Departments Issue New ACA and No Surprises Act FAQs

On November 28, 2023, the DOL, HHS, and Treasury (the departments) issued guidance in the form of FAQs entitled ACA and CAA, 2021 Implementation Part 63 . One FAQ announced an update to the ACA requirement to provide certain notices in a culturally and linguistically appropriate manner. Two FAQs address if and when multiple claims for qualified federal independent dispute resolution (IDR) items and services may be submitted and considered jointly as part of one payment determination by a certified IDR entity under the No Surprises Act.

The first FAQ relates to the ACA requirement for non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to provide relevant notices (as a practical matter, the notices involved are for internal claims and appeals and external reviews) in a culturally and linguistically appropriate manner. The regulations require these plans and issuers to make certain accommodations for notices sent to an address in a county meeting a threshold percentage of people who are literate only in the same non-English language. This threshold percentage is set at 10% or more of the population residing in the claimant’s county, as determined based on American Community Survey data published by the United States Census Bureau. This also applies to summaries of benefits and coverage under another section of the regulations.

The county data for culturally and linguistically appropriate services (CLAS) was updated in November 2023 by means of a list of all counties that meet the 10% threshold. This latest list includes Spanish, Traditional Chinese, Navajo, Pennsylvania Dutch, Tagalog, Samoan, Carolinian, and Chamorro. The CLAS update also includes sample taglines (the statements included in English versions of the notices indicating how to access language services provided by the plan or issuer) for each language.

Non-grandfathered group health plans and health insurance issuers offering non-grandfathered health insurance coverage are required to provide SBCs as well as claims and appeals notices in a manner that is consistent with the 2023 CLAS Guidance effective for plan years (in the individual market, policy years) beginning on or after January 1, 2025.

County Data for Culturally and Linguistically Appropriate Services »

The second and third FAQs are issued in response to the third and fourth decisions from the Texas Medical Association v. US Department of HHS cases ( TMA III and TMA IV) (see our August 17, 2023 , and October 26, 2023 , editions of Compliance Corner ). The court in TMA III set aside certain requirements for combining claims in one independent dispute resolution (IDR) proceeding, and the same court in TMA IV set aside that portion of the August 2022 Technical Guidance for Certified Entities that had provided that two service codes for a single air ambulance transport (one representing a lift off code, or base rate, and the other representing a per mileage code) could not be combined (batched) in a single IDR dispute.

As a result of these FAQs, until the departments engage in notice and comment rulemaking on the circumstances under which items and services will be considered "related to the treatment of a similar condition," disputes eligible for initiation of the federal IDR process 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 IV and TMA III cases. Certified IDR entities have the sole responsibility for determining whether the items and services submitted as part of a batched dispute meet the statutory and remaining regulatory standards for a batched dispute. In other words, the departments summarized the rules for batching claims for the IDR process until they issue more guidance.

Similarly, under the third FAQ, air ambulance services for a single air ambulance transport, including an air ambulance mileage code and base rate code, may be (but are not required to be) submitted as a batched dispute, so long as all provisions of the batching regulations are satisfied, in accordance with the second FAQ.

In most cases, the dispute resolution process for out-of-network claims is handled by the insurance carrier (for fully insured plans) or the TPA (for self-insured plans), but plan sponsors should be generally aware of the underlying process.

FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 63 »