each party shall pay half of all fees charged by such entity, unless the parties otherwise agree.
(6) Timing of payment
(7) Publication of information relating to the IDR process
(A) Publication of informationFor each calendar quarter in 2022 and each calendar quarter in a subsequent year, the Secretary shall make available on the public website of the Department of the Treasury—
(i) the number of notifications submitted under paragraph (1)(B) during such calendar quarter;
(ii) the size of the provider practices and the size of the facilities submitting notifications under paragraph (1)(B) during such calendar quarter;
(iii) the number of such notifications with respect to which a determination was made under paragraph (5)(A);
(iv) the information described in subparagraph (B) with respect to each notification with respect to which such a determination was so made;
(v) the number of times the payment amount determined (or agreed to) under this subsection exceeds the qualifying payment amount, specified by items and services;
(vi) the amount of expenditures made by the Secretary during such calendar quarter to carry out the IDR process;
(vii) the total amount of fees paid under paragraph (8) during such calendar quarter; and
(viii) the total amount of compensation paid to certified IDR entities under paragraph (5)(F) during such calendar quarter.
(B) InformationFor purposes of subparagraph (A), the information described in this subparagraph is, with respect to a notification under paragraph (1)(B) by a nonparticipating provider, nonparticipating emergency facility, or group health plan—
(i) a description of each item and service included with respect to such notification;
(ii) the geography in which the items and services with respect to such notification were provided;
(iii) the amount of the offer submitted under paragraph (5)(B) by the group health plan and by the nonparticipating provider or nonparticipating emergency facility (as applicable) expressed as a percentage of the qualifying payment amount;
(iv) whether the offer selected by the certified IDR entity under paragraph (5) to be the payment applied was the offer submitted by such plan or by such provider or facility (as applicable) and the amount of such offer so selected expressed as a percentage of the qualifying payment amount;
(v) the category and practice specialty of each such provider or facility involved in furnishing such items and services;
(vi) the identity of the group health plan, provider, or facility, with respect to the notification;
(vii) the length of time in making each determination;
(viii) the compensation paid to the certified IDR entity with respect to the settlement or determination; and
(ix) any other information specified by the Secretary.
(C) IDR entity requirements
(D) Clarification
(8) Administrative fee
(A) In general
(B) Amount of fee
(9) Waiver authority
(d) Certain access fees to certain databases
(e) Transparency regarding in-network and out-of-network deductibles and out-of-pocket limitationsA group health plan providing or covering any benefit with respect to items or services shall include, in clear writing, on any physical or electronic plan or insurance identification card issued to the participants or beneficiaries in the plan the following:
(1) Any deductible applicable to such plan.
(2) Any out-of-pocket maximum limitation applicable to such plan.
(3) A telephone number and Internet website address through which such individual may seek consumer assistance information, such as information related to hospitals and urgent care facilities that have in effect a contractual relationship with such plan for furnishing items and services under such plan.
(f) Advanced explanation of benefits
(1) In generalFor plan years beginning on or after January 1, 2022, each group health plan shall, with respect to a notification submitted under section 2799B–6 of the Public Health Service Act by a health care provider or health care facility to the plan for a participant or beneficiary under plan scheduled to receive an item or service from the provider or facility (or authorized representative of such participant or beneficiary), not later than 1 business day (or, in the case such item or service was so scheduled at least 10 business days before such item or service is to be furnished (or in the case of a request made to such plan or coverage by such participant or beneficiary), 3 business days) after the date on which the plan receives such notification (or such request), provide to the participant or beneficiary (through mail or electronic means, as requested by the participant or beneficiary) a notification (in clear and understandable language) including the following:
(A) Whether or not the provider or facility is a participating provider or a participating facility with respect to the plan with respect to the furnishing of such item or service and—
(i) in the case the provider or facility is a participating provider or facility with respect to the plan or coverage with respect to the furnishing of such item or service, the contracted rate under such plan for such item or service (based on the billing and diagnostic codes provided by such provider or facility); and
(ii) in the case the provider or facility is a nonparticipating provider or facility with respect to such plan, a description of how such individual may obtain information on providers and facilities that, with respect to such plan, are participating providers and facilities, if any.
(B) The good faith estimate included in the notification received from the provider or facility (if applicable) based on such codes.
(C) A good faith estimate of the amount the plan is responsible for paying for items and services included in the estimate described in subparagraph (B).
(D) A good faith estimate of the amount of any cost-sharing for which the participant or beneficiary would be responsible for such item or service (as of the date of such notification).
