Federal regulators had indicated in their Part 1 No Surprises Act guidance in July that they anticipated delaying enforcement of several Consolidated Appropriations Act (CAA) and other health plan transparency provisions.  In FAQ Part 49, they officially identify which provisions are delayed.  We provide a table below so employers with self-funded plans can keep apprised of any delayed enforcement dates.

Requirement Statutory Date Extension
No Gag Clauses: Group health plans (and their insurers) must annually attest to HHS that they are no longer engaged in provider/network agreements that would directly or indirectly restrict the group health plan from:

  • Providing provider-specific cost or quality of care data, via consumer engagement tools or to referring providers, the plan sponsor, enrollees, or individuals eligible to enroll (the provider/network can, however, place “reasonable restrictions on the public disclosure” of such information)
  • Accessing de-identified claim by claim data with detailed financial info (allowed amount or any other claim-related financial obligation included in the provider contract), provider info (name, clinical designation), service codes, or any other data element included in claim/encounter transactions
  • Sharing all such data above (or directing sharing of that data) with a HIPAA business associate
12/27/20

(the date the CAA was enacted was the date health plans could no longer enter into contracts with prohibited gag clauses)

No extension.

  • Use reasonable good faith measures to ensure the plan does not enter into contracts with prohibited gag clauses
  • Regulators will soon provide the process for submitting the annually required attestations to begin in 2022
Provider Good Faith Estimate: When individuals request items or services from a health care provider, the provider is required to ask the individual whether the individual has health insurance coverage

  • If the individual does not have coverage, the provider is required to send such good faith estimate directly to the individual
  • If the individual has coverage, the provider is required to send a good faith estimate of of the expected charges, along with the billing and diagnostic codes, to the individual’s plan
1/1/22 No extension for situations where nothing is to be submitted to a plan.  Will publish regulations soon to help health care providers comply for 2022.

Extended indefinitely pending future rulemaking for situations where expenses will be submitted to a plan.  Any additional stipulations resulting from future rulemaking will specify a future applicability date.

Advance EOB Following Provider Good Faith Estimate: Plans that receive an advance good faith estimate from the provider (as outlined above) are then required to provide an advance explanation of benefits (EOB) with cost estimates within one business day of a request (or within three business days if a service is scheduled at least 10 business days out) with clear and easy to understand language as follows:

  • The participating provider’s contracted rate (based on the billing and diagnostic codes submitted)
  • In the case of a non-participating provider, a description of how to obtain information on in-network provider access
  • A good faith estimate from the provider based on the codes submitted
  • A good faith estimate of the plan’s coverage amount, the member’s cost-sharing, and any deductible and out-of-pocket requirements already met as of the date of the notice
  • Explanation of any medical management techniques applicable to these services
  • A disclaimer this is a good faith estimate on items/services reasonably expected to be furnished, and is subject to change
  • As well as any other valid disclaimers/information the plan deems appropriate to disclose
Plan year beginning on/after 1/1/22 Extended indefinitely pending future rulemaking
Machine Readable Files on Plan’s Public Website: Non-grandfathered employer health plans must provide three machine readable files updated monthly on their public website disclosing:

  • INN: In-network provider negotiated rates for all services,
  • OON: Historical out-of-network billed and allowed charges (must have at least 20 entries in order to maintain patient privacy), and
  • Rx: Negotiated rates and historical net prices for all prescription drugs (with pharmacy location detail)
Plan year beginning on/after 1/1/22 INN and OON:

  • Plan years beginning 1/1/22 through 6/30/22 must comply as of 7/1/22
  • No delay for plan years beginning on/after 7/1/22

Rx: Extended indefinitely pending future rulemaking

Price Comparison Tool: Medical plans must maintain a price comparison tool via phone and web and provide a paper copy upon request Plan year beginning on/after 1/1/22 Extended to plan year beginning on/after 1/1/23
Accurate Provider Directories: Medical plans must maintain accurate provider directories on their website which are updated within two business days of a provider/facility change and are verified every 90 days, and maintain records for two years after each request for network information to prove they responded to each and every phone/mail/email/web request within one business day.

  • If a member relies on provider participation data from the means discussed above that turned out to be inaccurate, the plan will likely have to honor the claim as in-network
  • Print directories should indicate it’s accurate as of the date of publication along with instructions on how to retrieve/request the most current information
Plan year beginning on/after 1/1/22 No extension.  Use reasonable good faith measures to comply, as regulations are not expected before 2022.
Continuity of Care: Requires providers that leave a network to communicate with patients under continuing care about the change in network status and an option to continue care for up to 90 days as if the provider had remained in-network, which in turn requires the plan to treat that continuing care with that provider as in-network during the protection period. Plan year beginning on/after 1/1/22 No extension.  Use reasonable good faith measures to comply, as regulations are not expected before 2022, and any additional stipulations resulting from future rulemaking will specify a future applicability date.
ID Cards: Medical plans must clearly disclose on physical and electronic ID cards the in- and out-of-network deductible and out-of-pocket requirements along with the phone and website for consumer assistance determining network provider participation Plan year beginning on/after 1/1/22 No extension.  Use reasonable good faith measures to comply, as regulations are not expected before 2022.
Online Self-Service Tool for 500 Shoppable Services: Non-grandfathered plans must provide an online self-service tool enabling members to evaluate:

  • The negotiated in-network price and maximum out-of-network plan payment allowed for 500 shoppable services,
  • A real-time estimate of their total out-of-pocket costs (accounting for deductibles and OOP already met to date) before actually getting those medical services,
  • Pre-authorization, step therapy, and other pre-service requirements,
  • Warnings that these are estimates only and balance billing may be possible, and
  • Provide a paper copy upon request.
Plan year beginning on/after 1/1/23 No extension.  Will propose that plans also provide a phone number to call for additional assistance.
Online Self-Service Tool for All Shoppable Services: Non-grandfathered plans must provide the self-service real-time estimate services above for all services, not just the initial list of 500 shoppable services Plan year beginning on/after 1/1/24 No extension.  Will propose that plans also provide a phone number to call for additional assistance.

 

New Annual Rx Reporting: In addition, the new annual prescription drug reporting requirement initially due by 12/27/21 and annually by 6/1 thereafter, is extended indefinitely pending future rulemaking.  However, regulators “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.”

The annual Rx data elements to be included are:

  • Plan year dates
  • Number of enrollees
  • States in which the plan is offered
  • The 50 brand drugs most frequently dispensed under the plan, with the total number of paid claims for each of those drugs
  • The 50 most costly prescription drugs under the plan’s total annual spending, with the total amount spent for each of those drugs
  • The 50 prescription drugs with the greatest increase in plan expenditures plan year over plan year, with change in amounts for each of those drugs
  • Total spending on health care services by the plan, broken down by:
    • The type of costs, including hospital costs, primary care costs, specialty care costs, prescription drug costs, and other medical costs including wellness services
    • Spending on prescription drugs by the health plan vs. enrollees
  • Average monthly premiums paid by employers vs. enrollees
  • Any impact on premiums by rebates, fees, and any other remuneration paid by drug manufacturers, including:
    • Amounts paid for each therapeutic class
    • Amounts paid for each of the 25 drugs that yielded the highest amount of rebates and other remuneration
  • Any reduction in premiums and out-of-pocket costs associated with rebates, fees, or other remuneration

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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