Final Regulations Related to Emergency Services

On May 3, the DOL, IRS and HHS (the Departments) issued final regulations related to ACA-mandated coverage for emergency services. As a reminder, the ACA places certain requirements on non-grandfathered group health plans that cover services received in an emergency department. The plan must pay benefits for those services without regard to prior authorization determination or the provider’s network participation status.

The 2010 interim final regulations further clarified the amount that plans must pay for non-network emergency services. The plan must pay the greater of: the in-network negotiated amount for emergency services; the out-of-network amount based on usual, customary and reasonable (UCR) charges plus the in-network cost-sharing provision; or the Medicare amount.

Many stakeholders submitted comments to the Departments expressing concern over the methodology for determining the out-of-network emergency service rate. Specifically, the concern was that there would be manipulation of rates since there’s little transparency or oversight related to insurers’ UCR calculations. When the Departments issued final regulations in 2015, there was little change from the interim final rules.

In April 2016, the Departments issued additional guidance in the form of an FAQ, which stated that a plan’s calculations of each of the three rate options must be disclosable to the DOL or a plan participate upon request.

In May 2016, the American College of Emergency Physicians filed a lawsuit against the Departments claiming that the Departments didn’t meaningfully respond to the stakeholders’ concerns and the rules didn’t ensure a reasonable payment for out-of-network emergency services. The U.S. District Court for the District of Columbia agreed in part and remanded the case to the Departments for further explanation of the final regulations.

The recently issued final regulations are the Departments’ response to that court order. The regulations retain the same methodology based on the three rate options with no change. The regulations provide detailed justification as well as a discussion of stakeholders’ comments and suggestions. For example, some had suggested that the Departments create a national database to help set UCR rates. The Departments dismissed this solution as costly, time-consuming and an overstep of their authority.

The final regulations won’t change how non-network emergency services will be paid under group health plans. However, it serves as a reminder for employers who sponsor an ERISA-covered group health plan. If a participant requests additional information related to the calculation or payment of their non-network emergency claim, this could be considered an ERISA disclosure request that must be responded to within 30 days. The employer would want to work with the insurer on any requests.

Final Regulations, Emergency Services »