Price Transparency and CAA Checklist for Plan Service Providers

26 October 2022 Publication
Author(s): Nick J. Welle Hannah R. Demsien Cullen J. Werwie

Group health plans must comply with several new requirements set forth by the Consolidated Appropriations Act of 2021 (CAA) and the Transparency in Coverage regulations (TiC Regulations) under the Affordable Care Act (ACA).  While many of these obligations may technically apply to plan sponsors, the practical effect has been in the industry that plan service providers address most of the obligations on behalf of plans.  Use the following chart as an agenda to guide discussions regarding compliance with CAA and TiC Regulations.   


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.  - Offer as additional service (with one-time fee)?
- Determine personnel responsible for compliance
- Periodic review of internal coverage policies, template SPD, and INNET agreements for compliance 
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  Good faith, reasonable interpretation.  Determine applicability and, if applicable, determine all compensation received and how this will be disclosed to plan sponsor 
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. 
- Offer as additional service (with fixed fee)?
- Host on internal website or different e-space?
- Ensure technical capabilities/operations
- Assign personnel team responsible for compliance 
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.  - Ensure technical capabilities/operations
- Update SPD to include summary and ways to access (e.g., actual contact information or links) 
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.  Same as above.   
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.  Deferred  
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.  - Update SPD to align
- Incorporate into INNET agreement review process (need to address when INNET negotiations fail) 
- Send batch notices to qualifying members upon INNET negotiations failure 
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.  
- Determine personnel responsible for maintaining 
- Address potential overpayment liability for misrepresentations   
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.  - Incorporate required content into template ID card format
- Reissue all new ID cards
- Additional (one-time) fee? 
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) 

Good faith, reasonable interpretation for contracting.

First attestation must be submitted by 12/31/2023 (covering multiple years), then by each Dec. 31 thereafter.  

- Review and update all applicable INNET agreements
- Account for rule in future INNET negotiations
- Assign personnel to assist with annual attestation 
- Determine if will conduct on behalf of plans

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. 
- Update template SPD to summarize rules
- Adjust “Allowed Amount” criteria to account for qualifying payment amount  
- Assign team responsible for compliance and IDR settlements
- Confirm payment operations capabilities for compliance (e.g., cannot deny ER claim based solely on diagnosis codes and must give in-network cost-shares)
- Additional fee for each IDR? 
Prescription Drug and Health Care Spending Reporting
Plans must submit prescription drug and plan spending information to HHS, DOL, and Treasury, including but not limited to top drugs dispensed, most costly drugs, rebate information, plan expense breakdowns, and plan premium 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.  - Assign team responsible for compliance
- Confirm technical reporting capabilities based on content requirements and market segments
- Additional fee for this reporting? 
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 per proposed rules CMS delayed reporting until rules are finalized. - Begin preparation for reporting requirements 
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   Only impacts grandfathered plans (minimal) 


If you have questions about compliance with the above requirements, or are looking for practical pointers on how to incorporate these new obligations into your existing business model, Foley & Lardner LLP can help.

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