Enforcement of one of the Transparency in Coverage Final Rules (“TiC Rules”) begins on July 1, 2022. The rule requires plans and issuers to make machine-readable files publicly available that will disclose in-network rates and out-of-network allowed amounts and billed charges for plan or policy years that start on or after January 1, 2022.

Background

Over the last couple of years, several laws and regulations have passed that require health plans and health insurance issuers to provide or disclose various types of information to plan members and the public. These mandates include the TiC Rules, the No Surprises Act (NSA), and the Consolidated Appropriations Act, 2021 (CAA). On August 20, 2021, the U.S. Departments of Treasury, Labor, and Health and Human Services (the “Departments”) issued a joint FAQ (the “FAQ”) meant to address various reporting requirements under these mandates as well as acknowledge that some of them are duplicative or overlapping. In the FAQ, the Departments deferred enforcement of several requirements under these new laws and regulations, including deferring enforcement of the requirement under the TiC Rules to make certain plan information publicly available in a machine-readable file format to July 1, 2022.

Foley & Lardner LLP has previously published multiple articles on the details of these mandates, including overviews of the TiC Rules here and here, a detailed discussion of regulations implementing the NSA, and a checklist for plan sponsors noting applicable requirements under the TiC Rules and the CAA.

In light of ongoing questions about the applicability of the TiC Rules, Foley has created a summary chart that includes information about the requirements being enforced starting on July 1, 2022, as well as all other requirements under the TiC Rules.

What Plans Need to Do to Comply by July 1, 2022

To meet the TiC Rules requirements that will be enforced starting on July 1, 2022, plans and issuers must create two files—one to disclose in-network provider rates for covered items and services and another to disclose out-of-network allowed amounts and billed charges for covered items and services. Both files must be machine-readable, meaning they must conform to a non-proprietary, open standard format such as XML or JSON and be made available via HTTPS. Formats such as PDF or DOCX are not acceptable file formats.

For the file disclosing in-network information, the file must contain the following data elements for each coverage option offered by the plan:

1. The name and identifier (e.g., HIOS);

2. Each billing code (e.g., CPT) with a plain language description of the code; and

3. All applicable rates, including negotiated rates, fee schedule rates, or derived amounts (e.g., rates via reconciliation with providers or prices assigned for internal purposes).

If a service is part of a bundled payment, a plan is permitted to disclose the total bundled dollar amount under a single billing code, so long as this is consistent with the actual reimbursement process and the plan lists out all services and items included as part of the bundle.

For the file disclosing out-of-network information, the file must contain the following data elements for each coverage option offered by the plan:

1. The name and identifier (e.g., HIOS);

2. Each billing code (e.g., CPT) with a plain language description of the code; and

3. Unique out-of-network allowed amounts (as a dollar amount) for each out-of-network provider (with identifier, e.g., NPI) and billed charges for services or items during the 90-day period beginning 180 days before the publication date of the file.

Due to privacy concerns, data should be omitted relating to a particular item or service where there are fewer than 20 different claims for payment associated with the billing code for such item or service.

The TiC Rules also require plans and issuers to provide information about negotiated rates and historical net prices for covered prescription drugs; however, enforcement of this requirement has been deferred pending further review of how this requirement overlaps with the prescription drug reporting requirements under the CAA.

Once created, the files must be posted on an internet website that is publicly available and accessible to any person free of charge. No conditions can be imposed on the access to the files, such as establishment of a user account, password, or other credentials or submission of personally identifiable information to access the file.

The files must be updated on a monthly basis and also clearly indicate the date on which they were most recently updated. File schemas can be found on the GitHub website.

Action Steps

Practically, the heavy lifting associated with meeting these requirements will typically fall on issuers (e.g., health insurance carriers) and third-party administrators (“TPAs”). For fully-insured plans, the legal responsibility can be shifted to the health insurance carrier if set forth in a written agreement. For self-funded plans, the plan sponsor remains liable even if the reporting duties are contracted out to TPAs (although the services contract may contain indemnification provisions).

Plan sponsors should check in with their insurance carriers and TPAs to ensure that everything is on track for the requirements to be met by July 1, 2022.

Carriers, TPAs, and other plan service providers should have already started gathering data and working through the GitHub schemas, and should be preparing to make these files publicly available by July 1, 2022.