CMS Delays Enforcement of Certain “Transparency in Coverage” Final Rule Requirements
Earlier this year, the United States Centers for Medicare and Medicaid Services (CMS) announced that it plans to delay the enforcement of certain provisions of the Transparency in Coverage Final Rules by six months – from January 1, 2022, to July 1, 2022. CMS notes that the rule still goes into effect January 1, 2022, but the agency will not enforce the transparency requirements until July 1, 2022.
The rule was released in October 2020 by the Trump Administration and requires that certain non-grandfathered group health plans and health insurance issuers offering non-grandfathered coverage in the group and individual markets disclose online their in-network provider rates for covered items and services, out-of-network allowed amounts and billed charges for covered items and services, and negotiated rates and historical net prices for covered prescription drugs. The three sets of information must be published in three separate machine-readable files.
Exceptions to the TiC Requirements
Under the Final Rule, plans and issuers must make public machine-readable files that disclose in-network rates and out-of-network allowed amounts and billed charges. However, the Departments (to include the Department of Labor, Health and Human Services, and the Treasury) have created two exceptions to the general rule.
Prescription Drug Pricing
First, the Departments will defer enforcement of the TiC Final Rules’ requirement that plans and issuers publish machine-readable files relating to prescription drug pricing, pending further rulemaking.
The Departments will defer enforcement of the requirement in the TiC Final Rules that plans and issuers must publish machine-readable file related to prescription drugs while it considers, through notice-and-comment rulemaking, whether the prescription drug machine-readable file requirement remains appropriate. HHS encourages states that are primary enforcers of this requirement with regard to issuers to take a similar enforcement approach and will not determine that a state is failing to substantially enforce this requirement if it takes such an approach.
Enforcement Delay for In-Network Rates and Out-of-Network Allowed Amounts
In the statement, the Departments acknowledge “the number of CAA provisions plans and issuers are required to implement…and the considerable time and effort required to make the machine-readable files available in the form and manner required in the TiC Final Rules at the same time.” Therefore, enforcement will be deferred for the requirement to make public the machine-readable files for in-network rates and out-of-network allowed amount and billed charges, until July 1, 2022.
On July 1, 2022, the Departments expect to begin enforcing the requirement that plans and issuers publicly disclose information related to in-network rates and out-of-network allowed amounts and billed charges for plan/policy years that start on or after January 1, 2022. For 2022 plan/policy years beginning subsequent to July 1, 2022, plans and issuers should post the machine-readable files in the month in which the plan/policy year begins, consistent with the applicability provision of the TiC Final Rules. HHS encourages states that are primary enforcers of this requirement with regard to issuers to take a similar enforcement approach and will not determine that a state is failing to substantially enforce this requirement if it takes such an approach.