Employer Checklist for New Health Plan Price Transparency Rules and CAA

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Foley & Lardner LLPThe effective date is fast approaching for certain provisions of the Consolidated Appropriations Act of 2021 (“CAA”) and related regulations, and the Transparency in Coverage Rule. You can access previous articles written about the rule here and here. While some provisions have already taken effect and some are not effective until later in 2022 or beyond, several provisions that will have a large impact on self-funded health plans are effective in January 2022, including requirements related to surprise billing. We drafted this checklist to help employers with self-funded health plans be aware of the obligations imposed by these laws and the steps they may need to take to comply:

Self-Funded Group Health Plan Sponsor Checklist Price Transparency and CAA

Use the following chart as an agenda to guide discussions with your group health plan third party administrator (TPA), pharmacy benefits manager (PBM), or other vendor (e.g., broker) regarding compliance with the new group health plan requirements in the Consolidated Appropriations Act of 2021 (CAA), and in the 2020 Transparency in Coverage final regulations (TiC Regulations) under the Affordable Care Act (ACA).

Requirement

Effective Date

Deferred Enforcement

Plan Sponsor Notes Regarding Vendor Compliance / Action Items

Mental Health Parity Comparative Analyses

Plans imposing non-quantitative treatment limitations (NQTLs) on mental health or substance use disorder benefits must perform comparative analyses of the application of these NQTLs. Must make analyses available to regulatory agencies upon request. (CAA)

02/10/2021

None.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Third Party Fee Disclosures

New requirement to avoid an ERISA prohibited transaction (similar to current retirement plan fee disclosures). Covered service providers must provide this disclosure to responsible plan fiduciary. (CAA)

12/27/2021

None.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Public Pricing Information Disclosures

Plans must publicly disclose through three machine-readable files information regarding: in-network negotiated rates; out-of-network amounts allowed and associated billed charges; and prescription drug information. Disclosures must be posted on a public website. (TiC Regulations)

Plan Years on or after 01/01/2022

Deferred enforcement for INNET/OON until 07/01/2022.

Deferred enforcement for Rx indefinitely, pending further rulemaking.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Price Comparison Tool

Plans must offer price comparison guidance by phone and make a price comparison tool available online that allows an enrolled individual to compare cost-sharing for specific items and services. Note this is similar, but not identical to, Self-Service Tool below. (CAA)

Plan Years on or after 01/01/2022

Deferred enforcement until plan year on or after 01/01/2023, to align with TiC requirement below. Future regulations may be issued to merge requirements.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Pre-Service Cost-Sharing Disclosure and Self-Service Tool

Plans must disclose cost-sharing information upon request, including an estimate of cost-sharing liability for covered items pre-service. Disclosure must be available through a self-service tool that allows for searching of factors that are relevant for cost-sharing determinations. Must also be available upon request in paper form. Note this is similar, but not identical to, the Price Comparison Tool above. (TiC Regulations)

Plan Years on or after 01/01/2023 (500 items);

Plan Years on or after 01/01/2024 (full compliance)

None.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Advanced Explanation of Benefits (EOB)

Plans must provide EOB to covered individuals in advance of a service. Required within one-three business days after plan receives notification of a service from a health care provider or facility. (CAA)

Plan Years on or after 01/01/2022

Deferred enforcement pending further rulemaking.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Continuity of Care Protections and Notification

If plan’s contractual relationship with a participating provider or facility terminates or changes so that benefits provided in relation to a continuing care patient’s care is no longer provided, plan must provide patient notification and right to elect continued transitional care. (CAA)

Plan Years on or after 01/01/2022

Good faith, reasonable interpretation required.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Provider Directory

Plans must create database listing providers with direct or indirect contractual relationship with plan. Plan must verify and update directory information every 90 days. If participant uses out-of-network provider based on misrepresentation that provider was in-network, plan must process and pay claim as if in-network. (CAA)

Plan Years on or after 01/01/2022

Good faith, reasonable interpretation required.

If misrepresent INNET status, no enforcement if treat cost-sharing as INNET.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

ID Card Disclosures

Plan physical and electronic ID cards must state deductible, out-of-pocket maximum, and contact information (phone and website) for consumer assistance information. (CAA)

Plan Years on or after 01/01/2022

Good faith, reasonable interpretation required.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________ _____

Removal of Gag Clauses

Plans may not enter into any agreement regarding access to a network of providers that would restrict the plan from providing provider-specific cost or quality of care information, accessing de-identified information or data, or sharing such information with a business associate. Annual attestation of compliance required. (CAA)

12/27/2020

Good faith, reasonable interpretation required.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: ________

No Surprise Billing (Balance Bill Prohibition)

Plans must comply with new participant cost-sharing and nonparticipating provider payment requirements with respect to emergency services, nonemergency services provided by nonparticipating providers at participating facilities, and air ambulances; exceptions apply to certain services if participant provides consent. Expansion of ACA’s patient protections for emergency coverage (e.g., expanded definitions). Expansion of external review to adverse determinations made involving surprise billing protections, and new independent dispute resolution process for providers. New notice requirements on public website and in EOBs. (CAA and regulations)

Plan Years on or after 01/01/2022

For required disclosures, plans must use good faith, reasonable standard.

Use of model notice considered good faith.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Prescription Drug Cost Reporting

Plans must submit prescription drug information to HHS, DOL, and Treasury, including but not limited to top drugs dispensed, most costly drugs, and rebate information. (CAA)

12/27/2021

Delayed. 2020 and 2021 reports are now due by 12/27/2022, and future year reports by June 1 thereafter.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Air Ambulance Cost Reporting

Plans must report air ambulance claims data. Per proposed rules, 2022 data must be submitted by 3/31/2023; and 2023 data must be submitted by 3/30/2024. Only two calendar years of reporting. (CAA)

03/31/2023

None.

Service Agreement Amendment required? Yes/No

Plan/SPD Amendment required? Yes/No

Other follow up required? Yes/No

Target Date: _________

Choice of Health Care Professionals Patient Protections - Grandfathered Plans Only

(This rule is currently applicable to non-grandfathered plans under the ACA.) If plan requires a participant to designate a primary participating provider, then plan must allow participant to designate any participating provider who is available to accept such individual (also special rules for pediatricians with children and gynecologists for women).

Plan Years on or after 01/01/2022

None.

[View source.]

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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