HHS Releases Federal Poverty Level Guideline Updates for 2020

Posted February 5, 2020 by Megan DiMartino

Author: Nathanael M. Alexander, Esq., Director of Compliance – AP Benefit Advisors

On January 17, 2020, the Department of Health and Human Services (HHS) published the updated Federal Poverty Level (FPL) guidelines for 2020. The revised FPL guidelines are effective as of January 15, 2020, with the new FPL level set at $12,670 for a person residing in the contiguous U.S. or Washington D.C., $14,680 for Hawaiian residents, and $15,950 for persons residing in Alaska.

What is the Federal Poverty Level?

A measure of household income issued every year by HHS. Federal poverty levels are used to determine eligibility for certain programs, subsidies, and benefits, including savings on Marketplace health insurance, and Medicaid and CHIP coverage. The FPL is a measurement of a family’s annual income, with each local, state, and federal assistance agency applying the guidelines for eligibility purposes in their programs in their own way, i.e., some agencies may define a household’s income as pre-tax while others may consider only a household’s post-tax income in their calculation for eligibility.

How often are the FPL Guidelines updated and to whom do they apply?

HHS updates the FPL guidelines annually every January, modifying them accordingly to account for inflation, and issues specific guidelines for each household size.

The FPL can affect employer-shared responsibility (ESR) assessments under the Affordable Care Act (ACA) as it pertains to both premium tax credits and affordability testing.

In order to be considered eligible for the premium tax credit, your household income must be between 100-400% of the federal poverty line amount in accordance with your family size. However, there are two exceptions that are applicable to those with household income below 100% of the corresponding federal poverty line. Those two exceptions are outlined here in the Instructions for Form 8962 (Premium Tax Credit Form), in addition to more specific information on how to go about obtaining the premium tax credit. It must of course be noted that household income alone does not solely qualify an individual to receive the premium tax credit, as other eligibility criteria must also be met. Aside from income, the other four factors that must be considered include the following:

  • cost of available insurance coverage,
  • state of residence,
  • physical address, and
  • family size.

For affordability testing, employers are utilizing this safe harbor test to determine whether or not their lowest-cost, self-only minimum essential coverage (MEC) plan is considered affordable to its employees. This is where the FPL guidelines come into play. If the employer is providing a plan that does not meet the affordability rules an employee would then have access to premium subsidies, so long as they meet the other requisite eligibility requirements. Premium subsidies are not available to individuals with a household income that exceeds the 400% FPL threshold, as discussed above, and to employees residing in the U.S. illegally. Since open enrollment for 2020 plans occurred in 2019, the 2019 FPL guidelines will be used to calculate affordability for any plans with a 2020 effective date. The maximum monthly premium contribution that meets the FPL safe harbor test for affordability would be set at 9.86% of the prior year’s FPL amounts divided by 12. So, for example, using the 2019 FPL amount for the mainland U.S., the formula would be (9.78% x $12,490) ÷ 12, which equals $101.79.

Please contact your Account Manager or Sales Executive for additional information on this topic.

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For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

Compliance and Tax Round-Up (CA, DC, MA, NJ, RI, VT) – State Mandates and FSA/DCAP Changes for 2020

Posted February 3, 2020 by Patrick Haynes

Individual State Mandates (CA, DC, MA, NJ, RI, VT)

How did we get here?  The US Supreme Court ruled that the ACA individual mandate penalty (tax) was constitutional in 2012, and in December of 2017, Congress passed the Tax Cuts and Jobs Act, which reduced the individual mandate penalty to zero as of January 1, 2019.  Meanwhile, individual states are permitted to tax their citizens if they acquire and maintain health coverage for themselves, their legally married spouse, and their dependent children. In fact, Massachusetts has been taxing its citizens since 2007.

In 2019, New Jersey and the District of Columbia joined the ranks of states with penalties (taxes) imposed for people without health coverage.  And, effective for 2020, CA, RI and VT have joined the effort.

Here’s a summary of the states that have enacted individual mandate requirements.  When you waive health coverage on your employer’s plan, and you waive health coverage under your spouse’s employer’s plan, and you fail to make a purchase on healthcare.gov or on any state health exchange you may owe significant penalties (taxes) when you file your state income tax returns.  Please consult with your accountant and/or tax adviser about how your situation is impacted by you not having health coverage.  (Also note:  DC, NJ, CA and MA also require employers to communicate about coverage offerings through  mechanisms similar to the 1094/1095 processes.  Please discuss those requirements with your Account Manager.)

