Editor's Note: Sec. 9817, added by Pub. L.
116-260, Div. BB, Sec. 105(c)(3)(A), is effective for plan years beginning
on or after January 1, 2022.
I.R.C. § 9817(a) In General —
In 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—
I.R.C. § 9817(a)(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;
I.R.C. § 9817(a)(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 costsharing payments were
with respect to items and services furnished by a participating provider;
and
I.R.C. § 9817(a)(3) —
the group health plan shall—
I.R.C. § 9817(a)(3)(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
I.R.C. § 9817(a)(3)(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)).
I.R.C. § 9817(b) Determination Of Out-Of-Network Rates To Be Paid By Health Plans;
Independent Dispute Resolution Process
I.R.C. § 9817(b)(1) Determination Through Open Negotiation
I.R.C. § 9817(b)(1)(A) In General —
With respect to air ambulance services furnished in a
year by a nonparticipating provider, with respect to a group health
plan, and for which a payment is required to be made by the plan pursuant
to subsection (a)(3), the provider or plan may, during the 30-day
period beginning on the day the provider receives a payment or a statement
of denial of payment from the plan regarding a claim for payment for
such service, initiate open negotiations under this paragraph between
such provider and plan for purposes of determining, during the open
negotiation period, an amount agreed on by such provider, and such
plan for payment (including any cost-sharing) for such service. For
purposes of this subsection, the open negotiation period, with respect
to air ambulance services, is the 30-day period beginning on the date
of initiation of the negotiations with respect to such services.
I.R.C. § 9817(b)(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 air ambulance services, that do not result in
a determination of an amount of payment for such services by the last
day of the open negotiation period described in such subparagraph
with respect to such services, the provider 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
services. 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. § 9817(b)(2) Independent Dispute Resolution Process Available In Case Of
Failed Open Negotiations
I.R.C. § 9817(b)(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 air ambulance services with respect to which a provider
or group health plan submits a notification under paragraph (1)(B)
(in this subsection referred to as a “qualified IDR air ambulance
services”), 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 services furnished by such provider.
I.R.C. § 9817(b)(2)(B) Authority To Continue Negotiations —
Under the independent dispute resolution process, in
the case that the parties to a determination for qualified IDR air
ambulance services agree on a payment amount for such services 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
section 9816(a)(3)(K)(ii) as
the amount agreed to by such parties for such services. 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. § 9817(b)(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. § 9817(b)(3) Treatment Of Batching Of Services —
The provisions of section
9816(c)(3) shall apply with respect to a notification submitted
under this subsection with respect to air ambulance services in the
same manner and to the same extent such provisions apply with respect
to a notification submitted under section
9816(c) with respect to items and services described in
such section.
I.R.C. § 9817(b)(4) IDR Entities
I.R.C. § 9817(b)(4)(A) Eligibility —
An IDR entity certified under this subsection is an IDR
entity certified under section 9816(c)(4).
I.R.C. § 9817(b)(4)(B) Selection Of Certified IDR Entity —
The provisions of subparagraph (F) of section 9816(c)(4) shall apply
with respect to selecting an IDR entity certified pursuant to subparagraph
(A) with respect to the determination of the amount of payment under
this subsection of air ambulance services in the same manner as such
provisions apply with respect to selecting an IDR entity certified
under such section with respect to the determination of the amount
of payment under section 9816(c) of
an item or service. 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. § 9817(b)(5) Payment Determination
I.R.C. § 9817(b)(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 qualified
IDR ambulance services, the certified IDR entity shall—
I.R.C. § 9817(b)(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 services
determined under this subsection for purposes of subsection (a)(3);
and
I.R.C. § 9817(b)(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. § 9817(b)(5)(B) Submission Of Offers —
Not 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.R.C. § 9817(b)(5)(B)(i) —
shall each submit to the certified IDR
entity with respect to such determination—
I.R.C. § 9817(b)(5)(B)(i)(I) —
an offer for a payment amount for such
services furnished by such provider; and
I.R.C. § 9817(b)(5)(B)(i)(II) —
such information as requested by the
certified IDR entity relating to such offer; and
I.R.C. § 9817(b)(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. § 9817(b)(5)(C) Considerations In Determination
I.R.C. § 9817(b)(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 air ambulance service shall
consider—
I.R.C. § 9817(b)(5)(C)(i)(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
I.R.C. § 9817(b)(5)(C)(i)(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).
I.R.C. § 9817(b)(5)(C)(ii) Additional Circumstances —
For 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.R.C. § 9817(b)(5)(C)(ii)(I) —
The quality and outcomes measurements
of the provider that furnished such services.
I.R.C. § 9817(b)(5)(C)(ii)(II) —
The acuity of the individual receiving
such services or the complexity of furnishing such services to such
individual.
I.R.C. § 9817(b)(5)(C)(ii)(III) —
The training, experience, and quality
of the medical personnel that furnished such services.
I.R.C. § 9817(b)(5)(C)(ii)(IV) —
Ambulance vehicle type, including the
clinical capability level of such vehicle.
I.R.C. § 9817(b)(5)(C)(ii)(V) —
Population density of the pick up location
(such as urban, suburban, rural, or frontier).
I.R.C. § 9817(b)(5)(C)(ii)(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.
