On December 27, 2020, the Consolidated Appropriations Act, 2021 was signed into Law. As the enactment timing was during the holiday season, the Act could be compared to a fruitcake; you may want to avoid it because of the suspect dried fruit, but yet the yummy spirits-soaked cake pulls you in. Referred to as the fifth longest bill ever passed by Congress,1 it is a major government funding bill with economic stimulus provisions in response to the coronavirus pandemic. Much like our fruitcake analogy, you may want to avoid reading through the nine Sections, and 32 Divisions (A through FF), all with their own Acts, Titles and Sections; but you cannot because small portions of it relate to healthcare provisions for providers and payers.
The focus of this blog is based on sections that affect providers and payers in Divisions N and BB of the Act, which are listed below.
- Division N – Additional Coronavirus Response and Relief
- Title IX – Broadband Internet Access Service; Section 903 – Federal Communications Commission (FCC) COVID-19 Telehealth program
- Division BB – Private Health Insurance and Public Health Provisions
- Title I – No Surprises Act
- Title II – Transparency
1. Division N – FCC COVID-19 Telehealth Program (“Program”)
- The Program was established in March 2020 by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide funding to support the telecommunications services, information services, and connected devices to eligible health care providers responding to the COVID-19 pandemic.2
- The Consolidated Appropriations Act, 2021 authorized additional funds of $249,950,000 for the Program (includes $50,000 for program oversight by the FCC Inspector General).3
- Round 2 funding provisions were developed in response to concerns expressed from 2020 funding that some providers in medically underserved areas could not obtain funding under the program.
- According to a new report, almost 88% of Americans want to continue using telehealth for non-urgent consultations post COVID-19.4
- On April 29, 2021 the second funding round of the Program opened for applications with an application deadline of May 6, 2021.6
2. Division BB – Private Health Insurance and Public Health Provisions; Title I – No Surprises Act
Payer Provisions (plan years effective January 1, 2022)
- Protects patients from surprise medical bills.
- Establishes in-network sharing amount for out-of-network services by out-of-network providers at in-network facilities.
- A new independent dispute resolution (IDR) binding arbitration process will go into effect for providers and payers to settle out-of-network claims.
- Requires health plans to offer and maintain a price comparison tool and guidance for consumers by telephone or internet for plan years beginning on or after January 1, 2022.
- Requires health plans, for plan years beginning on or after January 1, 2022, to maintain an accurate and up-to-date directory and database of their in-network providers, to be available to patients online or within one business day of an inquiry.
- The IDR process will go into effect to settle out-of-network claims if a negotiated agreement is not reached within 30 days of a notice of denial of payment being received by the provider. Providers may batch similar services in one proceeding when claims are from the same payer.
- Prohibits out-of-network facilities and providers from sending patients surprise bills for more than the in-network cost-sharing amount unless the provider gives the patient notice of their network status and an estimate of charges 72 hours prior to receiving out-of-network services, and the patient provides consent to receive out-of-network care.
- Health care providers and facilities must verify, three days prior to service and no later than one day after scheduling of service, the type of coverage the patient is enrolled in and provide notification of a good faith estimate to the payer or patient whether the patient has coverage or not.
- The No Surprises Act shifts onus away from patients if there are surprise medical bills or out-of-network claims.
- Payers and providers will need to work together on the IDR process to resolve out-of-network claims.
- Payers will need to maintain price transparency tools, clearer advance explanation of benefits and highlight the in- and out-of-network deductibles on payer-issued identification cards.
- Payers will need to share this information as soon as the “good faith estimate” is received from the provider instead of responding to a request from the member.
- Individual practitioners and facilities will be required to share an estimate of the total expected charges for scheduled items or services, including any expected ancillary services, with a health plan (if the patient is insured) or individual (if the patient is uninsured).
- The estimate will need to include the expected billing and diagnostic codes for all items and services included in the estimate.
- The provider would need to determine the patient’s health coverage status and develop the estimate at least three business days before the service is furnished and no later than one business day after scheduling unless the service is scheduled for more than 10 business days later.
- In those instances, the provider will need to furnish the information within three business days of a patient requesting a service or scheduling a service.
Status: Effective January 1, 2022
- Division BB – Private Health Insurance and Public Health Provisions; Title II – Transparency
- Removes gag clauses in contracts between providers and health plans so that enrollees, plan sponsors and referring providers can now see cost and quality data on providers.
- Requires plans to conduct analyses to gain deeper insight into non-quantitative treatment limitations (NQTLs) for mental health and substance use disorder benefits.
