Biden administration delays implementation of certain provisions of the No Surprises Act



In an FAQ published on August 20, 2021, the Ministries of Labor, Health and Social Services and the Treasury (collectively, the “Departmentsâ€) significantly delayed the implementation of legal requirements for surprise billing and transparency prices, which we had previously summarized in a series of blog posts throughout the past year:

Specifically, the FAQs focus on the implementation of certain provisions of the Final Coverage Transparency Rules of the Affordable Care Act (the “ACAsâ€) (the “TiC Final Rulesâ€) and certain provisions of the title. I (the No Surprises law) and Title II. (Transparency) of Section BB of the Consolidated Appropriations Act, 2021 (the “CAAâ€).

We have summarized the main implementation requirements below.

Coverage transparency

Under TiC’s final rules, commercial health plans are required to disclose negotiated rates and historical net prices of covered prescription drugs in a machine-readable file. Departments have announced that they will defer application of this requirement pending the development of future rules, acknowledging stakeholder concerns about the feasibility of compliance, the potentially redundant nature of various disclosure requirements and that the disputing litigation the requirement had already started.

In addition, commercial health plans are required to disclose provider rates on the network for covered items and services and amounts allowed off-network and charges billed for covered items and services. The ministries have announced that instead of applying these requirements from January 1, 2022, the application will be delayed for 6 months until July 1, 2022, due to concerns about the tight deadline given the amount of work. required.

Price comparison

Under TiC’s final rules, health plans are required to provide price comparison information through a web-based, paper-based self-service tool on demand. This information must be available for plan (or policy) years beginning on or after January 1, 2023, with respect to 500 identified items and services and with respect to all items and services covered for the plan years ( or policy) beginning on or after January 1, 2024.

The CCA also requires plans to maintain online price comparison tools that will allow patients to compare the expected direct costs of items and services between multiple vendors. Health plans will also need to provide price comparisons over the phone. This requirement was to come into effect on January 1, 2022.

In the FAQs, the departments acknowledged that the price comparison requirements under the TiC and CCA final rules largely duplicated; Accordingly, the departments intend to propose rule development and solicit public comments regarding, among other things, whether compliance with the requirements of the final rules of TiC meets the analogous requirements set out in the CCA . The Departments will issue rules relating to the required telephone availability of data. Departments will delay the application of the PAD requirement until 2023.

Good faith estimates

Effective January 1, 2022, the CCA requires providers (individual practitioners and facilities) to send an individual’s health plan a “good faith estimate†of scheduled services, including all expected ancillary services and expected billing and diagnostic codes for all items and services to be provided. In the event that the person is not enrolled in any health plan or coverage, the provider must provide this notification to the person.

The FAQ states that the complexity of this requirement makes it virtually impossible for suppliers to comply by January 1, 2022. Therefore, departments have decided to postpone the application of this requirement until future regulations.

Advanced explanation of benefits

Under the CCA, once the provider sends the health plan the “good faith estimate†for a given patient, the health plan is then obligated to send registrants an “advanced explanation of benefits†(“ AEOB â€) before scheduled treatment (or at the request of the patient). The health plan must provide the AEOB by mail or electronically (depending on the patient’s preference) either within three business days of receiving a request or notification that a service has been scheduled if the service is scheduled at least 10 business days later, or within one business day of receipt of the notice if the service is scheduled within 10 business days of receipt.

This requirement was scheduled to come into effect on January 1, 2022, but the Ministry noted that compliance is likely not possible at that time; therefore, departments intend to initiate the development of notice and comment rules in the future to implement this provision and, in the meantime, will postpone application.

Supplier directories

The CCA requires health plans to establish and maintain an online directory listing the names of contracted providers, addresses, specialties, phone numbers and numeric contact information. Information should be checked and updated at least every 90 days, but should be updated within two business days of receiving new information from a supplier. If the health plan is unable to verify the accuracy of a provider’s information, the health plan must have procedures to remove those providers.

The FAQs indicate that departments intend to initiate the development of notice and comment rules to implement the supplier directory requirements, but the rule development will not be released until after January 1. 2022 (the initial effective date of this requirement). However, until more rules are published, health plans must still implement these provisions using a reasonable and good faith interpretation of the law.

Other requirements of the CCA and TiC Final Rules that are not subject to actions delaying the effective date (e.g. the dates described in the CCA and TiC Final Rules, and suppliers are urged to implement the rule on the basis of a “reasonable and good faith interpretation of the law” (although in the FAQs, departments have effectively provided a safe harbor for certain actions that they will be deemed to comply with. , such as member ID card information and the use of a balance billing entitlement notice template).

© 2021 Proskauer Rose srl. Revue nationale de droit, volume XI, number 246


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