No Surprises Act Model Notice Updated

The Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) have recently jointly released FAQs implementing provisions of the No Surprises Act (NSA), including the requirement that plans and issuers disclose certain balance billing protections to participants. Previously, the Departments released a model notice that could be used to satisfy these disclosure requirements (“Version 1”). Based on public comments, the Departments revised this model notice (“Version 2”) and included it in the appendix of the latest FAQs.

The Departments will consider the use of either Version 1 or Version 2 of the model notice to be good faith compliance with respect to plan or policy years beginning on or after January 1, 2022, and before January 1, 2023. The Departments will consider the use of only Version 2 of the model notice to be good faith compliance with respect to plan or policy years beginning after January 1, 2023.

Disclosure Requirements

For plan years beginning on or after January 1, 2022, the NSA requires group health plans and issuers to make publicly available, post on a public website and include on each applicable explanation of benefits information on the restrictions against balance billing, including any applicable state law protections, and information on contacting appropriate state and federal agencies. Version 2 includes more specific federal agency contact information, along with other minor clarifications.

Employer Compliance Steps

Plans and issuers may, but aren’t required to, use the model notice to meet their disclosure obligations. Most employers will rely on their issuers, TPAs or other service providers to fulfill these disclosure requirements. Employers should confirm that their service providers that use the model notice will now use Version 2 going forward.

In addition, the FAQs confirm that a health plan that does not have its own website can satisfy the requirement to post the notice by entering into a written agreement where its issuer or TPA agrees to post the notice on a public website where information is normally made available to plan participants on the plan’s behalf.

Additional Information

For questions regarding this Legislative Update or any other related compliance issues, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

This Legislative Update was prepared by the Baldwin Regulatory Compliance Collaborative (the “BRCC”), a partnership of compliance professionals offering client support and compliance solutions for the benefit of the Baldwin Risk Partners organization, which includes: Jason Sheffield, BRP National Director of Compliance; Richard Asensio, Burnham Benefits Insurance Services; Nicole L. Fender, the Capital Group; Bill Freeman, AHT Insurance; Stephanie Hall, RBA/TBA; Caitlin Hillenbrand, AHT Insurance; Paul Van Brunt, Baldwin Krystyn Sherman Partners (BKS); and Natashia Wright, Insgroup.

Burnham Benefits and the BRCC do not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with applicable federal and state law requirements, and is based on our interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.