California – Two Messages Required about Flex Spending Account Deadlines

On August 30, 2019, Governor Gavin Newsom of California enacted Bill No. 1554.  While existing CA law requires all employers to notify employees of information relating to employment and benefits, this new bill requires employers to notify employees, who participate in flexible spending accounts and work in California, of any deadlines applicable to withdrawing funds before the end of the plan year.

Generally, flexible benefits plans are written to accommodate a “run-out” period, after the formal end of the plan year, for participants to turn in claims incurred during the plan year. Some plans may allow a 2.5 month extended period of coverage (grace period), after the end of the plan year, in which to incur expenses during the current year and use left-over funds from the previous plan year. Additionally, plans may allow participants to carry over up to $500 from a previous plan year to the current year from their healthcare flexible spending accounts. (Subject to whatever limitations the plan administrator imposes to protect their plan, their spend and perhaps how their next year’s Health Savings Accounts operate.  Please check with your account manager for details.)

The deadline to withdraw funds may be different according to the benefits selected. For instance, the dependent care portion of the plan may have a run-out period for turning in claims incurred in the previous plan year, while the healthcare flexible spending account (FSA) may allow for a grace period or carry over, and thus a separate run out period.  These factors should be taken into consideration when creating and distributing employee notices including, whether the FSA account is for dependent care, healthcare or adoption assistance.

The Notice needs to be delivered to participants before the plan’s year end advising them of all deadlines to withdraw funds. The Notice also must be provided in two different forms, one of which may be electronic.

Notices may be provided as outlined below, but are not limited to the following:

  • Electronic mail communication
  • Telephone communication
  • Text message notification
  • Postal mail notification
  • In-person notification

When does this take effect?

For plans that end anytime in 2020, up to and including December 31, 2020, the employer is required to provide the two (2) notices to CA employees prior to their plan’s year-end.

Please contact your Account Manager or Sales Executive for additional details.  Thank you.

 

Links:


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

DOL Increases Civil Penalty Amounts for 2020

Posted January 21, 2020 by Megan DiMartino

On January 15, 2020, the Department of Labor (DOL) released its 2020 inflation-adjusted civil monetary penalties that may be assessed on employers for violations of a wide range of federal laws, including:

  • The Fair Labor Standards Act (FLSA);
  • The Employee Retirement Income Security Act (ERISA);
  • The Family and Medical Leave Act (FMLA); and
  • The Occupational Safety and Health Act (OSH Act).

To maintain their deterrent effect, the DOL is required to adjust these penalties for inflation, no later than January 15 of each year. Key penalty increases include the following:

  • The maximum penalty for violations of federal minimum wage or overtime requirements increases from $2,014 to $2,050 per violation.
  • The maximum penalty for failing to file a Form 5500 for an employee benefit plan increases from $2,194 to $2,233 per day.
  • The maximum penalty for violations of the poster requirement under the FMLA increases from $173 to $176 per each offense.

Action Steps

Employers should become familiar with the new penalty amounts and review their pay practices, benefit plan administration and safety protocols to ensure compliance with federal requirements.

2020 Penalty Amounts

Should you have any questions, please reach out to your Account Manager or Account Executive.

Links:


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

HRCI & SHRM Pre-Approved Webinar | The ABCs of FMLA & ADA: Basics of the Family Medical Leave Act & Americans with Disabilities Act

Posted January 16, 2020 by Megan DiMartino

Think you could pass a pop quiz on FMLA and ADA? It’s typically left out of discussions about employee welfare benefits regulations, so even the most dedicated student may be a little fuzzy on the details.

Topics:

  • Essentials for both FMLA & ADA and why they exist
  • Characteristics of each
  • Common questions among benefits professionals
  • Regulatory “musts” for employers

Please join us for this HRCI* and SHRM** pre-approved, complimentary, one-hour webinar as Olivia Ash, JD, MS, Compliance Consultant with ComplianceDashboard, LLC, reviews basics of these federally regulated “employment” laws and how to navigate common questions.

