Insights

Proposed Rules Issued on Air Ambulance Services Reporting under the CAA


On September 16, 2021, the Departments of Labor, Health and Human Services, and the Treasury (collectively, “agencies”) jointly published proposed rules regarding the implementation of provisions of the Consolidated Appropriations Act, 2021 (CAA), including the No Surprises Act. Among other items, the regulations address required reporting of air ambulance services by group health plans (including grandfathered plans), insurers and providers.

The No Surprises Act prohibits surprise billing of participants for certain out-of-network healthcare services, including air ambulance services, provided under particular circumstances. To increase price transparency, the No Surprises Act also requires group health plans, insurers and air ambulance providers to submit certain information to the agencies, including claims data about air ambulance services. The purpose of the data collection is to provide the regulators with a more complete understanding of air ambulance services provided across the industry. HHS is then required to issue a comprehensive public report summarizing the data and providing an assessment of certain aspects and characteristics of the air ambulance market.

Under the proposed rules, plans and insurers would be required to provide the following information regarding air ambulance claims: whether the services were provided on an emergency basis; whether the service provider is part of a hospital-owned or sponsored program, municipality-sponsored program, hospital independent partnership (hybrid) program, independent program, or tribally operated program in Alaska; whether the transport originated in a rural or urban area; the type of aircraft used for the transport (fixed-wing or rotary-wing air ambulance); and whether the provider of the air ambulance service has a contract with the plan or issuer to provide air ambulance services. Additionally, the plans and insurers would need to submit certain claims-level data, including: the date of service, billing and procedural codes, information about each air transport (such as loaded miles and whether the transport was inter-facility), and claims adjudication and payment information. HHS intends to match this claims-level data with information submitted by the air ambulance providers to complete the analysis necessary to fulfill the public reporting requirement.

The information would be submitted to HHS for a period of two calendar years, beginning with 2022. The 2022 calendar year data would be due by March 31, 2023, and the 2023 calendar year data would be due by March 30, 2024.

To streamline the process and avoid unnecessary duplication of reporting, an insured plan could enter a written agreement with the insurer, under which the insurer could assume responsibility for providing the necessary data on the plan’s behalf. In such case, if the insurer fails to timely report, the insurer (and not the plan) would be in violation of the requirements. Although a self-insured plan could contract with a third-party administrator for assistance, the ultimate reporting obligation remains with the plan.

The proposed rules also provide guidance for insurers regarding broker compensation disclosures for individual health insurance or short-term, limited-duration insurance. (The guidance does not address compensation disclosures in the group health plan context.) To satisfy the transparency provisions of the CAA, insurers are required to make disclosures to enrollees and submit reports to HHS regarding direct and indirect compensation provided by an insurer to a broker associated with enrolling the individuals in such coverage. The proposed rules define direct and indirect compensation, explain that the required disclosures would include the commission schedule and structure for any compensation not captured by this schedule, and discuss the timing of the disclosures (e.g., upon enrollment, renewal or invoicing). HHS proposes that these new requirements apply to contracts executed between brokers and insurers on or after December 27, 2021.

Furthermore, the rules propose amendments to existing regulations to clarify the complaint investigation process, potential investigations with respect to nonfederal governmental plans, and the imposition of civil monetary penalties against plans and insurers.

Sponsors of group health plans should be aware of the proposed rules and should consult with their insurers or service providers regarding implementation of the air ambulance services reporting requirements. Comments regarding the proposed regulations can be submitted through October 18, 2021.

Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement »