"Play Ball" - The No Surprises Act Update: Third Installment
October 27, 2021
By: Neil C. Brown
Congress enacted the No Surprises Act (the “Act”) to protect patients against “surprise bills,” while at the same time respecting a provider’s ability to receive remuneration for services rendered. In this third installment of the series (first installment and second installment), we provide an update that the Department of Health and Human Services (“HHS”) together with the Department of Labor (“DOL”) and the United States’ Treasury (collectively, the “Departments”) have postponed the enactment of the certain provisions of the Act and delayed issuing certain regulations as discussed below.
Transparency in Coverage Machine-Readable Files
What is it?
The Act requires certain1 health plans and issuers (hereinafter, “plans and issuers”) to disclose in machine-readable files (meaning the data can be processed by a computer) (i) in-network provider rates for covered items and services, (ii) out-of-network allowed amounts and billed charges, and (iii) negotiated rates and historical net prices for covered prescription drugs.2
When will the provisions be enacted?
The Departments will delay enforcement for disclosing in-network rates and out-of-network allowed amounts and billed charges in machine-readable files until July 1, 2022. In addition, they will delay the enforcement of the requirement that machine-readable files be published for covered prescription drugs until further notice.3
Good Faith Estimate
What is it?
The Act directs providers and facilities, after scheduling items or services for an individual (or upon a request) to determine if the individual is enrolled in a health plan or health insurance and to furnish a “notification of the good faith estimate of the expected charges” for the items or services to the health plan/coverage and if the individual is not enrolled, then to furnish this notice directly to the individual.
When will the provision be enacted?
The Departments will delay enforcement until further notice.
Advanced Explanation of Benefits
What is it?
The Act provides that after an individual receives the good faith estimate notification that the plans and issuers must then send an Advanced Explanation of Benefits notification containing statements relating to the provider’s network status, the contracted rate, the good faith estimate received from the provider, a good faith estimate of the amount assumed by the plan or issuer, and certain disclaimers.4
When will the provision be enacted?
The Departments have delayed enforcement of this requirement, previously scheduled to begin on December 27, 2021, until further notice.5
Pharmacy Benefits and Drug Costs Reporting Requirement
What is it?
The Act requires health plans and issuers to report to the Departments prescription drug pricing information including, but not limited to: the beginning and end dates of the plan, the number of enrollees, each state where the plan is offered, the fifty (50) most frequently dispensed brand prescription drugs, and the total spending on health care services.6
When will the provisions be enacted?
The Departments have delayed enforcement of the two reporting deadlines (December 27, 2021 and June 1, 2022) until further notice. It is strongly recommended that plans and issuers are ready to report the prescription drug information by December 27, 2022.8
Price Comparison
What is it?
The Act mandates that plans and issuers create a price comparison tool regarding certain items and services to be available on the internet (or in paper/over phone, if requested).9
When will the provision be enacted?
The Departments have delayed enforcement for plans and issuers beginning on or after January 1, 2023 until further notice.10
Finally, the Departments have delayed issuing regulations relating to the Act’s (i) prohibition on gag clauses on price and quality data, (ii) insurance identification cards, (iii) provider directory information, (iv) continuity of care, and (v) balance billing disclosures.11
As you navigate these changes, Jackson Kelly’s attorneys and staff are dedicated to helping you meet all of your health care compliance needs.
1 Certain meaning “non-grandfathered group health plans and health insurance issuers offering non-grandfathered coverage.” U.S. DEPT. OF LABOR, U.S. DEPT. OF HEALTH AND HUMAN SERVICES, AND THE U.S. TREASURY, FAQS ABOUT AFFORDABLE CARE ACT AND CONSOLIDATED APPROPRIATIONS ACT, 2021 IMPLEMENTATION PART 49 (2021).
2 Id.
3 Id.
4 Id.
5 U.S. DEPT. OF LABOR, U.S. DEPT. OF HEALTH AND HUMAN SERVICES, AND THE U.S. TREASURY, FAQS ABOUT AFFORDABLE CARE ACT AND CONSOLIDATED APPROPRIATIONS ACT, 2021 IMPLEMENTATION PART 49 (2021).
6 Public Health Service Act § 2799A-10 (2021).
7 U.S. DEPT. OF LABOR, U.S. DEPT. OF HEALTH AND HUMAN SERVICES, AND THE U.S. TREASURY, FAQS ABOUT AFFORDABLE CARE ACT AND CONSOLIDATED APPROPRIATIONS ACT, 2021 IMPLEMENTATION PART 49 (2021).
8 Id.
9 Id.
10 Id.
11 Id.