29 U.S.C. § 1185f — Ending surprise air ambulance bills

Page 602 TITLE 29—LABOR § 1185f Editorial Notes REFERENCES IN TEXT Section 109(a) of the No Surprises Act, referred to in subsec. (a)(2), is section 109(a) of Pub. L. 116–260, div. BB, title I, Dec. 27, 2020, 134 Stat. 2859, which is not classified to the Code. Section 300gg–132 of title 42, referred to in subsec. (a)(3)(C)(ii)(II)(bb), (cc), was in the original ‘‘section 2799B–2’’, which was translated as reading section 2799B–2 of the Public Health Service Act, to reflect the probable intent of Congress. The phrase ‘‘in 2019’’, referred to in subsec. (a)(3)(E)(iii)(III), does not appear in cl. (i)(I) of subsec. (a)(3)(E). However, subsec. (a)(3)(E)(iii)(III) of section 9816 of Title 26, Internal Revenue Code, which contains text similar to that in this subclause, refers to the phrase ‘‘on January 31, 2019’’, which does appear in cl. (i)(I). The Social Security Act, referred to in subsec. (c)(5)(D), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles XVIII, XIX, and XXI of the Act are classified generally to subchapters XVIII (§ 1395 et seq.), XIX (§ 1396 et seq.), and XXI (§ 1397aa et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. AMENDMENTS 2020—Subsecs. (c), (d). Pub. L. 116–260, § 103(b), added subsec. (c) and redesignated former subsec. (c) as (d). Subsec. (e). Pub. L. 116–260, § 107(b), added subsec. (e). Subsec. (f). Pub. L. 116–260, § 111(c), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by section 107(b) of Pub. L. 116–260 appli- cable with respect to plan years beginning on or after Jan. 1, 2022, see section 107(d) of div. BB of Pub. L. 116–260, set out as a note under section 9816 of Title 26, Internal Revenue Code. EFFECTIVE DATE Section applicable with respect to plan years begin- ning on or after Jan. 1, 2022, see section 102(e) of div. BB of Pub. L. 116–260, set out as an Effective Date of 2020 Amendment note under section 8902 of Title 5, Govern- ment Organization and Employees. § 1185f. Ending surprise air ambulance bills (a) In general In the case of a participant or beneficiary who is in a group health plan or group health insur- ance coverage offered by a health insurance issuer and who receives air ambulance services from a nonparticipating provider (as defined in section 1185e(a)(3)(G) of this title) with respect to such plan or coverage, if such services would be covered if provided by a participating pro- vider (as defined in such section) with respect to such plan or coverage— (1) the cost-sharing requirement with re- spect to such services shall be the same re- quirement that would apply if such services were provided by such a participating pro- vider, and any coinsurance or deductible shall be based on rates that would apply for such services if they were furnished by such a par- ticipating provider; (2) such cost-sharing amounts shall be counted towards the in-network deductible and in-network out-of-pocket maximum amount under the plan or coverage 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 cost-sharing payments were with re- spect to items and services furnished by a par- ticipating provider; and (3) the group health plan or health insurance issuer, respectively, shall— (A) not later than 30 calendar days after the bill for such services is transmitted by such provider, send to the provider, an ini- tial payment or notice of denial of payment; and (B) pay a total plan or coverage payment, in accordance with, if applicable, subsection (b)(6), directly to such provider furnishing such services to such participant, bene- ficiary, 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 1185e(a)(3)(K) of this title) for such services and year involved exceeds the cost-sharing amount imposed under the plan or coverage, respectively, for such services (as deter- mined in accordance with paragraphs (1) and (2)). (b) Determination of out-of-network rates to be paid by health plans; independent dispute resolution process (1) Determination through open negotiation (A) In general With respect to air ambulance services fur- nished in a year by a nonparticipating pro- vider, with respect to a group health plan or health insurance issuer offering group health insurance coverage, and for which a payment is required to be made by the plan or coverage pursuant to subsection (a)(3), the provider or plan or coverage 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 or cov- erage regarding a claim for payment for such service, initiate open negotiations under this paragraph between such provider and plan or coverage for purposes of deter- mining, during the open negotiation period, an amount agreed on by such provider, and such plan or coverage for payment (includ- ing any cost-sharing) for such service. For purposes of this subsection, the open nego- tiation 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. (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 am- bulance services, that do not result in a de- termination of an amount of payment for such services by the last day of the open ne- gotiation period described in such subpara- graph with respect to such services, the pro- vider or group health plan or health insur- ance issuer offering group health insurance coverage that was party to such negotia- tions may, during the 4-day period beginning on the day after such open negotiation pe- Page 603 TITLE 29—LABOR § 1185f riod, initiate the independent dispute resolu- tion process under paragraph (2) with respect to such item or service. The independent dis- pute 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 speci- fied by the Secretary pursuant to regula- tions that is not later than the date of re- ceipt of such notification by both the other party and the Secretary. (2) Independent dispute resolution process available in case of failed open negotia- tions (A) Establishment Not later than 1 year after December 27, 2020, the Secretary, jointly with the Sec- retary of Health and Human Services and the Secretary of the Treasury, shall estab- lish by regulation one independent dispute resolution process (referred to in this sub- section as the ‘‘IDR process’’) under which, in the case of air ambulance services with respect to which a provider or group health plan or health insurance issuer offering group health insurance coverage submits a notification under paragraph (1)(B) (in this subsection referred to as a ‘‘qualified IDR air ambulance services’’), a certified IDR en- tity 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 or coverage for such services furnished by such provider. (B) Authority to continue negotiations Under the independent dispute resolution process, in the case that the parties to a de- termination 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 re- spect to such determination under paragraph (4) makes such determination under para- graph (5), such amount shall be treated for purposes of section 1185e(a)(3)(K)(ii) of this title as the amount agreed to by such parties for such services. In the case of an agree- ment described in the previous sentence, the independent dispute resolution process shall provide for a method to determine how to al- locate between the parties to such deter- mination the payment of the compensation of the entity selected with respect to such determination. (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 300gg–132 of title 42 with respect to such item or service pursuant to subsection (b) of such section. (3) Treatment of batching of services The provisions of section 1185e(c)(3) of this title 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 1185e(c) of this title with respect to items and services described in such section. (4) IDR entities (A) Eligibility An IDR entity certified under this sub- section is an IDR entity certified under sec- tion 1185e(c)(4) of this title. (B) Selection of certified IDR entity The provisions of subparagraph (F) of sec- tion 1185e(c)(4) of this title shall apply with respect to selecting an IDR entity certified pursuant to subparagraph (A) with respect to the determination of the amount of pay- ment under this subsection of air ambulance services in the same manner as such provi- sions apply with respect to selecting an IDR entity certified under such section with re- spect to the determination of the amount of payment under section 1185e(c) of this title of an item or service. An entity selected pur- suant to the previous sentence to make a de- termination described in such sentence shall be referred to in this subsection as the ‘‘cer- tified IDR entity’’ with respect to such de- termination. (5) Payment determination (A) In general Not later than 30 days after the date of se- lection of the certified IDR entity with re- spect to a determination for qualified IDR ambulance services, the certified IDR entity shall— (i) taking into account the consider- ations specified in subparagraph (C), select one of the offers submitted under subpara- graph (B) to be the amount of payment for such services determined under this sub- section for purposes of subsection (a)(3); and (ii) notify the provider or facility and the group health plan or health insurance issuer offering group health insurance cov- erage party to such determination of the offer selected under clause (i). (B) Submission of offers Not later than 10 days after the date of se- lection of the certified IDR entity with re- spect to a determination for qualified IDR air ambulance services, the provider and the group health plan or health insurance issuer offering group health insurance coverage party to such determination— (i) shall each submit to the certified IDR entity with respect to such determina- tion— (I) an offer for a payment amount for such services furnished by such provider; and (II) such information as requested by the certified IDR entity relating to such offer; and Page 604 TITLE 29—LABOR § 1185f (ii) may each submit to the certified IDR entity with respect to such determination any information relating to such offer sub- mitted by either party, including informa- tion relating to any circumstance de- scribed in subparagraph (C)(ii). (C) Considerations in determination (i) In general In determining which offer is the pay- ment to be applied pursuant to this para- graph, the certified IDR entity, with re- spect to the determination for a qualified IDR air ambulance service shall consider— (I) the qualifying payment amounts (as defined in section 1185e(a)(3)(E) of this title) for the applicable year for items and services that are comparable to the qualified IDR air ambulance service and that are furnished in the same geo- graphic region (as defined by the Sec- retary for purposes of such subsection) as such qualified IDR air ambulance service; and (II) subject to clause (iii), information on any circumstance described in clause (ii), such information as requested in subparagraph (B)(i)(II), and any addi- tional information provided in subpara- graph (B)(ii). (ii) Additional circumstances For purposes of clause (i)(II), the cir- cumstances described in this clause are, with respect to air ambulance services in- cluded in the notification submitted under paragraph (1)(B) of a nonparticipating pro- vider, group health plan, or health insur- ance issuer the following: (I) The quality and outcomes measure- ments of the provider that furnished such services. (II) The acuity of the individual receiv- ing such services or the complexity of furnishing such services to such indi- vidual. (III) The training, experience, and quality of the medical personnel that furnished such services. (IV) Ambulance vehicle type, including the clinical capability level of such vehi- cle. (V) Population density of the pick up location (such as urban, suburban, rural, or frontier). (VI) Demonstrations of good faith ef- forts (or lack of good faith efforts) made by the nonparticipating provider or non- participating facility or the plan or issuer to enter into network agreements and, if applicable, contracted rates be- tween the provider and the plan or issuer, as applicable, during the previous 4 plan years. (iii) Prohibition on consideration of certain factors In determining which offer is the pay- ment amount to be applied with respect to qualified IDR air ambulance services fur- nished by a provider, the certified IDR en- tity 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 300gg–135 of title 42 not applied, or the pay- ment or reimbursement rate for such serv- ices furnished by such provider payable by a public payor, including under the Medi- care program under title XVIII of the So- cial Security Act [42 U.S.C. 1395 et seq.], under the Medicaid program under title XIX of such Act [42 U.S.C. 1396 et seq.], under the Children’s Health Insurance Pro- gram under title XXI of such Act [42 U.S.C. 1397aa et seq.], under the TRICARE pro- gram under chapter 55 of title 10, or under chapter 17 of title 38. (D) Effects of determination The provisions of section 1185e(c)(5)(E) of this title shall apply with respect to a deter- mination 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 1185e(c)(5)(E) of this title, the notification submitted with re- spect to such determination, the items and services with respect to such notification, and the parties to such notification. (E) Costs of independent dispute resolution process The provisions of section 1185e(c)(5)(F) of this title shall apply to a notification made under this subsection, the parties to such notification, and a determination under sub- paragraph (A) in the same manner and to the same extent such provisions apply to a noti- fication under section 1185e(c) of this title, the parties to such notification and a deter- mination made under section 1185e(c)(5)(A) of this title. (6) Timing of payment The total plan or coverage 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 serv- ices for which a payment amount is deter- mined under open negotiations under para- graph (1), shall be made directly to the non- participating provider not later than 30 days after the date on which such determination is made. (7) Publication of information relating to the IDR process (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 Labor— (i) the number of notifications submitted under the IDR process during such cal- endar quarter; (ii) the number of such notifications with respect to which a final determina- tion was made under paragraph (5)(A); Page 605 TITLE 29—LABOR § 1185f 1 So in original. The period probably should be a semicolon. (iii) the information described in sub- paragraph (B) with respect to each notifi- cation with respect to which such a deter- mination was so made.1 (iv) the number of times the payment amount determined (or agreed to) under this subsection exceeds the qualifying pay- ment amount; (v) the amount of expenditures made by the Secretary during such calendar quar- ter to carry out the IDR process; (vi) the total amount of fees paid under paragraph (8) during such calendar quar- ter; and (vii) the total amount of compensation paid to certified IDR entities under para- graph (5)(E) during such calendar quarter. (B) Information with respect to requests For purposes of subparagraph (A), the in- formation described in this subparagraph is, with respect to a notification under the IDR process of a nonparticipating provider, group health plan, or health insurance issuer offer- ing group health insurance coverage— (i) a description of each air ambulance service included in such notification; (ii) the geography in which the services included in such notification were pro- vided; (iii) the amount of the offer submitted under paragraph (2) by the group health plan or health insurance issuer (as applica- ble) and by the nonparticipating provider expressed as a percentage of the qualifying payment amount; (iv) whether the offer selected by the certified IDR entity under paragraph (5) to be the payment applied was the offer sub- mitted by such plan or issuer (as applica- ble) or by such provider and the amount of such offer so selected expressed as a per- centage of the qualifying payment amount; (v) ambulance vehicle type, including the clinical capability level of such vehi- cle; (vi) the identity of the group health plan or health insurance issuer or air ambu- lance provider with respect to such notifi- cation; (vii) the length of time in making each determination; (viii) the compensation paid to the cer- tified IDR entity with respect to the set- tlement or determination; and (ix) any other information specified by the Secretary. (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 deter- mines necessary for the Secretary to carry out the provisions of this paragraph. (D) Clarification The Secretary shall ensure the public re- porting under this paragraph does not con- tain information that would disclose privi- leged or confidential information of a group health plan or health insurance issuer offer- ing group or individual health insurance coverage or of a provider or facility. (8) Administrative fee (A) In general Each party to a determination under para- graph (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 re- spect to such determination in an amount described in subparagraph (B) for such year. (B) Amount of fee The amount described in this subpara- graph for a year is an amount established by the Secretary in a manner such that the total amount of fees paid under this para- graph 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. (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 ex- tenuating 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. (c) Definition For purposes of this section: (1) Air ambulance services The term ‘‘air ambulance service’’ means medical transport by helicopter or airplane for patients. (2) Qualifying payment amount The term ‘‘qualifying payment amount’’ has the meaning given such term in section 1185e(a)(3) of this title. (3) Nonparticipating provider The term ‘‘nonparticipating provider’’ has the meaning given such term in section 1185e(a)(3) of this title. (Pub. L. 93–406, title I, § 717, as added Pub. L. 116–260, div. BB, title I, § 105(a)(2)(A), Dec. 27, 2020, 134 Stat. 2838.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (b)(5)(C)(iii), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Ti- tles XVIII, XIX, and XXI of the Act are classified gen- erally to subchapters XVIII (§ 1395 et seq.), XIX (§ 1396 et seq.), and XXI (§ 1397aa et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For com- plete classification of this Act to the Code, see section 1305 of Title 42 and Tables. Page 606 TITLE 29—LABOR § 1185g Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to plan years begin- ning on or after Jan. 1, 2022, see section 105(a)(4) of div. BB of Pub. L. 116–260, set out as a note under section 9817 of Title 26, Internal Revenue Code. § 1185g. Continuity of care (a) Ensuring continuity of care with respect to terminations of certain contractual relation- ships resulting in changes in provider net- work status (1) In general In the case of an individual with benefits under a group health plan or group health in- surance coverage offered by a health insurance issuer and with respect to a health care pro- vider or facility that has a contractual rela- tionship with such plan or such issuer (as ap- plicable) for furnishing items and services under such plan or such coverage, if, while such individual is a continuing care patient (as defined in subsection (b)) with respect to such provider or facility— (A) such contractual relationship is termi- nated (as defined in paragraph (b)); (B) benefits provided under such plan or such health insurance coverage with respect to such provider or facility are terminated because of a change in the terms of the par- ticipation of the provider or facility in such plan or coverage; or (C) a contract between such group health plan and a health insurance issuer offering health insurance coverage in connection with such plan is terminated, resulting in a loss of benefits provided under such plan with respect to such provider or facility; the plan or issuer, respectively, shall meet the requirements of paragraph (2) with respect to such individual. (2) Requirements The requirements of this paragraph are that the plan or issuer— (A) notify each individual enrolled under such plan or coverage who is a continuing care patient with respect to a provider or fa- cility at the time of a termination described in paragraph (1) affecting such provider or facility on a timely basis of such termi- nation and such individual’s right to elect continued transitional care from such pro- vider or facility under this section; (B) provide such individual with an oppor- tunity to notify the plan or issuer of the in- dividual’s need for transitional care; and (C) permit the patient to elect to continue to have benefits provided under such plan or such coverage, under the same terms and conditions as would have applied and with respect to such items and services as would have been covered under such plan or cov- erage had such termination not occurred, with respect to the course of treatment fur- nished by such provider or facility relating to such individual’s status as a continuing care patient during the period beginning on the date on which the notice under subpara- graph (A) is provided and ending on the ear- lier of— (i) the 90-day period beginning on such date; or (ii) the date on which such individual is no longer a continuing care patient with respect to such provider or facility. (b) Definitions In this section: (1) Continuing care patient The term ‘‘continuing care patient’’ means an individual who, with respect to a provider or facility— (A) is undergoing a course of treatment for a serious and complex condition from the provider or facility; (B) is undergoing a course of institutional or inpatient care from the provider or facil- ity; (C) is scheduled to undergo nonelective surgery from the provide or facility, includ- ing receipt of postoperative care from such provider or facility with respect to such a surgery; (D) is pregnant and undergoing a course of treatment for the pregnancy from the pro- vider or facility; or (E) is or was determined to be terminally ill (as determined under section 1395x(dd)(3)(A) of title 42) and is receiving treatment for such illness from such pro- vider or facility. (2) Serious and complex condition The term ‘‘serious and complex condition’’ means, with respect to a participant or bene- ficiary under a group health plan or group health insurance coverage— (A) in the case of an acute illness, a condi- tion that is serious enough to require spe- cialized medical treatment to avoid the rea- sonable possibility of death or permanent harm; or (B) in the case of a chronic illness or con- dition, a condition that— (i) is life-threatening, degenerative, po- tentially disabling, or congenital; and (ii) requires specialized medical care over a prolonged period of time. (3) Terminated The term ‘‘terminated’’ includes, with re- spect to a contract, the expiration or non- renewal of the contract, but does not include a termination of the contract for failure to meet applicable quality standards or for fraud. (Pub. L. 93–406, title I, § 718, as added Pub. L. 116–260, div. BB, title I, § 113(c)(1), Dec. 27, 2020, 134 Stat. 2871.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to plan years begin- ning on or after Jan. 1, 2022, see section 113(e) of div. BB of Pub. L. 116–260, set out as a note under section 9818 of Title 26, Internal Revenue Code. § 1185h. Maintenance of price comparison tool A group health plan or a health insurance issuer offering group health insurance coverage