26 U.S.C. § 9817 — Ending surprise air ambulance bills

Page 4200 TITLE 26—INTERNAL REVENUE CODE § 9817 (B) The good faith estimate included in the notification received from the provider or fa- cility (if applicable) based on such codes. (C) A good faith estimate of the amount the plan is responsible for paying for items and services included in the estimate de- scribed in subparagraph (B). (D) A good faith estimate of the amount of any cost-sharing for which the participant or beneficiary would be responsible for such item or service (as of the date of such notifi- cation). (E) A good faith estimate of the amount that the participant or beneficiary has in- curred toward meeting the limit of the fi- nancial responsibility (including with re- spect to deductibles and out-of-pocket maxi- mums) under the plan (as of the date of such notification). (F) In the case such item or service is sub- ject to a medical management technique (in- cluding concurrent review, prior authoriza- tion, and step-therapy or fail-first protocols) for coverage under the plan, a disclaimer that coverage for such item or service is sub- ject to such medical management technique. (G) A disclaimer that the information pro- vided in the notification is only an estimate based on the items and services reasonably expected, at the time of scheduling (or re- questing) the item or service, to be furnished and is subject to change. (H) Any other information or disclaimer the plan determines appropriate that is con- sistent with information and disclaimers re- quired under this section. (2) Authority to modify timing requirements in the case of specified items and services (A) In general In the case of a participant or beneficiary scheduled to receive an item or service that is a specified item or service (as defined in subparagraph (B)), the Secretary may mod- ify any timing requirements relating to the provision of the notification described in paragraph (1) to such participant or bene- ficiary with respect to such item or service. Any modification made by the Secretary pursuant to the previous sentence may not result in the provision of such notification after such participant or beneficiary has been furnished such item or service. (B) Specified item or service defined For purposes of subparagraph (A), the term ‘‘specified item or service’’ means an item or service that has low utilization or signifi- cant variation in costs (such as when fur- nished as part of a complex treatment), as specified by the Secretary. (Added and amended Pub. L. 116–260, div. BB, title I, §§ 102(c)(1), 103(c), 107(c), 111(b), Dec. 27, 2020, 134 Stat. 2784, 2815, 2859, 2863.) Editorial Notes REFERENCES IN TEXT Section 2704 of the Public Health Service Act, re- ferred to in subsec. (a)(1)(D), is classified to section 300gg–3 of Title 42, The Public Health and Welfare. Section 715 of the Employee Retirement Income Se- curity Act of 1974, referred to in subsec. (a)(1)(D), is classified to section 1185d of Title 29, Labor. Section 9815 of this Act, referred to in subsec. (a)(1)(D), is section 9815 of the Internal Revenue Code of 1986, which is classified to section 9815 of this title. Section 332 of the Public Health Service Act, referred to in subsec. (a)(2)(B)(iii), is classified to section 254e of Title 42, The Public Health and Welfare. Section 109(a) of the No Surprises Act, referred to in subsec. (a)(2)(B), 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. The Social Security Act, referred to in subsecs. (a)(3)(B), (C)(i), (H)(iii), (K)(iii), (b)(2)(A)(ii), and (c)(5)(C)(ii)(I), (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. Sections 1115A, 1833, 1861, 1867, and 1890 are classified to sections 1315a, 1395l, 1395x, 1395dd, and 1395aaa, respec- tively, of Title 42. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. Section 2799B–1 of the Public Health Service Act, re- ferred to in subsecs. (a)(3)(C)(ii)(I) and (c)(5)(D), is clas- sified to section 300gg–131 of Title 42, The Public Health and Welfare. Section 2799B–2 of the Public Health Service Act, cited also as ‘‘section 2799B–2’’, referred to in subsecs. (a)(3)(C)(ii)(II)(bb), (cc), (b)(1), and (c)(2)(C), (5)(D), is classified to section 300gg–132 of Title 42, The Public Health and Welfare. Section 514, referred to in subsec. (a)(3)(I), probably means section 514 of the Employee Retirement Income Security Act of 1974, which relates to application of State laws and is classified to section 1144 of Title 29, Labor. The date of the enactment of this subsection, referred to in subsec. (c)(2)(A), is the date of enactment of Pub. L. 116–260, which was approved Dec. 27, 2020. Section 2799B–6 of the Public Health Service Act, re- ferred to in subsec. (f)(1), is classified to section 300gg–136 of Title 42, The Public Health and Welfare. AMENDMENTS 2020—Subsecs. (c), (d). Pub. L. 116–260, § 103(c), added subsec. (c) and redesignated former subsec. (c) as (d). Subsec. (e). Pub. L. 116–260, § 107(c), added subsec. (e). Subsec. (f). Pub. L. 116–260, § 111(b), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116–260, div. BB, title I, § 107(d), Dec. 27, 2020, 134 Stat. 2859, provided that: ‘‘The amendments made by this subsection [probably means ‘‘this section’’, amending this section, section 1185e of Title 29, Labor, and section 300gg–111 of Title 42, The Public Health and Welfare] shall apply with respect to plan years begin- ning on or after January 1, 2022.’’ 