Editor's Note: Sec. 9816, added and
amended by Pub. L. 116-260, Div.
BB, Sec. 102(c)(1), 103(c)(1), 103(c)(2) and 107(c), is effective
for plan years beginning on or after January 1, 2022. Sec. 9816(f),
added by Pub. L. 116-260, Div.
BB, Sec. 111(b), is effective December 27, 2020
I.R.C. § 9816(a) Coverage of Emergency Services
I.R.C. § 9816(a)(1) In General —
If 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))—
I.R.C. § 9816(a)(1)(A) —
without the need for any prior authorization
determination;
I.R.C. § 9816(a)(1)(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;
I.R.C. § 9816(a)(1)(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.R.C. § 9816(a)(1)(C)(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;
I.R.C. § 9816(a)(1)(C)(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;
I.R.C. § 9816(a)(1)(C)(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;
I.R.C. § 9816(a)(1)(C)(iv) —
the group health plan—
I.R.C. § 9816(a)(1)(C)(iv)(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
I.R.C. § 9816(a)(1)(C)(iv)(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
I.R.C. § 9816(a)(1)(C)(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
I.R.C. § 9816(a)(1)(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).
I.R.C. § 9816(a)(2) Audit Process And Regulations For Qualifying Payment Amounts
I.R.C. § 9816(a)(2)(A) Audit Process
I.R.C. § 9816(a)(2)(A)(i) In General —
Not 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.R.C. § 9816(a)(2)(A)(i)(I) —
such plans are in compliance with the
requirement of applying a qualifying payment amount under this section;
and
I.R.C. § 9816(a)(2)(A)(i)(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).
I.R.C. § 9816(a)(2)(A)(ii) Audit Samples —
Under the process established pursuant to clause (i),
the Secretary—
I.R.C. § 9816(a)(2)(A)(ii)(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
I.R.C. § 9816(a)(2)(A)(ii)(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.
I.R.C. § 9816(a)(2)(A)(iii) Reports —
Beginning for 2022, the Secretary shall annually submit
to Congress a report on the number of plans and issuers with respect
to which audits were conducted during such year pursuant to this subparagraph.
I.R.C. § 9816(a)(2)(B) Rulemaking —
Not 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.R.C. § 9816(a)(2)(B)(i) —
the methodology the group health plan
shall use to determine the qualifying payment amount, differentiating
by large group market and small group market;
I.R.C. § 9816(a)(2)(B)(ii) —
the information such plan or issuer,
respectively, shall share with the nonparticipating provider or nonparticipating
facility, as applicable, when making such a determination;
I.R.C. § 9816(a)(2)(B)(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
I.R.C. § 9816(a)(2)(B)(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.
I.R.C. § 9816(a)(3) Definitions —
In this subchapter:
I.R.C. § 9816(a)(3)(A) Emergency Department of a Hospital —
The term “emergency department of a hospital”
includes a hospital outpatient department that provides emergency
services (as defined in subparagraph (C)(i)).
I.R.C. § 9816(a)(3)(B) Emergency Medical Condition —
The term “emergency medical condition” means
a medical condition manifesting itself by acute symptoms of sufficient
severity (including severe pain) such that a prudent layperson, who
possesses an average knowledge of health and medicine, could reasonably
expect the absence of immediate medical attention to result in a condition
described in clause (i), (ii), or (iii) of section 1867(e)(1)(A) of the Social Security
Act.
I.R.C. § 9816(a)(3)(C) Emergency Services
I.R.C. § 9816(a)(3)(C)(i) In General —
The term “emergency services”, with respect
to an emergency medical condition, means—
I.R.C. § 9816(a)(3)(C)(i)(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
I.R.C. § 9816(a)(3)(C)(i)(II) —
within the capabilities of the staff
and facilities available at the hospital or the independent free-standing
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).
I.R.C. § 9816(a)(3)(C)(ii) Inclusion of Additional Services
I.R.C. § 9816(a)(3)(C)(ii)(I) In General —
For 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—
I.R.C. § 9816(a)(3)(C)(ii)(I)(aa) —
for which benefits are provided or
covered under the plan; and
I.R.C. § 9816(a)(3)(C)(ii)(I)(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.
