The Departments of Health & Human Services (HHS), Labor, and the Treasury together with the Office of Personnel Management (OPM) issued, on September 10, 2021, a second set of regulations under the No Surprises Act (NSA). The proposed rule outlines the audit and enforcement actions that apply to insurers, healthcare providers and facilities for non-compliance with certain No Surprises Act provisions.
Unlike the No Surprises Act Interim Final Rules (IFR) issued on July 1, 2021, these regulations were furnished by way of notice-and-comment rulemaking.
HHS has proposed leveraging the enforcement processes that are currently being used under the Public Health Services Act (PHS) for which the related NSA provisions have been incorporated, to investigate and enforce NSA violations. Accordingly, for insurer compliance, states will be the primary enforcement authority with HHS having the authority to assume direct enforcement should they determine a state is not substantially enforcing the rules.
It is important to note that certain provisions of the NSA require insurers to report information directly to HHS. Under these circumstances, states would not have access to this information and as such HHS will be responsible for enforcement of these provisions, which HHS has delegated to the Center for Medicare & Medicaid Services (CMS).
Reportedly, CMS is authorized to conduct random or targeted investigations or market evaluations that will focused on payor compliance provisions including:
- Adherence to the methodology for calculating Qualifying Payment Amounts (QPAs)
NSA requires HHS to audit annually a maximum of 25 plans subject to federal enforcement authority and will respond to complaints of non-compliance for an unlimited number of plans.
Additionally, HHS is proposing a similar process for conducting random or targeted investigations of providers and facilities for non-compliance. To date, no rules regarding enforcement under the NSA have been issued regarding providers and facilities.
Further guidance and additional regulations are expected to be issued over the next few months. The complexity of the legislation and the process for providers to incorporate the requirements into their practices will be challenging. Our team is actively working to properly prepare our clients for complying with the regulations imposed under the NSA while protecting providers’ rights to pursue and secure a fair reimbursement for services rendered.