Webinar details:

  • Thursday, January 30, 2020
  • 2:00pm – 3:00 pm EST
  • No cost to attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs

Register Now


*The use of this seal confirms that this activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

**AP Benefit Advisors, LLC is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC.


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

2019 4th Quarter Compliance Update

Posted January 7, 2020 by Megan DiMartino

Topics include:

  • IRS Offers Another Extension for 1094s and 1095s
  • 2019 ACA Forms & Instructions
  • Change in Benefits?
  • A New SBC Template Will be Required for 2021
  • Are You an ALE for 2020?
  • DOL Issues Model Health Care Transparency Disclosure Documents
  • 2019 Year-End Round Up: ACA Changes – The Good, the Bad and the Ugly
  • And more!

Read Now


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

2019 Year End Round Up: ACA Changes – The Good, the Bad and the Ugly

Posted December 30, 2019 by Patrick Haynes

On December 20, 2019, President Trump signed into law the 2020 Further Consolidated Appropriations Act—spending legislation which also included important changes for employer-sponsored health plans, repealing several taxes enacted as part of the Affordable Care Act (ACA) and extending one.  Here’s the roundup:

Gone (the Good):

  • The Cadillac Tax,
  • HIT (Health Insurance Tax),
  • Medical Device Tax, and
  • The Parking and Public Transit Benefits Tax.

Extended (the Bad):  PCORI has been extended for another decade.

TBD (the Ugly):

  • Individual mandate still up in the air (a divided panel in the US Court of Appeals, 5th Circuit, rules 2-1 in favor of 20 states led by Texas, that filed suit seeking to strike down the ACA); and
  • no ACA regulations (still/yet) on making 105(h) applicable to fully-insured plans.

The Details

  • Repealed:  Cadillac Tax. This measure would have imposed a 40% excise tax on plans with annual premiums exceeding $10,800 for individuals or $29,500 for a family. Implementation of the tax was supposed to happen in 2018 and has currently been delayed to 2022. While the Cadillac tax was never levied, its looming existence has made it very difficult for employers to plan future benefit levels and costs. Moreover, the way that the tax was structured would have led to many employer plans, not just the “gold-plated” ones, being subject to an excise tax in future years.
  • Repealed: Health Insurance Tax (HIT). This provision, which went into effect in 2014, imposed an annual tax on health insurers. Actuarial analyses have found that the tax added to the cost of coverage purchased in all market segments, including individual, large and small employers. In 2018, Congress enacted a one-year suspension of the tax, but it was scheduled to go back into effect at the end of 2019. If it had not been repealed, the HIT would have imposed a $16 billion tax on health plans in 2020.
  • Repealed:  Medical Device Tax. This was a 2.3% excise tax on the value of medical devices (x-ray machines, hospital beds, MRI machines) sold within the United States. Since it went into effect in 2013, it was suspended twice. Critics of the tax cite research that shows that it lowered the medical device industry’s research and development spending.
  • Extended until 2029/2030:  Patient-Centered Outcomes Research Institute (PCORI). This annual fee is a tax on health plans, which was included in the ACA as an initial funding mechanism for the federal program which funds research on the comparative effectiveness of medical treatments. The fee (which is set annually and was $2.45 per person covered by the plan in 2019) is paid by insurers for fully-insured plans and employers sponsoring self-insured plans. It was set to sunset this year, with the last payment due on July 31, 2019 for calendar year plans and July 31, 2020 for non-calendar year plans. The Appropriations Act extends the PCORI fee for another 10 years, extending the financial and administrative burden on insurers and employers.  Insurers and Employers (with HRAs or any other self-funded plans) will be paying PCORI fees until 2029 or 2030 depending upon their plan year.
  • Retroactive-Repeal:  Parking Tax (and Return of Employee Only Parking).  Medical Device Tax.  Section 512(a)(7), enacted as part of the 2017 Tax Cuts and Jobs Act (the “2017 Act”), required tax-exempt organizations to include in unrelated business taxable income their costs for providing “qualified transportation fringe benefits” to their employees. The 2020 Act repeals section 512(a)(7) in its entirety and retroactive to the date of its enactment — in other words, it is as if section 512(a)(7) never existed.
    • It is expected that the IRS will issue guidance relating to the repeal – rules for amending Forms 990-T that included the parking tax, and for claiming refunds of those taxes.
    • In the meantime, tax-exempt organizations may cease making any estimated tax payments related to the repealed parking tax.
    • Also, just in time for the new year, nonprofits can consider promptly re-installing “employee parking only” signage that was removed in response to the 2017 Act
  • Also, the IRS issued a set of Questions-and-Answers on 12/19/2019, explaining the Individual Shared Responsibility provisions of the ACA after the elimination of the individual shared responsibility penalty. These Q&A’s:
    • define MEC (Minimum Essential Coverage);
    • explain how an individual can determine if their plan meets MEC;
    • explain who is subject to MEC requirements; and
    • provide a list of exemptions from the general coverage requirement rules.

