Proposed Regulations for Implementing the NSA

October 8, 2021

Proposed Regulations for Implementing the No Surprises Act

On September 10, 2021, the Health and Human Services Department (HHS), the Personnel Management Office (PMO), the Internal Revenue Service (IRS), and the Employee Benefits Security Administration (EBSA) issued a proposed rule to implement additional components of the No Surprises Act (NSA) and the Consolidated Appropriations Act, 2021 (CAA). Comments are due 30 days after publication in the Federal Register, October 18, 2021.

The preamble to the proposed rule acknowledges that federal officials will not have time to issue rules for all CAA provisions ahead of the January 1, 2022 effective date. Thus, group health plans and issuers are expected to implement those provisions using a good faith, reasonable interpretation of the guidance.

Air Ambulance Reporting

NSA Section 106 requires air ambulance providers and group health plans to submit 2022 and 2023 ambulance information to federal regulators. HHS, in consultation with the Secretary of Transportation, will assess and summarize the data to create a public summary report regarding the air ambulance market.

Both the law and HHS require specific data elements to be reported and the reports are due by March 31, 2023 and March 30, 2024. In the event plans have not received air ambulance claims or made payments for these services during the reporting period, they will not need to submit any information.

Group health plans bear the responsibility of ensuring the air ambulance information is reported to HHS, even if plans have a written agreement with their TPA to submit this information on their behalf.

The above stated reporting requirements do not apply to insurers that offer short-term limited duration insurance (STLDI), excepted benefits, individual coverage health reimbursement arrangements, or other account-based plans.

Authorities of Enforcement

HHS has direct enforcement authority for all NSA and CAA requirements as applied to non-federal governmental group health plans and the Department of Labor (DOL) will continue to regulate self-funded group health plans. NSA adopts the same plan enforcement framework as the ACA and HIPAA. HHS can impose civil monetary penalties of up to $100 per day for each individual affected by a violation.

Effective and Enforcement Dates of NSA and CAA Requirements

As a reminder, in August we shared details regarding effective, enforcement and deferred dates for Transparency in Coverage, NSA and CAA requirements, as issued in a new set of FAQs by the Departments. Provider notices with good faith estimates, advanced EOBs, and pharmacy benefit reporting requirements have been deferred without a new effective date, until additional rulemaking is issued. Dates for machine-readable files, air ambulance reporting, and price comparison tools have been delayed, all with varying new dates.

All of WebTPA’s NSA and Transparency workstreams have been updated with dates and implementation details received within interim rules and FAQs. Our most heightened development efforts concentrate on those items with effective and/or enforcement dates of January 1, 2022. For example, we have completed an assessment of the Qualifying Payment Amount (QPA) guidance and we are working with several vendors to determine best practices. We are also prepared to reissue ID cards for plans beginning on and after January 1, 2022, with the application of our good faith interpretation.

More NSA interim final rules were issued by the Departments on October 1st, and will be published in the Federal Register and available online here by October 7. These rules address the topics of arbitration and the independent dispute resolution (IDR) process. WebTPA will be reviewing the new interim rules and will communicate details within the coming weeks, as well as workstream progress updates. Please do not hesitate to reach out to your Account Management team if you have any questions.