Air Ambulance NPRM – Fact Sheet

On September 10, 2021, the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury (Treasury) (collectively, the Departments), along with the Office of Personnel Management (OPM), released a notice of proposed rulemaking (NPRM), entitled “Reporting Requirements Regarding Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement.” This proposed rule, which is related to Title I (the No Surprises Act) and Title II (Transparency) of Division BB of the Consolidated Appropriations Act, 2021 (CAA), would establish new reporting requirements regarding air ambulance services, new disclosure, and reporting requirements on issuers of individual health insurance coverage and short-term, limited-duration insurance (STLDI) regarding agent and broker compensation, new procedures for enforcement of Public Health Service Act (PHS Act) provisions against providers, facilities, and providers of air ambulance services, and revisions to existing PHS Act enforcement procedures for plans and issuers.

Background – Reporting Requirements and Enforcement Provisions in the CAA

Air ambulance services frequently result in surprise medical bills due to individuals’ inability to select an in-network provider when faced with an urgent medical situation. A 2019 study by the Government Accountability Office (GAO) found that 69 percent of air ambulance transports of privately-insured patients were out-of-network in 2017 and that for privately-insured patients, the median price charged by providers of air ambulance services was $36,400 for helicopter transport and $40,600 for a fixed-wing transport in 2017.[1]

The first rule in this series of rulemaking made clear that the No Surprises Act bans surprise bills for patients who use out-of-network air ambulance services and limits the amount they pay out-of-pocket starting next year.  For more information on that rule see https://www.cms.gov/newsroom/press-releases/hhs-announces-rule-protect-consumers-surprise-medical-bills.

The No Surprises Act requires providers of air ambulance services to submit data to HHS, including data on transportation and medical costs, data on air ambulance bases and aircraft, the number and nature of air ambulance transports, payor data, and data on claims denials. The No Surprises Act also requires plans and issuers to report information about claims data for air ambulance services. The No Surprises Act further requires HHS, along with the Department of Transportation, to produce a comprehensive, publicly available report on air ambulance services that is expected to help shed light on the drivers of the high costs of these services.

The CAA additionally requires issuers of individual health insurance coverage or STLDI to disclose to enrollees, prior to finalizing enrollment and on documentation confirming the individual’s enrollment, direct and indirect agent and broker compensation associated with enrolling individuals in such coverage, and to report similar information to HHS. These disclosures and reporting requirements generally apply to contracts executed after December 27, 2021.

More generally, the CAA added several new requirements on plans and issuers, as well as on providers and facilities. The No Surprises Act provides that states are the primary enforcers of the new requirements applicable to issuers, providers, facilities, and providers of air ambulance services. HHS enforces these provisions in states that fail to substantially enforce one or more of the provisions or does not have the authority to enforce federal requirements.  HHS is also responsible for enforcement and oversight of the new federal requirements applicable to non-federal governmental plans.

Summary of NPRM

Air Ambulance Data Reporting Requirements

This NPRM proposes requirements related to data collection from providers of air ambulance services and from plans and issuers regarding air ambulance services. The NPRM proposes that plans, issuers, and providers of air ambulance services submit data for each air ambulance claim and transport for the two years covered by the reporting requirements in the No Surprises Act. The data will include specific elements outlined in the law, as well as additional data elements necessary for HHS, along with the Department of Transportation, to develop a comprehensive public report on air ambulance services.

Disclosure and Reporting Requirements for Agent and Broker Compensation

This NPRM proposes to require issuers offering individual health insurance coverage or STLDI to disclose to policyholders, before finalizing plan selection as well as on documentation confirming the individual’s enrollment, commission rates and compensation structure for other direct and indirect compensation provided by the issuer to an agent or broker associated with enrolling those individuals. The proposed rules would also require such issuers to report to HHS the actual, total amount of direct and indirect compensation paid by the issuer to the agent and broker for the preceding year.

Enforcement of PHS Act Requirements

This NPRM proposes to: 1) extend CMS’s existing processes for determining whether a state is not substantially enforcing PHS Act requirements to such requirements related to providers, facilities, and providers of air ambulance services; 2) create a process for initiating investigations and determining that a provider, facility, or provider of air ambulance services is in violation of a PHS Act requirement; and 3) codify the processes set forth in section 2799B-4 of the PHS Act for imposing civil money penalties of up to $10,000 per violation on providers, facilities, and providers of air ambulance services for violations of Part E of title XXVII of the PHS Act, and set forth in section 106(e) of Division BB of the CAA for imposing civil money penalties of up to $10,000 on providers of air ambulance services for failure to submit data required under section 106(a) of the No Surprises Act), consistent with the applicable provisions of section 1128A of the Social Security Act. Additionally, this NPRM would update existing PHS Act enforcement procedures with respect to plans and issuers to more closely align with industry practice.

Comment Period

Written comments must be received by October 18, 2021 to be considered.

Visit https://www.federalregister.gov/public-inspection/2021-19797/requirements-related-to-air-ambulance-services-agent-and-broker-disclosures-and-provider-enforcement to read more about the proposed rule.

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