FAQs About Affordable Care Act Implementation Part 61 (Sept. 27, 2023)
The DOL, HHS, and IRS have issued FAQ guidance (Part 61) on implementation of the transparency in coverage (TiC) regulations and overlapping transparency provisions in the Consolidated Appropriations Act, 2021 (CAA, 2021). As background, TiC final regulations require, among other things, that plans and insurers publicly disclose price information in machine-readable files for plan years beginning on or after January 1, 2022. The disclosures must show applicable rates for in-network providers, allowed amounts and billed charges for out-of-network providers, and prescription drug price information. However, shortly after the TiC regulations were finalized, Congress passed the CAA, 2021, which included transparency requirements that overlap with the TiC regulations. Agency FAQs (Part 49) deferred enforcement of the TiC regulations’ machine-readable file requirement for prescription drug pricing pending further rulemaking. And later agency FAQs (Part 53) added a limited enforcement safe harbor for the TiC regulations’ machine-readable file requirement for in-network provider rates in circumstances where it was difficult or impossible to determine a dollar amount for specific items or services.
These latest FAQs (Part 61) address each of the previously deferred enforcement provisions. Here are highlights:
- Prescription Drug Pricing. The agencies now rescind the enforcement discretion in FAQs (Part 49) for the TiC regulations’ prescription drug machine-readable file requirement. In November 2021, the agencies issued interim final regulations implementing the CAA, 2021 requirement that group health plans and insurers report prescription drug and health care spending, premiums, and enrollment information to the government. The agencies explain that, after the CAA, 2021 rulemaking process, it is clear there is “no meaningful conflict” between the TiC regulations and CAA, 2021 prescription drug reporting requirements. They do, however, intend to issue additional implementation guidance that will “sufficiently account” for plans’ and insurers’ reliance on the prior enforcement relief.
- In-Network Provider Rates. The agencies now rescind the enforcement discretion provided in FAQs (Part 53) for in-network provider rates not expressed as a dollar amount, advising that plans and insurers that are unable to determine dollar amounts for the in-network rate reporting element should follow existing technical reporting guidance.
EBIA Comment: Although these FAQs allow enforcement of certain aspects of the TiC regulations, several CAA, 2021 transparency requirements remain under enforcement discretion or a good faith compliance standard. In the meantime, Congress continues to consider further legislation calling for greater price transparency in the health care system, including from group health plans. For more information, see EBIA’s Health Care Reform manual at Sections XXXVII.D (“Transparency in Coverage Cost-Sharing Disclosures”) and XXXVII.E (“Surprise Medical Billing Transparency Disclosures”), and EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”). See also EBIA’s Self-Insured Health Plans manual at Sections XXIX.D.4 (“Pharmacy Benefit and Drug Cost Reporting”) and XXVIII.I (“Surprise Medical Billing Transparency Disclosures”).
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