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Departments issue FAQs delaying health care transparency requirements

Benefits Administration and Outsourcing Solutions|Health and Benefits|Total Rewards|Wellbeing
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By Anu Gogna and Benjamin Lupin | September 2, 2021

Employer group health plan sponsors should review which requirements under the Consolidated Appropriations Act are being delayed.

The departments of Labor, Health and Human Services, and Treasury have released FAQ guidance delaying the enforcement of certain requirements under the Transparency in Coverage Final Rule1 and the No Surprises Act (NSA) — part of the Consolidated Appropriations Act (CAA)2 — “pending further rulemaking.”

The departments also announced in the FAQs that they will not be issuing regulations for several provisions of the NSA.

Among the guidance, the FAQs provide that:

  • No ID card regulations will be issued prior to the effective date of January 1, 2022. In the meantime, the good faith, reasonable interpretation of the law will be in effect.
  • No regulations on advanced explanations of benefits (EOBs) will be issued prior to the effective date of January 1, 2022. Enforcement of the requirement is "deferred" until the departments release rulemaking or interim solutions.
  • Until regulations or further guidance is issued, the departments strongly encourage plans and issuers to start working to ensure that they can begin reporting the required 2020 and 2021 prescription drug information by December 27, 2022.
  • While Affordable Care Act grandfathered health plans are not subject to the Transparency in Coverage Final Rule, such plans are subject to the NSA and the accompanying transparency rules.

Additional timing and details are listed in the chart below.

Updated transparency effective dates

Updated transparency effective dates
  Original effective date New effective date Additional comments
Prescription drug machine readable file
(Q&A 1)
January 1, 2022 TBD Deferred until future rulemaking determines whether the rule is appropriate
In-network rates and out-of-network allowed amounts and billed charges machine readable files
(Q&A 2)
January 1, 2022 July 1, 2022 Employers should continue to work with carriers/third-party administrators to plan to comply
Price comparison tools
(Q&A 3)
January 1, 2022 under CAA
Phased in from January 1, 2023, to January 1, 2024, under Transparency in Coverage Final Rule
TBD, but not effective before plan years beginning on or after January 1, 2023 To be resolved via future rulemaking
Revision of insurance ID cards
(Q&A 4)
January 1, 2022 TBD — No regulations will be issued prior to January 1, 2022 Good faith, reasonable interpretation of the law will be in effect until guidance is issued

To be resolved via future rulemaking
Advanced EOBs
(Q&A 6)
January 1, 2022 TBD — No regulations will be issued prior to January 1, 2022. To be resolved via future rulemaking
Prohibition on gag clauses on price and quality information
(Q&A 7)
December 27, 2020 N/A — Statutory language is self-implementing Good faith, reasonable interpretation of the law will be in effect until guidance is issued

Departments will provide implementation guidance in the future in order to collect attestations starting in 2022
Accuracy of provider directories
(Q&A 8)
January 1, 2022 TBD — No regulations will be issued prior to January 1, 2022 Good faith, reasonable interpretation of the law will be in effect until guidance is issued

To be resolved via future rulemaking
Balance billing disclosures
(Q&A 9)
January 1, 2022 TBD — No regulations will be issued prior to January 1, 2022 Good faith, reasonable interpretation of the law will be in effect until guidance is issued

To be resolved via future rulemaking
Continuity of care
(Q&A 10)
January 1, 2022 TBD — No regulations will be issued prior to January 1, 2022 Good faith, reasonable interpretation of the law will be in effect until guidance is issued

To be resolved via future rulemaking
Reporting of pharmacy benefits and drug costs
(Q&A 12)
December 27, 2021 December 27, 2022 Deferred until future rulemaking, but group health plan sponsors are strongly advised to prepare for reporting on 2020/2021 by December 27, 2022

Footnotes

1 See “Q&A: Final rule on health care transparency,” Insider, November 2020

2 For more information on the CAA’s surprise medical billing and transparency requirements, see “2020 year-end COVID-19 stimulus law: Health and benefit implications,” Insider, January 2021.

Authors

Senior Regulatory Advisor, Health and Benefits

Senior Regulatory Advisor, Health and Benefits

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