Sarah Borders, CEBS October 4, 2021 5 min read

Delayed Enforcement of Numerous Transparency and Balance Billing Requirements

On Aug 20, 2021, the Departments (DOL, HHS, Treasury) issued FAQs listing numerous delays for several pieces of the Transparency in Coverage (TiC) rules and the additional rules mandated under the Consolidated Appropriations Act (CAA).

Below are the highlights for employers to be aware of as it relates to the group benefit plan:

Machine-Readable Files - The departments will delay enforcement of the requirement to publicly disclose machine-readable files for in-network rates and out-of-network allowed amounts and billed charges until July 1, 2022. The agencies delay, pending further rulemaking, enforcement specifically of the TiC regulations’ requirement that plans and insurers publish machine-readable files with prescription drug pricing.

ID Card Requirements - The guidance also confirms that regulations won’t be issued before the January 1, 2022 effective date that plans and insurers include deductibles and OOPs on all ID cards (physical and electronic). This means self-insured plans and fully insured carriers are expected to implement these requirements using a good faith, reasonable interpretation of the CAA rules until regulations are adopted. For example, a plan or carrier will not be out of compliance with the ID card requirements if physical or electronic ID cards include the major medical deductible and OOP maximum, with a consumer assistance phone number and website, or a QR code or hyperlink, to access additional deductibles and OOP maximums.

Advanced Explanation of Benefits/Good Faith Estimates - The departments will delay enforcement of provider good faith estimates and advanced EOB requirements until regulations are implemented (no future date indicated). Likewise, enforcement will be delayed for the requirement that self-insured plans and fully insured carriers, upon receiving a provider’s good faith estimate, send an advanced EOB to participants. The agencies intend to undertake rulemaking “in the future” to implement advanced EOBs, including “establishing appropriate data transfer standards.”

Balance Billing Disclosures - The guidance also says that the disclosure requirements for the CAA balance billing protections may be issued in more detail in future rulemaking. However, in the meantime, self-insured plans and fully insured carriers are expected to implement the requirements using a good faith, reasonable interpretation of the CAA. Use of the previously included model disclosure notice in accordance with the accompanying instructions will be considered good faith compliance.

Reporting on Rx Drug Costs and Benefits - The departments intend to release regulations that will address the CAA’s pharmacy benefit and drug cost reporting requirements, but for now they will delay enforcement of the first reporting deadline of December 27, 2021, or the second reporting deadline of June 1, 2022, pending the release of regulations or further guidance. However, the agencies strongly encourage plans and insurers to start working to ensure they will be able to begin reporting 2020 and 2021 data by December 27, 2022.

Continuity of Care - There are CAA protections that ensure continuity of care in circumstances where a plan or insurer’s termination of provider contracts results in changes in in-network status. Under the FAQs, the agencies do not expect to issue rules related to the requirements until after the January 1, 2022 effective date. However, until rulemaking to fully implement these provisions is adopted and applicable, plans and insurers are expected to implement the requirements using a good faith, reasonable interpretation of the CAA.

Grandfathered Health Plans - The guidance confirms that grandfathered plans are not exempt from the CAA. Therefore, grandfathered and non-grandfathered plans must both comply with the new provisions under the CAA which do require internet-based self-service price comparison tools somewhat duplicative of the TiC requirements (grandfathered plans are exempt only from the TiC requirements). This means that grandfathered plans will also have to provide good faith estimates of expected charges with advanced EOBs, deductible/OOP info on ID cards, balance billing protections and disclosures, updated provider directories, Rx drug cost reporting, continuity of care requirements and MHPAEA comparative analysis.

Therefore, employers will want to become familiar with these rules, as some rules have delayed enforcement dates, but most still have an expectation of "good faith compliance."


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Sarah Borders, CEBS

Principal, Benefits Compliance Solutions Sarah has spent the last 15 years in the employee benefits industry, has numerous designations and serves on NAHU’s Employer Working Group Subcommittee and is an active board member of Austin AHU. She recently stepped down as Vice President of Benefits Compliance at one of the nation's largest brokerage firms to start her own compliance consulting practice. Her designations include an active license with the Texas Department of Insurance, CEBS (Certified Employee Benefits Specialist), Certified Health Care Reform Professional, HIPAA certification and Health Care Service Associate. She holds an MBA from Texas A&M Corpus Christi and a BA from University of Incarnate Word. Her consulting firm, Benefits Compliance Solutions, partners with employers to identify unknown risks and avoid hundreds of thousands of dollars in fines and lawsuits from failure to comply with their healthplan obligations.

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