Mid-Atlantic Health Law TOPICS

The No Surprises Act (NSA) generally protects patients from receiving large unanticipated bills for out-of-network care. To implement the NSA, transparency rules have been issued that require health plans to include deductibles and out-of-pocket maximums on physical or electronic health insurance ID cards. These transparency rules also try to provide health plan participants with enough information to help lower the risk of receiving surprise medical bills.

The transparency requirements were originally anticipated to apply to all health plans for plan years beginning after December 31, 2021. However, because so little guidance has been issued to date, the Secretaries of Labor, Health and Human Services, and the Treasury (Departments) have chosen to delay or scale back enforcement on most of the new transparency requirements until new guidance is published.

Brief explanations of each new transparency requirement and the anticipated extent of compliance and enforcement can be found below.

A. Annual Reporting of Pharmacy Benefits and Drug Costs

The NSA requires plans to report annually the following information to the Departments:

1. Each plan year’s beginning and end date;

2. Each plan’s participant/beneficiary count;

3. Each state where a plan or coverage is offered;

4. The 50 brand name prescription drugs pharmacies most frequently dispensed for claims for each plan and the number of claims paid per drug;

5. The 50 most costly prescription drugs per plan by total annual spending and annual amount spent per drug;

6. Total spending on prescription drugs and types of costs (e.g., hospital, primary, specialty care, etc.);

7. The average monthly employer-paid premium and participant-paid premium; and

8. The impact rebates, fees and other remuneration drug manufacturers paid to a plan, its administrators or service providers had on premiums for prescribed drugs.

No regulations have been issued and enforcement will be deferred until then. However, plan sponsors should comply by December 27, 2022, for reporting years 2020 and 2021.

B.  Price-Comparison Tool

The NSA requires plans to offer participants health care price comparisons over the phone and online. No regulations have been issued and compliance has been deferred until 2023.

C.  Advanced Explanations of Benefits (AEB)

The NSA requires plans to provide participants an AEB once a participant receives a “good faith” cost estimate for an item or service from a health care provider/facility. The AEB must show, with respect to an item or service the following:

1. The provider’s/facility’s network status;

2. If in-network, the contracted rate for the item or service; if out-of-network, information on how the participant can learn more about in-network providers/facilities offering the same item or service;

3. The good faith estimate from the provider/facility, the amount the plan must pay, and any cost-sharing the participant must pay;

4. A disclaimer regarding whether the coverage for the item or service is subject to medical management techniques; and

5. A disclaimer that the information in the AEB is an estimate only.

No regulations have been issued and compliance has been deferred until further notice.

D.  Gag Clause Prohibition

The NSA prohibits plan sponsors from entering an agreement with a provider, provider network, third-party administrator or other service providers that could restrict the plan from:

1. Furnishing provider-specific cost or quality of care information;

2. Accessing redacted claims and encounter data for participants; and

3. Sharing care or encounter information consistent with privacy rules.

Likely, beginning in 2022, plans will have to attest annually on compliance with the Gag Clause prohibition, but no regulations have been issued and, until then, plans should comply using good faith reasonable interpretation of the law.

E.  Provider Directory Requirements

The NSA requires plan sponsors to establish, verify and timely update its provider/facility directory and establish a protocol for timely responses to inquiries about a provider’s/facility’s network status.

Should a participant elect care based on inaccurate directory information, the plan may not impose a cost-sharing amount greater than the care received in-network. Moreover, payments must be applied against the participant’s deductible or out-of-pocket maximum as if the provider/facility was in-network.

No regulations have been issued; for now, a plan will be deemed compliant if it applies the NSA’s cost-sharing, deductible and out-of-pocket rules described in C above.

F.  Continuity of Care Requirements

The NSA requires plans to offer participants continuity of care for certain treatments if, during treatment, a provider’s/facility’s contract with the plan is terminated or changed in a way that eliminates the covered treatment. Treatments subject to this requirement include treatments for any “serious and complex condition,” inpatient care, scheduled nonelective surgery, terminal illness, or pregnancy.

No regulations have been issued; until then, plan sponsors should comply using a good faith reasonable interpretation of the law.

G.  Protections Against Balance Billing

The NSA requires plan sponsors to make publicly available, post on a public website and include in each Explanation of Benefits with respect to an item or service, information in plain language on the prohibitions of balance billing, among other things.

No regulations have been issued; until then, plan sponsors should comply using good faith reasonable interpretation of the law. To assist with compliance, a model disclosure notice may be found on the CMS website

Devin M. Karas
410-576-4080 • dkaras@gfrlaw.com