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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules individual or group market. If HHS
determines that a state has failed to substantially enforce a provision of Title XXVII of the PHS Act, HHS enforces that provision with respect to issuers in the state. HHS further enforces the requirements applicable to non-Federal governmental plans in all states. Any non-Federal governmental plan or any issuer subject to HHSs enforcement authority that fails to comply with an applicable provision of Part A or Part D
of Title XXVII is subject to a civil money penalty.
Section 2799B4 of the PHS Act provides that states are the primary enforcers of the requirements applicable to providers and facilities under Part E
of Title XXVII of the PHS Act, including providers of air ambulance services. If HHS determines that a state has failed to substantially enforce an applicable provision, HHS enforces that provision in the state. Any provider or facility, including a provider of air ambulance services, that HHS has determined to be in violation of an applicable provision in Part E of Title XXVII of the PHS Act may be subject to a civil money penalty.
Under part 106e of the No Surprises Act, any provider of air ambulance services that fails to submit data required in section 106a of the No Surprises Act may also be subject to a civil money penalty.
According to researchers at the Center on Health Insurance Reforms, Georgetown University Health Policy Institute, 18 states have adopted comprehensive surprise billing protections, and 15 states have adopted partial protections.53 The state agency responsible for implementing and enforcing these protections vary among states. According to the Center on Health Insurance Reforms, Some states direct their insurance department to ensure compliance with the law, but while insurance departments have clear jurisdiction over insurance companies, they often lack jurisdiction over providers. Some states may rely on their medical licensing authority or deceptive trade practice statutes to enforce requirements on providers;
other states may be dependent on the attorney general filing a civil lawsuit against providers who continue to send surprise bills to patients. 54 States have also identified the State Department of Health as the agency with oversight authority over providers with respect to 53 See Kona, Maanasa State Balance-Billing Protections. The Commonwealth Fund, 5 February 2021, https www.commonwealthfund.org/
publications/maps-and-interactives/2021/feb/statebalance-billing-protections.
54 See https surprisemedicalbills.chir.
georgetown.edu/policy-options/enforcement/.

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surprise billing requirements. Because many of these state laws are relatively new, there is little empirical evidence about the cost to state regulators and the regulated parties subject to the surprise billing protections.
2. Benefits and Intended Outcomes The provisions of this proposed rule require health insurance issuers offering individual health insurance coverage or short-term, limited-duration insurance to disclose to policyholders any direct or indirect compensation provided by the issuer to an agent or broker associated with enrolling individuals in such coverage. The proposed disclosure requirements would improve consumers awareness by providing information on how agents and brokers are compensated with regard to the coverage sold to those individuals or renewed on behalf of the individuals. In this way, consumers will be able to take this into account as they make decisions about obtaining health coverage.
Knowing how much an agent or broker would earn in commissions for selling them health insurance coverage could inform a consumer as to whether an agents or brokers recommendations or promotions of individual health insurance coverage or short-term, limited-duration insurance is due to a potential conflict of interest. Disclosing this information would provide additional clarity to consumers and help inform whether they want to enroll in, or renew, a particular health insurance coverage. To the extent vulnerable populations, including those with ongoing or prior health conditions, are being encouraged to enroll in shortterm, limited-duration insurance,55 the proposed disclosure requirements might help these individuals better understand the agents and brokers motivations and incentives in marketing and recommending such coverage. As shortterm, limited-duration insurance is generally exempt from the ACAs individual market consumer protection provisions,56 issuers of such coverage can draw in lower-income or healthy individuals by offering lower premiums than plans that offer the ACA consumer protections.57 It is important for agents 55 Curran,
E. U.S. House Investigation Offers New Evidence on the Dangers of Short-Term Plans.
CHIRblog, July 9, 2020, http chirblog.org/u-shouse-investigation-offers-new-evidence-dangersshort-term-plans/.
56 See, for example, Excepted Benefits; Lifetime and Annual Limited; and Short-Term LimitedDuration Insurance; final rules, 81 FR 75316 at 75317 October 31, 2016 and Short-Term, Limited Duration Insurance; final rule, 83 FR 38212 at 38213 August 3, 2018.
57 See U.S. House of Representatives Committee on Energy and Commerce report Shortchanged:

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or brokers to disclose their commissions so individuals can take into account the agents or brokers potential motivations for encouraging enrollment in a specific type of coverage.
All health insurance issuers offering individual health insurance coverage or short-term, limited-duration insurance would be required to report annually to HHS any direct or indirect compensation provided to an agent or broker associated with enrolling individuals in such coverage. HHS
would use analysis of this information to monitor the marketing operations and practices of issuers of individual health insurance coverage and short-term, limited-duration insurance and inform future policy-making decisions.
The air ambulance data collection would advance policymakers and the publics understanding of the air ambulance industry and increase the transparency of the market conditions affecting air ambulance services. In addition, the data collected from providers of air ambulance services may be used by the Secretary of Transportation to investigate potential unfair or deceptive practices used by these providers against consumers as well as potentially unfair methods of competition in the air ambulance service market.
Surprise medical bills result in higher out-of-pocket expenses and cause financial anxiety and medical debt for consumers.58 These proposed rules would establish an enforcement process to help ensure plans, issuers, providers, and facilities, including providers of air ambulance services, comply with the provisions of the PHS Act. Without strong Federal oversight and enforcement mechanisms, there would be no practical consequences when providers and facilities, including providers of air ambulance services, fail to comply with the PHS Act in states that are not directly enforcing the applicable requirements. The Federal oversight and enforcement procedures proposed in 45 CFR part 150 would increase provider and facility, compliance with the new surprise How the Trump Administrations Expansion of Junk Short-Term Health Insurance Plans is Putting Americans at Risk. Page 12 https www.hsdl.org/
?view&did=841078 and House Committee on Energy and Commerce. E&C Investigation Finds Millions of Americans Enrolled in Junk Health Insurance Plans That Are Bad For Consumers & Fly Under the Radar of State Regulators, Press Release Jun 25, 2020, https energycommerce.house.gov/
newsroom/press-releases/ec-investigation-findsmillions-of-americans-enrolled-in-junk-health.
58 Garmon C. and Chatock B. One In Five Inpatient Emergency Department Cases May Lead to Surprise Bills, Health Affairs 36, No. 1 2017: 177
181.

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