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NATIONAL COORDINATING COMMITTEE FOR MULTIEMPLOYER PLANS

815 16th Street, N.W., Washington, DC 20006  Phone 202-737-5315  Fax 202-737-1308 

 

Mark H. Ayers Mark H. Ayers Mark H. Ayers 

Chairman 

Randy G. DeFrehn Randy G. DeFrehn Randy G. DeFrehn 

Executive Director 

 E-Mail: RDEFREHN@NCCMP.ORG

Submitted Electronically via Regulations .gov

August 27, 2010 

The Honorable Phyllis Borzi 

Assistant Secretary 

Employee Benefits Security Administration 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Room S-2524 

Washington, D.C. 20210 

Re: RIN 1210–AB43 

Dear Ms. Borzi: 

The National Coordinating Committee for Multiemployer Plans (the NCCMP) is pleased to 

provide these comments on the Interim Final Rule implementing the patient protection 

requirements of the Patient Protection and Affordable Care Act published by the Departments of 

Labor, Treasury, and Health and Human Services (the “Departments” or the “agencies”) on June 

28, 2010. 

As you know, the NCCMP is the only national organization devoted exclusively to protecting the 

interests of the approximately twenty-six million workers, retirees, and their families who rely on 

multiemployer plans for retirement, health and other benefits. The NCCMP’s purpose is to 

assure an environment in which multiemployer plans can continue their vital role in providing 

benefits to working men and women. The NCCMP is a nonprofit, non-partisan organization, 

with members, plans, and plan sponsors in every major segment of the multiemployer plan 

universe, including in the airline, building and construction, entertainment, health care, 

hospitality, longshore, manufacturing, mining, retail food, service and trucking industries. 

Background 

The structure of multiemployer health plans is quite different from that of a single employer 

plan, resulting in the need to address specific concerns of multiemployer plans separately in the 

health reform regulations. In a typical single employer plan, the firm’s management determines 

health benefits and the amount spent on them. This financing model has historically been 

followed by larger single employer plans, even when the covered employees are represented by a 

union. Typically, the amount of employer contributions is not specified in the plan or any related 
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documents; however, if there is collective bargaining, the obligation to provide group health plan 

benefits, and often the amount and nature of the benefits, is codified in the bargaining agreement. 

In a multiemployer plan, however, contributions are made to a separate, trust fund which is 

independent of either the employers or unions, but which is jointly managed. The rate(s) of 

contribution are negotiated in the collective bargaining process, usually for terms of three to five 

years. Typically, contributions are made to the plan based on a unit of work (usually hours 

worked, but daily, weekly or monthly contributions or a percentage of compensation are not 

uncommon in certain industries). These contributions are remitted regularly, usually monthly, to 

the trust fund. If the contributions are not made, fund trustees, as fiduciaries, pursue vigorous 

legal collection efforts that will also usually include claims for interest and liquidated damages 

on the unpaid amounts. Funds also typically employ audit programs to provide both a real 

verification of contribution amounts that are due, and to provide a “sentinel” effect to encourage 

employers to make their contributions when they become due. 

Summary of Recommendations 

As discussed more fully below, we ask the agencies to: 

Clarify the application of the annual and lifetime limit rules to multiemployer plans, 

including health reimbursement arrangements offered by multiemployer plans; 

Modify the anti-rescission rule to reflect the obligations of trustees of multiemployer plans 

under the Taft-Hartley Act; and 

Eliminate the requirement that plans reimburse out-of-network hospital emergency rooms 

according to a formula based largely on Medicare payment standards. 

Annual and Lifetime Limits 

The Rule prohibits lifetime limits on the dollar amount of essential health benefits, and sets the 

level of restricted annual dollar limits permissible between now and 2014. We applaud the level 

of detail provided in some parts of the Rule. For example, the Rule calls for a special enrollment 

process for individuals who remain eligible but had previously exhausted their lifetime benefits. 

Whether individuals who exhausted lifetime maximums had a right to reenroll in the plan was a 

critical question, and the Departments provided clear and direct guidance on that issue. 

We also appreciate the provision in the Rule that permits plan sponsors to make good faith 

efforts to comply with a reasonable interpretation of the term “essential health benefits,” pending 

further guidance from the Departments. While a definition of “essential health benefits” will be 

helpful when it is developed by the Departments, it was important to provide plan sponsors with 

assurance that, in the meantime, the Departments will not hold them accountable if they adopt a 

reasonable definition that ultimately turns out not to coincide precisely with that formal 

guidance. These comments are concerned with several issues that were either not clearly 

addressed in the Rule or on which the Departments requested comments. 