I.R.C. § 9816(a)(3)(C)(ii)(II) Conditions —
For 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;
I.R.C. § 9816(a)(3)(C)(ii)(II)(aa) —
Such provider or facility determines
such individual is able to travel using nonmedical transportation
or nonemergency medical transportation.
I.R.C. § 9816(a)(3)(C)(ii)(II)(bb) —
Such provider furnishing such additional
items and services satisfies the notice and consent criteria of
section 2799B–2(d) with respect to such items and services.
I.R.C. § 9816(a)(3)(C)(ii)(II)(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 and to provide informed consent under such section,
in accordance with applicable State law.
I.R.C. § 9816(a)(3)(C)(ii)(II)(dd) —
Such other conditions, as specified
by the Secretary, such as conditions relating to coordinating care
transitions to participating providers and facilities.
I.R.C. § 9816(a)(3)(D) Independent Freestanding Emergency Department —
The term “independent freestanding emergency department”
means a health care facility that—
I.R.C. § 9816(a)(3)(D)(i) —
is geographically separate and distinct
and licensed separately from a hospital under applicable State law;
and
I.R.C. § 9816(a)(3)(D)(ii) —
provides any of the emergency services
(as defined in subparagraph (C)(i)).
I.R.C. § 9816(a)(3)(E) Qualifying Payment Amount
I.R.C. § 9816(a)(3)(E)(i) In General —
The term “qualifying payment amount” means,
subject to clauses (ii) and (iii), with respect to a sponsor of a
group health plan—
I.R.C. § 9816(a)(3)(E)(i)(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
I.R.C. § 9816(a)(3)(E)(i)(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.
I.R.C. § 9816(a)(3)(E)(ii) New Plans and Coverage —
The 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.R.C. § 9816(a)(3)(E)(ii)(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
I.R.C. § 9816(a)(3)(E)(ii)(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.
I.R.C. § 9816(a)(3)(E)(iii) Insufficient Information; Newly Covered Items and Services —
In 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.R.C. § 9816(a)(3)(E)(iii)(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);
I.R.C. § 9816(a)(3)(E)(iii)(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;
I.R.C. § 9816(a)(3)(E)(iii)(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
I.R.C. § 9816(a)(3)(E)(iii)(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.
I.R.C. § 9816(a)(3)(E)(iv) Insurance Market —
For purposes of clause (i)(I), a health insurance market
specified in this clause is one of the following:
I.R.C. § 9816(a)(3)(E)(iv)(I) —
The large group market (other than plans
described in subclause (III)).
I.R.C. § 9816(a)(3)(E)(iv)(II) —
The small group market (other than plans
described in subclause (III)). The small group market (other than
plans described in subclause (III)).
I.R.C. § 9816(a)(3)(E)(iv)(III) —
In the case of a self-insured group
health plan, other self-insured group health plans.
I.R.C. § 9816(a)(3)(E)(v) Definitions
I.R.C. § 9816(a)(3)(E)(v)(I) First Coverage Year —
The term “first coverage year” means, with
respect to a group health plan and an item or service for which coverage
is not offered in 2019 under such plan or coverage, the first year
after 2019 for which coverage for such item or service is offered
under such plan.
I.R.C. § 9816(a)(3)(E)(v)(II) First Sufficient Information Year —
The term “first sufficient information year”
means, with respect to a group health plan—
I.R.C. § 9816(a)(3)(E)(v)(II)(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
I.R.C. § 9816(a)(3)(E)(v)(II)(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.
I.R.C. § 9816(a)(3)(E)(v)(III) Newly Covered Item or Service —
The term “newly covered item or service”
means, with respect to a group health plan, an item or service for
which coverage was not offered in 2019 under such plan or coverage,
but is offered under such plan or coverage in a year after 2019.
I.R.C. § 9816(a)(3)(F) Nonparticipating Emergency Facility; Participating Emergency
Facility
I.R.C. § 9816(a)(3)(F)(i) Nonparticipating Emergency Facility —
The term “nonparticipating emergency facility”
means, with respect to an item or service and a group health plan,
an emergency department of a hospital, or an independent freestanding
emergency department, that does not have a contractual relationship
directly or indirectly with the plan for furnishing such item or
service under the plan.
