Surprise billing rule also strikes down insurer ED policies

A major rule that bans surprise medical bills also outlawed policies that let insurers retroactively deny emergency department claims.

The Biden administration released an interim final rule Thursday that prohibits balance billing and includes several provisions requiring providers to notify patients of new consumer protections. But tucked into the 411-page regulation, the first in a series, is a provision that targets a controversial practice where insurers deny an ED claim if the diagnosis isn’t considered an emergency.

The interim rule said that such a practice is “inconsistent with the emergency services requirement of the No Surprises Act and the [Affordable Care Act],” the rule said.

UnitedHealthcare faced major blowback when it proposed a similar policy last month. The insurance giant said the goal of the policy was to encourage patients to get care at other sites such as an urgent care facility rather than going to the ED.

The policy was expected to go into effect July 1. However, UnitedHealthcare decided to delay the policy until at least the end of the COVID-19 public health emergency, which is expected to run through the rest of this year.

Provider groups charged that the policy violates federal law and could hurt patients.

“Emergency departments around the country often serve as the only safety net for a fragmented mental health infrastructure,” according to a statement led by the American College of Emergency Physicians (ACEP) and 32 other groups issued last month over the policy. “For those in crisis for whom the ED is a lifeline for care, an added threat of a retroactive denial of coverage under this policy can be devastating.”

UnitedHealthcare did not immediately return a request for comment on the provision in the interim final rule.

Anthem issued a similar policy in 2017 but was sued by the ACEP over it.

Other items you may have missed in the final rule include:

  • A request for information on whether the rule’s provisions should apply to urgent care facilities. Currently, those facilities are not affected by the rule. However, the Department of Health and Human Services (HHS) wants comments on whether “individuals may be using urgent care centers in a similar way to how they use independent freestanding emergency departments,” the rule said. HHS also wants to learn how frequently urgent care centers are the source of surprise medical bills.
  • A requirement for providers to post on a public website and provide to patients a one-page notice disclosure on a patient’s protection against surprise billing. HHS estimates that this requirement will require a one-time cost for all providers of $13.1 million and an ongoing annual cost of $2.5 million. “HHS encourages states to develop language to assist facilities in fulfilling this disclosure requirement as it applies to disclosing state protections against balance billing,” the rule said.