On Friday, August 20, 2021, the Departments of Labor, Health and Human Services (HHS) and the Treasury (collectively, the Departments) released updated FAQs around the Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 49.
These FAQs may have an impact on both business requirements as well as actual implementation dates of the rules. We recommend that you read through the FAQ in its entirety.
There are four critical points to note that are related to pharmacy benefits. These include:
- Transparency in Coverage Machine-Readable Files
“In response to the later statutory enactment and stakeholder concerns, as an exercise of enforcement discretion, 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.”
- Price comparison tools
“Because the price comparison methods required by the CAA are largely duplicative of the internet-based self-service tool component of the TiC Final Rules, the Departments intend to propose rulemaking and seek public comment regarding, among other issues, whether compliance with the internet-based self-service tool requirements of the TiC Final Rules satisfies the analogous requirements set forth in Code section 9819, ERISA section 719, and PHS Act section 2799A-4.”
“These provisions, however, add a requirement that was not imposed under the TiC Final Rules: that price information also must be provided over the telephone upon request. Therefore, the Departments intend to propose rulemaking requiring that the same pricing information that is available through the online tool or in paper form, as described in the TiC Final Rules, must also be provided over the telephone upon request.”
“Additionally, because plans and issuers have already been expecting to implement the first phase (500 items and services) of the internet-based self-service tool of the TiC Final Rules for plan years (in the individual market, policy years) beginning on or after January 1, 2023 and have been working towards that applicability date, as an exercise of enforcement discretion, the Departments will defer enforcement of the requirement that a plan or issuer make available a price comparison tool (by internet website, in paper form, or telephone) before plan years (in the individual market, policy years) beginning on or after January 1, 2023, aligning the enforcement date of Code section 9819, ERISA section 719, and PHS Act section 2799A-4 with the TiC Final Rules requirements. Until that time, the Departments will focus on compliance assistance. 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. However, the Departments encourage plans and issuers with existing tools or programs to continue to make those tools or programs accessible. Plans and issuers are encouraged to work toward updating the standards of these tools and programs to meet the minimum requirements in the TiC Final Rules by the regulatory applicability date.”
- Transparency in Plan or Insurance Identification Cards
“…the Departments do intend to engage in future rulemaking addressing implementation of the ID card requirements, including how plans and issuers offering complex plan and coverage designs should represent information on an ID card. Pending future rulemaking, plans and issuers are expected to implement the ID card requirements using a good faith, reasonable interpretation of the law.”
- Reporting on Pharmacy Benefits and Drug Costs
“Accordingly, the Departments will defer enforcement of the requirement to report the specified information by the first deadline for reporting on December 27, 2021, or the second deadline for reporting on June 1, 2022, pending the issuance of regulations or further guidance. Until regulations or further guidance is issued, the Departments strongly encourage plans and issuers to start working to ensure that they are in a position to be able to begin reporting the required information with respect to 2020 and 2021 data by December 27, 2022.”
Confidio is working with our PBM partners to understand how these updates/changes could affect business requirements, as well as the actual implementation dates of the rules. Please stay tuned for more information
For more information on the Affordable Care Act and Consolidated Appropriations Act, please click here.