- Eliminating gag clauses in contracts between providers and health plans ensures that enrollees, plan sponsors or referring providers can see cost and quality data on providers.
- Bans gag clauses in contracts between providers and health insurance plans that prevent plan sponsors from accessing de-identified claims data that could be shared, under Health Insurance Portability and Accountability Act (HIPAA) business associate agreements, with third parties for plan administration and quality improvement purposes.
- Beginning 45 days after the date of enactment of the Act, group health plans or health insurers are to make a comparative analysis available, upon request, to the applicable State authority, or as applicable, to the Secretary of Labor, or the Secretary of Health and Human Services (HHS) along with specific information identified in the Act.
Status: Effective January 1, 2022
Other recent rules with Transparency provisions
- Similar to the provisions in the Consolidated Appropriations Act, 2021, the Transparency in Coverage Final Rule filed by the Centers for Medicare and Medicaid Services (CMS) on October 29, 2020 requires plans and issuers to design, develop and deploy an internet-based self-service tool made available on an internet website. Plans and issuers must make cost-sharing information available for a covered item or service from providers for 500 specified items and services beginning on January 1, 2023, and cost-sharing information available for all items and services beginning on January 1, 2024. Plans and issuers are required to disclose pricing information to the public through three machine-readable files displayed in standardized format and updated monthly beginning on or after January 1, 2022.
- One file requires disclosure of payment rates negotiated between plans or issuers and providers for all covered items and services.
- The second file will disclose the unique amounts a plan or issuer allowed, as well as associated billed charges, for covered items or services furnished by out-of-network providers during a specified timeframe.
- A third file will include pricing information for prescription drugs.
- In the Fiscal Year (FY) 2022 Inpatient Prospective Payment System (IPPS) Proposed Rule, CMS is proposing to repeal the requirement that a hospital report on the Medicare cost report the median payer-specific negotiated charge that the hospital has negotiated with all its Medicare Advantage (MA) organization payers, by Medicare Severity Diagnosis Related Groups (MS-DRGs), for cost reporting periods ending on or after January 1, 2021. Alternatively, CMS is requesting comment for maintaining the market-based data collection requirement but delaying the adoption of the market-based MS-DRG relative weight methodology to a date after FY 2024.10
While there have been improvements in the processing of FCC funds for telehealth, the price transparency provisions alone are enough to confuse one much like that piece of fruitcake. In the end, payers and providers need to ensure they are meeting the needs of patients and members in compliance with the many provisions contained in this massive Act. Just as you might have been able to avoid eating fruitcake at Aunt Sally’s during the pandemic, the effective dates are coming up, the rules to implement the provisions are beginning to come out, people are getting vaccinated, and restrictions are lightening up so perhaps there will be a need to soak up more of the fruitcake in July!
2. FCC Announcement, March 30, 2021: FCC Adopts Report and Order To Implement Round 2 of COVID-19 Telehealth Program
4. Center for Connected Health Policy (CCHP), April 20, 2021, Most Consumers Want to Keep Telehealth After the COVID-19 Pandemic (SYKES March 2021 Survey).
5. Universal Service Administrative Company (USAC) : COVID-19 Telehealth Program
7. Center for Connected Health Policy (CCHP), April 6, 2021 Newsletter: Federal Communications Commission Set to Launch Second Round of COVID-19 Telehealth Program.
8. JDSUPRA, November 26, 2019, Price Transparency Rules: Key Takeaways for Hospitals and Health Plans; and Final Rule, Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to Make Standard Charges Public, published November 27, 2019.
9. CMS, November 12, 2020: Transparency in Coverage Final Rule
10. CMS Fact Sheet, April 27, 2021: Fiscal Year (FY) 2022 Medicare Hospital Inpatient Prospective Payment System (IPPS) and Long Term Care Hospital (LTCH) Rates Proposed Rule (CMS-1752-P); CMS FY 2022 IPPS Proposed Rule filed on April 27, 2021.
Calendar Year (CY); Centers for Medicare and Medicaid Services (CMS); Coronavirus Aid, Relief, and Economic Security Act (CARES Act); Coronavirus disease 2019 (COVID-19); Federal Communications Commission (FCC); Fiscal Year (FY); Independent Dispute Resolution (IDR); Nonquantitative Treatment Limitations (NQTLs); Health and Human Services (HHS); Health Insurance Portability and Accountability Act (HIPAA); Medicare Advantage (MA); Medicare Severity Diagnosis Related Groups (MS-DRGs).
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