I.R.C. § 9816(a)(3)(F)(ii) Participating Emergency Facility —
The term “participating emergency facility”
means, with respect to an item or service and a group health plan,
an emergency department of a hospital, or an independent freestanding
emergency department, that has a contractual relationship directly
or indirectly with the plan, with respect to the furnishing of such
an item or service at such facility.
I.R.C. § 9816(a)(3)(G) Nonparticipating Providers; Participating Providers
I.R.C. § 9816(a)(3)(G)(i) Nonparticipating Provider —
The term “nonparticipating provider” means,
with respect to an item or service and a group health plan, a physician
or other health care provider who is acting within the scope of practice
of that provider's license or certification under applicable
State law and who does not have a contractual relationship with the
plan or issuer, respectively, for furnishing such item or service
under the plan.
I.R.C. § 9816(a)(3)(G)(ii) Participating Provider —
The term “participating provider” means,
with respect to an item or service and a group health plan, a physician
or other health care provider who is acting within the scope of
practice of that provider's license or certification under applicable
State law and who has a contractual relationship with the plan for
furnishing such item or service under the plan.
I.R.C. § 9816(a)(3)(H) Recognized Amount —
The 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.R.C. § 9816(a)(3)(H)(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;
I.R.C. § 9816(a)(3)(H)(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)) for such year and determined
in accordance with rulemaking described in paragraph (2)(B)) for such
item or service; or
I.R.C. § 9816(a)(3)(H)(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.R.C. § 9816(a)(3)(I) Specified State Law —
The term “specified State law” means, with
respect to a State, an item or service furnished by a nonparticipating
provider or nonparticipating emergency facility during a year and
a group health plan, a State law that provides for a method for
determining the total amount payable under such a plan (to the extent
such State law applies to such plan, subject to section 514) in the case of a participant
or beneficiary covered under such plan and receiving such item or
service from such a nonparticipating provider or nonparticipating
emergency facility.
I.R.C. § 9816(a)(3)(J) Stabilize —
The term “to stabilize”, with respect to
an emergency medical condition (as defined in subparagraph (B)), has
the meaning give in section 1867(e)(3) of
the Social Security Act (42 U.S.C.
1395dd(e)(3)).
I.R.C. § 9816(a)(3)(K) Out-of-Network Rate —
The 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.R.C. § 9816(a)(3)(K)(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;
I.R.C. § 9816(a)(3)(K)(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.R.C. § 9816(a)(3)(K)(ii)(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
I.R.C. § 9816(a)(3)(K)(ii)(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
I.R.C. § 9816(a)(3)(K)(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.
I.R.C. § 9816(a)(3)(L) Cost-Sharing —
The term “cost-sharing” includes copayments,
coinsurance, and deductibles.
I.R.C. § 9816(b) Coverage of Non-Emergency Services Performed by Nonparticipating
Providers at Certain Participating Facilities
I.R.C. § 9816(b)(1) In General —
In 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—
I.R.C. § 9816(b)(1)(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));
I.R.C. § 9816(b)(1)(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;
I.R.C. § 9816(b)(1)(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;
I.R.C. § 9816(b)(1)(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
I.R.C. § 9816(b)(1)(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.
I.R.C. § 9816(b)(2) Definitions —
In this section:
I.R.C. § 9816(b)(2)(A) Participating Health Care Facility
I.R.C. § 9816(b)(2)(A)(i) In General —
The term “participating health care facility”
means, with respect to an item or service and a group health plan,
a health care facility described in clause (ii) that has a direct
or indirect contractual relationship with the plan, with respect to
the furnishing of such an item or service at the facility.
I.R.C. § 9816(b)(2)(A)(ii) Health Care Facility Described —
A 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.R.C. § 9816(b)(2)(A)(ii)(I) —
A hospital (as defined in 1861(e) of
the Social Security Act).
I.R.C. § 9816(b)(2)(A)(ii)(II) —
A hospital outpatient department.
I.R.C. § 9816(b)(2)(A)(ii)(III) —
A critical access hospital (as defined
in section 1861(mm)(1) of such Act).
