On August 20, 2021, the DOL, IRS and HHS (the “agencies”) issued FAQs (available here) addressing a number of the health plan transparency requirements found in the final regulations issued under the ACA last October and in the No Surprises Act, which was enacted in late December 2020. For reference, please review our prior articles regarding the final transparency regulations and the No Surprises Act.

The FAQs provide some welcome relief for plan sponsors, as several compliance dates have been delayed. The FAQs also appear to confirm the agencies’ intent to combine the ACA transparency requirements with the No Surprises Act for compliance purposes.

Note: In large part, the FAQs are most applicable to self-insured plans because states have the authority to enforce many of the transparency requirements against issuers of group health insurance policies. However, the FAQs indicate that HHS is encouraging states that are primary enforcers of these requirements for issuers to take a similar enforcement approach and will not determine a state is failing to substantially enforce this requirement if it takes such an approach.

The key takeaways for sponsors of group health plans are:

The files containing data on in-network provider rates for covered items and services and out-of-network allowed amounts and billed charges for covered items and services now must be posted by the later of July 1, 2022 (for plans with plan years beginning between January 1 and July 1, 2022) or the first day of the 2022 plan year.

• Publicly Available Machine-Readable Files. The final transparency regulations require most group health plans to make available on a public website machine-readable files containing data regarding 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 regulations require these files to be posted by the first day of the first plan year beginning on or after January 1, 2022. According to the FAQs, group health plans will have longer to comply with these requirements as follows:
  • The files containing data on in-network provider rates for covered items and services and out-ofnetwork allowed amounts and billed charges for covered items and services now must be posted by the later of July 1, 2022 (for plans with plan years beginning between January 1 and July 1, 2022) or the first day of the 2022 plan year.
  • Enforcement of the requirement to make available the file containing data on negotiated rates and historical net prices for covered prescription drugs is delayed indefinitely while the agencies revisit the need for such files in light of prescription drug reporting requirements contained in the No Surprises Act.

Regulatory and Legislative Strategy Group