Recent agency FAQs clarify the timeline for health plans and insurers to implement key transparency provisions in the Consolidated Appropriations Act, 2021 (CAA). The FAQs also address the interplay between the final transparency-in-coverage (TiC) rules published in November 2020 and the CAA’s transparency provisions. This alert describes this much-awaited guidance from the departments of Labor, Health and Human Services, and Treasury.
Machine-readable files enforcement delayed; more to come on prescription drug reporting
Final TiC rules require nongrandfathered group health plans and insurance issuers in the individual and group markets to disclose extensive price and cost-sharing information beginning in 2022. Potential prescription drug disclosures have been particularly controversial. The FAQs provide three important enforcement delays:
Price comparison tool requirements clarified
Both the final TiC rule and the CAA require plans and issuers to make price comparison tools available to individuals. The TiC and CAA requirements for these tools largely overlap, although the CAA requires making price comparisons available by telephone in addition to online or on paper upon request. The departments plan to add telephone access to the TiC price comparison requirements and solicit comments regarding whether compliance with the TiC rules will satisfy the CAA’s similar requirements for price comparisons.
Delayed enforcement of CAA’s price comparison tool requirements
The departments also are delaying enforcement of the CAA's price comparison tool requirements for plan years beginning before Jan. 1, 2023, to align the enforcement of the CAA and TiC requirement. The guidance nonetheless encourages plans and issuers to make the TiC price comparison tools available by the appropriate deadlines. Under the final rules, health plans and insurance issues must make price comparison data for 500 specific items and services available for plan years beginning on or after Jan. 1, 2023, then issue price comparison data for all remaining covered items and services for plan years beginning on or after Jan. 1, 2024.
Additional implementation guidance and enforcement delays
Some CAA guidance won’t be issued by applicable effective dates. Plans and issuers must prepare to comply with the following requirements using a “good faith, reasonable interpretation of the law”:
The FAQs provide some examples of what good faith compliance means for these requirements. With the exception of the prohibition on gag clauses, all provisions listed above take effect for plan or policy years beginning on or after Jan. 1, 2022.
Delayed enforcement of some CAA requirements
Certain CAA requirements are more difficult to implement, so the departments are delaying enforcement of the following provisions pending publication of regulatory guidance:
The guidance confirms that the CAA has no broad exemption for grandfathered health plans. Certain of the CAA’s patient protections apply to grandfathered health plans, including protections against surprise medical and air ambulance bills, advance EoBs, and others.
The departments did not delay or provide enforcement relief for the CAA’s surprise billing requirements. The guidance likewise doesn’t delay or give enforcement relief for the CAA’s requirement for plans and issuers to maintain a written comparative analysis of the plan’s nonquantitative treatment limitations (NQTLs) under the Mental Health Parity and Addiction Equity Act (MHPAEA) or to provide a copy of that analysis to the departments upon request.
This chart summarizes the transparency-in-coverage provisions addressed in the FAQs and whether an enforcement delay applies.