(E) A good faith estimate of the amount that the participant or beneficiary has incurred toward meeting the limit of the financial responsibility (including with respect to deductibles and out-of-pocket maximums) under the plan (as of the date of such notification).
(F) In the case such item or service is subject to a medical management technique (including concurrent review, prior authorization, and step-therapy or fail-first protocols) for coverage under the plan, a disclaimer that coverage for such item or service is subject to such medical management technique.
(G) A disclaimer that the information provided in the notification is only an estimate based on the items and services reasonably expected, at the time of scheduling (or requesting) the item or service, to be furnished and is subject to change.
(H) Any other information or disclaimer the plan determines appropriate that is consistent with information and disclaimers required under this section.
(2) Authority to modify timing requirements in the case of specified items and services
(A) In general
(B) Specified item or service defined
(Added and amended Pub. L. 116–260, div. BB, title I, §§ 102(c)(1), 103(c), 107(c), 111(b), Dec. 27, 2020, 134 Stat. 2784, 2815, 2859, 2863.)
§ 9817. Ending surprise air ambulance bills
(a) In generalIn the case of a participant or beneficiary in a group health plan who receives air ambulance services from a nonparticipating provider (as defined in section 9816(a)(3)(G)) with respect to such plan, if such services would be covered if provided by a participating provider (as defined in such section) with respect to such plan—
(1) the cost-sharing requirement with respect to such services shall be the same requirement that would apply if such services were provided by such a participating provider, and any coinsurance or deductible shall be based on rates that would apply for such services if they were furnished by such a participating provider;
(2) such cost-sharing amounts shall be counted towards the in-network deductible and in-network out-of-pocket maximum amount under the plan for the plan year (and such in-network deductible shall be applied) with respect to such items and services so furnished in the same manner as if such cost-sharing payments were with respect to items and services furnished by a participating provider; and
(3) the group health plan shall—
(A) not later than 30 calendar days after the bill for such services is transmitted by such provider, send to the provider, an initial payment or notice of denial of payment; and
(B) pay a total plan payment, in accordance with, if applicable, subsection (b)(6), directly to such provider furnishing such services to such participant, beneficiary, or enrollee that is, with application of any initial payment under subparagraph (A), equal to the amount by which the out-of-network rate (as defined in section 9816(a)(3)(K)) for such services and year involved exceeds the cost-sharing amount imposed under the plan for such services (as determined in accordance with paragraphs (1) and (2)).
(b) Determination of out-of-network rates to be paid by health plans; independent dispute resolution process
(1) Determination through open negotiation
(A) In general
(B) Accessing independent dispute resolution process in case of failed negotiations
(2) Independent dispute resolution process available in case of failed open negotiations
(A) Establishment
(B) Authority to continue negotiations
(C) Clarification
(3) Treatment of batching of services
(4) IDR entities
(A) Eligibility
(B) Selection of certified IDR entity
(5) Payment determination
(A) In generalNot later than 30 days after the date of selection of the certified IDR entity with respect to a determination for qualified IDR ambulance services, the certified IDR entity shall—
(i) taking into account the considerations specified in subparagraph (C), select one of the offers submitted under subparagraph (B) to be the amount of payment for such services determined under this subsection for purposes of subsection (a)(3); and
(ii) notify the provider or facility and the group health plan party to such determination of the offer selected under clause (i).
(B) Submission of offersNot later than 10 days after the date of selection of the certified IDR entity with respect to a determination for qualified IDR air ambulance services, the provider and the group health plan party to such determination—
(i) shall each submit to the certified IDR entity with respect to such determination—(I) an offer for a payment amount for such services furnished by such provider; and(II) such information as requested by the certified IDR entity relating to such offer; and
(ii) may each submit to the certified IDR entity with respect to such determination any information relating to such offer submitted by either party, including information relating to any circumstance described in subparagraph (C)(ii).
(C) Considerations in determination
(i) In generalIn determining which offer is the payment to be applied pursuant to this paragraph, the certified IDR entity, with respect to the determination for a qualified IDR air ambulance service shall consider—(I) the qualifying payment amounts (as defined in section 9816(a)(3)(E)) for the applicable year for items or services that are comparable to the qualified IDR air ambulance service and that are furnished in the same geographic region (as defined by the Secretary for purposes of such subsection) as such qualified IDR air ambulance service; and(II) subject to clause (iii), information on any circumstance described in clause (ii), such information as requested in subparagraph (B)(i)(II), and any additional information provided in subparagraph (B)(ii).
