On August 20, 2021, the Departments of Labor, CMS, HHS, and Treasury (the “Departments”) issued an FAQ to clear up some discrepancies and questions around the No Surprises Act (NSA) and the Transparency in Coverage Regulations (TinC).
The FAQ focused on three main topics: Machine Readable Files (MRF), Price Comparison Tool, and Provider Directory Requirements. Below is a summary of the changes for each:
Transparency In Coverage Stage 1: MRFs
- The Departments will defer enforcement of the Rx pricing MRF until further rulemaking. A new deadline was not provided.
- The Departments will defer enforcement of the requirement to post in-network and allowed amount (out-of-network) MRFs from January 1, 2022 to July 1, 2022.
How does this affect Sapphire’s Product Offerings?
- Our MRF Hub solution, which aggregates multiple product, network and geographic MRF’s and creates ASO specific MRF files will proceed forward as planned. We anticipate many clients will look to delay the posting of these files but urge plans to continue working on original timelines and use the additional time for iteration and adjustments
- As In-Network and Out-of-Network MRF Creation data serves as a critical building block of the cost data used for Stages 2 and 3 of the TinC regulation, the timelines for this work will remain largely unchanged. We anticipate many clients will look to delay the posting of these files but also recommend to keep working based on current plan timelines.
Conflicting Price Comparison Tool Requirements
- The Departments acknowledged the conflict caused by the requirements under the NSA to provide a price comparison tool by 1/1/22 and TinC to provide an internet based self service tool by 1/1/23. Therefore, the Departments will defer enforcement of the NSA requirement to make a price comparison tool available until 1/1/23.
- In the meantime, the Departments will seek comment and issue regulations as to whether the TinC regulations will satisfy the NSA’s price comparison tool requirement.
- The Departments highlighted the fact that the NSA does require the pricing information be made available over the phone also (TinC does not have that requirement), and they intend to seek comment and publish regulations on that requirement also.
How does this affect Sapphire’s Product Offerings?
- Our S365 Platform will continue to deliver a member-facing cost transparency experience compliant with the NSA, including the availability of a tool to allow member service representatives to share information with members over the phone.
- Plan sponsors introducing new transparency solutions for 1/1/22 should not delay their efforts, as the 1/1/23 and 1/1/24 requirements of the TinC regulation build upon the requirements within the NSA.
- The delay in enforcement allows plan sponsors to take a phased approach to compliance, especially those that are introducing this type of solution to members for the first time.
Provider Directory Requirements within NSA
- The 1/1/22 deadline for the provider directory requirements (provider verification, timeliness of updates, and member protections for misinformation) is not being delayed.
- The Departments do not intend to issue rule-making for the provider directory requirements until after the deadline of 1/1/22. Until further rule-making, plans are expected to implement the provider directory requirements using a good faith interpretation of the NSA.
- The Departments will not deem a plan to be out of compliance with the provider directory requirements as long as the plan implements the member hold-harmless cost sharing protections described within the legislation.
How does this affect Sapphire’s Product Offerings?
- Sapphire is moving forward in support of more frequent provider updates
- Sapphire will continue to support provider record suppression (“removal”) for non-validated data, however; we anticipate that plan sponsors will re-evaluate their stance on this portion of the regulation
Our Overall Perspective
While the overall decision to delay enforcement of some specific elements is not surprising, it is important to note that the compliance dates for these regulations have not changed and is it is further proof that the Biden administration fully supports transparency and that the TINC and NSA are not going away. It is our belief that the delayed enforcement of specific provisions will allow certain plan sponsors time to bring their transparency solutions into full compliance, rather than relying on the “good faith effort” and “commercially reasonable effort” safety nets tied to the original enforcement dates.
It is also important to note that the federal change in enforcement dates currently only impact plans governed by the federal government (ASO Employers and Trusts) and not insured plans; although it is our belief that most or all states will follow the federal government’s lead on enforcement dates.
There has been no change in the enforcement date for the second phase of the Transparency in Coverage regulation, which requires the use of contracted rates to calculate a member’s out of pocket liability for 500 shoppable services by 1/1/23. Since the contracted rate data will come, in part, from the MRF data, this will leave 6 months to deliver a compliant internet-based tool for member and customer service agents to use in support of members for any plan sponsors who choose to delay their MRF completion until 7/1/22, which is not advisable.
In all, the delay in enforcement will help plan sponsors deliver a more thoughtful and useful solution to their members, but it should not slow or delay any current efforts to create a compliant solution aligned with the multiple phases of the regulations. In fact, delayed enforcement opens the door for phased deployment of solutions, with continuous refinement of data, user experience, and member support with the ultimate goal of connecting members to the right care, at the right place, at the right time, and for the right price.