I.R.C. § 9816(b)(2)(A)(ii)(IV) —
An ambulatory surgical center described
in section 1833(i)(1)(A) of such Act.
I.R.C. § 9816(b)(2)(A)(ii)(V) —
Any other facility, specified by the
Secretary, that provides items or services for which coverage is
provided under the plan or coverage, respectively.
I.R.C. § 9816(b)(2)(B) Visit —
The term “visit“ shall, with respect to items
and services furnished to an individual at a health care facility,
include equipment and devices, telemedicine services, imaging services,
laboratory services, preoperative and postoperative services, and
such other items and services as the Secretary may specify, regardless
of whether or not the provider furnishing such items or services is
at the facility.
I.R.C. § 9816(c) Determination of Out-of-Network Rates To Be Paid by Health Plans;
Independent Dispute Resolution Process
I.R.C. § 9816(c)(1) Determination Through Open Negotiation
I.R.C. § 9816(c)(1)(A) In General —
With respect to an item or service furnished in a year
by a nonparticipating provider or a nonparticipating facility, with
respect to a group health plan, in a State described in subsection
(a)(3)(K)(ii) with respect to such plan and provider or facility,
and for which a payment is required to be made by the plan pursuant
to subsection (a)(1) or (b)(1), the provider or facility (as applicable)
or plan may, during the 30-day period beginning on the day the provider
or facility receives an initial payment or a notice of denial of payment
from the plan regarding a claim for payment for such item or service,
initiate open negotiations under this paragraph between such provider
or facility and plan for purposes of determining, during the open
negotiation period, an amount agreed on by such provider or facility,
respectively, and such plan for payment (including any cost-sharing)
for such item or service. For purposes of this subsection, the open
negotiation period, with respect to an item or service, is the 30-day
period beginning on the date of initiation of the negotiations with
respect to such item or service.
I.R.C. § 9816(c)(1)(B) Accessing Independent Dispute Resolution Process in Case of
Failed Negotiations —
In the case of open negotiations pursuant to subparagraph
(A), with respect to an item or service, that do not result in a determination
of an amount of payment for such item or service by the last day of
the open negotiation period described in such subparagraph with respect
to such item or service, the provider or facility (as applicable)
or group health plan that was party to such negotiations may, during
the 4-day period beginning on the day after such open negotiation
period, initiate the independent dispute resolution process under
paragraph (2) with respect to such item or service. The independent
dispute resolution process shall be initiated by a party pursuant
to the previous sentence by submission to the other party and to the
Secretary of a notification (containing such information as specified
by the Secretary) and for purposes of this subsection, the date of
initiation of such process shall be the date of such submission or
such other date specified by the Secretary pursuant to regulations
that is not later than the date of receipt of such notification by
both the other party and the Secretary.
I.R.C. § 9816(c)(2) Independent Dispute Resolution Process Available in Case of
Failed Open Negotiations
I.R.C. § 9816(c)(2)(A) Establishment —
Not later than 1 year after the date of the enactment
of this subsection, the Secretary, jointly with the Secretary of Health
and Human Services and the Secretary of Labor, shall establish by
regulation one independent dispute resolution process (referred to
in this subsection as the “IDR process”) under which,
in the case of an item or service with respect to which a provider
or facility (as applicable) or group health plan submits a notification
under paragraph (1)(B) (in this subsection referred to as a “qualified
IDR item or service”), a certified IDR entity under paragraph
(4) determines, subject to subparagraph (B) and in accordance with
the succeeding provisions of this subsection, the amount of payment
under the plan for such item or service furnished by such provider
or facility.
I.R.C. § 9816(c)(2)(B) Authority To Continue Negotiations —
Under the independent dispute resolution process, in
the case that the parties to a determination for a qualified IDR item
or service agree on a payment amount for such item or service during
such process but before the date on which the entity selected with
respect to such determination under paragraph (4) makes such determination
under paragraph (5), such amount shall be treated for purposes of
subsection (a)(3)(K)(ii) as the amount agreed to by such parties for
such item or service. In the case of an agreement described in the
previous sentence, the independent dispute resolution process shall
provide for a method to determine how to allocate between the parties
to such determination the payment of the compensation of the entity
selected with respect to such determination.
