No Surprises Act Notices

The No Surprises Act requires that health plans "post on a public website of the plan or issuer" their No Surprises Act notices.  In the employer-sponsored plan context, does that mean that an employer can satisfy this requirement by posting the notice on its internal intranet or similar site that employees can access?

Many of the commentators that I have read said that is acceptable and that makes some sense because I don't think that a participant would ordinarily think to go to the employer's general website for health plan information.  But what about non-employee participants, such as those participating in the plan through COBRA?  Would an employer who does so be complying with its notice obligation with respect to those employees?

If, in this context, intranet refers to a site available only to an employer’s employees, one doubts it is a public website, at least regarding those who lack access to the site.

While I have not read the statute or any interpretation of it, it seems the notice should at least be available to continuees and to alternate recipients.

Further, the text of the model notice mentions a “public website of the plan[.]”

Does the plan have a website that is distinct from the employer’s website?

If the plan has a website, is it a public website?

If not, does a continuee or an alternate recipient have access to the plan’s site?

I've also been thinking about this recently.  In many cases, the plan will not have a public website.  In that case, I don't believe the employer-plan sponsor has an obligation to post the notice.

For example, if the only website for the plan is an employer intranet or password protected site, the guidance from HHS in the preamble states that would not be a public website.  Although that guidance is in the context of providers and facilities posting the notice, it seems to indicate the "public" standard generally.

The employer's public website is not the plan's website, and therefore should not be subject to the posting requirement.

https://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billing-part-i

Section 116 of the No Surprises Act also added section 9820(c) of the Code, section 720(c) of ERISA, and section 2799A-5(c) of the PHS Act, which include similar disclosure requirements applicable to plans and issuers. In general, under these provisions, plans and issuers must make publicly available, post on a public website of the plan or issuer, and include on each explanation of benefits for an item or service with respect to which the requirements under section 9816 of the Code, section 716 of ERISA, and section 2799A-1 of the PHS Act apply, information on the requirements applied under these aforementioned sections, as applicable; on the requirements and prohibitions applied under sections 2799B-1 and 2799B-2 of the PHS Act; on other applicable state laws on out-of-network balance billing; and on contacting appropriate state and federal agencies in the case that an individual believes that such a provider or facility has violated the prohibition against balance billing. These disclosure requirements are applicable for plan years beginning on or after January 1, 2022.

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HHS is of the view that the required disclosure information would not be publicly available unless displayed in a manner that is easily accessible, without barriers, and that ensures that the information is accessible to the general public, including that it is findable through public search engines. For example, HHS is of the view that a public website must be accessible free of charge, without having to establish a user account, password, or other credentials, accept any terms or conditions, and without having to submit any personal identifying information such as a name or email address.