I.R.C. § 9817(b)(5)(C)(iii) Prohibition On Consideration Of Certain Factors —
In determining which offer is the payment amount to be
applied with respect to qualified IDR air ambulance services furnished
by a provider, the certified IDR entity with respect to such determination
shall not consider usual and customary charges, the amount that would
have been billed by such provider with respect to such services had
the provisions of section 2799B–5 of the Public Health Service
Act not applied, or the payment or reimbursement rate for such services
furnished by such provider 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. § 9817(b)(5)(D) Effects Of Determination —
The provisions of section
9816(c)(5)(E)) shall apply with respect to a determination
of a certified IDR entity under subparagraph (A), the notification
submitted with respect to such determination, the services with respect
to such notification, and the parties to such notification in the
same manner as such provisions apply with respect to a determination
of a certified IDR entity under section
9816(c)(5)(E), the notification submitted with respect
to such determination, the items and services with respect to such
notification, and the parties to such notification.
I.R.C. § 9817(b)(5)(E) Costs Of Independent Dispute Resolution Process —
The provisions of section
9816(c)(5)(F) shall apply to a notification made under
this subsection, the parties to such notification, and a determination
under subparagraph (A) in the same manner and to the same extent such
provisions apply to a notification under section
9816(c), the parties to such notification and a determination
made under section 9816(c)(5)(A).
I.R.C. § 9817(b)(6) Timing Of Payment —
The total plan payment required pursuant to subsection
(a)(3), with respect to qualified IDR air ambulance services for which
a determination is made under paragraph (5)(A) or with respect to
air ambulance services for which a payment amount is determined under
open negotiations under paragraph (1), shall be made directly to the
nonparticipating provider not later than 30 days after the date on
which such determination is made.
I.R.C. § 9817(b)(7) Publication Of Information Relating To The IDR Process
I.R.C. § 9817(b)(7)(A) In General —
For 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.R.C. § 9817(b)(7)(A)(i) —
the number of notifications submitted
under the IDR process during such calendar quarter;
I.R.C. § 9817(b)(7)(A)(ii) —
the number of such notifications with
respect to which a final determination was made under paragraph (5)(A);
I.R.C. § 9817(b)(7)(A)(iii) —
the information described in subparagraph
(B) with respect to each notification with respect to which such a
determination was so made.
I.R.C. § 9817(b)(7)(A)(iv) —
the number of times the payment amount
determined (or agreed to) under this subsection exceeds the qualifying
payment amount;
I.R.C. § 9817(b)(7)(A)(v) —
the amount of expenditures made by the
Secretary during such calendar quarter to carry out the IDR process;
I.R.C. § 9817(b)(7)(A)(vi) —
the total amount of fees paid under
paragraph (8) during such calendar quarter; and
I.R.C. § 9817(b)(7)(A)(vii) —
the total amount of compensation paid
to certified IDR entities under paragraph (5)(E)during such calendar
quarter.
I.R.C. § 9817(b)(7)(B) Information With Respect To Requests —
For 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.R.C. § 9817(b)(7)(B)(i) —
a description of each air ambulance
service included in such notification;
I.R.C. § 9817(b)(7)(B)(ii) —
the geography in which the services
included in such notification were provided;
I.R.C. § 9817(b)(7)(B)(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;
I.R.C. § 9817(b)(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 issuer (as applicable) or by such provider
and the amount of such offer so selected expressed as a percentage
of the qualifying payment amount;
I.R.C. § 9817(b)(7)(B)(v) —
ambulance vehicle type, including the
clinical capability level of such vehicle;
I.R.C. § 9817(b)(7)(B)(vi) —
the identity of the group health plan
or health insurance issuer or air ambulance provider with respect
to such notification;
I.R.C. § 9817(b)(7)(B)(vii) —
the length of time in making each determination;
I.R.C. § 9817(b)(7)(B)(viii) —
the compensation paid to the certified
IDR entity with respect to the settlement or determination; and
I.R.C. § 9817(b)(7)(B)(ix) —
any other information specified by the
Secretary.
I.R.C. § 9817(b)(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 for
the Secretary to carry out the provisions of this paragraph.
I.R.C. § 9817(b)(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. § 9817(b)(8) Administrative Fee
I.R.C. § 9817(b)(8)(A) In General —
Each party to a determination under paragraph (5) to
which an entity is selected under paragraph (4) 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. § 9817(b)(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. § 9817(b)(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 applied through paragraph (5)(D), 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. § 9817(c) Definitions
I.R.C. § 9817(c)(1) Air Ambulance Services —
The term “air ambulance service” means medical
transport by helicopter or airplane for patients.
I.R.C. § 9817(c)(2) Qualifying Payment Amount —
The term “qualifying payment amount” has
the meaning given such term in section
9816(a)(3).
I.R.C. § 9817(c)(3) Nonparticipting Provider —
The term “nonparticipating provider” has
the meaning given such term in section
9816(a)(3).
(Added by Pub.
L. 116-260, Div. BB, title I, Sec. 105(c)(3)(A), Dec. 27,
2020.)
BACKGROUND NOTES
EFFECTIVE DATE
Effective with respect to plan years beginning
on or after January 1, 2022.
