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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules
individuals in such coverage. Section 2746d directs HHS to finalize, through notice and comment rulemaking, the timing, form, and manner in which issuers must make these disclosures to consumers and submit reports to HHS.
These new statutory requirements are applicable beginning December 27, 2021.
Section 2723b of the PHS Act, as amended by the CAA, authorizes HHS
to impose civil money penalties as a means of enforcing the individual and group market requirements contained in Part A and Part D of Title XXVII of the PHS Act with respect to health insurance issuers when a state fails to substantially enforce these provisions, as well as with respect to group health plans that are non-Federal governmental plans.3 Section 2799B4 of the PHS Act, as added by section 104 of the No Surprises Act, establishes a similar framework for HHSs enforcement authority over providers and facilities, including providers of air ambulance services, in states that fail to substantially enforce the requirements of Part E of Title XXVII of the PHS Act, as added by the CAA. This provision also authorizes HHS to impose civil money penalties of up to $10,000 per violation on providers and facilities, including providers of air ambulance services, that fail to comply with the applicable PHS Act requirements in such states. It further provides that certain provisions of section 1128A of the SSA shall apply to a civil money penalty or assessment under section 2799B4 of the PHS Act in the same manner as such provisions apply to a penalty, assessment, or proceeding under subsection a of section 1128A of the SSA.
The Departments are issuing regulations in several phases implementing provisions of Title I No Surprises Act and Title II
Transparency of Division BB of the CAA. Later this year, the Departments intend to issue regulations regarding the Federal independent dispute resolution IDR process sections 103 and 105 of the No Surprises Act and patient protections through transparency and the patient-provider dispute resolution process section 112 of the No Surprises Act.
On July 13, 2021, the Departments and OPM issued interim final rules entitled Requirements Related to 3 Also see section 2761 of the PHS Act, which establishes a parallel framework for enforcement of the individual market requirements contained in Part B of Title XXVII of the PHS Act.

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Surprise Billing; Part I,4 which generally apply to group health plans and health insurance issuers offering group or individual health insurance coverage including grandfathered health plans with respect to plan years in the individual market, policy years beginning on or after January 1, 2022;
FEHB health benefits plans with respect to contract years beginning on or after January 1, 2022; and health care providers and facilities, and providers of air ambulance services beginning on January 1, 2022 July 2021 interim final rules. The July 2021 interim final rules implement sections 9816ab and 9817a of the Code; sections 716ab and 717a of ERISA; sections 2799A
1ab, 2799A2a, 2799B1, 2799B
2, 2799B3, and 2799B5 of the PHS
Act; and 5 U.S.C. 8902p, to protect consumers from surprise medical bills for emergency services, air ambulance services furnished by nonparticipating providers of air ambulance services, and non-emergency services furnished by nonparticipating providers at participating facilities in certain circumstances.
Among other requirements, the July 2021 interim final rules require emergency services to be covered without any prior authorization, without regard to whether the health care provider or facility furnishing the emergency services is a participating provider or a participating emergency facility with respect to the services, and without regard to any other term or condition of the plan or coverage other than the exclusion or coordination of benefits or a permitted affiliation or waiting period. With respect to emergency services furnished by nonparticipating providers or facilities, air ambulance services furnished by nonparticipating providers of air ambulance services, and non-emergency services furnished by nonparticipating providers at certain participating facilities, the July 2021 interim final rules generally limit cost sharing for out-of-network services to in-network levels, require such cost sharing to count toward any in-network deductibles and out-of-pocket maximums, and prohibit balance billing in certain circumstances. Balance billing refers to the practice of out-of-network providers billing patients for the difference between: 1 The providers billed charges; and 2 the amount collected from the plan or issuer plus the amount collected from the patient in the form of cost sharing such as a 4 Requirements Related to Surprise Billing; Part I, 86 FR 36872, July 13, 2021. Public comments on this rule are due by September 7, 2021.

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copayment, coinsurance, or amounts paid toward a deductible.
Division BB of the CAA also includes:
Provisions regarding transparency in plan and insurance identification cards section 107; continuity of care section 113; accuracy of provider network directories section 116; prohibition on gag clauses section 201 that are applicable for plan years beginning on or after January 1, 2022; and pharmacy benefit and drug cost reporting section 204 that is required by December 27, 2021. The Departments intend to undertake rulemaking to fully implement these provisions, but rules regarding some of these provisions might not be issued until after January 1, 2022. The Departments note that any such rulemaking to fully implement these provisions would include a prospective applicability date that provides plans, issuers, providers, and facilities, as applicable, a reasonable amount of time to comply with new or clarified requirements. Until rulemaking to fully implement these provisions is finalized and effective, plans and issuers are expected to implement the requirements using a good faith, reasonable interpretation of the statute.
B. Stakeholder Consultation and Input The Departments consulted with stakeholders on policies related to Division BB of the CAA, including air ambulance data collection, disclosure and reporting of agent and broker compensation, and enforcement of the PHS Act. The Departments held several listening sessions with consumers, health care providers, facilities, providers of air ambulance services, employers, agents, brokers, health plans and health insurance issuers, advocacy groups, and the actuarial community to gather public input. The Departments also solicited input from state representatives on numerous relevant topics and consulted with stakeholders through regular meetings with the National Association of Insurance Commissioners NAIC, and regular contact with state regulators, issuers, trade groups, consumer advocates, employers, and other interested parties.
The Departments considered all public input received as the Departments developed the policies in these proposed rules and welcome additional public comment as part of these proposed rules.
C. Structure of Proposed Rules The regulations outlined in these proposed rules would be codified in 5
CFR part 890; 26 CFR part 54; 29 CFR
part 2590; and 45 CFR parts 144, 148, 149, and 150.

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