On August 20, 2021, the Departments of Labor, Health and Human Services and the Treasury (collectively, the “Departments”) announced through a set of frequently asked questions (“FAQs”) that the Departments will defer enforcement of certain provisions of the No Surprises Act (the “Act”). This comes as welcomed news for health plans and providers alike who have expressed concern about complying with certain requirements under the Act by their original effective dates absent further guidance from the Departments. A summary of key provisions of the FAQs applicable to the Act are detailed below:
Provider Good Faith Estimate
Section 112 of the Act requires providers and facilities to provide a notification of a good faith estimate of the expected charges for items and services upon scheduling, or upon request, for patients who are enrolled in a health plan and are seeking to submit a claim to the plan for such items and services. This requirement was set to become effective January 1, 2022. However, the Departments will defer enforcement of this requirement and investigate whether additional interim solutions are feasible. (See Question 5)
Advanced Explanation of Benefits
Section 111 of the Act requires health plans to provide to their members an Advanced Explanation of Benefits (“EOB”) upon receiving the good faith estimate of expected provider charges. The Advanced EOB must include: (1) the network status of the provider or facility; (2) the contracted rate for the item or service, or if the provider or facility is not a participating provider; (3) the good faith estimate from the provider; (4) a good faith estimate of the plan’s responsibility and the patient’s cost-sharing responsibility; and (5) a disclaimer coverage is subject to any medical management techniques. Although such requirement was originally intended to take effect January 1, 2022, the Departments are deferring enforcement until the Departments can undertake notice and comment rulemaking. The Departments anticipate such rulemaking will not occur until after January 1, 2022. (See Question 6)
Price Comparison Tools
Section 114 of the Act requires health plans and issuers to offer price comparison guidance by telephone and make available on the plan or issuer’s website a “price comparison tool” that allows an individual to compare expected out-of-pocket costs for items or services across multiple providers. As an exercise of enforcement discretion, the Departments are postponing the enforcement date to January 1, 2023. The Departments indicated they will focus on compliance assistance until that time. (See Question 3)
Drug Cost Reporting
Section 204 of the Act requires health plans to submit certain drug cost information to the Departments beginning on December 27, 2021, so that the Departments may biannually publish a report on prescription drug reimbursements which details prescription drug pricing trends, and the impact of prescription costs on premium rates. Recognizing that there may be significant operational and contractual challenges to enable health plans to compile, prepare and validate the required data, the Departments have elected to defer enforcement of the required reporting for the first two reporting deadlines (December 27, 2021 and June 1, 2022), pending issuance of further rulemaking or guidance. That being said, the Departments strongly encourage health plans to start working to ensure that they are in the positing to report such prescription drug information by December 27, 2022. (See Question 12)
Gag Clauses
Section 201 of the Act prohibits agreements between health plans and providers that would directly or indirectly restrict the plan from (1) providing specific cost or quality of care information to referring providers, plan sponsors or health plan beneficiaries, or any individuals eligible to become health plan beneficiaries, (2) electronically accessing de-identified claims and encounter data for each health plan beneficiary, and (3) sharing such information (consistent with applicable privacy regulations). This prohibition became effective December 27, 2020. Per the FAQs, the Departments will not be issuing any additional regulations on this, as the prohibition is self-implementing. However, the Departments plan to issue guidance explaining how health plans should submit their attestation of compliance with this prohibition. (See Question 7)
Insurance Identification Cards
Section 107 of the Act requires health plans to include in clear writing on both physical and electronic health plan beneficiary ID cards all applicable deductibles and out-of-pocket maximums, and a telephone number and web address for individuals to receive consumer assistance. The FAQs provide that the Departments will engage in future rulemaking addressing such requirements, although such rulemaking will not occur prior to the effective date (January 1, 2022). Until such time, the FAQs provide that health plans should implement the ID requirements using a good faith and reasonable interpretation of Section 107. (See Question 4)
Provider Directories
Section 116 of the Act generally requires health plans to establish a process to update and verify the accuracy of provider directory information so that health plan beneficiaries can receive accurate information regarding the network status of a provider or facility. If a health plan inaccurately identifies a provider or facility as in-network, the health plan cannot impose a cost-sharing amount that is greater than the cost-sharing amount that would be imposed for items and services furnished by an in-network provider/facility and must count such cost-sharing amounts toward any in-network deductible or out-of-pocket maximum. These requirements will take effect on January 1, 2022, and the FAQ guidance does not change that; however, the Departments indicated they intend to undertake notice and comment rulemaking to implement regulations in the future. Although enforcement is not deferred, health plans will be deemed in compliance so long as a plan implements these requirements using a good faith, reasonable interpretation of the statute. (See Question 8)
Balance Billing Protections Disclosures
Section 116 of the Act requires health plans to disclose to their beneficiaries information regarding both federal and state law balance billing protections. Such disclosures must be publicly available, posted on the health plan’s website and be included on each EOB to which the surprise billing protections of the Act apply. The FAQs provide that the Departments will not issue any additional regulations regarding such required disclosures prior to the January 1, 2022 effective date. However, the Departments may issue guidance or rulemaking in the future. Until such time, health plans are expected to implement these requirements using a good faith, reasonable interpretation of the statute. (See Question 9)
Continuity of Care
Section 113 of the Act outlines certain continuity of care requirements which seek to protect patients in instances when termination of a contractual relationship result in changes to a provider or facility’s network status. This requirement will take effect on January 1, 2022. Per the FAQs, the Departments intend to undergo rulemaking to implement such requirements, but will not do so prior to the effective date. Until the Departments undergo such additional rulemaking, health plans are expected to implement the continuity of care requirements using a good faith and reasonable interpretation of Section 113.
While the FAQ guidance provides some relief for health plans and providers alike, the guidance does not delay implementation of the other requirements under the Act which are set to take effect January 1, 2022.
For a general discussion of the No Surprises Act, please refer to our prior article available here. Additionally, a detailed discussion of the most recent set of regulations implementing the requirements of the Act can be found here. For more information on this topic, please contact:
- Lisa Lucido at (248) 457-7812 or llucido@wp.hallrender.com;
- Matthew Reed at (317) 429-3609 or mreed@wp.hallrender.com;
- Julie Mitchell at (317) 429-3643 or jmitchell@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
