In this week’s WebTPA Compliance Update, we provide updates to key portions of recent federal legislation and recap on major requirements of this legislation.
Last Friday, August 20, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued new frequently asked questions (FAQs) regarding implementation of the Transparency in Coverage (TIC) regulations and the Consolidated Appropriations Act of 2021 (CAA), which includes the No Surprises Act (NSA). These FAQs are also related to certain provisions of the Affordable Care Act (ACA) and are available here for further review.
The Departments clarified that grandfathered health plans are subject to the CAA and NSA requirements. While grandfathered plans are not subject to the Transparency in Coverage Final Rule, they are subject to the transparency rules outlined in the NSA.
Below is a summary of the provisions addressed and clarified in the recent FAQ guidance as well as notes about the provisions not yet addressed in the rules or FAQs:
The FAQ document indicated that no further regulations regarding advanced EOBs will be announced, prior to the effective date of January 1, 2022. Enforcement of the provision, including appropriate data transfer standards, is delayed until additional rules are shared or until an interim solution is reached.
Continuity of Care
As is the case with provider directories (noted below), plans and insurers should make a good faith, reasonable interpretation of the statute, beginning January 1, 2022. The FAQs cite that further guidance in the future will include a prospective effective date.
Disclosure Requirements Related to Balance Billing
Regulations conveying disclosure requirements will not be available prior to the effective date of January 1, 2022. Group health plans’ and insurers’ efforts to apply a good faith interpretation is still expected and this can be accomplished by disclosing the Model Notice, until more guidance is available. The Model Notice was shared with the July 2021 Interim Final Rules.
The CAA prohibits plans from entering an agreement that restricts the plan from disclosing cost and quality of care information, known as a gag clause. The requirement was effective December 27, 2020 and plans are expected to comply with a good faith, reasonable interpretation of the order. No further guidance is expected regarding such agreements but guidance on the annual attestations that health plans are required to submit to HHS is forthcoming, as attestations will be collected in 2022.
Good Faith Estimate
If a provider schedules an individual for a service, or an individual requests such information, the provider must provide a good faith estimate of the expected charges for any services or items related to the same charges. If the individual is a member of a health plan, the provider must also notify the plan of the provided good faith estimate. As the agencies acknowledge, the technical implications of transferring such data may not be resolved by January 1, 2022 and thus the effective date will be delayed, until further details are available.
ID card requirements remain in effect for plan years that begin on or after January 1, 2022 and further instructions will not be announced prior to this effective date. A good faith, reasonable interpretation of the law is to be applied when implementing the ID card changes. As a reminder, plans satisfy the requirement by including deductibles and out-of-pocket maximums on the card, as well as a telephone number and website address for consumer assistance.
Machine Readable Files
Under Transparency in Coverage, files for in-network rates and out-of-network allowed amounts and billed charges are to be disclosed for plan years beginning on or after January 1, 2022. The FAQs announced the enforcement of this requirement is delayed until July 1, 2022.
Some requirements of the third file, containing prescription drug data, have overlapping requirements within the TIC and the CAA. Therefore, the agencies will defer enforcement of the prescription file until additional rulemaking is presented.
Pharmacy Benefits/Drug Costs Reporting
Plans were instructed to report certain prescription drug expense and other information to the government by December 27, 2021, and then annually by June 1 (beginning June 1, 2022). The first two deadlines of December 2021 and June 2022 will not be enforced, however, plans are highly encouraged to continue working towards reporting that will be due by December 27, 2022 (for 2020 and 2021 data). The agencies intend to supply regulations for reporting requirements.
Price Comparison Tools
Addressing conflicting effective dates within the TIC and NSA, for the self-service tools, the Departments confirmed that enforcement will not begin until January 1, 2023. While both statutes require an online tool available to the public and pricing information in paper form, NSA also orders the same information to be available via telephone. Upcoming rules will encompass requirements for all three methods of communication.
Plans are to update provider details on a public website and any printed directories, every 90 days. Such information must also be available to consumers by telephone. Additionally, plans can be held financially responsible for erroneous provider information given to its members. As the Departments are not planning to issue more rulemaking on this topic at this time, plans are expected to abide by the outlined terms by using a good faith, reasonable interpretation. The effective date for the provider directory rules is January 1, 2022.
The recent FAQs do not mention air ambulance services nor compensation disclosures. Regulations are intended to be released for these items later this year, along with the independent dispute resolution (IDR) process.
WebTPA will be incorporating these updates into our NSA and Transparency workstreams, and will continue to focus our development attention on the items that have been outlined in the interim rules with effective (and enforcement dates) of 1/1/2022, as well as those items where a good faith, reasonable effort to comply is expected. We’ll continue to provide updates on the progress of the workstreams as we move forward throughout the fall. Please do not hesitate to reach out to your Account Management team if you have any questions.