I.R.C. § 9816(c)(2)(C) Clarification —
A nonparticipating provider may not, with respect to
an item or service furnished by such provider, submit a notification
under paragraph (1)(B) if such provider is exempt from the requirement
under subsection (a) of section 2799B–2 of the Public Health
Service Act with respect to such item or service pursuant to subsection
(b) of such section.
I.R.C. § 9816(c)(3) Treatment of Batching of Items and Services
I.R.C. § 9816(c)(3)(A) In General —
Under 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.R.C. § 9816(c)(3)(A)(i) —
such items and services to be included
in such determination are furnished by the same provider or facility;
I.R.C. § 9816(c)(3)(A)(ii) —
payment for such items and services
is required to be made by the same group health plan or health insurance
issuer;
I.R.C. § 9816(c)(3)(A)(iii) —
such items and services are related
to the treatment of a similar condition; and
I.R.C. § 9816(c)(3)(A)(iv) —
such items and services were furnished
during the 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.
I.R.C. § 9816(c)(3)(B) Treatment of Bundled Payments —
In carrying out subparagraph (A), the Secretary shall
provide that, in the case of items and services which are included
by a provider or facility as part of a bundled payment, such items
and services included in such bundled payment may be part of a single
determination under this subsection.
I.R.C. § 9816(c)(4) Certification And Selection of IDR Entities
I.R.C. § 9816(c)(4)(A) In General —
The 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.R.C. § 9816(c)(4)(A)(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;
I.R.C. § 9816(c)(4)(A)(ii) —
is not—
I.R.C. § 9816(c)(4)(A)(ii)(I) —
a group health plan, provider, or facility;
I.R.C. § 9816(c)(4)(A)(ii)(II) —
an affiliate or a subsidiary of such
a group health plan, provider, or facility; or
I.R.C. § 9816(c)(4)(A)(ii)(III) —
an affiliate or subsidiary of a professional
or trade association of such group health plans or of providers or
facilities;
I.R.C. § 9816(c)(4)(A)(iii) —
carries out the responsibilities of
such an entity in accordance with this subsection;
I.R.C. § 9816(c)(4)(A)(iv) —
meets appropriate indicators of fiscal
integrity;
I.R.C. § 9816(c)(4)(A)(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;
I.R.C. § 9816(c)(4)(A)(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
I.R.C. § 9816(c)(4)(A)(vii) —
meets such other requirements as determined
appropriate by the Secretary.
I.R.C. § 9816(c)(4)(B) Period of Certification —
Subject to subparagraph (C), each certification (including
a recertification) of an entity under the process described in subparagraph
(A) shall be for a 5-year period.
I.R.C. § 9816(c)(4)(C) Revocation —
A certification of an entity under this paragraph may
be revoked under the process described in subparagraph (A) if the
entity has a pattern or practice of noncompliance with any of the
requirements described in such subparagraph.
I.R.C. § 9816(c)(4)(D) Petition for Denial or Withdrawal —
The process described in subparagraph (A) shall ensure
that an individual, provider, facility, or group health plan may petition
for a denial of a certification or a revocation of a certification
with respect to an entity under this paragraph for failure of meeting
a requirement of this subsection.
I.R.C. § 9816(c)(4)(E) Sufficient Number of Entities —
The process described in subparagraph (A) shall ensure
that a sufficient number of entities are certified under this paragraph
to ensure the timely and efficient provision of determinations described
in paragraph (5).
I.R.C. § 9816(c)(4)(F) Selection of Certified IDR Entity —
The 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.R.C. § 9816(c)(4)(F)(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.R.C. § 9816(c)(4)(F)(i)(I) —
is not a party to such determination
or an employee or agent of such a party;
I.R.C. § 9816(c)(4)(F)(i)(II) —
does not have a material familial, financial,
or professional relationship with such a party; and
I.R.C. § 9816(c)(4)(F)(i)(III) —
does not otherwise have a conflict
of interest with such a party (as determined by the Secretary); and
I.R.C. § 9816(c)(4)(F)(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.R.C. § 9816(c)(4)(F)(ii)(I) —
select such an entity that satisfies
subclauses (I) through (III) of clause (i)); and
I.R.C. § 9816(c)(4)(F)(ii)(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.
