September 22, 2021
Agencies Propose Regulations Regarding Air Ambulance Reporting for Group Health Plans and Insurers
The U.S. departments of Labor, Health and Human Services (HHS) and Treasury (the “tri-agencies”) issued proposed regulations on September 16 implementing several provisions of the Consolidated Appropriations Act, 2021 (CAA) — namely, the reporting requirements for group health plans, insurers and providers regarding air ambulance services and the disclosure requirements for agents and brokers regarding compensation received in connection with the sale of individual health insurance.
The air ambulance reporting requirements are most relevant to plan sponsors as those requirements are directly applicable to group health plans. While the proposed regulations address disclosure of service provider compensation for individual health insurance, guidance on the related requirements for group health plan service providers is still forthcoming.
Reporting Related to Air Ambulances
Under the CAA, air ambulance providers are required to report to HHS and the U.S. Department of Transportation (DOT) an array of information regarding the services they provide, including cost information, types of aircraft used, locations of air ambulance bases, numbers of claims denied and types of payers (including group health plans) and reasons for denials. Separately, group health plans and health insurers are required to report to the tri-agencies claims data for air ambulance services, disaggregated by several factors including emergency versus non-emergency services, owner of the air ambulance, type of aircraft and network status. For both the provider and plan/insurer requirements, reporting will take place over 2022 and 2023 and after that, HHS and DOT will provide a comprehensive public report synthesizing the information.
In the proposed regulations, the tri-agencies provide context for the reporting requirements, explaining that although the CAA’s surprise billing prohibitions apply to air ambulance services (to the extent the rules are otherwise applicable), historically air ambulance providers have generally been out-of-network and have imposed substantial balance bills. The reporting is intended to help the regulators further understand potential issues in this industry.
The proposed regulations provide additional detail on how and when the reporting is to be provided, with the following highlights:
- The 2022 report must be submitted by March 31, 2023, and the 2023 report by March 30, 2024, and need only be provided to HHS.
- The information is to be reported on a calendar year basis, rather than a plan year basis. The data for a reporting period includes both services furnished within the period as well as services for which payments were made within the period.
- Reporting must be provided on a claim-by-claim basis, which the tri-agencies explain is intended to allow them to sync up the information provided by plans/insurers with information from providers. The items that must be reported by plans/insurers include the items specified in the statute summarized above, as well as some additional information such as claim adjudication information (i.e., whether the claim was paid, denied, appealed, denial reason, and appeal outcome) and claim payment information (i.e., submitted charges, amounts paid by plan, and cost-sharing amount, if applicable) and for self-insured plans, whether the employer is large or small.
- The form and manner of the reporting are specified in separate guidance, which was proposed several days after the proposed regulations were released. The proposed documents include a template and instructions.
- The requirements do not apply to excepted benefits or health reimbursement arrangements but do apply to grandfathered health plans.
The regulations also flesh out and explain the reporting requirements for air ambulance providers, including the enforcement apparatus and potential penalties for noncompliance. The regulations also address HHS enforcement of the CAA requirements regarding the plans under their jurisdiction (i.e., insured plans and non-federal governmental plans) by providing HHS with direct enforcement authority on certain issues (in contrast to the typical case when states have direct enforcement authority) and propose to specify that CMS may conduct random and targeted investigations and market conduct examinations regarding the plans under its jurisdiction so that CMS may seek an investigation even if it has not received a complaint.
Agent and Broker Disclosures
The CAA imposes new disclosure requirements regarding direct and indirect compensation paid by insurers to agents or brokers with respect to individual health insurance coverage and short-term, limited-duration insurance. The disclosures are to be made to enrollees and to HHS and the proposed regulations provide additional detail on these requirements.
The CAA also requires disclosure by “covered” group health plan service providers to plan fiduciaries of direct and indirect compensation received in connection with services provided to the plan. Notably, the proposed regulations do not address these requirements. These provisions are applicable starting December 27, 2021, and we anticipate future guidance addressing the group health plan related disclosures.
Unlike other recent CAA related regulations, these regulations were issued in proposed form. Comments are due October 18, 2021. The Council is considering whether to file comments and which specific issues to raise and welcomes member feedback. For more information, or to provide input, please contact Katy Johnson, senior counsel, health policy.