1. Waiver of Restricted Annual Dollar Limits 
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The restricted annual dollar limits in the Rule begin at $750,000 in 2011 and rise to $2 million in 

2013, and are phased out altogether in 2014. It is likely that these limits would present a cost 

hardship to many multiemployer plans. Section 2711 of the Public Health Service Act requires 

the Secretary (of Health and Human Services) to ensure that access to needed services is made 

available with a minimal impact on premiums. Consequently, we believe that the right to obtain 

a waiver of the requirements relating to restricted annual limits is a critically important aspect of 

health reform. We believe that the Secretary should take into account the unique circumstances 

of multiemployer plans with respect to the annual limit waiver program. 

Multiemployer plans have a long history of providing health benefits to workers in industries 

where corporate employers may have been unwilling or unable to insure them. In particular, 

multiemployer plans have endeavored to make benefits available to a workforce that would 

otherwise not have been able to receive the coverage. For example, multiemployer plans extend 

coverage to workers in small businesses1

 many of which are in low-wage industries or industries 

where there is a large part-time or mobile workforce. 

The benefits provided by multiemployer plans tend to be the maximum amount that can be 

supported by the collective bargaining contributions negotiated by the bargaining parties. A 

typical limited benefit plan would cover preventive services, health care provider visits, 

hospitalization, and other comprehensive health services. Benefits often are made available with 

very modest copayments, deductibles, and coinsurance, because these workers do not have 

sufficient disposable income to cover these out-of-pocket charges. However, to offset the 

extensive coverage for prevention and other cost-effective services, the plans have rather low 

annual and lifetime maximum benefits. If the multiemployer plan must increase annual dollar 

limits to the restricted amounts in the Rule, the plan would have to increase copayments, 

coinsurance, and deductibles to a point that these benefit plans may not be affordable to this 

workforce, or require an increase in contributions made by employers beyond the levels at which 

the employers can remain competitive with employers who choose not to provide coverage of 

any kind. 

Many multiemployer plans will simply not be able to afford the enriched benefit plans generally 

mandated by the Act. Bargaining pressures, the fact that participants typically do not contribute 

to multiemployer plan coverage, typically generous eligibility standards, the directly competing 

demands on collective bargaining parties to fund retirement plans, and the lack of other coverage 

available to these participants and their families are special circumstances that should justify 

allowing these plans to continue providing somewhat limited benefits for the next few years. 

We urge the Department to consider the impact of requiring compliance with the annual limit 

requirements in industries where, either because of the salary or part-time nature of the 

workforce, or because of the impact of the recession on the economy, funds are not sufficient to 

provide a more generous benefits package, and the effect of compliance would be to eliminate 

coverage or even loss of employment. If coverage is eliminated for these plan participants and 

their families, there may be no alternative coverage available, at least until the health insurance 

 

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 Over 90% of all employers who contribute to multiemployer plans employ fewer than 20 employees. 
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Exchanges are available. Consequently, requiring compliance could result in these individuals 

being uninsured until the Exchanges are effective. Therefore, adopting flexible waiver standards 

that allow plans to continue to provide some level of coverage for the three years leading up to 

2014 is critical to ensure that this workforce remains covered. 

As the Department considers the standards for the waiver, we encourage development of 

alternatives for qualifying for a waiver. For example, if a numerical standard is developed (e.g., 

if the current cost of the plan was above the average national cost (or some other metric) so that 

if the richness of the current plan would be taken into consideration, or if plan costs rise 10% or 

more due to compliance with the annual limits, the plan could receive a waiver), then a plan that 

cannot meet that financial standard should also be able to obtain a waiver by showing that it 

cannot continue to provide coverage to its plan participants and beneficiaries. 

2. Health Reimbursement Arrangements 

Second, the Departments note that when health reimbursement arrangements (HRAs) are 

integrated with other coverage as part of a group health plan and the other coverage alone would 

comply with the requirements of the Act, the fact that benefits under the HRA by itself are 

limited does not violate the Act because the combined benefit satisfies the requirements. We 

agree with this conclusion, and with the statement that a retiree-only HRA would not be subject 

to the Act. We request that the Departments clarify that when an HRA is used by a 

multiemployer plan as an account in which to record contributions made on behalf of an 

employee, and money is taken from that account to provide a comprehensive health plan, that 

arrangement is considered an integrated HRA and as long as the comprehensive health plan is 

compliant with the Act, the HRA is not subject to the annual or lifetime dollar limit restrictions. 