(ii) Additional circumstancesFor purposes of clause (i)(II), the circumstances described in this clause are, with respect to air ambulance services included in the notification submitted under paragraph (1)(B) of a nonparticipating provider, or group health plan the following:(I) The quality and outcomes measurements of the provider that furnished such services.(II) The acuity of the individual receiving such services or the complexity of furnishing such services to such individual.(III) The training, experience, and quality of the medical personnel that furnished such services.(IV) Ambulance vehicle type, including the clinical capability level of such vehicle.(V) Population density of the pick up location (such as urban, suburban, rural, or frontier).(VI) Demonstrations of good faith efforts (or lack of good faith efforts) made by the nonparticipating provider or nonparticipating facility or the plan to enter into network agreements and, if applicable, contracted rates between the provider and the plan during the previous 4 plan years.
(iii) Prohibition on consideration of certain factors
(D) Effects of determination
(E) Costs of independent dispute resolution process
(6) Timing of payment
(7) Publication of information relating to the IDR process
(A) In generalFor each calendar quarter in 2022 and each calendar quarter in a subsequent year, the Secretary shall publish on the public website of the Department of the Treasury—
(i) the number of notifications submitted under the IDR process during such calendar quarter;
(ii) the number of such notifications with respect to which a final determination was made under paragraph (5)(A);
(iii) the information described in subparagraph (B) with respect to each notification with respect to which such a determination was so made.2
2 So in original. The period probably should be a semicolon.
(iv) the number of times the payment amount determined (or agreed to) under this subsection exceeds the qualifying payment amount;
(v) the amount of expenditures made by the Secretary during such calendar quarter to carry out the IDR process;
(vi) the total amount of fees paid under paragraph (8) during such calendar quarter; and
(vii) the total amount of compensation paid to certified IDR entities under paragraph (5)(E) during such calendar quarter.
(B) Information with respect to requestsFor purposes of subparagraph (A), the information described in this subparagraph is, with respect to a notification under the IDR process of a nonparticipating provider, or group health plan—
(i) a description of each air ambulance service included in such notification;
(ii) the geography in which the services included in such notification were provided;
(iii) the amount of the offer submitted under paragraph (2) by the group health plan and by the nonparticipating provider expressed as a percentage of the qualifying payment amount;
(iv) whether the offer selected by the certified IDR entity under paragraph (5) to be the payment applied was the offer submitted by such plan or issuer (as applicable) or by such provider and the amount of such offer so selected expressed as a percentage of the qualifying payment amount;
(v) ambulance vehicle type, including the clinical capability level of such vehicle;
(vi) the identity of the group health plan or health insurance issuer or air ambulance provider with respect to such notification;
(vii) the length of time in making each determination;
(viii) the compensation paid to the certified IDR entity with respect to the settlement or determination; and
(ix) any other information specified by the Secretary.
(C) IDR entity requirements
(D) Clarification
(8) Administrative fee
(A) In general
(B) Amount of fee
(9) Waiver authority
(c) DefinitionsFor purposes of this section:
(1) Air ambulance services
(2) Qualifying payment amount
(3) Nonparticipting provider
(Added Pub. L. 116–260, div. BB, title I, § 105(a)(3)(A), Dec. 27, 2020, 134 Stat. 2844.)
§ 9818. Continuity of care
(a) Ensuring continuity of care with respect to terminations of certain contractual relationships resulting in changes in provider network status
(1) In generalIn the case of an individual with benefits under a group health plan and with respect to a health care provider or facility that has a contractual relationship with such plan for furnishing items and services under such plan, if, while such individual is a continuing care patient (as defined in subsection (b)) with respect to such provider or facility—
(A) such contractual relationship is terminated (as defined in paragraph (b));
(B) benefits provided under such plan with respect to such provider or facility are terminated because of a change in the terms of the participation of such provider or facility in such plan; or
(C) a contract between such group health plan and a health insurance issuer offering health insurance coverage in connection with such plan is terminated, resulting in a loss of benefits provided under such plan with respect to such provider or facility;
the plan shall meet the requirements of paragraph (2) with respect to such individual.
