2023-03: Single case filings for experience rated groups

MIKE KREIDLER                                   STATE OF WASHINGTON                                        Phone: 360-725-7000
STATE INSURANCE COMMISSIONER                                                                                www.insurance.wa.gov

                                                              OFFICE OF
                                               INSURANCE COMMISSIONER

                                            Technical Assistance Advisory 2023-031

      TO:                      All Disability Insurers Operating in the State of Washington

      FROM:                    Insurance Commissioner Mike Kreidler

      DATE:                    March 8, 2023

      SUBJECT:                 Single Case Filings for Experience Rated Groups

      BACKGROUND AND AUTHORITY

      Disability insurers in the state of Washington are required to file with the Office of the Insurance
      Commissioner the rates charged for disability income prior to use.2

      If appropriate, each rate filing must include rates, manuals of classification, manuals of rules and rates
      and modifications thereof.3 WAC 284-58-033(2)(a). Importantly, the term “rate” or “rates” are
      defined by rule to mean “all classification manuals, rate or rule manuals, rating plans, rating
      schedules, minimum rates, class rates, and rating rules that insurers must file under
      RCW 48.19.010(2) ….”4 Group disability income products are exempt from the minimum loss ratio
      requirements of Ch. 284-60 WAC.

      Under RCW 48.18.110(2), the commissioner may disapprove any form of disability insurance policy
      if the benefits provided therein are unreasonable in relation to the premium charged. To prove that
      rates are reasonable, justification and actuarial demonstration of anticipated loss ratio are also
      required. WAC 284-58-033(2)(c).

      For group disability insurance, carriers can file a rate manual filing that encompasses rates for many
      groups. The rate manual includes standard rating methodology. A group’s rate covered under this rate
      manual filing is developed through the standard rating methodology without using the group’s partial
      or entire disability claim experience. The rate manual must account for all rules and formulas the
      company uses to calculate the premium charged. In other words, if a group’s rate was developed from
      the rate manual, when given the demographics of this group, the OIC would be able to replicate the

      1
        This advisory is an interpretive policy statement released to advise the public of the OIC’s current opinions, approaches,
         and likely courses of action. It is advisory only. RCW 34.05.230(1).
      2                                                                                ICE OF THE COOE REVISER
        RCW 48.19.010(2).                                                                                STATE OF WASHINGTON
      3
        WAC 284-58-033(2)(a).                                                                                FILED
      4
        WAC 284-58-005(11).
                                                                                DATE: March 08, 2023
                                            Mailing Address: PO Box 40255 Olympia, WA 98504-0255 TIME: 11 :56AM
                                            Street Address: 5000 Capitol Blvd Tumwater WA 98501
                                                                                WSR 23-07-045
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2023-03
Single Case Filings for Experience Rated Groups
March 8, 2023
Page 2

group’s rate from the rate manual. A group’s rate that cannot be duplicated exactly using the rate
manual is not filed through a rate manual filing.

By nature, “experience-rating” is the development of premium rates for a single (employer) group
based on that particular group’s experience. As such, an insurer filing rates for experience rated
groups cannot legally file one rate which applies to all experience-rated groups, as each group’s rate
depends on the unique group experience and the rate must be justified accordingly.

These experience rating groups, when used by an insurer to rate coverage, require particular
documentation and justification of the experience rating.5 The OIC calls this a single case filing, or
employer group filing. A company offering an experience-rated product must therefore submit a
single case rate filing which is unique to that group, as they are relying on that group’s unique
experience to develop the rates. For rate filing instructions of a single case employer group rate filing,
see Washington State SERFF Life, Health and Disability Rate Filing General Instructions (version
dated 5/5/2022), Section VI(c)(ix)(3.2): For single employers. To be transparent and to ensure the
single case filing requirements were broadly known, OIC, beginning in 2019, included its
expectations in its new disability filing Speed to Market tools, as well as in updates to the general
filing instructions for disability insurers in 2020.

The OIC has become aware, through litigation and through review of specific filings, that not all
insurers are complying with requirements pertaining to experience rating groups.

This publication is intended to remind disability insurers in Washington of these requirements, in
order that any covered filings be supplemented and updated. The OIC intends for this guidance to
promote fairness in the insurance marketplace as well as to improve regulatory compliance.

EXPECTATION

Each disability insurer in the state of Washington that rates any disability product on the basis of the
experience of a specific group must file a single case rate filing for each such experience rating group.

Single case filing requirements apply to insurers even if their rate manual was approved and permitted
experience rating in setting rates. A rate manual by itself is not sufficient to justify experience rating
of a particular group. A separate single case filing is required for each experience rating group.
Insurers that use experience rating must verify whether their approved filings meet the single case
filing requirement and make any additional filings necessary to reach compliance.

A single case filing does not need to repeat the justification of rating factors that already provided in
the approved rate manual. Instead, it should be focused on the justifications for the experience rating

5
    RCW 48.19.010(2); WAC 284-58-033(2)(a); WAC 284-58-005(11).
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2023-03
Single Case Filings for Experience Rated Groups
March 8, 2023
Page 3

and incorporate the rate manual and other aspects of the filing by reference only. The OIC expects a
single case rate filing to be not more than a few pages and include an actuarial certification. Adhering
to this guidance will also expedite OIC review of such filings.6 In order to comply with this TAA
2023-03 and the filing requirements for experience rated group disability income products stated
herein, regardless of whether there is any approved rate manual that might imply or include certain
rating discretion, all disability insurers offering such coverage must review the current rate filings
and notify the OIC of their compliance status by July 1, 2023.

In the event that a disability insurer must update filings to ensure compliance with these guidelines,
the disability insurer must include in the notification to the OIC the estimated timeline by which the
revised filings will be submitted for review. The estimated timeline must be no later than January 1,
2024. Insurers must email such compliance notification to Rates, Forms, and Provider Networks
(RFPN) Help Desk: rfhelpdesk@oic.wa.gov with a subject line: [Insurer’s Name] Notification of
Compliance of Disability Income Insurance Single Case Employer Group Experience Rating
Requirement. An insurer’s failure to provide such notification to the OIC regarding the update of a
non-compliant filing may result in enforcement action for failure to respond to an inquiry from the
OIC.

Please direct the above referenced notification and any questions about this advisory to Lichiou Lee,
Chief Actuary, at Lichiou.Lee@oic.wa.gov or 360-725-7128.

6
 This advisory does not modify existing filing requirements or instructions for rates or forms, which must be followed
as applicable.


2023-02: Revised agency inquiry process

insurance.wa.gov; gate-zero TOP-20 WA bulletins row (no restriction located).

MIKE KREIDLER                                      STATE OF WASHINGTON                                   Phone: 360-725-7000
STATE INSURANCE COMMISSIONER                                                                                www.insurance.wa.gov

                                                                                ICE OF THE CODE REVISER
                                                                                STATE OF WASHINGTO N
                                                                                FILED
                                                                OFFICE OF
                                                                                DATE : January 13, 2023
                                                  INSURANCE COMMISSIONER
                                                                                TIME : 2:58 PM

                                                                                WSR 23-03-080

                                    Technical Assistance Advisory 2023-02

      TO:                      Insurance Producers, Title Insurance Agents, Adjusters, or Other Persons Licensed
                               Chapter 48

      FROM:                    Insurance Commissioner Mike Kreidler

      DATE:                    January 13, 2023

      SUBJECT:                 Revised Agency Inquiry Process

      Purpose:

      The purpose of this Technical Assistance Advisory (“TAA”) is to inform individuals and entities licensed under
      chapter 48.17 RCW that the Office of the Insurance Commissioner (“Commissioner” or “OIC”) has updated
      our process for agency inquiries to licensees to help licensees fully comply with their obligations to provide
      a prompt response. The standard subject line on our emails has been revised to always begin with “OIC official
      inquiry, response required, . . .”. We will also send a certified letter to the licensee before referring licensees
      to the OIC’s Legal Affairs division for potential administrative actions. These revisions are the result of
      industry feedback.

      Background:

      RCW 48.17.475 requires “[e]very insurance producer, title insurance agent, adjuster, or other person licensed
      under [chapter 48.17 RCW] to promptly reply in writing to an inquiry of the commissioner relative to the
      business of insurance. A timely response is one that is received by the commissioner within fifteen business
      days from receipt of the inquiry. Failure to make a timely response constitutes a violation of this section.”

      WAC 284-17-005(1)(b) expressly provides that for all communications that are not disciplinary matters, the
      Commissioner will use “the last email address provided by the person or business entity to the
      commissioner,” as the “address of record” in sending notices and inquiries to those who are licensed under
      chapter 48.17 RCW. In addition, WAC 284-17-065(2) requires that licensees provide updated email and
      mailing addresses to the Commissioner.

      OIC Process:

      When the OIC sends an inquiry to a licensee, it will use the steps below to give licensees ample opportunity
      to comply with their obligations to promptly respond before taking enforcement action.

                                             Mailing Address: PO Box 40255 Olympia, WA 98504-0255
                                              Street Address: 5000 Capitol Blvd Tumwater WA 98501
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2023-02
Guidance for Electronic Mail Communications
January 13, 2023
Page 2

Step 1 – An initial email is sent to the licensees’ registered email account which has been provided to the OIC
by the licensee. The subject line will read “OIC official inquiry, response required,” followed by the subject
matter. The email will include the information requested, the due date of 15 business days after delivery by
the OIC, and a notation that failing to respond to the inquiry could result in an administrative action including,
but not limited to, fines, probation, suspension, or revocation.

Step 2 – If the licensee does not respond to the initial email by the provided due date, a second email will be
sent with the same subject line and message, clearly noting that this is a second attempt and a revised due
date of an additional 15 business days.

Step 3 – If the licensee does not respond to the first two emails, a third and final request will be sent via
certified mail to the mailing address the licensee has provided to the OIC. This is a revised and new step. This
notice will include an annotation that this is “third and final request for information” requesting the same
information as the first two emails and notifying the licensee that failure to respond within 15 business days
of the date the letter was sent may result in immediate referral for administrative action.

Step 4 – If no response is received, a referral will be made to the OIC Legal Affairs division which could lead
to a potential administrative action including, but not limited to, fines, probation, suspension, or revocation.

Please note, it is at all times the licensee’s responsibility to ensure that updated contact information is on file
with the OIC, and that all necessary steps have been taken to ensure that electronic and hard copy inquiries
can be promptly received and reviewed. In addition, it is the OIC’s expectation that all licensees will promptly
respond to the first inquiry received from the OIC, unless there is some reasonable basis for the failure to
promptly respond. The additional notice provided in this process should not be treated as an automatic
extension of the deadline to promptly respond to the OIC. Further, failure to timely respond to an initial email
inquiry, without a reasonable explanation, may still be considered the basis for administrative action.

Please direct any questions about this advisory to Jeff Baughman, who may be contacted at
Jeff.Baughman@oic.wa.gov and phone number 360.725.7156.


2023-01: RCW 48.17.475 Guidance for Electronic Mail Communications

MIKE KREIDLER                                      STATE OF WASHINGTON                                   Phone: 360-725-7000
STATE INSURANCE COMMISSIONER                                                                                www.insurance.wa.gov

                                                                                OF THE CODE REVI SER
                                                                                STATE OF WASHI NGTON
                                                                                FILED
                                                                OFFICE OF
                                                  INSURANCE COMMISSIONER                            DATE : January 13, 2023
                                                                                TIME : 2:58 PM

                                                                                WSR 23-03-079

                                    Technical Assistance Advisory 2023-01

      TO:                      Insurance Producers, Title Insurance Agents, Adjusters, or Other Persons Licensed
                               Chapter 48.17 RCW

      FROM:                    Insurance Commissioner Mike Kreidler

      DATE:                    January 13, 2023

      SUBJECT:                 RCW 48.17.475 Guidance for Electronic Mail Communications

      The purpose of this Technical Assistance Advisory (“TAA”) is to summarize expectations for individuals and
      entities licensed under chapter 48.17 RCW when it comes to handling electronic mail communications sent
      from the Office of the Insurance Commissioner (“Commissioner” or “OIC”).

      RCW 48.17.475 requires “[e]very insurance producer, title insurance agent, adjuster, or other person licensed
      under [chapter 48.17 RCW] shall promptly reply in writing to an inquiry of the commissioner relative to the
      business of insurance. A timely response is one that is received by the commissioner within fifteen business
      days from receipt of the inquiry. Failure to make a timely response constitutes a violation of this section.”
      WAC 284-17-005(1)(b) expressly provides that for all communications that are not disciplinary matters, the
      Commissioner will use “the last email address provided by the person or business entity to the
      commissioner,” as the “address of record” in sending notices and inquiries to those who are licensed under
      chapter 48.17 RCW. In addition, WAC 284-17-065(2) requires that licensees provide updated email addresses
      to the Commissioner.

      Electronic mail communications (i.e., inquiries and notices) sent from the Commissioner to chapter 48.17
      RCW licensed individuals and entities are treated by the Commissioner as received upon being sent to the
      email address of record on file with the Commissioner. It is a licensee’s responsibility to ensure that any
      settings or filters placed on the email account that serves as the address of record, by either the licensee or
      vendors a licensee may contract with, do not impede inquiries and notices delivered by the Commissioner.
      Be advised that to ensure receipt of electronic mail communications from the Office of the Insurance
      Commissioner to your inbox in time to allow you to comply with your statutory obligations to timely respond
      to inquiries provided by the Commissioner, you may need to add the Commissioner’s domain (@oic.wa.gov)
      to your trusted sender lists (e.g., Safe Sender list or Whitelist) in your electronic mail client software (e.g.,
      Microsoft Outlook, Apple Mail, or Gmail). Additionally, you should also regularly check your quarantined
      electronic mail where you have an antivirus software application that may inadvertently quarantine official
      communications from the Commissioner. The Commissioner will not excuse a failure to timely respond to an

                                             Mailing Address: PO Box 40255 Olympia, WA 98504-0255
                                              Street Address: 5000 Capitol Blvd Tumwater WA 98501
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2023-01
Guidance for Electronic Mail Communications
January 13, 2023
Page 2

inquiry on the grounds that a third-party system or filter prevented the complete transmission of electronic
mail communications to your inbox.

Please direct any questions about this advisory to Jeff Baughman, who may be contacted at
Jeff.Baughman@oic.wa.gov and phone number 360.725.7156.


2022-02: Opioid reversal medication prescriptions in life insurance underwriting

OFFICE of the
                       INSURANCE
                       COMMISSIONER
                       WASHINGTON     STATE

                                   Technical Assistance Advisory 22-021
             Opioid Reversal Medication Prescriptions in Life Insurance Underwriting

The Insurance Commissioner sent the attached letter to life insurance companies and other
interested parties regarding opioid reversal medication prescriptions in life insurance
underwriting on August 2, 2022. The technical assistance advisory consists solely of the letter
and not this cover sheet. Please direct any questions about the advisory to Michael Walker,
Senior Policy Analyst, who may be contacted at Michael.Walker@oic.wa.gov and phone
number 360-725-7036.

                                                                              OFFICE OF T HE CODE REVISER
                                                                                STATE OF WASH INGTON
                                                                                FILED

                                                                        DATE : September 02, 2022
                                                                        TIME: 9:12 AM

                                                                         WSR 22-18-072

1
 A technical assistance advisory (TAA) is an interpretive policy statement released to advise the public of the
Office of the Insurance Commissioner’s current opinions, approaches, and likely courses of action. TAAs are
advisory only. RCW 34.05.230(1).
     MIKE KREIDLER                             STATE OF WASHINGTON                           Phone: 360-725-7000
STATE IN SURANCE COMMISSIONER                                                                www. insurance.wa.gov

                                                        OFFICE OF
                                         INSURANCE COMMISSIONER

      August 2, 2022

      Life insurance carriers and other interested parties

     I am writing to address questions that have been raised regarding the consideration of opioid
     reversal medication prescriptions in life insurance underwriting. In summary, such underwriting
     practices are inappropriate in Washington, and the Office of the Insurance Commissioner (OIC)
     considers them to be a violation of the Insurance Code.

     In December 2021, the University of Washington' s (UW) Addictions, Drug & Alcohol Institute
     (ADAI), contacted the OIC to alert us to an issue they had identified in other states. Life insurance
     companies were denying policy applications or charging higher rates due to an individual's history
     of being prescribed opioid reversal medications. This issue has been identified in Colorado,
     Massachusetts, New Jersey, New York, Pennsylvania, and Rhode Island. Although the practice has
     not yet been identified in Washington, the OIC is providing this guidance in anticipation of the
     issue, ensuring that Washington insurance consumers are provided appropriate protection from such
     a practice.

     In February oflast year, the Washington State Department of Health issued a statewide standing
     order that authorizes pharmacists to dispense naloxone (an opioid reversal medication) to any
     person at risk of experiencing an opioid-related overdose or any person in a position to assist a
     person at risk of experiencing an opioid-related overdose. As of January 1, 2022, the law also now
     mandates that hospitals and certain health professionals provide opioid reversal medication to
     individuals presenting with symptoms of an opioid-related overdose.

     As a result - and as is the case with several other states - in Washington an individual who legally
     obtains an opioid reversal medication may not be doing so because of their own possible need, but
     in order to provide the medication to other individuals.

     In Washington, life insurance companies are permitted, within certain limits, to select those
     individuals they want to insure as long as they have valid reasons for doing so. In addition, life
     insurers are also permitted to consider preexisting conditions in their underwriting, so long as the
     company can prove any differential treatment will be based on sound actuarial principles, are non
     discriminatory, and follow fair trade practices. This allows life insurers to charge higher risk
     individuals more for their coverage, provided that the reasons are sound.

                                   Mailing Address : PO Box 40255 Olympia , WA 98504-0255
                                    Street Address: 5000 Capitol Blvd Tumwater WA 98501
OFFICE OF THE INSURANCE COMMISSIONER

In the case of opioid reversal medication, neither coverage nor underwriting decisions can
legitimately be based upon a prescription for a medication that may well be intended for use by
another individual. Therefore, decisions to deny coverage or charge higher premiums based solely
on the presence of such a prescription would violate RCW 48.18.480 and 48 .30.300. Although the
OIC is unaware of any such cases occurring to date within Washington, we are providing this
guidance in an effort to minimize future conflicts over the issue.

If you have any questions about this issue, please contact us at (360) 725-7000 or visit our website
for additional resources, linked here (https://www.insurance.wa.gov/).

Sincerely,

@7:
Mike Kreidler
             l)C't---"__......

Insurance Commissioner


TAA 2021-05: OIC's Implementation of the Federal No Surprises Act

MIKE KREIDLER                                    STATE OF WASHINGTON                                    Phone: 360-725-7000
STATE INSURANCE COMMISSIONER                                                                                www.insurance.wa.gov

                                                                                ICE OF if HE CODE REVI SER
                                                                                ST AH OF WASH INGTON
                                                                                FIL ED

                                                                                DATE: November 01,. 2021
                                                              OFFICE OF                       TIME: 7:38 AM
                                                 INSURANCE COMMISSIONER
                                                                                WSR 21-22-073
                                           Technical Assistance Advisory 2021-051

      TO:                      Health Carriers

      FROM:                    Insurance Commissioner Mike Kreidler

      DATE:                    November 1, 2021

      SUBJECT:                 OIC’s Implementation of the Federal No Surprises Act

      The purpose of this Technical Assistance Advisory (“TAA”) is to provide guidance for health
      carriers2 on the Office of Insurance Commissioner (“OIC”)’s implementation of the Federal No
      Surprises Act.3

      Background

      Washington’s Balance Billing Protection Act (“BBPA”) bans balance billing for emergency services
      provided by an out-of-network (“OON”) hospital or provider, and surgical and ancillary
      nonemergency services provided by an OON provider at in-network hospitals or ambulatory surgical
      facilities.4 Balance billing refers to the practice of OON providers or facilities billing enrollees5 for
      health care services provided to the enrollee after the provider or facility’s billed amount is not fully
      reimbursed by the health carrier, exclusive of permitted enrollee cost-sharing.6 The BBPA requires
      that the OON provider and health carrier negotiate OON payments in good faith without involving
      the enrollee.7 Under the BBPA, the enrollee is only responsible for in-network cost-sharing, which
      must be applied toward the enrollee’s deductible and maximum out-of-pocket payment obligation.8

      Congress recently passed the Federal No Surprises Act (“FNSA”), which also bans balance billing,
      but applies to a broader scope of plans and services than Washington’s BBPA. This new law, enacted
      as part of the broader Consolidated Appropriations Act of 2021, takes effect for health plans,

      1
        This advisory is a policy statement released to advise the public of OIC’s current opinions, approaches, and
        likely courses of action. It is advisory only. RCW 34.05.230(1).
      2
        See RCW 48.43.005(28) (defining “health carrier”).
      3
        See Consolidated Appropriations Act (“CAA”), 2021, Pub. L. No. 116-260, 134 Stat. 1182 (2020) (enacting
        several new laws, including the No Surprises Act at div. BB, tit. I, 134 Stat. at 2757-2890).
      4
        RCW 48.49.020(1).
      5
        For ease of reading, “enrollee” includes plan participant and beneficiary.
      6
        See RCW 48.43.005(5) (defining “balance bill”); see also Requirements Related to Surprise Billing; Part I,
        86 Fed. Reg. 36,872, 36,873 (Sept. 13, 2021) (defining “balance billing”).
      7
        RCW 48.49.030(2).
      8
        See RCW 48.43.005(18) (defining “cost sharing”); RCW 48.49.003(2)(b); RCW 48.49.030.

                                           Mailing Address: PO Box 40255 Olympia, WA 98504-0255
                                            Street Address: 5000 Capitol Blvd Tumwater WA 98501
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2021-05
Federal No Surprises Act
November 1, 2021
Page 2
beginning on or after January 1, 2022.9 It applies to nearly all private health plans offered by
employers (including grandfathered health plans and the Federal Employees Health Benefits
Program), as well as individual health insurance policies offered both on and off the Exchange.10 In
addition to prohibiting balance billing for emergency services, the FNSA extends balance billing
protections to post-stabilization services,11 nonemergency services furnished by OON providers at
in-network facilities without the enrollee’s informed consent,12 and services furnished by air
ambulance providers.13

Beyond banning balance bills by OON providers and facilities, the FNSA limits enrollee cost-sharing
an enrollee must pay the issuer.14 Enrollees who receive OON care will only have to pay the
cost-sharing amount that they would have paid if the provider had been in-network.15 This limitation
applies to emergency services, nonemergency services without the patient’s informed consent, and
air ambulance services.16 It similarly limits cost-sharing when an enrollee relied on their issuer’s
provider directory’s listing of a provider as in-network, and that information turned out to be
incorrect.17 Any cost-sharing subject to the FNSA must be counted towards an enrollee’s in-network
deductible and annual out-of-pocket maximum.18

Additionally, Congress set up a regulatory framework for OON provider payment and dispute
resolution, and added transparency measures, provider directory requirements, and continuity of care
requirements.

OIC Enforcement

Aside from a few deferments described in the next section, OIC will enforce the FNSA provisions
pertaining to health carriers for health plans starting on or after January 1, 2022.19 This includes the
following provisions of FNSA:

    •   Prohibition on balance billing for emergency services and nonemergency services under
        FNSA that are broader than the BBPA’s scope of services protected from balance billing,
        including post-stabilization care.20

9
  See CAA, 2021, Pub. L. No. 116-260, div. BB, tit. 1 (No Surprises Act), sec. 102, 134 Stat. 1182, 2758-2797
   (2020); 86 Fed. Reg. at 36,877.
10
   Id.
11
   86 Fed. Reg. at 36,880.
12
   Id. at 36,882; section 102 of the No Surprises Act.
13
   See section 105 of the No Surprises Act; 86 Fed. Reg. at 36,876.
14
   See section 102 of the No Surprises Act. For ease of reading, “issuers” in reference to the FNSA includes
   group health plans, health insurance issuers, and Federal Employees Health Benefits Program carriers.
15
   Id.
16
   See sections 102 and 105 of the No Surprises Act; 86 Fed. Reg. at 36,883.
17
   See section 116(b) of the No Surprises Act.
18
   See 86 Fed. Reg. at 36,877.
19
   See WAC 284-43-0140 (“Health carriers shall comply with all Washington state and federal laws relating
   to the acts and practices of carriers and laws relating to health plan benefits.”)
20
   See, e.g., 86 Fed. Reg. at 36,880.
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2021-05
Federal No Surprises Act
November 1, 2021
Page 3
   • Prohibition on balance billing for grandfathered health plans.21

     •   Requirements for in-network cost-sharing for enrollees that relied on an issuer’s databases,
         response protocols, or provider directory representations that a provider was in-network.22

     •   Prohibition on balance billing for “continuing care patients” for 90 days after a provider
         becomes OON.23

     •   Providing methods for calculating enrollee cost-sharing and provider payments, and dispute
         resolution, for: (1) plans subject to OIC jurisdiction but not the BBPA, e.g., grandfathered
         health plans; and (2) services subject to the FNSA but not the BBPA, e.g., nonemergency
         services provided by neonatologists and intensivists.24

     •   Requirements for external review to determine whether balance billing protections are
         applicable when there is an adverse determination by an issuer.25

The FNSA preempts state laws only when those laws impose a requirement that “prevents the
application” of the FNSA.26 Based upon this principle and a few FNSA provisions expressly deferring
to state law, OIC will continue to enforce related state laws in four areas: (1) BBPA provisions that
exceed FNSA provisions;27 (2) provider directories;28 (3) calculation of enrollee cost-sharing;29 and
(4) OON provider payment and dispute resolution processes.30

As a result, beginning January 1, 2022, until the effective date of any new legislation amending the
BBPA, OIC will enforce the following state law provisions:

     •   Requirements on providers or insurers that go beyond what is required under the new federal
         law, including:

         o Prohibitions on asking an enrollee to waive their rights.31

21
   Id. at 36,877.
22
   See section 116(b) of the No Surprises Act.
23
   See section 113 of the No Surprises Act.
24
   See section 103 of the No Surprises Act; 86 Fed. Reg. at 36,886-7; Interim Final Rules, Requirements Related
   to      Surprise     Billing;     Part    II    (proposed       Sept.     30,     2021),     available    at:
   https://www.cms.gov/files/document/cms-9908-ifc-surprise-billing-part-2.pdf (implementing independent
   dispute resolution provisions); see also RCW 48.43.005(44) and WAC 284-43B-010(2)(l) (defining
   “surgical or ancillary services,” which are granted balance billing protection under RCW 48.49.020(1)).
25
   See section 110 of the No Surprises Act.
26
   See 42 U.S.C. § 300gg-23(a)(1); 86 Fed. Reg. at 36,886.
27
   Id.
28
   See section 116(a) of the No Surprises Act (deferring to state laws relating to provider directories).
29
   86 Fed. Reg. at 36,885.
30
   Id.
31
   RCW 48.49.030(1), (5).
OFFICE OF THE INSURANCE COMMISSIONER

Technical Assistance Advisory 2021-05
Federal No Surprises Act
November 1, 2021
Page 4
       o Requirement that a health carrier must indicate in the Health Insurance Portability and
          Accountability Act (“HIPAA”) standard 271 transaction whether an enrollee’s health plan
          is subject to the BBPA.32

         o Requirement that a health carrier must indicate in the HIPAA standard 835 transaction
           whether a claim was processed in accordance with the BBPA.33

     •   Requirements for provider directories.34

     •   BBPA’s methods for calculating enrollee cost-sharing and OON provider payments, and
         dispute resolution.35

Deferred Enforcement

OIC will defer enforcement against some entities due to jurisdictional limitations, and with respect
to some provisions of FNSA in alignment with deferment recently announced by the Departments of
Health and Human Services, Labor, and Treasury (collectively referred to as “the Departments”).

Due to jurisdiction limitations, OIC will defer to other state or federal agencies for enforcement
regarding the following entities:

     •   Air ambulances;36

     •   Self-funded group health plans that have not elected to participate in the BBPA; and

     •   Health providers and facilities.37

Additionally, OIC will defer enforcement for some of the FNSA provisions in accordance with the
deferred enforcement policy announced by the Departments, Aug. 20, 2021, in a set of Frequently
Asked Questions (“FAQs”).38 In accordance with these FAQs, OIC will defer enforcement for the
following FNSA provisions:

32
   WAC 284-43B-040(1)(a).
33
   WAC 284-43B-040(1)(b).
34
   See WAC 284-170-260; RCW 48.49.090(1); RCW 48.49.070(3); RCW 48.49.080(3).
35
   RCW 48.49.030; RCW 48.49.040; WAC 284-43B-020; WAC 284-43B-030; WAC 284-43B-035.
36
   See 86 Fed. Reg. at 36,885.
37
   Pursuant RCW 48.49.100, OIC will continue to give providers and facilities an opportunity to cure violations
   of RCW 48.49.020 or 48.49.030.
38
   See “FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 49
   (“FAQs”),” Aug. 20, 2021, available at: https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-
   documents/FAQs%20About%20ACA%20%26%20CAA%20Implementation%20Part%2049_MM%20508
   _08-20-21.pdf. Additionally, the Departments announced deferment of a few non-FNSA provisions, namely
   the requirement that issuers publish machine-readable files relating to prescription drug pricing. Id. at 1
   (citing 85 Fed. Reg. 72,158 (Nov. 12, 2020); 26 C.F.R. § 54.9815-2715A3(b)(1)(iii), 29 C.F.R. § 2590.715-
   2715A3(b)(1)(iii), and 45 C.F.R. § 147.212(b)(1)(iii)). Deferment will be until regulations to fully implement
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   • Requirements for making available a price comparison tool (by internet website, in paper
       form, or telephone). Deferment will be up until plan years (in the individual market, policy
       years) beginning on or after January 1, 2023.39

    •   Requirements for providing an Advanced Explanation of Benefits.40 Deferment will be until
        regulations fully implementing this requirement are adopted and applicable.41

OIC will continue to enforce any state law counterpart to these FNSA provisions, including, but not
limited to the following:

    •   Requirements for transparency tools for price and quality information.42

    •   Requirements for enrollee notification upon termination of a provider by a health carrier.43

The Departments also detailed provisions of the FNSA44 that issuers must implement using a good
faith, reasonable interpretation of the law, without the guidance of regulations. OIC will enforce the
following provisions in the same manner as announced by the Departments:

    •   Requirements to include on any insurance identification card issued to enrollees, any
        applicable deductibles, any applicable out-of-pocket maximum limitations, and a telephone
        number and website address for individuals to seek assistance.45

    •   Requirements to establish a process to update and verify the accuracy of provider directory
        information and to establish a protocol for responding to requests by telephone and electronic
        communication from an enrollee about a provider’s network participation status.46

   this requirement are adopted and applicable. Id. at 1-2 (describing deferment). The Departments will defer
   enforcement of the requirement to publish the remaining machine-readable files until July 1, 2022. Id. at 2.
   OIC will similarly defer enforcement.
39
    Id. at 3-4 (citing Internal Revenue Code (“Code”) § 9819, Employee Retirement Income Security Act
   (“ERISA”) § 719, and Public Health Service (“PHS”) Act § 2799A-4, as added by section 114 of the No
   Surprises Act).
40
   Id. at 6 (citing Code § 9816(f), ERISA § 716(f), and PHS Act § 2799A-1(f), as added by section 111 of the
   No Surprises Act).
41
   Id. at 7 (describing deferment).
42
   See RCW 48.43.007.
43
   WAC 284-170-421(10).
44
   Additionally, the Departments detailed a few non-FNSA provisions it will expect issuers to implement using
   a good faith, reasonable interpretation of the law, including requirements prohibiting gag clauses. See FAQs
   at 7 (citing Code § 9824, ERISA § 724, and PHS Act § 2799A-9, as added by section 201 of division BB,
   title II, of CAA). OIC will enforce these provisions in the same manner as the Departments.
45
   Id. at 4-5 (citing Code § 9816(e), ERISA § 716(e), and PHS Act § 2799A–1(e), as added by section 107 of
   the No Surprises Act).
46
   Id. at 7-8 (citing Code § 9820(a) and (b), ERISA § 720(a) and (b), and PHS Act § 2799A-5(a) and (b), as
   added by section 116(a) of the No Surprises Act). However, given the deferment to state law in section
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   • Prohibition on cost-sharing when an enrollee relied on the issuer’s provider directory or
       response protocol.47

    •   Requirements to make certain disclosures regarding balance billing protections to enrollees.48

    •   Requirements to apply continuity of care protections.49

Consumer Notice

OIC developed a consumer notice for balance billing rights that satisfies both the FNSA and the
BBPA.50 OIC’s consumer notice should be used for fully insured health plans, PEBB/SEBB plans,
and self-funded ERISA plans that have opted into the BBPA. Under the BBPA, this notice must be
provided to enrollees in any communication that authorizes nonemergency surgical or ancillary
services at an in-network facility.51 Also, the issuer must indicate on the enrollee’s explanation of
benefits whether the service is subject to balance billing protections.52 OIC will continue to enforce
these BBPA consumer notice requirements against health carriers.

Please direct any questions about this advisory to Jane Beyer, Senior Health Policy Advisor, who
may be contacted at janeb@oic.wa.gov and phone number 360-725-7043.

   116(a) of the No Surprises Act, OIC will only enforce these FNSA provisions against health carriers for
   plans and services not subject to the BBPA but subject to OIC’s jurisdiction, e.g., grandfathered health plans.
47
   Id.
48
   Id. at 8-9 (citing Code § 9820(c), ERISA § 720(c), and PHS Act § 2799A-5(c), as added by section 116(c)
   of the No Surprises Act).
49
   Id. at 9 (citing Code § 9818, ERISA § 718, and PHS Act § 2799A-3 and 2799B-8, as added by section 113
   of the No Surprises Act).
50
   https://www.insurance.wa.gov/surprise-billing-and-balance-billing-protection-act; see also Code § 9820(c),
   ERISA § 720(c), and PHS Act § 2799A-5(c), as added by section 116(c) of the No Surprises Act.
51
   See WAC 284-43B-050(2)(a)(i).
52
   See WAC 284-43B-050(4)(a).