By way of background, many of the multiemployer health plans that have an HRA fund their 

HRA with employer contributions at an hourly rate determined through collective bargaining. On 

the other hand, some plans give their boards of trustees the authority to determine how to fund 

the HRA. In many cases, the HRA is used to collect contributions on behalf of a participant, and 

then the cost of coverage for each month is subtracted from the account. If a participant has not 

worked during a particular month or other time period, he or she may draw down the HRA 

account to pay for coverage during that time. 

An example of this type of arrangement could occur where contributions are made by employers 

pursuant to collective bargaining agreements into individual accounts, and then participants are 

allowed to elect coverage into one of three plan options. Rates for the plan options are 

established by the plan’s board of trustees annually based on projected plan costs. The accounts 

are treated as an HRA but the three plan coverage options would all be compliant with the 

Affordable Care Act. 

HRA accounts are generally not funded, and are usually self-administered as “notional” accounts 

by the multiemployer plan. In addition to paying for the plan’s “premium” or if self-insured, the 

“premium equivalent,” the HRA may also reimburse the participant and their family for out-ofpocket medical costs. Many multiemployer HRAs limit reimbursement to only those deductible 

and copayment/coinsurance costs which are payable by the major medical plan (e.g., the HRA 
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would not reimburse for over-the-counter medications because they are not payable by the major 

medical plan). 

The HRA account would never be funded at a specific dollar amount that would approach the 

restricted annual dollar limit amounts (e.g., $750,000). However, the HRA would generally be 

offered in conjunction with a major medical plan that is sponsored by the board of trustees, and 

thus should be considered integrated for purposes of the Rule. 

Finally, we encourage the Departments to not eliminate the opportunity for stand-alone HRAs to 

exist independent of a major medical plan, without the HRA having to meet the lifetime and 

annual limits rules. Multiemployer plan trustees need to have a vehicle to provide health care 

coverage in situations where the major medical plan may be eliminated because it is 

unaffordable. In that situation, it would be helpful to be able to provide an account-based plan to 

workers whose major medical benefits have been eliminated, so that they have some source of 

reimbursement for their medical costs. For example, in some cases, the costs of health care 

reform, including observing the annual and lifetime dollar limits may make it impossible for the 

plan to continue to provide meaningful health coverage. In that circumstance, it may be 

appropriate for the trustees to convert the contributions into an individual account that the 

individual can use to either purchase coverage on his or her own, purchase coverage from a 

spouse’s plan, or obtain reimbursement for his or her qualified medical expenses. This flexibility 

is particularly important during the transition period to the Exchange providing coverage. 

3. Annual or Lifetime Dollar Limits on Specific Items and Services 

As multiemployer plan sponsors have begun implementing the Affordable Care Act, one of the 

most common questions that has arisen is whether the Act bars dollar limits on specific items and 

services covered under the plan. The NCCMP believes that the Act was intended to bar only the 

overall aggregate limits that essentially bar a person from obtaining or using his or her health 

care coverage, not specific limits on benefits. We request clarification from the Departments 

about this issue. 

Setting aside the question of whether a benefit is an essential benefit, plans typically have a 

range of coverage rules that place dollar limits on specific items or services. This might include 

a $300 annual limit on chiropractic care, a $9,000 annual limit on physical therapy, or a $15,000 

annual limit on prescription drugs. The Rule appears to permit these limits, as it generally refers 

to the annual and lifetime dollar limits as relating to the overall or aggregate limits on benefits 

under the plan. This reading of the Act is consistent with its purpose – to assure that individuals 

have access to care without having it limited by way of overall dollar amounts. To reach into the 

plan and address specific limits on payment for specific items and services would require 

extensive redesign of plan benefits and could affect the plan’s cost-control measures. 

Consequently, we request that the Departments confirm that annual or lifetime dollar or 

treatment limits (such as limits on the number of office visits, number of times a particular 

procedure will be covered, etc.), on specific items or services payable under the plan are still 

permissible, provided they are not being used as a subterfuge to evade the ban on overall dollar 

limits. that the Departments confirm that a plan may still have. 
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Anti-Rescission 

The regulations provide that a rescission may not take place "unless the individual (or a person 

seeking coverage on behalf of the individual) performs an act, practice, or omission that 

constitutes fraud, or unless the individual makes an intentional misrepresentation of material fact, 

as prohibited by the terms of the plan or coverage." We are pleased to see a broad general 

prohibition of rescissions within the Interim Final Rule, with only limited exceptions allowed. 

