December 3, 2021
The Honorable Janet Yellen
Secretary
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
The Honorable Martin Walsh
Secretary
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210

The Honorable Xavier Becerra
Secretary
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, D.C. 20201

Submitted online via www.regulations.gov

Re: CMS–9908–IFC— Requirements Related to Surprise Billing; Part II; Interim Final Rules withRequest for Comments (RIN 1210-AB00)

Dear Secretaries Yellen, Walsh and Becerra:

On behalf of the American Association of Oral and Maxillofacial Surgeons (AAOMS), which
represents more than 9,000 oral and maxillofacial surgeons (OMSs) in the United States, thank you
for the opportunity to comment on the interim final rule (IFR) entitled, “Requirements Related to
Surprise Billing; Part II,” as published in the Federal Register on September 30, 2021.

OMSs – many of whom are part of small practices – are also an integral part of hospital systems,
providing emergency department coverage, serving as essential members of trauma teams
throughout the country and performing complex procedures at hospitals. AAOMS supports efforts
to prevent patients from being unfairly surprised by an out-of-network bill, while ensuring thatproviders have the opportunity to be reimbursed at a fair and reasonable rate.

The No Surprises Act (NSA) is representative of significant bipartisan and bicameral efforts aimed
at mitigating unanticipated financial hardships for those patients who inadvertently receive out-ofnetwork care. AAOMS is supportive of many of the provisions in the final version of the law.

Also, we would like to thank the Centers for Medicare & Medicaid Services (CMS) for delaying theimplementation of the provision of Good Faith Estimates (GFEs) for insured patients beyond
January 1, 2022, recognizing the significant administrative and logistical challenges this poses forboth providers and insurers. We appreciate the cooperation between both entities in addressing
significant issues related to the current healthcare landscape. Clearly, it will take time for all
relevant stakeholders to come together to create meaningful pathways and protocols to allow for
seamless integration of patient care and insurance reimbursement.
While the NSA puts into place important reforms necessary to protect patients from surprise
medical bills, there are several implementing provisions in this IFR that AAOMS finds concerningand are outlined in this letter.
Presumption of QPA as an appropriate out-of-network rate is contrary to Congressional intent

AAOMS supports a standardized and consistent provider-insurer payment negotiation process andagrees that such a process is necessary to ensure fair payment for services. It is our position,
however, that the IFR’s interpretation of the statute’s independent dispute resolution (IDR)
process, namely the assertion that the qualifying payment amount (QPA) is to be the primary factor
against which all out-of-network rates will be referenced, is a departure from intent of thelegislation and unfair to the provider of service.

The IDR process was borne of substantial bipartisan effort to establish a balanced system in which
payment proposals would take into consideration several key factors, characterizing theuniqueness of each patient encounter and the various treatment options provided to optimize thepatients’ treatment and recovery. It has been noted that the calculation of the QPA must be bothconsistent and transparent. However, presupposing that the QPA is both reasonable andrepresentative of the market in question, and requiring compelling evidence for any deviation fromthe QPA, places an undue burden on the out-of-network provider. This effectively imposes upon theout-of-network provider the burdens of participation, namely the presumption of a network rate,
without the benefit of participation, namely inclusion in the insurer’s network to reach the insurer’ssubscribers. That is, the in-network allowance (QPA) is often discounted and offered toparticipating providers in return for inclusion in the insurer’s network provider listing; the listing
serves as a patient referral source to participating providers. If the in-network allowance (QPA) isapplied to the out-of-network provider, the provider will have to comply with the discounted rateof the in-network provider without the benefit of the network listing.

Furthermore, implementation of the law as such significantly restricts what information providers
may present to substantiate their request for review, further diminishing the likelihood ofproviders, especially those in small practice settings, engaging in the IDR process at all. Therefore,
we ask the Departments to revise the IFR to give certified IDR entities the discretion to consider all
the allowable and relevant information submitted by the parties, without creating a presumptionthat directs IDR entities to consider the offer closest to the QPA as the appropriate payment
amount.

Placing the responsibility of network status of ancillary providers on the office-based primary
provider is impracticable

AAOMS agrees that the provision of a GFE for scheduled or requested services is an integral
component of the patient protections against surprise medical bills set forth under the NSA;
however, we believe the inclusion of co-providers/co-facilities in the responsibility of theconvening provider presents unique challenges for office-based providers that perform surgeries inambulatory surgical centers (ASCs), hospital outpatient facilities or inpatient hospitals, as OMSs
routinely do.

In the case of nonemergency surgical services, the OMS is often subject to the schedulingconstraints and the limited availability of specialty-specific equipment and supplies in facilities inwhich they have privileges. As such, it is uncommon for any ancillary providers (e.g.,anesthesiologists, radiologists or hospitalists) to have their procedures predetermined at the timeof scheduling (this includes their network status and fees for service). Similarly, the insurance andnetwork information is often not communicated to the OMS in advance of the procedure nor are theprocedures predetermined. As a result, procedures are often performed prior to predeterminationof insurance coverage. Often the patients' medical condition necessitates immediate management
to prevent further deterioration of the patient’s condition and the OMS is not adequately
compensated for the specialty care provided

We request the IFR be amended to specify that the primary surgical provider – such as the OMS in
the above example – only be required to provide notification on their own network status at thetime the patient makes the appointment and be allowed to direct the patient to the facility for thenetwork status of other potential providers involved in the patient’s care. By amending the IFR as
such, should the facility not comply with the rule’s notification requirements and the patient
receives care from an out-of-network provider such as anesthesiologist or pathologist, then thefacility is penalized but the primary surgical provider is not.
Clarification is needed to further define the term “health care facility” and assure the language
regarding office-based settings is excluded from the definition

AAOMS reemphasizes its request to ensure the definition of “health care facility” does not include
office-based settings. We agree that the specific settings mentioned in the bill – such as hospitals,
critical access hospitals, ASCs – are appropriate to include in the definition; however, in the case ofoffice-based providers, patients are informed in advance as to whether the provider is in theirnetwork and the patient is able to decide whether they wish to incur any additional costs byseeking treatment from an out-of-network provider. As such, AAOMS requests the IFR be clarified
to ensure the definition of “health care facility” not be misinterpreted to include physician and/ordental office-based settings.

Thank you for your consideration of these comments. Please contact Patricia Serpico, AAOMS
Director of Health Policy, Quality & Reimbursement, with any questions at 800-822-6637, ext. 4394
or pserpico@aaoms.org.
Sincerely,

J. David Johnson Jr., DDS