Important Enforcement Updates on No Surprises Act and Transparency Requirements
Articles
9.13.21
Health plans and insurers will have a little more time to comply with some of the multitude of new requirements under the Consolidated Appropriations Act (“CAA”). On August 20, 2021, the Departments of Labor, Health and Human Services, and the Treasury (the “Departments”) issued an FAQ updating plans and issuers on critical enforcement guidance for several CAA transparency measures. The Departments have acknowledged that plans and issuers are struggling to comply with the litany, and complexity, of transparency requirements the CAA imposes, going so far as to note that compliance with some requirements by initial enforcement dates “is likely not possible.”
In light of this reality, the Departments have issued the following updates:
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REQUIREMENT Transparency in Coverage (“TiC”) Machine-Readable Files: Non-grandfathered plans and issuers must publicly disclose information regarding in-network provider rates for covered items and services, out-of-network allowed amounts and billed charges for covered items and services, and negotiated rates and historical net prices for covered prescription drugs in three separate machine-readable files. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments will enforce the machine-readable file provisions under the TiC Final Rules, subject to two exceptions: (1) the Departments will defer enforcement of the TiC Final Rules’ requirement that plans and issuers publish machine-readable files relating to prescription drug pricing pending further rulemaking; and (2) the Department will defer enforcement of the TiC Final Rules’ requirement to publish the remaining machine-readable files until July 1, 2022. |
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REQUIREMENT Price Comparison Tool: The CAA requires plans and issuers to offer price comparison guidance by phone and make available on their website a “price comparison tool” allowing an individual to compare cost-sharing based on a variety of factors. The Departments intend to propose rulemaking requiring that the same pricing information that is available through the online tool or in paper form, as described in the TiC Final Rules, must also be provided over the telephone upon request. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments will defer enforcement of the requirement that a plan or issuer make available a price comparison tool (by internet website, in paper form, or telephone) before plan years (in the individual market, policy years) beginning on or after January 1, 2023. |
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REQUIREMENT Transparency in Plan or Insurance ID Cards: The CAA requires plans and issuers to augment any plan or insurance identification cards with specific deductible, out-of-pocket maximum limitations, and contact information for the consumer to seek assistance. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments will not issue regulations addressing ID card requirements prior to its effective date, but will engage in future rulemaking. Pending future rules, the Departments expect plans and issuers to implement the ID card requirements using a “good faith, reasonable interpretation of the law.” |
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REQUIREMENT Good Faith Estimate: The CAA requires providers and facilities to provide a notification of a good faith estimate of expected charges, upon an individual’s scheduling of items or services, including, if applicable, notice to the individual’s plan or coverage. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
HHS is deferring enforcement of the requirement that providers and facilities provide good faith estimate information for individuals enrolled in a health plan or coverage and seeking to submit a claim for scheduled items or services to their plan or coverage. Despite the deferment, HHS is investigating whether any additional interim solutions for insured consumers are feasible. |
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REQUIREMENT Advanced Explanation of Benefits: The CAA requires plans and issuers, upon receiving a “good faith estimate” from a provider, to send a participant and Advanced Explanation of Benefits notification in clear language. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments will not issue regulations addressing AEOB prior to the effective date of January 1, 2022. The Departments will undertake notice and comment rulemaking in the future to implement this provision, including establishing appropriate data transfer standards. Until that time, the Departments will defer enforcement of the requirement that plans and issuers must provide an Advanced Explanation of Benefits. |
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REQUIREMENT Prohibition on Gag Clauses: The CAA prohibits plans and issuers from entering into agreements with providers, TPAs, or other service providers offering access to a network of providers, that impose specific gag clauses on plans and issuers. |
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Original Deadline |
Departments’ Update |
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December 27, 2020 |
Stating that the statutory language is self-implementing, the Departments will not issue regulations, but note that plans and issuers are expected to implement these gag clause requirements using a good faith reasonable interpretation of the statute. The Departments intend to issue implementing guidance explaining how plans and issuers can submit their attestations of compliance with the gag clause rules. |
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REQUIREMENT Provider Directory Information: The CAA establishes standards for provider directories intended to protect participants from surprise billing. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments intend to undertake notice and comment rulemaking to implement the provider directory requirements, but rulemaking will not be issued until after the effective date of January 1, 2022. In the interim, plans and issuers are expected to implement these provisions using a good faith, reasonable interpretation of the statute. The Departments will not deem a plan or issuer to be out of compliance with provider directory requirements in a case where a beneficiary, enrollee, or participant receives inaccurate provider directory or response protocol information from a plan about a provider’s participation status, as long as the plan or issuer imposes only a cost-sharing amount that is not greater than the cost-sharing amount that would be imposed for items and services furnished by a participating provider, and counts those cost-sharing amounts toward any deductible or out-of-pocket maximum. |
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REQUIREMENT Continuity of Care Requirements: The CAA imposes continuity of care requirements on plans and issuers to protect individuals where terminations of contractual relationships change a provider’s or a facility’s network status. |
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Original Deadline |
Departments’ Update |
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January 1, 2022 |
The Departments intend to undertake notice and comment rulemaking to implement the continuity of care requirements, but do not expect to do so until after the requirement’s effective date of January 1, 2022. Until rulemaking to fully implement these provisions is adopted, plans, issuers, providers, and facilities are expected to implement the requirements using a good faith, reasonable interpretation of the statute. |
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REQUIREMENT Reporting on Pharmacy Benefits and Drug Costs: The CAA imposes reporting requirements on plans and issuers related to prescription drug expenditures, requiring that plans and issuers submit relevant information to the Departments. |
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Original Deadline |
Departments’ Update |
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December 27, 2021 |
The Departments will defer enforcement of the requirement to report the specified information by the first deadline for reporting on December 27, 2021, or the second deadline for reporting on June 1, 2022, pending the issuance of regulations or further guidance. The Departments strongly encourage plans and issuers to start working to ensure that they are in a position to be able to begin reporting the required information with respect to 2020 and 2021 data by December 27, 2022. |
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