We applaud the goals of the Rule, to provide “new rights to individuals” and avoid consequences 

which were “overly broad and unfair” for unintentional misstatements of fact on coverage 

enrollment questionnaires in the past. 75 Fed. Reg. 37188, 37193. However, we are concerned 

that the broad language stating that a rescission is “a cancellation or discontinuance of coverage 

that has retroactive effect” could have unintended effects for multiemployer plans, and we wish 

to highlight some of these concerns below. 

We request that the Departments clarify that a rescission may occur based on the conduct of the 

employer in addition to the individual. Although the language "or a person seeking coverage on 

behalf of the individual" might be read to include an individual who is an agent of the employer, 

such language might be read to only apply to, for example, a participant seeking coverage on 

behalf of a dependent, or a service provider seeking coverage on behalf of a participant or 

dependent. 

 

Furthermore, as noted below in the section entitled "Effect of Rescissions Regulation on 

Revocations of Coverage for Taft Hartley Act Violations", employers may report individuals as 

covered although such individuals are not, in fact, entitled to coverage. Multiemployer plans 

rely on the employer to report the work history of participants, and coverage is granted based 

upon that reporting. Multiemployer plans should be allowed to rescind coverage regardless of 

whether the fraud or intentional misrepresentation is by the individual or the employer. 

1. Effect of Rescissions Regulation on Notices and Revocations of COBRA Election 

Rights 

The broad definition of a rescission under the Interim Final Rule could apply to the termination 

of coverage following a COBRA Qualifying Event (QE) if the employer or Qualified 

Beneficiary (QB) either fails to provide timely notice of the Qualifying Event or the Qualified 

Beneficiary fails to timely elect COBRA coverage. The Interim Final Rule does not address the 

effect of the Patient Protection and Affordable Care Act (PPACA) on the COBRA rules. We 

request that the Final Rules or the Preamble clarify the impact, if any, of the rescission rules on 

the COBRA rules. 

After a COBRA Qualifying Event, the payment of a COBRA premium is required to continue 

coverage. Therefore, retroactive termination of coverage because of the failure of an employer or 

Qualified Beneficiary to provide timely notice of a Qualifying Event or the failure of a Qualified 
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Beneficiary to timely elect COBRA coverage is not a rescission because it is a termination of 

coverage because of a failure to timely pay required premiums. 

2. Effect of Rescissions Regulation on Revocations of Coverage for Taft-Hartley Act 

Violations 

The prohibition of rescissions creates a unique problem for plans subject to the Taft-Hartley Act 

if such plans are required to refund employer contributions made in violation of the Taft-Hartley 

Act [the Labor-Management Relations Act (LMRA), 29 U.S.C. § 141 et seq.] and terminate 

coverage of employees based on those contributions. If such a termination required to comply 

with the Taft-Hartley Act is retroactive, the termination could violate the PPACA's prohibition of 

rescissions. 

Section 302 of the LMRA strictly delineates how Taft-Hartley Plans may be structured and 

operated, and who may and who may not receive benefits under such a plan. LMRA § 302(c) (5) 

[29 U.S.C. 186 (c) (5)]. The LMRA’s restrictions on Taft-Hartley plans require that benefits 

from such plans must be provided only to “employees” of participating employers and payments 

to the funds must be made pursuant to a “written agreement” with the employer. LMRA § 

302(c) (5) (A), (B). 

Multiemployer plans will occasionally discover by means of payroll audits or other 

administrative procedures that contributions have been made and credited and coverage provided 

in violation of the Taft-Hartley Act. Although fraud or intentional misrepresentation may be 

involved, often the situation involves simple error or lack of understanding by the contributing 

employer. An employer may contribute on non-collectively bargained employees not covered by 

the employer's participation agreement with the multiemployer plan in the mistaken belief that 

the employee is covered because he/she is a union member. 

The employer in such situations may have made an unintentional misrepresentation or no 

representation at all, on behalf of the employee regarding the status of the employee and 

therefore there would be no basis to rescind coverage under the Interim Final Rule. To rescind 

coverage may therefore violate the Public Health Service Act (PHS), as modified by the PPACA 

and its interpreting regulations. 

