Departments Issue FAQs on Cost-Sharing and Restated Enforcement Approach on Provider Nondiscrimination Rules under ACA

Franczek P.C.

The Departments issued FAQs clarifying prior guidance on the ACA’s cost-sharing limitations applicable to non-grandfathered plans, and restating their enforcement approach with respect to the ACA’s provider nondiscrimination rules.


The ACA imposes maximum annual dollar limitations on participant out-of-pocket costs in non-grandfathered plans. The dollar limitations for plan years beginning in 2015 are $6,600 for self-only coverage and $13,200 for other than self-only coverage. For plan years beginning in 2016, the limitations are $6,850 for self-only coverage and $13,700 for other than self-only coverage. The FAQs clarify that the maximum annual limitation on cost-sharing for self-only coverage applies to each individual, regardless of whether the individual is enrolled in self-only coverage or in other than self-only coverage (e.g. family coverage). For example, for a family of four individuals who are enrolled in family coverage in a non-grandfathered plan, each individual’s annual out-of-pocket costs may not exceed the limit for self-only coverage ($6,850 for 2016). In addition, the four individuals’ combined out-of-pocket costs cannot exceed the dollar limit for coverage other than self-only ($13,700 for 2016).

The guidance states that this requirement will be enforced for plan years starting in 2016. The guidance also clarifies that this requirement applies to all non-grandfathered plans, whether self-insured or fully insured, including high-deductible health plans.

Provider Nondiscrimination Rules

The ACA’s provider nondiscrimination rules, set forth in the Section 2706(a) of the Public Health Service Act (PHSA), provide that that health plans “shall not discriminate with respect to participation under the plan…against any health care provider who is acting under the scope of that provider’s license or certification under applicable State law.” Importantly, the rules do not require health plans to “contract with any health care provider willing to abide by the terms and conditions for participation established by the plan” or prevent plans from “establishing varying reimbursement rates based on quality or performance measures.” In the FAQs, the Departments restated their enforcement approach with respect to the ACA’s provider nondiscrimination rules, stating that until further guidance is issued, the Departments will not take any enforcement action with respect to these rules as long as a plan is using a “good-faith, reasonable interpretation” of the statutory provisions containing the rules (Section 2706(a) of the PHSA).

The Departments stated in the FAQs that the revised enforcement approach was in light of more than 1,500 comments received in response to a request for information issued by the Departments in March 2014 on the ACA’s provider nondiscrimination rules, and documents from the Senate and House appropriations committees directing the Departments to clarify the rules.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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