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NSA’s Model Notice: Doing Your Own Thing

By: Jon Jablon, Esq.

It’s November, and most TPAs are neck-deep in No Surprises Act compliance. This is a busy time of year as it is – but with new, daunting requirements piled onto a TPA’s usual renewal-time craziness, this is a special year. Some have opined that the last time they had a year like this was when the ACA was first passed, and that’s saying something!

The NSA imposes some major requirements on health plans, not the least of which being disclosures to consumers. At its core, the requirement to include information relating to a patient’s core rights related to so-called “surprise billing” is a simple one; after all, the regulators published a Model Notice and indicated that any plan that uses this exactly as written will be in compliance with this requirement. The problem for many, though, is space. Many TPAs don’t want to have to issue a four-page whopper of an EOB for every claim! To that end, we have seen numerous attempts to summarize, rephrase, change font, or otherwise shorten the required notice into a format that fits the TPA’s processes – many of which are likely compliant, but some of which are perhaps not.

Admittedly, the question of the acceptable scope of changes to this surprise billing protections has not yet been not answered by the regulators. Despite providing the Model Notice as a safe harbor for any plan that uses it verbatim, the powers that be did specify that plans are not required to do so – although if they change it up, whether the resultant product is compliant should be gauged on a “good faith, reasonable interpretation” of the law and regulations. Unfortunately, it is sometimes the case that when a “Model Notice” is published, the regulators don’t feel the need to provide further guidance, since the Model Notice is the guidance! To analogize, picture a GPS unit telling you “if you follow this route, you’ll get to your destination; feel free to take a different route, but you’re on your own, since I already gave you my opinion!”

For instance, a common thread tends to be the contact information provided at the bottom of the Model Notice. Even though the regulators probably should have just included the “contact information for entity responsible for enforcing the federal [] balance or surprise billing protection laws”, the Model Notice leaves it blank, and many TPAs have written in their contact information in order to play quarterback for complaints… but we don’t know whether that’s acceptable. In theory, the TPA is not “the entity responsible for enforcing” any laws – but the TPA is nonetheless in the best position to have all the facts relevant to a given situation, which seems to be the theory those TPAs are using to justify their own contact information being in this notice. If this is a good faith, reasonable interpretation of the regulations, reasonably calculated to achieve the desired results, it could be deemed compliant, although we recommend against it generally because the Model Notice seems to indicate that the contact should be governmental in nature.

As another example that seems more trivial but may not truly be, some have suggested customized notices that change the Model Notice’s title (“Your Rights and Protections Against Surprise Medical Bills”) – but it’s not clear how important the original title would be to the regulators when gauging compliance. Since this is geared toward consumer protection, it’s possible that the title could be deemed extremely important for that purpose. Without further guidance, we just don’t know.

As a best practice, we have to recommend mirroring the Model Notice to the extent possible, since that’s the only absolute surefire way to ensure compliance – but there definitely are ways that plans can remain compliant while still customizing that Model Notice.


If you’ve got questions about your notices or any other areas of compliance, please don’t hesitate to contact us via your dedicated ICE email (which service, by the way, includes this type of review at no additional cost), or through PGCReferral@phiagroup.com if you’re not an ICE (i.e. Phia’s Independent Consultation and Evaluation service) client.