DOL Releases No Surprises Act FAQs Delaying Enforcement
On Friday, August 20, the Department of Labor released an FAQ document regarding the No Surprises Act and the transparency provisions Consolidated Appropriations Act, 2021 (CAA). This FAQ, prepared jointly with HHS and Treasury, provides important delays in the implementation of multiple requirements in these laws.
The FAQ covers a variety of topics, including:
- Transparency in Coverage Machine Readable Files
- Price Comparison Tools
- Transparency in Plan ID Cards
- Good Faith Estimates
- Advanced Explanation of Benefits
- Prohibition on Gag Clauses
- Provider Directory Information
- Continuity of Care
- Grandfathered Health Plans
- Reporting on Pharmacy Benefits and Drug Costs
The FAQ directly addresses the interaction between price comparison tools requirements in the Transparency in Coverage Rules and the CAA, noting that the CAA requirements are “largely duplicative,” and stating that the Departments intend to propose rulemaking and seek public comment regarding, among other issues, whether compliance with the internet-based self-service tool requirements of the Transparency in Coverage Final Rules satisfies the analogous requirements. It also addresses the effective date of the requirement – the FAQ notes that plans were planning and working towards a January 1, 2023 applicability date. The agencies state that “as an exercise of enforcement discretion, the Departments will defer enforcement of the requirement that a plan or issuer make available a price comparison tool (by internet website, in paper form, or telephone) before plan years (in the individual market, policy years) beginning on or after January 1, 2023.” Until that time, the Departments will focus on compliance assistance.
The FAQ addresses issues with the machine-readable file requirements as well. It states that “as an exercise of enforcement discretion, the Departments will defer enforcement of the requirement in the TiC Final Rules that plans and issuers must publish machine-readable file related to prescription drugs while it considers, through notice-and-comment rulemaking, whether the prescription drug machine-readable file requirement remains appropriate.” This effectively delays the requirement indefinitely, pending future rulemaking.
The FAQ also states that “with respect to plan or policy years beginning on or after January 1, 2022, as an exercise of enforcement discretion, the Departments will defer enforcement of the requirement to make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges, until July 1, 2022.”
SPBA is currently reviewing the document and will be providing additional analysis.
The FAQ document is available here: https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf
For any questions on this FAQ or the No Surprises Act, please contact SPBA Director of Federal Affairs Erin Reiter at Erin@spbatpa.org.