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. § 9817. Ending surprise air ambulance bills (a) In general In the case of a participant or beneficiary in a group health plan who receives air ambulance services from a nonparticipating provider (as de- fined in section 9816(a)(3)(G)) with respect to such plan, if such services would be covered if provided by a participating provider (as defined in such section) with respect to such plan— Page 4201 TITLE 26—INTERNAL REVENUE CODE § 9817 (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 for the plan year (and such in-network deductible shall be applied) with respect to such items and services so fur- nished in the same manner as if such cost- sharing payments were with respect to items and services furnished by a participating pro- vider; and (3) the group health plan 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 payment, in accord- ance with, if applicable, subsection (b)(6), di- rectly to such provider furnishing such serv- ices to such participant, beneficiary, or en- rollee 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 9816(a)(3)(K)) for such services and year involved exceeds the cost-sharing amount imposed under the plan for such services (as determined in accord- ance 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, and for which a payment is required to be made by the plan pursuant to subsection (a)(3), the provider or plan may, during the 30-day period beginning on the day the pro- vider receives a payment or a statement of denial of payment from the plan regarding a claim for payment for such service, initiate open negotiations under this paragraph be- tween such provider and plan for purposes of determining, during the open negotiation pe- riod, an amount agreed on by such provider, and such plan for payment (including any cost-sharing) for such service. For purposes of this subsection, the open negotiation pe- riod, 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 that was party to such negotiations may, during the 4-day pe- riod beginning on the day after such open negotiation period, initiate the independent dispute resolution process under paragraph (2) with respect to such services. The inde- pendent dispute 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 (con- taining such information as specified by the Secretary) and for purposes of this sub- section, the date of initiation of such proc- ess shall be the date of such submission or such other date specified by the Secretary pursuant to regulations that is not later than the date of receipt 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 the date of the enactment of this subsection, the Secretary, jointly with the Secretary of Health and Human Services and the Secretary of Labor, shall establish by regulation one inde- pendent dispute resolution process (referred to in this subsection as the ‘‘IDR process’’) under which, in the case of air ambulance services with respect to which a provider or group health plan submits a notification under paragraph (1)(B) (in this subsection re- ferred to as a ‘‘qualified IDR air ambulance services’’), a certified IDR entity under para- graph (4) determines, subject to subpara- graph (B) and in accordance with the suc- ceeding provisions of this subsection, the amount of payment under the plan 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 9816(a)(3)(K)(ii) as the amount agreed to by such parties for such services. In the case of an agreement de- scribed in the previous sentence, the inde- pendent dispute resolution process shall pro- vide for a method to determine how to allo- cate between the parties to such determina- tion the payment of the compensation of the entity selected with respect to such deter- mination. (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 2799B–2 of the Public Health Service Page 4202 TITLE 26—INTERNAL REVENUE CODE § 9817 Act with respect to such item or service pur- suant to subsection (b) of such section. (3) Treatment of batching of services The provisions of section 9816(c)(3) shall apply with respect to a notification submitted under this subsection with respect to air am- bulance services in the same manner and to the same extent such provisions apply with re- spect to a notification submitted under sec- tion 9816(c) 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 9816(c)(4). (B) Selection of certified IDR entity The provisions of subparagraph (F) of sec- tion 9816(c)(4) shall apply with respect to se- lecting an IDR entity certified pursuant to subparagraph (A) with respect to the deter- mination of the amount of payment under this subsection of air ambulance services in the same manner as such provisions apply with respect to selecting an IDR entity cer- tified under such section with respect to the determination of the amount of payment under section 9816(c) of an item or service. An entity selected pursuant to the previous sentence to make a determination described in such sentence shall be referred to in this subsection as the ‘‘certified IDR entity’’ with respect to such determination. (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 party to such deter- mination 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 party to such determina- tion— (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 (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 9816(a)(3)(E)) for the applicable year for items or services that are comparable to the qualified IDR air ambulance service and that are fur- nished in the same geographic region (as defined by the Secretary 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, or group health plan 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 fur- nishing such services to such individual. (III) The training, experience, and qual- ity 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 lo- cation (such as urban, suburban, rural, or frontier). (VI) Demonstrations of good faith efforts (or lack of good faith efforts) made by the nonparticipating provider or nonpartici- pating facility or the plan to enter into network agreements and, if applicable, contracted rates between the provider and the plan during the previous 4 plan years. (iii) Prohibition on consideration of certain factors In determining which offer is the payment amount to be applied with respect to quali- fied IDR air ambulance services furnished by a provider, the certified IDR entity with re- spect to such determination shall not con- sider usual and customary charges, the amount that would have been billed by such provider with respect to such services had the provisions of section 2799B–5 of the Pub- lic Health Service Act not applied, or the Page 4203 TITLE 26—INTERNAL REVENUE CODE § 9817 1 So in original. 