I.R.C. § 9816(c)(5) Payment Determination
I.R.C. § 9816(c)(5)(A) In General —
Not 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.R.C. § 9816(c)(5)(A)(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
I.R.C. § 9816(c)(5)(A)(ii) —
notify the provider or facility and
the group health plan party to such determination of the offer selected
under clause (i).
I.R.C. § 9816(c)(5)(B) Submission of Offers —
Not 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.R.C. § 9816(c)(5)(B)(i) —
shall each submit to the certified IDR
entity with respect to such determination—
I.R.C. § 9816(c)(5)(B)(i)(I) —
an offer for a payment amount for such
item or service furnished by such provider or facility; and
I.R.C. § 9816(c)(5)(B)(i)(II) —
such information as requested by the
certified IDR entity relating to such offer; and
I.R.C. § 9816(c)(5)(B)(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).
I.R.C. § 9816(c)(5)(C) Considerations in Determination
I.R.C. § 9816(c)(5)(C)(i) In General —
In 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.R.C. § 9816(c)(5)(C)(i)(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
I.R.C. § 9816(c)(5)(C)(i)(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).
I.R.C. § 9816(c)(5)(C)(ii) Additional Circumstances —
For 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.R.C. § 9816(c)(5)(C)(ii)(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).
I.R.C. § 9816(c)(5)(C)(ii)(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.
I.R.C. § 9816(c)(5)(C)(ii)(III) —
The acuity of the individual receiving
such item or service or the complexity of furnishing such item or
service to such individual.
I.R.C. § 9816(c)(5)(C)(ii)(IV) —
The teaching status, case mix, and scope
of services of the nonparticipating facility that furnished such item
or service.
I.R.C. § 9816(c)(5)(C)(ii)(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.
I.R.C. § 9816(c)(5)(D) Prohibition on Consideration of Certain Factors —
In determining which offer is the payment to be applied
with respect to qualified IDR items and services furnished by a provider
or facility, the certified IDR entity with respect to a determination
shall not consider usual and customary charges, the amount that would
have been billed by such provider or facility with respect to such
items and services had the provisions of section 2799B–1 of
the Public Health Service Act or 2799B–2 of such Act (as applicable)
not applied, or the payment or reimbursement rate for such items and
services furnished by such provider or facility payable by a public
payor, including under the Medicare program under title XVIII of the
Social Security Act, under the Medicaid program under title XIX of
such Act, under the Children's Health Insurance Program under
title XXI of such Act, under the TRICARE program under chapter 55
of title 10, United States Code, or under chapter 17 of title 38,
United States Code.
I.R.C. § 9816(c)(5)(E) Effects of Determination
I.R.C. § 9816(c)(5)(E)(i) In General —
A determination of a certified IDR entity under subparagraph
(A)—
I.R.C. § 9816(c)(5)(E)(i)(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
I.R.C. § 9816(c)(5)(E)(i)(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.
I.R.C. § 9816(c)(5)(E)(ii) Suspension of Certain Subsequent IDR Requests —
In the case of a determination of a certified IDR entity
under subparagraph (A), with respect to an initial notification submitted
under paragraph (1)(B) with respect to qualified IDR items and services
and the two parties involved with such notification, the party that
submitted such notification may not submit during the 90-day period
following such determination a subsequent notification under such
paragraph involving the same other party to such notification with
respect to such an item or service that was the subject of such initial
notification.
I.R.C. § 9816(c)(5)(E)(iii) Subsequent Submission of Requests Permitted —
In the case of a notification that pursuant to clause
(ii) is not permitted to be submitted under paragraph (1)(B) during
a 90-day period specified in such clause, if the end of the open negotiation
period specified in paragraph (1)(A), that but for this clause would
otherwise apply with respect to such notification, occurs during such
90-day period, such paragraph (1)(B) shall be applied as if the reference
in such paragraph to the 4-day period beginning on the day after such
open negotiation period were instead a reference to the 30-day period
beginning on the day after the last day of such 90-day period.
