Background. Individuals whose health benefits may be determined by whether their health care provider participates in their health plan’s or insurer’s network need current, accurate information about the network status of their providers.

New Rules. The Consolidated Appropriations Act (CAA) requires each group health plan and health insurer with a network of providers to maintain a database on its public website that lists the name, address, specialty, telephone number, and digital contact information for each provider that directly or indirectly participates in the network. At least every 90 days, the health plan or insurer must verify directory information and update the database. The plan or insurer must have a procedure for removing providers for whom it cannot verify information and must update the database within two business days of receiving new or revised information from a provider that affects the directory. A printed directory must contain a statement that it was accurate as of the date of publication and that the applicable website, plan, or insurer should be consulted to obtain the most current information.

Health plans and insurers need to have a protocol in place to respond to an enrollee who requests information by telephone or through the internet, or other electronic means. In the case of a request by telephone, the health plan or insurer must respond as soon as is practicable, but in any event, within one business day. Such response must include a written response provided in print or electronically, as the individual requests. The response must be included in the individual’s file for at least two years.

If an enrollee is incorrectly informed that a provider participates in the network, the in-network deductible and out-of-pocket maximum will apply and the enrollee will not need to pay a cost-sharing amount higher than the in-network amount that would have applied.

Citations. ERISA section 720; Internal Revenue Code section 9820; Public Health Service Act section 2799A-5

Effective Date. Plan years beginning on or after January 1, 2022.

Enforcement. For health plans that are subject to ERISA, the U.S. Department of Labor and plan participants and beneficiaries may enforce compliance with these rules. Plans not subject to ERISA may be subject to enforcement by the U.S. Department of Health and Human Services (HHS). HHS shares responsibility for enforcement against insurers with state agencies. In addition, the Internal Revenue Service may impose an excise tax of $100 per day per affected individual under section 4980D of the Code for any failure to comply.

Pending the issuance of regulations, health plans and insurers should comply in good faith with a reasonable interpretation of the new rules. In the event that an enrollee receives inaccurate information about an out-of-network provider’s network status and then obtains items or services from that provider, the plan or insurer will still not be deemed out of compliance with the new directory rules if it imposes a cost-sharing amount no greater than the in-network amount and counts those cost-sharing payments against any deductible or out-of-pocket maximum.

Plan Considerations. Compliance with the new provider directory rules requires the cooperation of health plan vendors and insurers. The provider directory requirements apply to all providers with contractual relationships, direct or indirect, with the health plan or insurer and, therefore, extend to providers in a rented network or similar arrangement.

The new requirements themselves do not preempt state law requirements applicable to provider directories, although ERISA’s general preemption provisions are preserved.

Recommended Steps. Plan sponsors should consider the following actions:

• Confirm that plan administrators and insurers maintain plan directories with the appropriate information, keep them updated, and have procedures in place to provide enrollees with appropriate information about network participation upon request.
• Make appropriate revisions to vendor and insurer contracts.
• Review plan documents and summary plan descriptions and make changes, if needed, to conform to the new rules.
• Modify any print directory to include the date it was last updated, a statement about its accuracy as of that date, and contact information for obtaining updates to the information.
• Provide a link to the plan vendor’s or insurer’s website to allow enrollees to access the directory.