Should you have any questions – please reach out to your Account Manager or Account Executive.  Thank you.

Links:


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.
AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.
Photo Credit: Photo by Mahir Uysal on Unsplash

 

Happy Holidays from AP Benefit Advisors!

Posted December 19, 2019 by Megan DiMartino

 


AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

HRCI & SHRM Pre-Approved Webinar | Department of Labor Audits: How to Prepare and What to Expect – Your Survival Guide

Posted December 12, 2019 by Megan DiMartino

The DOL (U.S. Department of Labor) audits of welfare benefit plans are happening with greater frequency for companies of all sizes. Are you ready to spend months preparing to comply with and survive the audit? Did you know the following can be the basis for a DOL Audit:

  • Complaints by welfare benefit plan participants to the Employee Benefits Security Administration (EBSA), the DOL agency responsible for administering and enforcing the provisions of Title I of the Employee Retirement Income Security Act (ERISA);
  • Inaccurate or late filings of the Form 5500 Annual Report;
  • National enforcement initiatives investigating compliance with ERISA and the Affordable Care Act (ACA);
  • The transfer of cases from the Internal Revenue Service (IRS) to the DOL; or
  • Random selection?

Please join us for this HRCI* and SHRM** pre-approved, complimentary, one-hour webinar as Patrick Haynes, AP Benefit Advisors’ General Counsel and VP of Compliance, helps prepare you in what to expect if a DOL audit comes your way.

Webinar details:

  • Thursday, December 19, 2019
  • 2:00pm – 3:00 pm EST
  • No cost to attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs

Register Now


*The use of this seal confirms that this activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

**AP Benefit Advisors, LLC is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit shrmcertification.org.


For more information, contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

AP Benefit Advisors’ webinar and website resources are designed for U.S.-based organizations. Our privacy and GDPR policy should be reviewed here. Please opt-out if you do not agree to these terms and conditions.

IRS Offers Another Extension for 1094s and 1095s

Posted December 3, 2019 by Patrick Haynes

IRS Offers Another Extension for 1094s and 1095s

A   The IRS has, once again, come out with a holiday gift for employers. In the recently-released Notice 2019-63, the IRS provided additional reporting relief for employers for the 2019 calendar year. In short, the Notice provides:

The due date to provide Forms 1095-C or 1095-B to employees and individuals is extended 30 days from Friday, January 31, 2020 to Monday, March 2, 2020.

B  Please note:

            • This is a firm deadline. The IRS is not offering an additional 30-day extension beyond March 2, 2020.
            • All requests for an additional 30-day extension will be denied (the IRS will not even respond).

 

C  Is there relief for carriers providing coverage details?

  • New for this year, the IRS is giving carriers (aka coverage providers) a limited “pass” with providing the 1095-B statements to individuals (whereas filing must still be made to the IRS).
  • The 2019 ACA-individual mandate penalty remains zero ($0), and individuals do need to report whether they had coverage or not.
  • Carriers that wish to qualify for this relief have to post a notice on their websites that the form is still available upon request, along with the promise that they provide the form within 30 days of each

D  Does this relief apply to self-funded plans?

No.  Employers with self-funded plans must still report about their FTEs (Full-Time-Employees) on Part III of Form 1095-C, and on Part IV of Form 1095-B.

E  What if we cover folks other than FTEs?

Self-funded employers may take advantage of this relief if they are reporting on any employee who was not full-time for any part of 2019 (such as covered part-time employees, covered retirees, or COBRA QBs).

      To take advantage of this relief, the self-funded employer would need to:

  • Post a notice prominently on its website (vaguely described but not defined)that the forms are available on request; and
  • Promise to respond to the request within 30 days.
  • Generally, retirees and COBRA QB would not have access to an Employer’s website, so that may be defined further in subsequent guidance (but, savings from printing and mailing could be achieved).
  • The extreme lateness of this guidance and the possible perceived value associated with doing less work (if you can reliably separate out these populations) may be outweighed even with an extension to March 2, 2020.

