Keenan Briefings

Briefing

New Guidance on Transparency Requirements for Health Plans

• FAQs issued to clarify guidance and delaying the enforcement of many of the transparency rules
• The Departments have delayed the enforcement of the provision requiring the publication of three machine-readable files
• The Departments will not issue regulations in time to implement the good faith estimate or Advanced Explanation of Benefits requirements of the CAA

In the face of mounting concern regarding confusing overlapping mandates and looming deadlines, the three federal departments charged with enforcing the various group health transparency mandates — The Department of Labor, the Department of Health and Human Services, and the Treasury (together, the Departments) — have issued FAQ guidance acknowledging the confusion, clarifying some guidance, and delaying the enforcement of many of the transparency rules scheduled to go into effect at the beginning of 2022.

As detailed in our August 4, 2021 briefing, New Transparency Requirements for Health Plans, both regulatory action taken under the ACA (the Transparency in Coverage final rule, or TiC final rule) and statutory changes enacted as part of the budget process (the Consolidated Appropriations Act, 2021 or CAA, which includes the No Surprises Act) are set to require group health plans and carriers to enact a variety of measures intended to give plan members and the public more information regarding the price of health care services and prescription drugs. On August 20, 2021, the Departments issued FAQs which addressed the following issues.

• The passage of CAA significantly changed the regulatory landscape after the TiC final rule was adopted and, many stakeholders have expressed concern about potentially duplicative and overlapping reporting requirements, especially for prescription drugs. Therefore, the Departments have delayed the enforcement of the provision requiring the publication of three machine-readable files.
• The price comparison methods required by the CAA are largely duplicative of the internet-based self-service tool requirements of the TiC final rule.Therefore, the Departments will defer enforcement of the CAA requirement that a plan or issuer make a price comparison tool to bring it into alignment with the similar TiC rule.
• The Departments will not issue regulations in time to implement the good faith estimate or Advanced Explanation of Benefits requirements of the CAA. Enforcement of those provisions will be delayed.
• While grandfathered plans are not subject to the TiC final rule, the Departments confirmed that they are subject to the transparency provisions in the CAA.
• Pending issuance of regulations regarding the ID card requirements, plans should make good faith efforts to comply.

In light of these outstanding issues, the Departments have delayed enforcement of the following:

The FAQs did not delay the following deadlines for transparency provisions:

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.