Enforcement of Certain Provisions of No Surprises Act Delayed

The Departments of Labor, Health and Human Services, and Treasury (the “Departments”) released a set of FAQs regarding implementation of new requirements of the No Surprises Act. Many provisions of the No Surprises Act were previously effective beginning in the new year. The FAQs, however, delay implementation of several of these provisions.

Previously, plans were required to supply “advanced explanations of benefits” to participants— which must provide estimates of the out-of-pocket costs for scheduled medical services—beginning for plan years on or after January 1, 2022. According to the FAQs, this deadline has been delayed indefinitely, pending publication of regulations on advanced EOBs by the Departments.

The No Surprises Act also requires plans to publish a price comparison tool that allows participants to compare costs of different providers and services. The FAQ noted that this requirement is largely duplicative of a separate set of Transparency in Coverage regulations instituted under the Trump Administration, which are effective beginning in January 2023. The Departments plan to propose rulemaking regarding whether compliance with the established Transparency in Coverage regulations satisfies the No Surprises Act. Enforcement of this section of the No Surprises Act will be delayed until January 1, 2023, allowing plans to simultaneously comply with both the Transparency in Coverage regulations and the No Surprises Act.

Plans are also required to report to the Departments information on drug pricing, spending, and discounts. Originally, the first deadline for reporting was December 27, 2021 and the second deadline for reporting was June 1, 2022. The FAQ explains that the Departments anticipate that additional time may be necessary in order to modify contractual agreements to enable disclosure, transfer data between various entities, and prepare the data. In order to allow this additional time, the Departments are deferring enforcement of this provision pending the issuance of regulations or further guidance, but warn plans that they should be ready to report on 2020 and 2021 data by December 27, 2022.