Getting Clarity on Transparency: What Health Plan Sponsors Need to Know about Publishing Machine-Readable Files

As of July 1, 2022, group health plans must clear one of the first major compliance hurdles required by the Affordable Care Act’s (ACA) Transparency in Coverage (TiC) Final Rules. By that date, plans and insurance carriers must have prepared and posted two machine-readable files (MRFs) to a public website so individuals can readily learn their in-network group health plan costs as well as historical paid amounts for out-of-network services. (A third MRF relating to prescription drugs will be required later and is not subject to the July 1, 2022, deadline.) There is still some confusion surrounding the MRF requirement, so this Advisor is designed to provide important context and actionable steps for plan sponsors to understand their transparency obligations as they cope with the new TiC disclosure requirement.

Background

The ACA contains numerous provisions requiring medical care and services to be delivered more transparently. The TiC rules specifically target public disclosure of plan costs, including in-network and out-of-network pricing data. Most non-grandfathered group health plans must comply with the TiC rules, but they specifically exempt excepted benefits (for example, standalone vision and dental plans) as well as health flexible spending arrangements (HFSAs), individual coverage health reimbursement arrangements (ICHRAs), and standalone general health reimbursement arrangements (HRAs).

Congress later passed the Consolidated Appropriations Act, 2021 (CAA) which also included major transparency requirements. The U.S. Department of Labor, the Treasury Department, and the U.S. Department of Health & Human Services (collectively, the Departments) recognized that many provisions in the CAA overlapped with ACA TiC rules so they issued guidance to allow plan sponsors and carriers to avoid duplicating compliance efforts and to provide a clear compliance timeline.

The TiC rules require plans to disclose in-network provider negotiated rates, historical out-of-network allowed amounts for providers, and in-network negotiated rates and historical net prices for all covered prescription drugs at the pharmacy level. Plans must make these disclosures through three MRFs posted to an internet website in a standardized format. Plans also must update the MRFs monthly to give health care consumers relevant, timely information to understand their health care pricing.

When to Disclose?

The TiC regulations require these files to be made public for plan years beginning on or after January 1, 2022. However, the Departments issued guidance that deferred enforcement regarding publishing in-network and out-of-network rates until July 1, 2022. The guidance also deferred enforcement relating to the prescription drug MRFs indefinitely until after the Departments have issued final regulations regarding that requirement.

• Plans with plan years beginning between January 1 and July 1 should post MRFs by July 1.
• Plans with plan years beginning after July 1, should post MRFs in the first month of the plan year.

Who Must Disclose?

The TiC rules further provide that a group health plan acting in good faith and with reasonable diligence will not be deemed to be noncompliant because it makes an error or omission in required disclosure, or due to temporary public website inaccessibility. Moreover, if information required to be disclosed must come from a third party (such as a third-party administrator [TPA], a carrier, etc.), a plan will not be out of compliance unless it knew or reasonably should have known that the information provided is incomplete or inaccurate. However, a plan sponsor must be able to show that it took diligent compliance steps to gain the protections afforded by the TiC rules. (See 29 CFR §2590.715-2715A2(c)(4)-(6).)

Also, because the TiC rules impose the same disclosure obligations on insurance carriers, plan sponsors can rely on carriers to comply with the MRF rules – but only through written agreement according to 29 CFR §2590.715-2715A2(b)(3)(i). Thus, if a health insurance carrier and plan sponsor enter into a contract under which the carrier agrees to provide the required information and the carrier fails to do so, then the carrier, not the plan, violates the relevant disclosure rules.

This rule, however, does not protect a self-funded plan sponsor relying on a TPA to make the required disclosure under 29 CFR §2590.715-2715A2(b)(3)(ii). In that case, a plan could bind the TPA to indemnify it for liability arising from noncompliance, but that would involve a plan sponsor seeking recovery directly from a TPA on some breach of contract or failure to perform claim.

What to Disclose?

The TiC rules require plans to publicly disclose:

• Applicable rates with in-network providers (including negotiated rates).
• Data outlining the different billed charges and allowed amounts a plan has paid for covered items or services furnished by out-of-network providers.

Technical MRF Requirements

The TiC rules define an MRF as a digital representation of data or information in a file that a computer system can import, read, and further process without human intervention and without losing relevant meaning. Each MRF must use a non-proprietary, open format to be identified in technical implementation guidance (for example, JSON, XML, CSV). Plans should be aware that the rules specify that a PDF file will fail to comply with required standards.

MRFs are further required to comply with technical, non-substantive implementation guidance to be provided by the Departments. The guidance will provide technical direction that identifies the specific open, non-proprietary file format in which plans should produce MRFs. Guidance will communicate the way that the data should be organized and arranged. The technical implementation guidance will be available online through GitHub, a website and cloud-based service that helps developers store and manage their code, as well as to track and control changes to their code.

The MRF must be accessible at no cost to any user and cannot require a user to establish an account, password, or other credentials. Also, a user cannot be required to submit any personal identifying information such as a name or email address to access MRF content.

What to Do Next?

Carriers, TPAs, and other third parties have been preparing for the July 1 deadline for months. Many have offered various solutions up to and including building out a public website on behalf of a plan. Most have either modified existing service agreements (or entered into new agreements) with plans to help them ensure compliance with the TiC rules. If a group does not have a public website, the insurance carrier, or TPA, can provide a URL of the website that has been created by the carrier.

The Departments have not provided specific guidance beyond what is noted above. However, particularly in cases where a carrier or other third party has contractually agreed to perform all public disclosures, plan sponsors should, at a minimum, provide a link to where the third party houses the required disclosures. This will require coordinating with a plan sponsor’s IT team to coordinate how and where to best post such a link.

Finally, plan sponsors should consider clearly communicating to employees where they can access the required disclosures and learn more about their plan costs. The TiC rules do not require such communication but giving affected individuals this information should reduce the number of questions busy HR professionals will have to answer regarding this subject.

If you have questions, contact us at compliance@brinsonbenefits.com