FEDERAL AGENCIES ISSUE NEW FAQs ON TRANSPARENCY IN COVERAGE AND NO SURPRISES ACT IMPLEMENTATION AND DELAYED ENFORCEMENT

Federal Agencies Issue New FAQs on Transparency in Coverage and No Surprises Act Implementation and Delayed Enforcement

On Friday, August 20th, the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury jointly released guidance on Transparency in Coverage (TIC) Rules and No Surprises Act Implementation. These Frequently Asked Questions - Part 49 (FAQs) are related to certain provisions of the Affordable Care Act (ACA), the No Surprises Act, and the Consolidated Appropriations Act of 2021 (CAA).

The FAQs regard the following mandates:

  • Transparency in Coverage Machine-Readable Files: 1) the Departments will defer enforcement of the TIC Final Rules’ requirement that plans and issuers publish machine-readable files containing prescription drug pricing pending future regulations. 2) The Departments are deferring enforcement of the TIC Rules’ requirement to publish the remaining machine-readable files (in-network rates and out of network allowed amounts) until July 1, 2022.
  • Price Comparison Tools: The Departments intend to propose rulemaking and seek public comment regarding whether compliance with internet-based self-service tool requirements of TIC Final Rules satisfy requirements in the CAA, and that the same pricing information available through the online tool or in paper form, as described in the TIC Rules, must also be provided over the phone upon request. The Departments will defer enforcement of the price comparison tool (by internet website, in paper form, or telephone) under the No Surprises Act until plan years beginning on or after January 1, 2023 to align with the TIC Rules’ requirements.
  • ID Cards: The Departments will not issue regulations on ID card requirements prior to the effective date, but do intend to engage in future rulemaking addressing implementation. Plans and issuers are expected to implement the requirements using a good faith, reasonable interpretation of the law. Plans and issuers may design various, but reasonable, methods to comply with the law. Pending any implementing rulemaking, the Departments would not deem a plan or issuer to be out of compliance with ID card requirements where a plan or issuer includes on any physical or electronic ID card issued to participants the following:
    • The major medical deductible and applicable out-of-pocket maximum, as well as a telephone number and website address for individuals to seek consumer assistance and access additional applicable deductibles and maximum out-of-pocket limits. Additional deductibles and out-of-pocket maximum limits could also be provided on a website that is accessed through a Quick Response code (i.e. QR code) on the participant’s ID card or through a hyperlink in the case of a digital ID card.
  • Good Faith Estimate: Until regulations are issued with a prospective applicability date, HHS will defer 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.
  • Advanced Explanation of Benefits (Advanced EOB): The Departments do not intend to issue regulations addressing Advance EOB requirements prior to the effective date. The Departments defer enforcement of the requirement that plans and issuers must provide an Advanced EOB and intend to undertake notice and comment rulemaking in the future to implement this provision, including establishing appropriate data transfer standards. HHS will investigate whether interim solutions are feasible and encourages states to take similar enforcement approaches.
  • Gag Clauses: The statutory language on Section 201 of the CAA is self-implementing, and the Departments do not expect to issue regulations at this time. Plans should use a good faith, reasonable interpretation of the statute to implement the requirements. The Departments intend to issue implementation guidance on attestations and begin to collect attestations in 2022.
  • Provider Directories: The Departments are not issuing regulations addressing provider directories prior to the effective date. Plans and issuers are expected to implement these provisions using a good faith, reasonable interpretation of the statute.
  • Balance Billing Disclosure Requirements: The Departments are not issuing regulations addressing balance billing disclosure requirements prior to the effective date. Plans and issuers are expected to use a good faith reasonable interpretation of the statute.
  • Continuity of Care: The Departments are not issuing regulations addressing continuity of care requirements prior to the effective date. Any rulemaking will include a prospective applicability date that provides a reasonable amount of time to comply with new requirements, and plans and issuers are expected to use a good faith, reasonable interpretation of the statute.
  • Grandfathered Health Plans: Grandfathered health plans are subject to the CAA requirements.
  • Pharmacy Benefits and Drug Cost Reporting: The Departments will defer enforcement of pharmacy and drug cost reporting, pending future regulations or further guidance. The Departments strongly encourage plans and issuers to start working to ensure they can begin reporting required information for 2020 and 2021 data by December 27, 2022. HHS encourages states to take a similar enforcement approach.

Learn more about how Trustmark is helping our clients comply with these Acts.