FAQ About Affordable Care Act Implementation Part 65 (Feb. 2, 2024)
The DOL, HHS, and IRS have issued FAQ guidance (Part 65) on implementation of the transparency in coverage (TiC) regulations. As background, TiC final regulations require, among other things, that plans and insurers disclose individualized cost-sharing information to participants, beneficiaries, and enrollees through an internet-based self-service tool and, upon request, in paper form. The disclosures, which show applicable rates for in-network providers and allowed amounts and billed charges for out-of-network providers, must be an accurate estimate at the time a request is made. These estimates are generally based on contracted rates for items and services, but plans and insurers may use analytics, such as past claims data, to produce more accurate cost estimates. For instance, if rates are not negotiated as prospective dollar rates, past claims data may be used.
This FAQ recognizes that plans and insurers may not be able to provide accurate cost estimates for items or services with limited past data because of very low utilization. The agencies advise that they are “likely” to exercise discretion, on a case-by-case basis, and not bring enforcement actions against plans and insurers that fail to include cost-sharing information for items and services for which a cost estimate would need to be based on past claims data and for which there have been fewer than 20 different claims in total over the past three years. The plan or insurer should indicate on the self-service tool that the item or service is covered, but that a specific cost estimate is not available because of insufficient data. The tool also should encourage the individual to contact the plan or insurer for more information on the item or service.
EBIA Comment: The agencies remind plans and insurers that cost-sharing information for all other covered items and services must be made available through a self-service tool and in paper form (upon request), as well as over the phone. (While the TiC regulations permit disclosures to be made by phone or other means if so requested, disclosure by phone is required by the Consolidated Appropriations Act, 2021 and related guidance. For more information, see EBIA’s Health Care Reform manual at Section XXXVII.D (“Transparency in Coverage Cost-Sharing Disclosures”). See also EBIA’s Self-Insured Health Plans manual at Sections XXVIII.H (“Transparency in Coverage Cost-Sharing Disclosures”).
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