(2) RequirementsThe requirements of this paragraph are that the plan—
(A) notify each individual enrolled under such plan who is a continuing care patient with respect to a provider or facility at the time of a termination described in paragraph (1) affecting such provider on a timely basis of such termination and such individual’s right to elect continued transitional care from such provider or facility under this section;
(B) provide such individual with an opportunity to notify the plan of the individual’s need for transitional care; and
(C) permit the patient to elect to continue to have benefits provided under such plan, under the same terms and conditions as would have applied and with respect to such items and services as would have been covered under such plan had such termination not occurred, with respect to the course of treatment furnished by such provider or facility relating to such individual’s status as a continuing care patient during the period beginning on the date on which the notice under subparagraph (A) is provided and ending on the earlier of—
(i) the 90-day period beginning on such date; or
(ii) the date on which such individual is no longer a continuing care patient with respect to such provider or facility.
(b) DefinitionsIn this section:
(1) Continuing care patientThe term “continuing care patient” means an individual who, with respect to a provider or facility—
(A) is undergoing a course of treatment for a serious and complex condition from the provider or facility;
(B) is undergoing a course of institutional or inpatient care from the provider or facility;
(C) is scheduled to undergo nonelective surgery from the provider or facility, including receipt of postoperative care from such provider or facility with respect to such a surgery;
(D) is pregnant and undergoing a course of treatment for the pregnancy from the provider or facility; or
(E) is or was determined to be terminally ill (as determined under section 1861(dd)(3)(A) of the Social Security Act) and is receiving treatment for such illness from such provider or facility.
(2) Serious and complex conditionThe term “serious and complex condition” means, with respect to a participant or beneficiary under a group health plan—
(A) in the case of an acute illness, a condition that is serious enough to require specialized medical treatment to avoid the reasonable possibility of death or permanent harm; or
(B) in the case of a chronic illness or condition, a condition that—
(i) is life-threatening, degenerative, potentially disabling, or congenital; and
(ii) requires specialized medical care over a prolonged period of time.
(3) Terminated
(Added Pub. L. 116–260, div. BB, title I, § 113(b)(1), Dec. 27, 2020, 134 Stat. 2870.)
§ 9819. Maintenance of price comparison tool
A group health plan shall offer price comparison guidance by telephone and make available on the Internet website of the plan or issuer a price comparison tool that (to the extent practicable) allows an individual enrolled under such plan, with respect to such plan year, such geographic region, and participating providers with respect to such plan or coverage, to compare the amount of cost-sharing that the individual would be responsible for paying under such plan with respect to the furnishing of a specific item or service by any such provider.
(Added Pub. L. 116–260, div. BB, title I, § 114(b)(1), Dec. 27, 2020, 134 Stat. 2874.)
§ 9820. Protecting patients and improving the accuracy of provider directory information
(a) Provider directory information requirements
(1) In generalFor plan years beginning on or after January 1, 2022, each group health plan shall—
(A) establish the verification process described in paragraph (2);
(B) establish the response protocol described in paragraph (3);
(C) establish the database described in paragraph (4); and
(D) include in any directory (other than the database described in subparagraph (C)) containing provider directory information with respect to such plan the information described in paragraph (5).
(2) Verification processThe verification process described in this paragraph is, with respect to a group health plan, a process—
(A) under which, not less frequently than once every 90 days, such plan verifies and updates the provider directory information included on the database described in paragraph (4) of such plan or issuer of each health care provider and health care facility included in such database;
(B) that establishes a procedure for the removal of such a provider or facility with respect to which such plan or issuer has been unable to verify such information during a period specified by the plan or issuer; and
(C) that provides for the update of such database within 2 business days of such plan or issuer receiving from such a provider or facility information pursuant to section 2799B–9 of the Public Health Service Act.
(3) Response protocolThe response protocol described in this paragraph is, in the case of an individual enrolled under a group health plan who requests information through a telephone call or electronic, web-based, or Internet-based means on whether a health care provider or health care facility has a contractual relationship to furnish items and services under such plan, a protocol under which such plan or such issuer (as applicable), in the case such request is made through a telephone call—
(A) responds to such individual as soon as practicable and in no case later than 1 business day after such call is received, through a written electronic or print (as requested by such individual) communication; and
(B) retains such communication in such individual’s file for at least 2 years following such response.
(4) DatabaseThe database described in this paragraph is, with respect to a group health plan, a database on the public website of such plan or issuer that contains—
(A) a list of each health care provider and health care facility with which such plan or such issuer has a direct or indirect contractual relationship for furnishing items and services under such plan; and
(B) provider directory information with respect to each such provider and facility.