F  Is there good news in this Notice?

  • Good faith penalty relief is also extended for the 2019 forms.
  • Employers/carriers who work in good faith to complete the forms will not be assessed penalties if there is missing or inaccurate information.
  • The IRS takes the employer’s (or carrier’s) efforts with its good faith compliance – reasonable efforts to prepare the reports, efforts to gather and transmit the data to appropriate parties, etc.
  • Employers should never file late with the IRS or miss the deadline to furnish forms to participants. The IRS expects timeliness but the “good faith relief” efforts permit compliance even if you aren’t perfect with your data.

G  Final reminder about 1094-C deadlines:

  • Smaller ALEs must file their paper forms with the IRS on/before February 28, 2020.
  • ALEs with 250 or more employees must file electronically by March 31, 2020.

Please consult your 1094/1095 service providers about these deadlines (as deadlines outlined in your services agreement may not change).  Finally, should you have any questions or comments, please reach out to your Account Executive or Account Manager.

 

 

 

 

Trump Administration Sets Sights on Healthcare Pricing Transparency

Posted November 25, 2019 by Patrick Haynes

Background and Goals of the Proposed Rule

A proposed rule, released jointly through the Departments of Health and Human Services (HHS), Labor, and Treasury (“The Departments”) on November 15, 2019, seeks to fulfill the Trump Administration’s Executive Order on Improving Price and Quality Transparency, first issued in June of 2019. The Executive Order directed The Departments to develop “price and quality transparency initiatives to ensure that healthcare patients can make well-informed decisions about their care” and to implement various internal strategies such as preparing reports, proposing regulations, and issuing guidance to meet that end.

The ultimate goal of the rule, if finalized, is to make the healthcare industry less opaque when it comes to providing pricing information for services to consumers on an up-front basis, effectively eliminating any potential mystery that may surround the fees associated with a medical bill. The proposed rule will require hospitals to fully disclose their fees for 300 “shoppable” services, including any rates they have negotiated with third-party payers, and will also call on most group health plans (non-grandfathered fully-insured and self-funded) and health insurers to divulge price and cost-sharing specifics to plan participants, enrollees, beneficiaries, and to the public at large. Hospitals that do not comply with the rules would in turn face fines of up to $300 per day. Smaller or more specialized hospitals would be required to disclose their fees for as many of the services that they offer within the “shoppable” category, a characterization that is inclusive of such areas as medical surgery, radiology, laboratory and pathology, and evaluation and management services. Grandfathered health plans will not be affected by the proposed rule.

The Affordable Care Act (ACA) added Section 2715A to the Public Health Service Act (PHSA), requiring fully-insured and self-insured “group” health plans to disclose, among other things, information on cost-sharing and payments with respect to any out-of-network coverage.  PHSA section 2715A also requires fully-insured and self-insured “group” plans to help their participants learn about the amount of cost-sharing the participants would be responsible for through an internet website.  In addition, PHSA section 2715A gives HHS the authority to determine “other appropriate information” that could – and should – be disclosed to “group” health plan participants through an internet website.  Note that PHSA section 2715A accomplishes all of this by cross-referencing the requirements under ACA section 1311(e)(3), which is a “certification” requirement for “individual” market plans sold through an ACA Exchange (so “individual” market plans are picked up here too).

The previous Administration never implemented these requirements but the current Administration is now using this statutory language as the basis for requiring self-insured plans, as well as fully-insured “individual” and “group” plans, to disclose to participants – through an on-line “self-service tool” – specific cost-sharing information for medical items and services covered under the plan.  In addition, in accordance with HHS’s authority to determine “other appropriate information” that could – and should – be disclosed to participants, the Departments determined that it would be appropriate to require self-insured plans, as well as fully-insured “individual” and “group” plans, to disclose their negotiated in-network rates and their historical payments to out-of-network providers on public websites.

The hope here is that consumers will no longer be surprised by the medical bill that arrives after they obtain services since they would have access to the data that they need to make an informed financial decision regarding their share of the costs at the outset. This level of consumer empowerment will also give customers the ability to shop around for the best rates, as plans and issuers would be responsible for making their negotiated rates for in-network providers and historical data showing allowed amounts paid for out-of-network providers available to the public via their websites.

