On August 20, 2021, the Health and Human Services, Labor and Treasury Departments released FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 49, which delays the enforcement of certain provisions contained in the No Surprises Act and the Transparency in Coverage (“TiC”) Final Rules. The reasons for the various delays include insufficient time for rulemaking and an acknowledgement that the obligations on payers and insurers are significant. Here is a summary of the enforcement delays:
- Enforcement of the requirement that plans and issuers disclose the net prices paid for prescription drugs has been delayed indefinitely pending further rulemaking. This delay was caused by the conflicting and overlapping disclosure rules set forth in the TiC Final Rules and then later in the No Surprises Act. HHS will be taking comments on the appropriateness of the disclosure rules and may ultimately eliminate the requirement under the TiC Final Rules.
- Enforcement of the requirement that plans and issuers disclose the in-network rates and out-of-network allowed amounts and billed charges has been delayed until July 1, 2022 (the original deadline was January 1, 2022).
- Enforcement of the price comparison tools required under the No Surprises Act (with an original deadline of January 1, 2022) until January 1, 2023 to align with the TiC internet-based self-service tool’s enforcement deadline of January 1, 2023. The tool required under TiC is largely duplicative of the price comparison tools required under the No Surprises Act.
- Enforcement of the requirement that providers and facilities give plan participants a good-faith estimate of the expected charges until HHS promulgates rules related to this requirement. HHS has not provided a timeline for rulemaking related to this requirement. However, this does not delay enforcement of the requirement as to individuals not enrolled in a health plan or who are not seeking to have the claim processed through a health plan.
- Enforcement of the requirement that plans and issuers provide an Advanced Explanation of Benefits. One component of the Advanced Explanation of Benefits is the inclusion of the good-faith estimate. Because enforcement of the good-faith estimate provision is delayed, so to is the Advanced Explanation of Benefits requirement.
The FAQs also state that there will be no rulemaking before enforcement of the new ID card requirements. Under the new ID card requirements plans and issuers must “include in clear writing, on any physical or electronic plan or insurance identification (ID) card issued to participants, beneficiaries, or enrollees, any applicable deductibles, any applicable out-of-pocket maximum limitations, and a telephone number and website address for individuals to seek consumer assistance.” This requirement is effective on January 1, 2022. Plans and issuers “are expected to implement the ID card requirements using a good faith, reasonable interpretation of the law.”
Additional requirements will go into effect without rule-making, including the requirement that plans and issuers maintain up-to-date provider directories and hold patients harmless if the plan provides incorrect provider information, and requirements that plans treat out-of-network providers as in-network providers in certain situations to ensure patient continuity of care. Like with the new ID card requirements, plans and issuers are expected to use a good faith, reasonable interpretation of the law.
As a reminder, the comment period for the Interim Final Rules Part I closes on September 7, 2021. We anticipate that Interim Final Rule Part II and Part III will be issued on October 1, 2021 and December 27, 2021, respectively.