However, to provide coverage or to pay for coverage mistakenly granted in such a situation 

would violate the LMRA and its restrictions on Taft-Hartley plans that require payments be 

made per a written agreement and on behalf of "employees". LMRA § 302 (c)(5)(B). See 

Reiherzer v. Shannon, 581 F.2d 1266, 1267 (7th Cir. 1978) (citing the LMRA § 302 and 

observing that “employer funding of union pension funds is legal only if eligibility provisions are 

set forth ‘in a Written agreement with the employer.’”) The fact that the employer or a plan may 

or may not have made representations to the employee would not estopp the plan from 

withdrawing coverage under the LMRA. See Black v. TIC Investment Corp., 900 F.2d 112, 115 

(7th Cir. 1990) (noting a split regarding estoppel for ERISA cases in the circuits involving 

single-employer plans, but noting estoppel is generally disallowed in the multiemployer context 

because “the plan has multiple fiduciaries with control over a common fund.”) Indeed, a plan 

would be required to revoke coverage in such a situation. 
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Similar revocations of coverage could arise in a situation where an employer mistakenly (but 

unintentionally) misclassifies an individual as an employee covered under a plan, but the plan 

later discovers that individual does not fit the definition of “employee” under the LMRA. 

LMRA § 302(c)(5)(A). Under the LMRA, payments from Taft-Hartley plans may only be made 

“for the benefit of employees, their families and dependants...” Id. The LMRA provides that 

the definition of “employee” shall have the same definition as in the NLRA, and the NLRA 

excludes from that definition anyone who is an independent contractor. LMRA § 501(3) [29 

U.S.C. 142(3)]; NLRA § 2 (3) [29 U.S.C. 152(3)]. 

Unintentional misclassification of individuals as “employees” occurs more frequently in the 

multiemployer context, where persons can be moving from job-site to job-site, and assuming 

different roles in different locations. If such individuals, who cannot legally be “employees” 

under the LMRA, are excluded from a plan and their coverage revoked, as required by the 

LMRA, this could, nevertheless, be a prohibited rescission under the Interim Final Rule. 

The NCCMP proposes that the Departments consider one of two possible solutions. First, the 

Departments could issue guidance that clarifies that the retroactive revocation of coverage by a 

Taft-Hartley plan to comply with the LMRA is not a rescission under the Interim Final Rule. 

This would be our preferred solution, and would comport with the interests of the Departments 

Multiemployer plans rely on the employer to report the work history of participants, and 

coverage is granted based upon that reporting. Multiemployer plans should be allowed to rescind 

coverage regardless of whether the fraud or intentional misrepresentation is by the individual or 

the employer. 

This would be our preferred solution, and would comport with the interests of the Departments 

and the plans in protecting plan assets, enforcing the law, and reconciling the provisions of the 

PPACA and the LMRA. While the Departments could issue guidance mandating that plans must 

cover such individuals and continue coverage, even if such coverage would violate the terms the 

LMRA we would strenuously recommend against such a finding. It is true that this would have 

the benefit of giving the plans clear guidance prohibiting rescissions in such situations, but it 

would lead to situations where coverage was mandated under the PPACA but technically barred 

under the LMRA leaving plan trustees with a “Hobson’s Choice” which, by definition, provides 

plan fiduciaries with an apparently free choice that offers no real alternative. While well 

meaning, this conclusion would lead only to protracted disputes in which there can be no winner 

and will only further deplete limited available of both plans, regulatory agencies and ultimately, 

the courts. 

In other more limited situations, plans may be faced with implementing decisions that are made 

pursuant to circumstances beyond the plan’s control. For example, if the plan document says 

that the plan does not cover ex-spouses, it would appear that the termination of an ex-spouse’s 

status as a covered person precipitated by a divorce is a decision by the court, not the plan, 

regardless of when the plan administrator learns of, or can implement the result of that decision. 

Would that action constitute a “rescission” under the PPACA? 
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Based on the foregoing, the NCCMP supports the efforts of the Departments to provide clear 

guidance to employers and plan administrators in determining when a rescission has occurred 

under these regulations and when and under what circumstances a Notice of Rescission must be 

given, and requests further guidance on the specific issues raised above. Clearly defining what 

is and what is not a rescission under these regulations in the context of COBRA notices and 

rights, and when violations of federal laws prohibit coverage, will permit the Departments to 

provide certainty to the multiemployer plan community while protecting the participants and 

beneficiaries of those plans. 