(5) Information
(6) Definition
(7) Rule of construction
(b) Cost-sharing for services provided based on reliance on incorrect provider network information
(1) In generalFor plan years beginning on or after January 1, 2022, in the case of an item or service furnished to a participant or beneficiary of a group health plan by a nonparticipating provider or a nonparticipating facility, if such item or service would otherwise be covered under such plan if furnished by a participating provider or participating facility and if either of the criteria described in paragraph (2) applies with respect to such participant or beneficiary and item or service, the plan—
(A) shall not impose on such participant or beneficiary a cost-sharing amount for such item or service so furnished that is greater than the cost-sharing amount that would apply under such plan had such item or service been furnished by a participating provider; and
(B) shall apply the deductible or out-of-pocket maximum, if any, that would apply if such services were furnished by a participating provider or a participating facility.
(2) Criteria describedFor purposes of paragraph (1), the criteria described in this paragraph, with respect to an item or service furnished to a participant or beneficiary of a group health plan by a nonparticipating provider or a nonparticipating facility, are the following:
(A) The participant or beneficiary received through a database, provider directory, or response protocol described in subsection (a) information with respect to such item and service to be furnished and such information provided that the provider was a participating provider or facility was a participating facility, with respect to the plan for furnishing such item or service.
(B) The information was not provided, in accordance with subsection (a), to the participant or beneficiary and the participant or beneficiary requested through the response protocol described in subsection (a)(3) of the plan information on whether the provider was a participating provider or facility was a participating facility with respect to the plan for furnishing such item or service and was informed through such protocol that the provider was such a participating provider or facility was such a participating facility.
(c) Disclosure on patient protections against balance billingFor plan years beginning on or after January 1, 2022, each group health plan shall make publicly available, post on a public website of such plan or issuer, and include on each explanation of benefits for an item or service with respect to which the requirements under section 9816 applies—
(1) information in plain language on—
(A) the requirements and prohibitions applied under sections 2799B–1 and 2799B–2 of the Public Health Service Act (relating to prohibitions on balance billing in certain circumstances);
(B) if provided for under applicable State law, any other requirements on providers and facilities regarding the amounts such providers and facilities may, with respect to an item or service, charge a participant or beneficiary of such plan with respect to which such a provider or facility does not have a contractual relationship for furnishing such item or service under the plan after receiving payment from the plan for such item or service and any applicable cost sharing payment from such participant or beneficiary; and
(C) the requirements applied under section 9816; and
(2) information on contacting appropriate State and Federal agencies in the case that an individual believes that such a provider or facility has violated any requirement described in paragraph (1) with respect to such individual.
(Added Pub. L. 116–260, div. BB, title I, § 116(c), Dec. 27, 2020, 134 Stat. 2884.)
§ 9822.1
1 So in original. No section 9821 has been enacted.
Other patient protections(a) Choice of health care professional
(b) Access to pediatric care
(1) Pediatric care
(2) Construction
(c) Patient access to obstetrical and gynecological care
(1) General rights
(A) Direct access
(B) Obstetrical and gynecological care
(2) Application of paragraph
A group health plan described in this paragraph is a group health plan that—
(A) provides coverage for obstetric or gynecologic care; and
(B) requires the designation by a participant or beneficiary of a participating primary care provider.
(3) Construction
Nothing in paragraph (1) shall be construed to—
(A) waive any exclusions of coverage under the terms and conditions of the plan with respect to coverage of obstetrical or gynecological care; or
(B) preclude the group health plan involved from requiring that the obstetrical or gynecological provider notify the primary care health care professional or the plan or issuer of treatment decisions.
(Added Pub. L. 116–260, div. BB, title I, § 102(c)(2), Dec. 27, 2020, 134 Stat. 2795.)
§ 9823. Air ambulance report requirements
(a) In generalEach group health plan shall submit to the Secretary, jointly with the Secretary of Labor and the Secretary of Health and Human Services—
(1) not later than the date that is 90 days after the last day of the first calendar year beginning on or after the date on which a final rule is promulgated pursuant to the rulemaking described in section 106(d) of the No Surprises Act, the information described in subsection (b) with respect to such plan year; and
(2) not later than the date that is 90 days after the last day of the calendar year immediately succeeding the plan year described in paragraph (1), such information with respect to such immediately succeeding plan year.
(b) Information describedFor purposes of subsection (a), information described in this subsection, with respect to a group health plan is each of the following:
(1) Claims data for air ambulance services furnished by providers of such services, disaggregated by each of the following factors:
(A) Whether such services were furnished on an emergent or nonemergent basis.
