Prepare to Comply with No Surprises Act Notice Requirements

The No Surprises Act (NSA), adopted as part of the 2021 Consolidated Appropriations Act, builds on parts of the ACA by creating comprehensive patient protections against surprise medical bills for emergency services, air ambulances and certain nonemergency services. Plan administrators should prepare to post on a public website, and on each applicable EOB, information, written in plain language, about balance-billing restrictions, applicable state law protections, the federal protections, and contact information for an appropriate state and federal agency in the event a provider or facility violates the balance-billing restrictions. Until guidance is issued, plans and insurers are expected to implement these requirements for the first plan year starting in 2022 using a good faith, reasonable interpretation. Plans and insurers may, but are not required to, use the model notice to meet these disclosure requirements.

Plan administrators should work with their TPA or insurer to determine how they will satisfy these requirements.

  • If fully insured, confirm that the insurer is prepared to satisfy these requirements.
  • If self-insured, check with the TPA to determine if they can prepare an NSA notice for the plan. Decide where best to post the notice on a public website, with no password required. This could be the same webpage that will contain the machine readable files required by the transparency rules, or on a career or job posting page, or where other plan notices are posted.
    • We understand that some TPAs may not allow any customization of the NSA notice.
    • If you have multiple TPAs, consider posting each of the NSA notices they’ve provided or draft a NSA notice using a good faith interpretation of the law. That may mean using the model notice without adding any state law information, but including a note that notices provided by the TPAs along with EOBs may vary.
  • If no notice has been prepared by your insurer or TPA, consider drafting a notice using a good faith interpretation of the law.
  • Consider also posting the notice at each worksite, or including it in a packet of notices (like open enrollment or new hire notices).

Until implementation guidance is available, many questions remain, including: what qualifies as the plan’s public website; what does publicly available mean; what state information is required of self-insured plans. We’ll keep you informed as more guidance becomes available.

Patty Cartwright
by Patty Cartwright

Principal, Regulatory Resources Group

Byron McQuain
by Byron McQuain

Employee Benefits Attorney, Mercer

Cheryl Hughes
by Cheryl Hughes

Principal, Mercer’s Law & Policy Group

Katharine Marshall
by Katharine Marshall

Principal, Mercer's Law & Policy Group

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