Payment for Care in a Hospital Emergency Room 

The Rule requires non-grandfathered health plans that provide any benefits with respect to 

services in an emergency department of a hospital to comply with specific requirements. For 

example, plans must provide hospital emergency room services without preauthorization and 

must not charge higher cost sharing when participants obtain those services from a non-network 

provider. These requirements appear fairly straightforward and easy to implement. However, we 

would urge the Departments to avoid imposing requirements that would dramatically increase 

administrative costs whenever possible and note that the formula described in the regulation for 

determining the payment for emergency room services would be needlessly expensive to 

administer and would potentially delay payment (as described below). 

One aspect of the Rule will present particularly serious administrative challenges for many 

multiemployer plans: the complex payment formula for plan reimbursements to non-network 

providers. The Departments expressed concern about the potential for plan participants and 

beneficiaries to be “balance-billed” if the non-participating hospital refuses to accept the plan’s 

payment as payment in full. To alleviate the possibility of plan participants and beneficiaries 

having a large out-of-pocket payment to the non-participating hospital, the Departments set forth 

a complex payment formula for paying out-of-network hospital emergency room charges. 

Under the Rule, the plan must pay the greater of: 

1. The negotiated amount paid to in-network providers for that emergency service (the 

median amount if there is more than one amount paid to in-network providers), 

2. 100 percent of the plan’s usual payment formula for out-of-network services (such as 

the usual, customary and reasonable amount) reduced by in-network cost sharing, or 

3. The amount that Medicare (Part A or Part B) would pay reduced by in-network cost 

sharing. 

While we appreciate the goal of reducing the potential burden of balance billing on plan 

participants, the payment formula is impractical, and it effectively strips plan sponsors of the 

ability to control the plan’s costs for emergency care through the common practice of negotiating 

payment rates with participating providers. The first part of the formula will require calculations 

that plans do not perform now, and we are concerned that the requirement to determine the 

median amount paid to all of the plan’s participating providers will prove burdensome. More 
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burdensome, however, is the requirement to determine what Medicare would pay for the 

particular service provided. 

Many plans will have a difficult if not impossible time determining the Medicare Part A and B 

payments amounts. The link provided in the Rule does not contain any payment rate details.2

 It 

is a general outline of the payment rules that apply when Medicare Advantage (MA) plans pay 

non-contracted providers. According to the document (page 21), MA plans are required to pay 

non-contracted providers “in combined plan payment and member cost sharing at least the 

amount the provider would have received in combined Original Medicare payment, beneficiary 

cost sharing and permitted balance billing.” Rules are different for MA Private Fee-for-Service 

(PFFS) and non-PFFS plans, and are different depending on the type of hospital. There are links 

to a variety of rates in the document, but no clear link to the appropriate Medicare payment rates 

for specific emergency services. 

Many multiemployer plans are self-administered and do not routinely pay benefits using 

Medicare payment rates, or they utilize third party administrators that may not be familiar with 

such rates. This may be particularly true if the plan does not provide retiree benefits. 

Determining the appropriate Medicare payment rate in situations where the plan is selfadministered or does not utilize the services of a third party administrator who is actually paying 

Medicare benefits (e.g., a Medicare intermediary such as an insurance company) would present 

administrative issues which are outside the plan’s expertise and could require the plan to retain 

outside billing experts to determine the appropriate payment amounts. Indeed, many plans have 

no way of knowing what the one amount or median amount of what is paid in network is, 

because networks are often “rented” or managed by third parties (and even they may not have a 

good handle on what their median reimbursement for a particular procedure is because they have 

so many varied contracts). Finally, the UCR will almost always be higher than the in-network or 

Medicare reimbursement, so nothing would be lost by leaving it at the UCR level. 

In addition, requiring this type of payment calculation would not necessarily be in a participant’s 

best interest. It would delay payment while rates are calculated based on schedules not normally 

utilized by the plan. More importantly, there is still no reason to expect that the participant will 

not be balance billed by the provider, since the Medicare balance-billing rules applicable to 

Medicare beneficiaries would not apply. 

Accordingly we request that the Departments eliminate these new payment rules for out-ofnetwork hospital emergency room services. 

 

2

 The Rule provides this link: http://www.cms.gov/MedicareAdvtgSpecRateStats/downloads/oon-payments.pdf
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Conclusion 

Once again, we congratulate the Departments on the quality of the product your joint efforts in 

this massive undertaking have produced, under such necessary, but unfortunately difficult time 

constraints and thank you on behalf of the multiemployer community for the opportunity to 

provide comments on these important issues. We will be pleased to provide any additional 

information that you might find useful. 

Respectfully submitted, 

Randy G. DeFrehn 

 Executive Director