Departments Issue FAQs on Two Unrelated Items: Addressing Non-English Language Plan Notices for 2025; and No Surprises Act Batching Provisions

Employer plan sponsors will need to utilize the updated ACA guidance FAQs in providing applicable non-English language notices and taglines for 2025. Additionally, FAQs on batching of No Surprises Act covered claims may temporarily impact independent dispute resolution processes until further guidance is issued.

December 07, 2023

On November 28, 2023, the Departments of Labor/Employee Benefits Security Administration (DOL/EBSA), Health and Human Services/Centers for Medicare and Medicaid Services (HHS/CMS) and Treasury/Internal Revenue Service (Treasury/IRS) (collectively, the Departments), in conjunction with the Office of Personnel Management (OPM), published FAQs About the Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 63 (FAQs Part 63). The FAQs provide information on updated guidance published by the Departments addressing the Affordable Care Act (ACA) requirement to provide certain non-English language notices in a culturally and linguistically appropriate manner. The updated guidance on the non-English language notices is effective for non-grandfathered group health plans and health insurance issuers for the 2025 plan year.

Key Actions

  • Monitor for Departments’ publication of revised template and sample SBCs and model notices with updated non-English language taglines to be used for 2025 plan year.
  • Review the FAQs pertaining to the independent dispute resolution batching criteria and monitor for additional notice and comment rulemaking.

Additionally, the Departments and OPM respond in FAQs Part 63 to recent decisions by a federal district court in Texas Medical Association v. United States Department of Health and Human Services (also known as TMA III) and another case involving the same parties (TMA IV). The court’s ruling in these cases vacated portions of prior guidance implementing provisions of the No Surprises Act regarding the batching criteria under which multiple independent dispute resolution (IDR) items or services may be considered jointly as part of a single IDR proceeding. FAQs Part 63 communicates that the Departments will issue additional guidance related to the IDR batching criteria. In the meantime, the Departments indicate that parties to the IDR process should ensure their batching is consistent with the statutes and regulations that remain in effect after the TMA III and TMA IV rulings.

Below we provide an overview of the FAQs with brief background information and summarize next steps. For additional context and information about the recent developments in the TMA III and TMA IV litigation challenging the No Surprises Act, please listen to the replays of our September 2023 and October 2023 Regulatory & Compliance Updates webinars.

ACA – Culturally and Linguistically Appropriate Services Guidance, Effective 2025

The ACA requires non-grandfathered group health plans and health insurance issuers to provide certain notices in a culturally and linguistically appropriate manner. FAQs Part 63 provides general information about the notices that may need to be revised for 2025 (following additional expected guidance and templates) and announces the release of United States (U.S.) Census-based guidance plans use to develop and administer the notices.

As background, plans use the “Culturally and Linguistically Appropriate Services County Data (CLAS Guidance)” as compiled by the Departments from time-to-time to determine which languages may apply to their populations residing in a given U.S. county. A plan would determine its applicable non-English language(s) with respect to an address in any county to which a notice is sent if 10 percent or more of the population residing in the county is literate only in the same non-English language provided in the CLAS Guidance. The 2023 CLAS Guidance also includes sample taglines stating how to access the language services provided by the plan or issuer in each of the applicable non-English languages.

Under the ACA, plans and issuers are generally required to use the CLAS guidance in developing and providing:

  • 1 | Oral language services (e.g., telephone assistance hotline) that include answering questions in any applicable non-English language and provide assistance with filing claims and appeals (including external review) in any applicable non-English language;
  • 2 | Notices in any applicable non-English language upon request; and
  • 3 | In the English versions of all notices, a prominently displayed statement in any applicable non-English language clearly indicating how to access the language services provided by the plan or issuer (referred to as “taglines”).

The Departments indicate they intend to update additional documents in the future to reflect the updated 2023 CLAS Guidance, including the summary of benefits and coverage (SBC) template, sample completed SBCs, and the model notices for internal claims and appeals and external review.

No Surprises Act – IDR Batching

In response to the district court’s TMA III and TMA IV rulings, the Departments indicate in FAQs Part 63 that they will issue additional notice and comment rulemaking clarifying the IDR batching criteria, specifically regarding the circumstances under which items and services will be considered “related to the treatment of a similar condition.” Until the issuance of this guidance, disputes eligible for IDR on or after August 3, 2023 should be submitted in a manner that is consistent with the statutes and regulations that remain in effect after the TMA III and TMA IV rulings.

As background, under the No Surprises Act (NSA) and October 2021 Interim Final Rule (IFR) implementing the NSA’s surprise billing protections, the Departments specified the following criteria under which multiple qualified IDR items and services may be considered jointly as part of one payment determination (i.e., batched):

  • The qualified IDR items and services are billed by the same provider, group of providers, facility, or provider of air ambulance services with the same National Provider Identifier Number (NPIN) or Taxpayer Identification Number (TIN);
  • Payment for the items and services would be made by the same group health plan or health insurance issuer;
  • The qualified IDR items and services are the same or similar items or services. The qualified IDR items and considered the same or similar if each is billed under the same service code or a comparable code under a different procedural code system (e.g., Current Procedural Terminology (CPT) or Diagnosis-Related Group (DRG) codes with modifiers, if applicable); and
  • All the qualified IDR items and services were furnished within the same 30-business day period (or are items or services for which the open negotiation period expired during the same 90-calendar day cooling-off period).

The federal district court’s opinion and order in TMA IV vacated the provisions of the October 2021 IFR pertaining to the provision that qualified IDR items or services must be the “same or similar items and services”.

FAQs Part 63 also address batching for air ambulance services. The district court’s opinion and order in TMA IV vacated a portion of technical guidance issued by the Departments to certified IDR entities providing that the two service codes for a single air ambulance transport could not be batched in a single IDR dispute. FAQs Part 63 confirms that air ambulance services for a single air ambulance transport, including air ambulance mileage code and may be submitted as a batched dispute, so long as all provisions of the batching regulations are satisfied. The FAQs also state that nothing in the guidance precludes these air ambulance codes from being submitted as an individual dispute.

What's Next?

The 2023 CLAS Guidance is effective for group health plans and health insurance issuers offering non-ACA-grandfathered health insurance coverage for plan years beginning on or after January 1, 2025. Employers may wish to begin assessing which languages and other elements from the 2023 CLAS Guidance will likely be relevant for their plans in 2025 based on their location(s) and other factors. Additionally, employers should expect to review and consider using or sampling from the Departments’ updated templates and forms (e.g., SBC template, sample SBCs, and model notices) once released.

The guidance in FAQs Part 63 pertaining to IDR batching is effective immediately. Plan sponsors should work with the vendors supporting their IDR administration to confirm appropriate oversight, review, and controls related to batched claims against the plan are in-place to help guard against undue exposure and improper use of the IDR batched claims adjudication process. In the coming months, plans should expect the Departments to undertake rulemaking aimed at providing clarity on the IDR batching criteria. Business Group on Health continues to advocate with the Departments and to Congress on behalf of employer plan sponsors with respect to implementation of the No Surprises Act, and will continue to keep members informed of regulatory developments as well as future litigation.

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