CAA #9: GOVERNMENT ANNOUNCES ENFORCEMENT DELAYS FOR SOME PROVISIONS OF THE CONSOLIDATED APPROPRIATIONS ACT OF 2021

On August 20, 2021, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (IRS) (collectively, the Departments) issued a FAQ offering guidance primarily on the timeline for implementing certain provisions of the Consolidated Appropriations Act of 2021 (the CAA) and when stakeholders can expect to see implementing regulations or guidance.

Generally, the CAA requires plans to comply with the provisions in question for plan years beginning on or after January 1, 2022 (a plan’s “applicability date”).

The FAQ announced delays in the enforcement of some of these provisions primarily due to the complexity of complying with those provisions. The FAQ includes a reminder that these provisions of the CAA apply to grandfathered plans and makes no mention of the Fee Disclosures Rule for brokers and consultants.

The FAQ is available here: DOL Website

The following provisions are affected by this announcement.

Good Faith Estimates of Expected Charges: Although the Departments intend to issue regulations prior to January 1, 2022, they acknowledge that compliance by that date may not be possible due to the complexities of developing the infrastructure to support the process of providing the estimates.  The regulations will include a prospective applicability date; the Departments will not enforce these requirements prior to that date.

Advance Explanation of Benefits: It is unlikely the Departments will issue regulations by January 1, 2022.  Rather, they will begin by seeking feedback from stakeholders affected by this requirement.  Enforcement will be delayed pending issuance of implementing regulations. However, HHS will investigate whether interim solutions are feasible.

Reporting on Pharmacy Benefits and Drug Costs: Again, due to the complexities involved in implementation, the Departments will delay enforcement until the issuance of regulations or further guidance.

• The statute requires that the first report must be filed by December 27, 2021, and each report thereafter annually by June 1.
• That guidance delays the due dates for the first two reports but notes that plans will still have the obligation to report on 2020 and 2021 plan years once the guidance is issued.

Transparency in Coverage: Machine Readable Files:  The Transparency in Coverage (TiC) rules were issued in late 2020 prior to the enactment of the CAA.

• The TiC rules are scheduled to go into effect for plan years beginning on or after January 1, 2022.  The CAA contains provisions like those in the TiC rules, but also included some significant differences.
• The Departments are keen to reconcile those differences to prevent duplicative and overlapping requirements.  Accordingly, they have decided to defer enforcement of the requirement in the TiC Final Rules that plans must publish machine-readable files related to prescription drugs while it considers, as part of their rulemaking process, whether the prescription drug machine-readable file requirement of the TiC rules remains appropriate.
• Additionally, the Departments will defer enforcement of the CAA’s requirement to make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges, until July 1, 2022.

Price Comparison Tools: This is another area of overlap between the TiC Rules and the CAA.

• The TiC requires plans to make price comparison information available through the internet and on paper.  This information must be available for plan years beginning on or after January 1, 2023, with respect to the 500 items and services specified by the Departments in the TiC rules and with respect to all covered items and services, for plan years beginning on or after January 1, 2024.
• The CAA requires plans to offer price comparison guidance on the internet and by telephone. This requirement is applicable with respect to plan years beginning on or after January 1, 2022.  The Departments are considering whether compliance with the TiC rules (with the addition of telephonic support) will satisfy the requirements of the CAA.  In addition, because plans have (presumably) been working toward compliance for the TiC Rule’s January 1, 2023, date, the Department’s will defer enforcement of the CAA’s similar requirements until that date.

No changes in applicability dates are being made for the following provisions.

ID Cards:  The Departments will not issue regulations prior to January 1, 2022, but plans will be expected to comply by their applicability date using any design that reflects a reasonable, good faith interpretation the law. As an example, the Departments would consider an ID Card to be reasonably designed if it included:

• the applicable major medical deductible and applicable out-of-pocket maximum; and
• a telephone number and website address for individuals to seek consumer assistance and access additional applicable deductibles and maximum out-of-pocket limits.
• Additional deductibles and out-of-pocket maximum limits could also be provided on a website that is accessed through a Quick Response code (commonly referred to as a QR code) on the participant’s, beneficiary’s, or enrollee’s ID card or through a hyperlink in the case of a digital ID card.

Gag Clauses:  The Departments view these provisions as “self-implementing”.  Plans are expected to adopt a reasonable, good faith interpretation of these requirements.  However, the Departments will provide guidance on how plans should submit their attestations of compliance.

Provider Directories:  Rules will not be issued until after January 1, 2022.   Plans should implement these provisions by their applicability date using a reasonable, good faith interpretation of the requirements.

Balance Billing Disclosure Requirements: No additional guidance is currently planned.  Plans that use the model notices previously provided by the Departments will be deemed to be in compliance.  The model notices are available here: CMS Website.

Continuity of Care:  Rules will not be issued until after January 1 ,2022. Plans should implement these provisions using a good faith, reasonable interpretation of the statute.