SIIA Regulatory Update: First Surprise Billing Rule Released

Federal Departments Issue Surprise Billing Interim Final Rule

July 2 – Late yesterday, the Federal Departments issued the first Interim Final Rule (IFR) implementing certain provisions of the No Surprises Act. The IFR focuses on a number of statutory definitions, including emergency and post-stabilization services, and provides more detail on issues ranging from patient cost-sharing and out-of-network reimbursement, to median contracted rate determination and notice and consent requirements, among others. A copy of the IFR, “Requirements Related to Surprise Billing; Part I,” can be found here.

Ahead of this first in a series of Federal Rules on surprise medical billing, the Self-Insurance Institute of America, Inc. (SIIA) submitted a comprehensive set of comments and directly engaged with the Federal Departments. SIIA is encouraged that the IFR includes specific recommendations from the SIIA comment letter, and looks forward to engaging on future rules that protect patients and lower the cost of healthcare.

Specific recommendations from the SIIA comment letter that were incorporated in the IFR include:

  • Confirming that ERISA pre-empts state surprise billing laws, and clarifying that self-insured plans may voluntarily opt-in to state surprise billing protections.
  • Leaving the Initial Payment Amount largely undefined. The IFR requests specific comments on what types of payment rates should be developed, including a Medicare-based payment rate or a percentage of the Qualifying Payment Amount (QPA).
  • Permitting a sponsor of a self-insured plan to allow the plan’s TPA or service provider offering access to provider networks to determine the QPA on behalf of the plan sponsor by calculating the median contracted rates for all of the self-insured plans administered by that TPA or network service provider, not just those rates charged by the particular plan sponsor. This will allow for improved information for smaller self-insured plans in the median contracted rate calculation.
  • Aligning the geographic with metropolitan statistical areas, and verifying that plans can use regional, state and national statistics to identify median-network rates if none exist within the local region.

The IFR also explains that in cases where a self-insured plan does not have sufficient information to calculate the median contracted rate, the plan may look to a State All-Payer Claims Database or other private-sector databases that are not affiliated with, owned, or controlled by an insurance issuer, medical provider, or air ambulance service. The need for database usage is very limited in scope under the IFR, and may be mostly used for new procedures or plans where historical data may not be as yet available.

In addition, the IFR appears to recognize unique self-insured plans designs (in particular, plans with no provider network), and the Federal Departments indicate that the surprise medical billing requirements generally apply to these types of arrangements. However, the IFR does indicate that there may be cases where these no-network plans would not be subject to the surprise billing requirements. The Federal Departments request comments on whether these or other plans with unique benefit designs should be exempt from all or some of the IFR.

Effective January 1, 2022, and subject to a 60-day comment period, this IFR is an important first step in addressing the many facets of the implementation process of the new surprise medical billing requirements. SIIA looks forward to continuing to work with the Federal Departments as they continue to craft future polices impacting healthcare costs.

SIIA will be providing more in-depth analysis of the surprise billing IFR shortly, and we anticipate submitting comments on this IFR, as well as submitting comments on the next rulemaking phases. These future phases of implementation rulemaking will include the payment audit process, as well as the arbitration/independent dispute resolution process, among others.

If you have questions or would like to talk further on surprise medical billing issues, please contact Ryan Work, SIIA vice president of government relations, at