I.R.C. § 9816(c)(5)(E)(iv) Reports —
The Secretary, jointly with the Secretary of Labor and
the Secretary of the Health and Human Services, shall examine the
impact of the application of clause (ii) and whether the application
of such clause delays payment determinations or impacts early, alternative
resolution of claims (such as through open negotiations), and shall
submit to Congress, not later than 2 years after the date of implementation
of such clause an interim report (and not later than 4 years after
such date of implementation, a final report) on whether any group
health plans or health insurance issuers offering group or individual
health insurance coverage or types of such plans or coverage have
a pattern or practice of routine denial, low payment, or down-coding
of claims, or otherwise abuse the 90-day period described in such
clause, including recommendations on ways to discourage such a pattern
or practice.
I.R.C. § 9816(c)(5)(F) Costs of Independent Dispute Resolution Process —
In 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.R.C. § 9816(c)(5)(F)(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
I.R.C. § 9816(c)(5)(F)(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.
I.R.C. § 9816(c)(6) Timing of Payment —
The total plan payment required pursuant to subsection
(a)(1) or (b)(1), with respect to a qualified IDR item or service
for which a determination is made under paragraph (5)(A) or with respect
to an item or service for which a payment amount is determined under
open negotiations under paragraph (1), shall be made directly to the
nonparticipating provider or facility not later than 30 days after
the date on which such determination is made.
I.R.C. § 9816(c)(7) Publication of Information Relating to the IDR Process
I.R.C. § 9816(c)(7)(A) Publication of Information —
For 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.R.C. § 9816(c)(7)(A)(i) —
the number of notifications submitted
under paragraph (1)(B) during such calendar quarter;
I.R.C. § 9816(c)(7)(A)(ii) —
the size of the provider practices and
the size of the facilities submitting notifications under paragraph
(1)(B) during such calendar quarter;
I.R.C. § 9816(c)(7)(A)(iii) —
the number of such notifications with
respect to which a determination was made under paragraph (5)(A);
I.R.C. § 9816(c)(7)(A)(iv) —
the information described in subparagraph
(B) with respect to each notification with respect to which such a
determination was so made;
I.R.C. § 9816(c)(7)(A)(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;
I.R.C. § 9816(c)(7)(A)(vi) —
the amount of expenditures made by the
Secretary during such calendar quarter to carry out the IDR process;
I.R.C. § 9816(c)(7)(A)(vii) —
the total amount of fees paid under
paragraph (8) during such calendar quarter;
I.R.C. § 9816(c)(7)(A)(viii) —
the total amount of compensation paid
to certified IDR entities under paragraph (5)(F) during such calendar
quarter.
I.R.C. § 9816(c)(7)(B) Information —
For 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.R.C. § 9816(c)(7)(B)(i) —
a description of each item and service
included with respect to such notification;
I.R.C. § 9816(c)(7)(B)(ii) —
the geography in which the items and
services with respect to such notification were provided;
I.R.C. § 9816(c)(7)(B)(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;
I.R.C. § 9816(c)(7)(B)(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;
I.R.C. § 9816(c)(7)(B)(v) —
the category and practice specialty of
each such provider or facility involved in furnishing such items and
services;
I.R.C. § 9816(c)(7)(B)(vi) —
the identity of the group health plan,
provider, or facility, with respect to the notification;
I.R.C. § 9816(c)(7)(B)(vii) —
the length of time in making each determination;
I.R.C. § 9816(c)(7)(B)(viii) —
the compensation paid to the certified
IDR entity with respect to the settlement or determination; and
I.R.C. § 9816(c)(7)(B)(ix) —
any other information specified by the
Secretary.
I.R.C. § 9816(c)(7)(C) IDR Entity Requirements —
For 2022 and each subsequent year, an IDR entity, as
a condition of certification as an IDR entity, shall submit to the
Secretary such information as the Secretary determines necessary to
carry out the provisions of this subsection.
I.R.C. § 9816(c)(7)(D) Clarification —
The Secretary shall ensure the public reporting under
this paragraph does not contain information that would disclose privileged
or confidential information of a group health plan or health insurance
issuer offering group or individual health insurance coverage or of
a provider or facility.
