WSR 21-22-073

OFFICE OF THE

INSURANCE COMMISSIONER

[Filed November 1, 2021, 7:38 a.m.]

The purpose of this TAA is to provide guidance for health carriers2 on the office of insurance commissioner's (OIC) implementation of the Federal No Surprises Act (FNSA).3

Background: Washington's Balance Billing Protection Act (BBPA) bans balance billing for emergency services provided by an out-of-network (OON) hospital or provider, and surgical and ancillary nonemergency services provided by an OON provider at in-network hospitals or ambulatory surgical facilities.4 Balance billing refers to the practice of OON providers or facilities billing enrollees5 for health care services provided to the enrollee after the provider or facility's billed amount is not fully reimbursed by the health carrier, exclusive of permitted enrollee cost-sharing.6 The BBPA requires that the OON provider and health carrier negotiate OON payments in good faith without involving the enrollee.7 Under the BBPA, the enrollee is only responsible for in-network cost sharing, which must be applied toward the enrollee's deductible and maximum out-of-pocket payment obligation.8

Congress recently passed FNSA, which also bans balance billing, but applies to a broader scope of plans and services than Washington's BBPA. This new law, enacted as part of the broader CCA of 2021, takes effect for health plans, beginning on or after January 1, 2022.9 It applies to nearly all private health plans offered by employers (including grandfathered health plans and the Federal Employees Health Benefits Program), as well as individual health insurance policies offered both on and off the exchange.10 In addition to prohibiting balance billing for emergency services, the FNSA extends balance billing protections to post-stabilization services,11 nonemergency services furnished by OON providers at in-network facilities without the enrollee's informed consent,12 and services furnished by air ambulance providers.13

Beyond banning balance bills by OON providers and facilities, the FNSA limits enrollee cost-sharing an enrollee must pay the issuer.14 Enrollees who receive OON care will only have to pay the cost sharing amount that they would have paid if the provider had been in-network.15 This limitation applies to emergency services, nonemergency services without the patient's informed consent, and air ambulance services.16 It similarly limits cost-sharing when an enrollee relied on their issuer's provider directory's listing of a provider as in-network, and that information turned out to be incorrect.17 Any cost-sharing subject to the FNSA must be counted towards an enrollee's in-network deductible and annual out-of-pocket maximum.18

Additionally, congress set up a regulatory framework for OON provider payment and dispute resolution, and added transparency measures, provider directory requirements, and continuity of care requirements.

OIC Enforcement: Aside from a few deferments described in the next section, OIC will enforce the FNSA provisions pertaining to health carriers for health plans starting on or after January 1, 2022.19 This includes the following provisions of FNSA:

The FNSA preempts state laws only when those laws impose a requirement that "prevents the application" of the FNSA.26 Based upon this principle and a few FNSA provisions expressly deferring to state law, OIC will continue to enforce related state laws in four areas: (1) BBPA provisions that exceed FNSA provisions;27 (2) provider directories;28 (3) calculation of enrollee cost-sharing;29 and (4) OON provider payment and dispute resolution processes.30

As a result, beginning January 1, 2022, until the effective date of any new legislation amending the BBPA, OIC will enforce the following state law provisions:

Deferred Enforcement: OIC will defer enforcement against some entities due to jurisdictional limitations, and with respect to some provisions of FNSA in alignment with deferment recently announced by the Departments of Health and Human Services, Labor, and Treasury (collectively referred to as "the departments").

Due to jurisdiction limitations, OIC will defer to other state or federal agencies for enforcement regarding the following entities:

Additionally, OIC will defer enforcement for some of the FNSA provisions in accordance with the deferred enforcement policy announced by the departments, Aug. 20, 2021, in a set of Frequently Asked Questions ("FAQs").38 In accordance with these FAQs, OIC will defer enforcement for the following FNSA provisions:

OIC will continue to enforce any state law counterpart to these FNSA provisions, including, but not limited to the following:

The departments also detailed provisions of FNSA44 that issuers must implement using a good faith, reasonable interpretation of the law, without the guidance of regulations. OIC will enforce the following provisions in the same manner as announced by the departments:

Consumer Notice: OIC developed a consumer notice for balance billing rights that satisfies both FNSA and BBPA.50 OIC's consumer notice should be used for fully insured health plans, PEBB/SEBB plans, and self-funded ERISA plans that have opted into BBPA. Under BBPA, this notice must be provided to enrollees in any communication that authorizes nonemergency surgical or ancillary services at an in-network facility.51 Also, the issuer must indicate on the enrollee's explanation of benefits whether the service is subject to balance billing protections.52 OIC will continue to enforce these BBPA consumer notice requirements against health carriers.

Please direct any questions about this advisory to Jane Beyer, senior health policy advisor, who may be contacted at janeb@oic.wa.gov, phone 360-725-7043.