2 So in original. The period probably should be a semicolon. payment or reimbursement rate for such services furnished by such provider payable by a public payor, including under the Medi- care program under title XVIII of the Social Security Act, under the Medicaid program under title XIX of such Act, under the Chil- dren’s Health Insurance Program under title XXI of such Act, under the TRICARE pro- gram under chapter 55 of title 10, United States Code, or under chapter 17 of title 38, United States Code. (D) Effects of determination The provisions of section 9816(c)(5)(E)) 1 shall apply with respect to a determination of a certified IDR entity under subparagraph (A), the notification submitted with respect to such determination, the services with re- spect to such notification, and the parties to such notification in the same manner as such provisions apply with respect to a de- termination of a certified IDR entity under section 9816(c)(5)(E), the notification sub- mitted with respect to such determination, the items and services with respect to such notification, and the parties to such notifi- cation. (E) Costs of independent dispute resolution process The provisions of section 9816(c)(5)(F) shall apply to a notification made under this sub- section, the parties to such notification, and a determination under subparagraph (A) in the same manner and to the same extent such provisions apply to a notification under section 9816(c), the parties to such notifica- tion and a determination made under sec- tion 9816(c)(5)(A). (6) Timing of payment The total plan payment required pursuant to subsection (a)(3), with respect to qualified IDR air ambulance services for which a determina- tion is made under paragraph (5)(A) or with re- spect to air ambulance services for which a payment amount is determined under open ne- gotiations under paragraph (1), shall be made directly to the nonparticipating 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 the Treasury— (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); (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.2 (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, or group health plan— (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 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 Page 4204 TITLE 26—INTERNAL REVENUE CODE § 9818 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 establish- ment date for the IDR process under para- graph (2)(A) and other than under paragraph (6)) in cases of extenuating 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) Definitions 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 9816(a)(3). (3) Nonparticipting provider The term ‘‘nonparticipating provider’’ has the meaning given such term in section 9816(a)(3). (Added Pub. L. 116–260, div. BB, title I, § 105(a)(3)(A), Dec. 27, 2020, 134 Stat. 2844.) Editorial Notes REFERENCES IN TEXT The date of the enactment of this subsection, referred to in subsec. (b)(2)(A), is the date of enactment of Pub. L. 116–260, which was approved Dec. 27, 2020. Section 2799B–2 of the Public Health Service Act, re- ferred to in subsec. (b)(2)(C), is classified to section 300gg–132 of Title 42, The Public Health and Welfare. Section 2799B–5 of the Public Health Service Act, re- ferred to in subsec. (b)(5)(C)(iii), is classified to section 300gg–135 of Title 42, The Public Health and Welfare. 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. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–260, div. BB, title I, § 105(a)(4), Dec. 27, 2020, 134 Stat. 2851, provided that: ‘‘The amendments made by this subsection [enacting this section, section 1185f of Title 29, Labor, and section 300gg–112 of Title 42, The Public Health and Welfare] shall apply with re- spect to plan years beginning on or after January 1, 2022.’’ § 9818. 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 and with respect to a health care provider or facility that has a contractual relationship with such plan for furnishing items and services under such plan, if, while such individual is a continuing care patient (as defined in subsection (b)) with re- spect to such provider or facility— (A) such contractual relationship is termi- nated (as defined in paragraph (b)); (B) benefits provided under such plan with respect to such provider or facility are ter- minated because of a change in the terms of the participation of such provider or facility in such plan; 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 shall meet the requirements of para- graph (2) with respect to such individual. (2) Requirements The requirements of this paragraph are that the plan— (A) notify each individual enrolled under such plan who is a continuing care patient with respect to a provider or facility at the time of a termination described in paragraph (1) affecting such provider on a timely basis of such termination and such individual’s right to elect continued transitional care from such provider or facility under this sec- tion; (B) provide such individual with an oppor- tunity to notify the plan of the individual’s need for transitional care; and (C) permit the patient to elect to continue to have benefits provided under such plan, under the same terms and conditions as would have applied and with respect to such items and services as would have been cov- ered under such plan had such termination not occurred, with respect to the course of treatment furnished by such provider or fa- cility relating to such individual’s status as a continuing care patient during the period beginning on the date on which the notice under subparagraph (A) is provided and end- ing on the earlier 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: