November 28, 2021

Volume XI, Number 332


HHS Proposes Air Ambulance Reporting Details Beginning in 2022

Employer-sponsored health plans can add air ambulance claims reporting to the list of required disclosures that will go into effect in the next several years.

Under proposed regulations published September 16, 2021, by the U.S. Department of the Treasury, U.S. Department of Labor, and U.S. Department of Health and Human Services (HHS), plans will have to report specific air ambulance data for calendar—not plan—years 2022 and 2023, and will have to report both expenses incurred in those years and expenses paid. Employers may submit comments to the regulators through October 18, 2021.

The proposed regulations implement Section 723 of the Employee Retirement Income Security Act of 1974 (ERISA), which was added by the No Surprises Act. The surprise medical billing and air ambulance billing provisions of the act are scheduled to go into effect on January 1, 2022. The provisions prohibit air ambulance providers from balance billing patients and require plans and providers to reach a final payment amount for a service through open negotiation, followed by a binding arbitration process if the parties cannot otherwise agree on the payment amount.

The provisions that prohibit providers from balance billing patients and require them to engage in negotiation and arbitration also apply to out-of-network services (such as anesthesiology, radiology, or laboratory work services) performed in an in-network facility and to all out-of-network emergency services. The agencies issued interim final regulations with respect to these out-of-network services earlier this year.

Reporting Requirements

ERISA Section 723 will require group health plans and air ambulance providers to report certain air ambulance service and claim information within the 90-day period after December 31 for each required reporting year, beginning with 2022. The act then directs HHS, in conjunction with the U.S. Department of Transportation, to develop a comprehensive report on air ambulance billing based on the information submitted to the agencies. The proposed rule specifies the information required to be included in the reports by health plans and air ambulance providers.

Employers must submit reports for the 2022 calendar year to HHS by March 31, 2023, and calendar year 2023 reports will be due by March 30, 2024. If an acquisition occurs during the year, the entity that acquired the other party responsible for reporting (an air ambulance provider or plan sponsor) has the obligation to report for the entire calendar year. Employers with insured plans are exempt from the reporting requirement if they require, by written agreement, the insurance issuer to report the information. If such a written agreement is in place, the insurance issuer will be on the hook for any reporting noncompliance. Reporting for self-funded plans may be done by third-party administrators, but plan sponsors would remain legally responsible for any reporting failures.

Under the proposed rule, reports submitted by health plans must include the following information “for each claim for air ambulance services that was received or paid during the reporting period:

  • Identifying information for any group health plan, plan sponsor, or issuer, and any entity reporting on behalf of the plan or issuer, as applicable

  • Market type for the plan or coverage (individual, large group, small group, self-insured plans offered by small employers, self-insured plans offered by large employers, and Federal Employees Health Benefits)

  • Date of service

  • Billing [National Provider Identifier] (NPI) information

  • Current Procedural Terminology (CPT) code or Healthcare Common Procedure Coding System (HCPCS) code information”

  • Transport information (aircraft type, loaded miles, pick-up and drop-off zip codes, whether the transport was emergent or non-emergent, and whether it was an inter-facility transport)

  • If available to the plan, the service delivery model of the provider (government-sponsored, public-private partnership, tribally operated, hospital-sponsored, hybrid hospital-independent partnership, or independent)

  • Whether the provider had a contract with the plan

  • “Claim adjudication information, including whether the claim was paid, denied, [or] appealed,” the reason for any denial reason, and the outcome of any appeal

  • “Claim payment information, including submitted charges, amounts paid by each payor, and [any] cost sharing amounts”

Reports submitted by air ambulance service providers will include additional information.


The No Surprises Act provides for a maximum penalty of $10,000 for air ambulance providers that violate the reporting requirements. Neither the act nor proposed rule provide specific penalties for reporting failures by group health plans, but plans are subject to other civil penalty provisions that apply to health plan failures generally. The rule lays out factors that CMS will consider in determining the amount of a penalty for air ambulance provider reporting failures, including history of prior violations, the frequency of the violation in the report, and the level of financial and other impacts on affected individuals.

Regulations implementing other No Surprises Act and health plan transparency requirements are expected to be issued within the following year.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 273

About this Author


Hillary Sizer joined Ogletree Deakins’ Chicago office as an associate in 2019. She assists clients with ERISA compliance matters, focusing on health and welfare plans. She graduated in 2019, with distinction, from Georgetown University Law Center where she earned a Master of Laws in Taxation and an Employee Benefits Certificate. She is a 2018 graduate of the Lewis & Clark Law School in Portland, Oregon. While there, she spent a summer externing for the Oregon Tax Court. She received a BA in Philosophy, cum laude...

Timothy Stanton, Ogletree Daikins Law Firm, Data Privacy and Employment Attorney

Tim Stanton is an energetic advocate for and trusted advisor to inside counsel and benefits and HR executives.

His clients include: retailers and wholesalers; insurance, banking and financial services firms; and food companies and manufacturers, as well as colleges and universities.

Tim actively counsels clients on the roller coaster ride that is national health care reform, as well as on ERISA fiduciary duties, health information privacy and security, retiree medical age discrimination, and consumer-directed health...