I.R.C. § 9816(c)(8) Administrative Fee
I.R.C. § 9816(c)(8)(A) In General —
Each party to a determination under paragraph (5) to
which an entity is selected under paragraph (3) in a year shall pay
to the Secretary, at such time and in such manner as specified by
the Secretary, a fee for participating in the IDR process with respect
to such determination in an amount described in subparagraph (B) for
such year.
I.R.C. § 9816(c)(8)(B) Amount of Fee —
The amount described in this subparagraph for a year
is an amount established by the Secretary in a manner such that the
total amount of fees paid under this paragraph for such year is estimated
to be equal to the amount of expenditures estimated to be made by
the Secretary for such year in carrying out the IDR process.
I.R.C. § 9816(c)(9) Waiver Authority —
The Secretary may modify any deadline or other timing
requirement specified under this subsection (other than the establishment
date for the IDR process under paragraph (2)(A) and other than under
paragraph (6)) in cases of extenuating circumstances, as specified
by the Secretary, or to ensure that all claims that occur during a
90-day period described in paragraph (5)(E)(ii), but with respect
to which a notification is not permitted by reason of such paragraph
to be submitted under paragraph (1)(B) during such period, are eligible
for the IDR process.
I.R.C. § 9816(d) Certain Access Fees to Certain Databases —
In the case of a sponsor of a group health plan that,
pursuant to subsection (a)(3)(E)(iii), uses a database described in
such subsection to determine a rate to apply under such subsection
for an item or service by reason of having insufficient information
described in such subsection with respect to such item or service,
such sponsor shall cover the cost for access to such database.
I.R.C. § 9816(e) Transparency Regarding In-Network And Out-Of-Network Deductibles
And Out-Of-Pocket Limitations —
A 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:
I.R.C. § 9816(e)(1) —
Any deductible applicable to such plan.
I.R.C. § 9816(e)(2) —
Any out-of-pocket maximum limitation
applicable to such plan.
I.R.C. § 9816(e)(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.
I.R.C. § 9816(f) Advanced Explanation Of Benefits
I.R.C. § 9816(f)(1) In General —
For 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:
I.R.C. § 9816(f)(1)(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.R.C. § 9816(f)(1)(A)(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
I.R.C. § 9816(f)(1)(A)(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.
I.R.C. § 9816(f)(1)(B) —
The good faith estimate included in the
notification received from the provider or facility (if applicable)
based on such codes.
I.R.C. § 9816(f)(1)(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).
I.R.C. § 9816(f)(1)(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).
I.R.C. § 9816(f)(1)(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).
I.R.C. § 9816(f)(1)(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.
I.R.C. § 9816(f)(1)(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.
I.R.C. § 9816(f)(1)(H) —
Any other information or disclaimer the
plan determines appropriate that is consistent with information and
disclaimers required under this section.
I.R.C. § 9816(f)(2) Authority To Modify Timing Requirements In The Case Of Specified
Items And Services
I.R.C. § 9816(f)(2)(A) In General —
In the case of a participant or beneficiary scheduled
to receive an item or service that is a specified item or service
(as defined in subparagraph (B)), the Secretary may modify any timing
requirements relating to the provision of the notification described
in paragraph (1) to such participant or beneficiary with respect to
such item or service. Any modification made by the Secretary pursuant
to the previous sentence may not result in the provision of such notification
after such participant or beneficiary has been furnished such item
or service.
I.R.C. § 9816(f)(2)(B) Specified Item Or Service Defined —
For purposes of subparagraph (A), the term “specified
item or service” means an item or service that has low utilization
or significant variation in costs (such as when furnished as part
of a complex treatment), as specified by the Secretary.
(Added and
amended by Pub. L. 116-260, Div.
BB, title I, Secs. 102(c)(1), 103(c)(1), 103(c)(2), 107(c), 111(b),
Dec. 27, 2020, 134 Stat. 1182.)
BACKGROUND
NOTES
EFFECTIVE DATE
Amendments by Pub. L. 116-260, Div. BB, title I, Secs.
102(c)(1), 103(c)(1), 103(c)(2) and 107(c), effective with respect
to plan years beginning on or after January 1, 2022.
Amendment by Pub. L.
116-260, Div. BB, title I, Sec. 111(b), effective on the
date of enactment of this Act. [Enacted: Dec. 27, 2020.]
