By: HUB’s EB Compliance Team
The DOL, HHS, and Treasury (the “Agencies”) have jointly issued Part 60 of their ACA FAQs addressing interactions between the No Surprises Act, which provides protections against surprise medical bills, and certain requirements under the Affordable Care Act (“ACA”). Two FAQs address the interaction of surprise billing cost-sharing requirements and the ACA annual out-of-pocket maximum limitation. The third addresses transparency disclosures. The bottom line of all the FAQs is the need for consistency.
If They’re Participating, They’re In (Network)
Cost-sharing requirements under the surprise billing rules hinge on whether services are furnished by a “participating” provider or facility. A provider or facility is “participating” if it has a contractual relationship directly or indirectly with the group health plan or carrier. By contrast, a “nonparticipating” provider or facility is one that does not have a contractual relationship with the plan or carrier.
Under the ACA cost-sharing limitations, including the out-of-pocket maximum, the key determination is whether services are received from an “in-network” or “out-of-network” provider or facility. Cost sharing for “in-network” providers counts toward the maximum; cost-sharing for “out-of-network" providers does not.
The question becomes: do “participating” and “nonparticipating” (under the No Surprises Act rules) have the same meanings as “in-network” and “out-of-network” (under the ACA cost-sharing limitations)?
The Q&As basically say “yes.” The first Q&A says a nonparticipating provider or facility under the surprise billing rules is an out-of-network provider/facility for purposes of ACA’s cost-sharing rules. This means that any cost-sharing paid by the participant or beneficiaries does not count toward the ACA limit on in-network cost-sharing.
Similarly, cost-sharing paid to a participating provider (under the surprise billing rules) is in-network for purposes of the ACA cost-sharing limits. In that instance, any cost-sharing paid to the provider would count against the ACA in-network cost-sharing limit. This is all pretty straightforward.
To hammer home the point, the second Q&A specifies that a plan or carrier cannot treat a provider or facility as “participating” for purposes of the surprise billing rules, but out-of-network for purposes of the ACA cost-sharing limits. In other words, for services covered by the surprise billing rules, either the cost-sharing protections of the surprise billing rules apply (because the services are furnished by a non-participating/out-of-network provider), or the ACA out-of-pocket maximum applies (because the services are furnished by a participating/in-network provider).
The FAQs do not address this, but presumably an otherwise out-of-network provider who has agreed to a single case agreement on a particular claim would not be considered “participating”. While that agreement settles a single claim, it typically would not obligate the provider to accept the same payment for the same service for any future claims. That would not seem to make the provider “participating” or “in-network”. However, future clarification from the agencies on this point would be welcome.
Facility Fees Are Required to be Disclosed
The third Q&A addresses disclosure requirements under the ACA transparency in coverage (TiC) rules and the surprise billing rules with respect to facility fees. These fees are often charged for services provided outside of hospital settings.
The TiC rules require plans and insurers to make price comparison information available through an internet-based self-service tool and in paper form upon request. Additionally, the surprise billing rules require a health care provider or facility to provide a group health plan with a good faith estimate of the expected charges for furnishing a scheduled item or service. After the good faith estimate is provided to the plan, the plan must provide the individual with an “advanced explanation of benefits” describing the plan’s coverage of the scheduled item or service.
In both cases, the Q&A says, facility fees must be included. These fees are explicitly mentioned in the TiC rules as part of “items and services.” For the surprise billing rules, the Agencies anticipate that future regulations on the advanced explanation of benefits would address facility fees, so they should be included.
Conclusion
While these are helpful clarifications, much guidance remains to be issued. For now, employers should work with their carriers and TPAs to make sure that they are treating providers consistently as participating/in-network for purposes of the surprise billing and ACA out of pocket maximum rules.
Beyond that, employers should keep an eye out for future guidance on the various interactions between the surprise billing rules and other transparency rules. There is substantial overlap and hopefully the agencies will simplify compliance by treating compliance with one disclosure as satisfying other disclosures. However, that remains to be seen.
If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.
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