(B) Whether the provider of such services is part of a hospital-owned or sponsored program, municipality-sponsored program, hospital independent partnership (hybrid) program, independent program, or tribally operated program in Alaska.
(C) Whether the transport in which the services were furnished originated in a rural or urban area.
(D) The type of aircraft (such as rotor transport or fixed wing transport) used to furnish such services.
(E) Whether the provider of such services has a contract with the plan or issuer, as applicable, to furnish such services under the plan or coverage, respectively.
(2) Such other information regarding providers of air ambulance services as the Secretary may specify.
(Added Pub. L. 116–260, div. BB, title I, § 106(b)(3)(A), Dec. 27, 2020, 134 Stat. 2854.)
§ 9824. Increasing transparency by removing gag clauses on price and quality information
(a)1
1 So in original. There is no subsec. (b).
Increasing price and quality transparency for plan sponsors and consumers(1) In generalA group health plan may not enter into an agreement with a health care provider, network or association of providers, third-party administrator, or other service provider offering access to a network of providers that would directly or indirectly restrict a group health plan from—
(A) providing provider-specific cost or quality of care information or data, through a consumer engagement tool or any other means, to referring providers, the plan sponsor, participants or beneficiaries, or individuals eligible to become participants or beneficiaries of the plan;
(B) electronically accessing de-identified claims and encounter information or data for each participant or beneficiary in the plan, upon request and consistent with the privacy regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act of 1996, the amendments made by the Genetic Information Nondiscrimination Act of 2008, and the Americans with Disabilities Act of 1990, including, on a per claim basis—
(i) financial information, such as the allowed amount, or any other claim-related financial obligations included in the provider contract;
(ii) provider information, including name and clinical designation;
(iii) service codes; or
(iv) any other data element included in claim or encounter transactions; or
(C) sharing information or data described in subparagraph (A) or (B), or directing that such data be shared, with a business associate as defined in section 160.103 of title 45, Code of Federal Regulations (or successor regulations), consistent with the privacy regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act of 1996, the amendments made by the Genetic Information Nondiscrimination Act of 2008, and the Americans with Disabilities Act of 1990.
(2) Clarification regarding public disclosure of information
(3) Attestation
(4) Rules of construction
(Added Pub. L. 116–260, div. BB, title II, § 201(c), Dec. 27, 2020, 134 Stat. 2893.)
§ 9825. Reporting on pharmacy benefits and drug costs
(a) In generalNot later than 1 year after the date of enactment of the Consolidated Appropriations Act, 2021, and not later than June 1 of each year thereafter, a group health plan shall submit to the Secretary, the Secretary of Health and Human Services, and the Secretary of Labor the following information with respect to the health plan in the previous plan year:
(1) The beginning and end dates of the plan year.
(2) The number of participants and beneficiaries.
(3) Each State in which the plan is offered.
(4) The 50 brand prescription drugs most frequently dispensed by pharmacies for claims paid by the plan, and the total number of paid claims for each such drug.
(5) The 50 most costly prescription drugs with respect to the plan by total annual spending, and the annual amount spent by the plan for each such drug.
(6) The 50 prescription drugs with the greatest increase in plan expenditures over the plan year preceding the plan year that is the subject of the report, and, for each such drug, the change in amounts expended by the plan in each such plan year.
(7) Total spending on health care services by such group health plan, broken down by—
(A) the type of costs, including—
(i) hospital costs;
(ii) health care provider and clinical service costs, for primary care and specialty care separately;
(iii) costs for prescription drugs; and
(iv) other medical costs, including wellness services; and
(B) spending on prescription drugs by—
(i) the health plan; and
(ii) the participants and beneficiaries.
(8) The average monthly premium—
(A) paid by employers on behalf of participants and beneficiaries, as applicable; and
(B) paid by participants and beneficiaries.
(9) Any impact on premiums by rebates, fees, and any other remuneration paid by drug manufacturers to the plan or its administrators or service providers, with respect to prescription drugs prescribed to participants or beneficiaries in the plan, including—
(A) the amounts so paid for each therapeutic class of drugs; and
(B) the amounts so paid for each of the 25 drugs that yielded the highest amount of rebates and other remuneration under the plan from drug manufacturers during the plan year.
(10) Any reduction in premiums and out-of-pocket costs associated with rebates, fees, or other remuneration described in paragraph (9).
(b) Report
(c) Privacy protections
(Added Pub. L. 116–260, div. BB, title II, § 204(c), Dec. 27, 2020, 134 Stat. 2920.)