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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules amended, and added to the provisions of Part A of Title XXVII of the PHS Act relating to group health plans and health insurance issuers in the group and individual markets. The term group health plan includes both insured and self-insured group health plans. The ACA added section 9815a1 to the Internal Revenue Code Code and section 715a1 to the Employee Retirement Income Security Act ERISA to incorporate the provisions of Part A of Title XXVII of the PHS Act into the Code and ERISA, and made them applicable to group health plans and health insurance issuers providing health insurance coverage in connection with group health plans. Sections 2701 through 2728 of the PHS Act are thereby incorporated into the Code and ERISA.
The Consolidated Appropriations Act, 2021 CAA was enacted on December 27, 2020 and includes Title I No Surprises Act and Title II
Transparency in Division BB. The CAA added provisions that apply to plans and issuers offering group or individual health insurance coverage in chapter 100 of the Code, in part 7 of ERISA, and in a new Part D of Title XXVII of the PHS Act. The CAA also amended the Federal Employees Health Benefits FEHB Act, 5 U.S.C. 8901, et seq., by adding a new subsection p to 5 U.S.C. 8902 that requires each contract with an FEHB carrier to require the carrier to comply with requirements described in certain provisions of the Code, ERISA, and the PHS Act in the same manner as those provisions apply to a group health plan or health insurance issuer offering group or individual health insurance coverage.
The CAA provisions that apply to providers, facilities, and providers of air ambulance services, such as requirements related to cost sharing, prohibitions on balance billing for certain items and services, and requirements related to disclosures about balance billing protections, were added to Title XXVII of the PHS Act in a new Part E.
Section 106a of the No Surprises Act requires providers of air ambulance services to report certain information to the Secretaries of HHS and Transportation. Section 106b of the No Surprises Act added parallel provisions at section 9823 of the Code, section 723
of ERISA, and section 2799A8 of the PHS Act. These provisions include requirements for plans and issuers to report claims and other information regarding air ambulance services and providers of air ambulance services.
The Director of the Office of Personnel Management OPM is of the
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view that the collection of FEHB plan air ambulance claims data is necessary and appropriate for a more complete understanding of air ambulance services provided across the industry. Further, the OPM Director is of the view that this data would inform OPM for purposes of enforcing the protections provided under 5 U.S.C. 8902p and for the appropriate administration and oversight of FEHB plans.
Sections 106a and b of the No Surprises Act impose these air ambulance data reporting requirements for 2 years. Section 106c of the No Surprises Act further requires HHS, in consultation with the Secretary of Transportation, to issue a comprehensive public report summarizing the data and providing an assessment of the state and certain aspects and characteristics of the air ambulance market. Section 106e of the No Surprises Act provides for the imposition of civil money penalties of not more than $10,000 on providers of air ambulance services for failure to submit required data. Section 106e3
specifies that certain provisions of section 1128A of the Social Security Act SSA shall apply to a civil money penalty under section 106e of the No Surprises Act in the same manner as such provisions apply to a penalty or proceeding under section 1128A of the SSA. In addition, section 418 of the Federal Aviation Administration FAA
Reauthorization Act of 2018 1 directs the Secretary of Transportation, in consultation with HHS, to form an Advisory Committee on Air Ambulance and Patient Billing Advisory Committee. Section 106d of the No Surprises Act directs HHS, in consultation with the Secretary of Transportation, to take into consideration as applicable and to the extent feasible any recommendations included in the Advisory Committees report.
The charter of the Advisory Committee allowed for the formation of subcommittees to perform specific assignments. The Advisory Committee formed three subcommittees, which included a subcommittee on the Prevention of Balance Billing. At its second full Committee meeting in May 2021, the Advisory Committee recommended the collection of eight specific data elements from providers of air ambulance services: 1 Average cost per trip; 2 air ambulance base rates and patient-loaded statute mileage rates;
3 ancillary fees for specialty services, like neonatal, cardiac, and other for example, specialized medicines like 1 Public
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reimbursement data aggregated by payor type Medicare, Medicaid, self-insured, private insurance and per transport, based on median rate and zip code, as well as further identifying data regarding private insurance by provider type hospital-sponsored program, municipality-sponsored program, hospital independent partnership hybrid program, or independent program; 5 alternate revenue sources for example, subsidies or membership programs broken down per transport for reporting purposes; 6 volume of transports, segregated by aircraft type fixed wing and rotary wing and takeoff zip code for government purposes, or for public use when aggregated with other data; 7 market share for air transport, obtained from the FAA certificate holder and identifying the certificate holders parent company; and 8 market share for health care, by looking at the program type for the FAA certificate holder.2 Section 9823 of the Code, section 723 of ERISA, and section 2799A8 of the PHS Act require information to be reported jointly to HHS, the Department of Labor DOL, and the Department of the Treasury collectively, the Departments.
Section 106d of the No Surprises Act requires HHS, in consultation with the Secretary of Transportation, to undertake notice and comment rulemaking to specify the form and manner in which plans and issuers must submit this information.
The CAA amended the FEHB Act to require that protections from air ambulance surprise billing must be offered by carriers in the same manner as those protections apply under section 9817 of the Code, section 717 of ERISA, and section 2799B2 of the PHS Act and to require that protections from surprise billing by providers of air ambulance services with respect to FEHB enrollees apply in the same manner as those protections apply under section 2799B
5 of the PHS Act.
The CAA also amended Title XXVII of the PHS Act to add section 2746, which requires a health insurance issuer offering individual health insurance coverage or short-term, limited-duration insurance to disclose to enrollees in such coverage and to report annually to HHS the direct or indirect compensation provided by the issuer to an agent or broker associated with enrolling 2 Meeting Summary, Second Meeting of the AAPB Advisory Committee, U.S. Department of Transportation, Air Ambulance and Patient Billing Advisory Committee, May 2728, 2021, Washington, DC pp. 1517. Available at: https
www.transportation.gov/sites/dot.gov/files/2021-07/
AAPB%20Second%20Meeting%20Minutes.pdf.

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