Does Part I of the Requirements Related to Surprise Billing Apply to Reference-Based Pricing Plans?

On July 1, 2021, the U.S. Departments of Health and Human Services (HHS), Labor, and Treasury, and the Office of Personnel Management, issued the first set of regulations under the No Surprises Act – “Part I of the Requirements Related to Surprise Billing.”[1]

Part I provides regulations for only a portion of the No Surprises Act.[2] The key components to Part I include provisions:

  • Banning balance billing for emergency services, non-emergency services provided by an out-of-network provider at an in-network facility, and air ambulance services provided by an out-of-network provider;
  • Establishing cost-sharing amounts;
  • Establishing the methodology for calculating the qualifying payment amount (i.e. the median contracted rate);
  • Establishing out-of-network rates to providers;
  • Outlining protections concerning selection of a primary care provider; and
  • Establishing a complaint process for out-of-network medical bills and balance billing.

Part I does not make any specific mention of reference-based pricing plans. However, Part I implies that certain of the provisions will be applicable to reference-based pricing plans, while others will not:

These interim final rules are generally applicable to traditional indemnity plans, meaning plans that do not have networks of providers or facilities. However, the Departments recognize that indemnity plans may have unique benefit designs that cause certain provisions of these interim final rules not to be relevant. For example, the requirements regarding balance billing for non-emergency services provided by nonparticipating providers at certain participating facilities would never be triggered if a plan does not have a network of participating facilities. On the other hand, such requirement could be triggered by plans that have participating facilities but do not have participating providers, either for certain provider types or at all. In addition, requirements that are unrelated to whether a plan or coverage has a network of participating providers or facilities, such as the requirement that emergency services be covered without the need for any prior authorization determination, even if the services are provided on an out-of-network basis, are applicable to traditional indemnity plans.[3]

The regulations set forth in Part I that may apply to reference-based pricing plans include:

  • Emergency services must be covered without prior authorization;[4]
  • If a group health plan requires or provides for a designation by a participant of a participating primary care provider, then the plan must permit each participant to designate any participating primary care provider who is available to accept the participant and the plan must inform each participant of the terms of the plan regarding designation of a primary care provider;[5] and
  • Obstetrical and gynecological care must be covered without prior authorization.[6]

A word of caution: Reference-based pricing plans that have some provider or facility contracts may be bound by all of the provisions of Part I in certain geographic regions if there is sufficient data to calculate a median contracted rate.[7]

The July 1st set of regulations is an interim final rule, which provide an opportunity to comment. HHS is seeking comments on many topics, including whether other plans with unique benefit designs (such as reference-based pricing plans) should be exempt from all or some of the Requirements. All comments to the rule are due by 5:00 p.m. on September 7, 2021. Part I is effective on September 13, 2021. Click here for more information.



[2] Part I does not address the audit process or the independent dispute resolution process. Part II is expected to be issued by October 1, 2021 and will establish the audit process. Part III is expected to be issued by December 27, 2021 and will detail the independent dispute resolution process.





[7] Single-case agreements, letter of agreements, or other similar arrangements are expressly excluded from the calculation of the median contracted rate.