HHS has also proposed a portion of the rule that seeks to “preserve the statutorily-required value that consumers receive for coverage under the MLR program, while encouraging issuers to offer new or different value-based plan designs that support competition and consumer engagement in health care.” In short, HHS intends to go about this by essentially encouraging innovation in plan design and allowing insurers to avoid paying MLR rebates if these innovative plan designs result in a “shared savings”.

Potential Legal Hurdles and the Future of the Rule

While discussing the impact of the proposed rule, HHS Secretary Alex Azar commented that this “may be a more significant change to American health care markets than any other single thing we’ve done.” Not surprisingly, a certain level of push-back from the healthcare industry against the Trump Administration is expected here, as insurers and hospitals are likely not overly eager to create such a high level of transparency when it comes to privately negotiated contracts. As such, some prominent hospital networks including the American Hospital Association, Children’s Hospital Association, Association of American Medical Colleges, and the Federation of American Hospitals, have already begun to speak out against the proposed rule, threatening lawsuits against the Administration in the process. Should legal challenges such as these ensue (from a plan, hospital, carrier, vendor, or others) it seems likely that HHS would counter with some common-sense facts and factors—namely that this information must be disclosed under the regulation, and is currently included in an Explanation of Benefits (EOB) and/or a Summary of Benefits and Coverage (SBC) that is already being distributed. HHS will likely argue that all they are doing here is merely requiring that this same information be disclosed in a different way and format.

The Trump Administration is currently seeking additional comment and has extended this period out to 60 days from the initial release of the proposed rule. Under further consideration is whether or not plans and health insurance issuers should have to make data available through a standards-based application programming interface (API) and the precise ways in which healthcare quality information can be folded into the price transparency rules.

What Disclosures are Required under the Proposed Regulations?

First content element – Estimated cost-sharing liability – all applicable forms of cost-sharing, including deductibles, coinsurance requirements, co-payments, out-of-pocket limits (the Second content element), etc.  The “types” of medical items or services mean all encounters, procedures, medical tests, supplies, drugs, durable medical equipment, and fees (including facility fees), for which a provider charges a patient in connection with the provision of health care.

Third and Fourth content elements – Insurers and self-insured plans would also be required to disclose the “negotiated rate,” (3rd element) and in some cases the “allowed out-of-network rate,” (4th element) because these costs are necessary for determining the participant’s cost-sharing responsibilities.  The “negotiated rate” means the amount an insurer, the plan, or a third-party administrator (TPA) on behalf of a plan has contractually agreed to pay an in-network provider for a covered item or service pursuant to the terms of an agreement between the provider and the insurer, plan, or TPA.  Some provider contracts express negotiated rates as a formula (for example, 150% of Medicare), and in this case, the proposed regulation would require disclosure of the rate that results from using such a formula, which must be expressed as a dollar amount.

Fifth element – with respect to obtaining cost-sharing information for prescription drugs, participants may request this information by billing code (e.g., a CPT code) or by descriptive term (e.g., the name of the prescription drug), thus allowing the participant to learn the estimated cost of a prescription drug obtained directly through a provider, such as a pharmacy or mail order service.  Participants would also be allowed to learn about the cost of a set of items or services that include a prescription drug or drugs that is subject to a bundled payment arrangement for a treatment or procedure, although HHS recognizes that there may be some difficulties obtaining accurate cost-sharing information when prescription drugs offered outside of a bundled arrangement are based on un-discounted list prices.

The Sixth element (notice of prerequisites to coverage) and Seventh element (disclosure notices) are quite straightforward and will be the subject of future updates, regulations and guidance.

An Online Self-Service Tool

Insurers/Self-Funded plans must create their own on-line tools for participants to request the “cost sharing information” described above.  Many claims paying TPAs, carriers, vendors already offer some of these services on their sites—so wider adoption and dissemination may be required.

The Proposed Regs include an RFI (Request for Information)—seeking all comments on how the (1) cost-sharing information, (2) negotiated in-network rates, and (3) historical payments to out-of-network provider can more easily be assessed by various third parties through a API (Application Program Interface).  Patients and providers could have real-time access to data and could learn more about their potential for costs, charges and balance billing should they stay from their “in network” providers.

When will this take effect?  First, the regulations need to be finalized.  Then, they are expected to take effect 1 year after the “effective date of the final rule”.

Should you have additional questions about how this may begin to impact your plans, please contact your Sales Executive or Account Manager.