A guide to impacts of the Consolidated Appropriations Act and the Transparency in Coverage Rule

Beginning in January, 2022, many new requirements take effect that will impact all participants in the healthcare market, including patients, providers, group plans, self-funded plans and brokers, as well as insurers and plan administrators. The reforms are part of two federal regulatory packages enacted near the end of 2020, which are considered to be “the most significant new private health plan provisions since the Affordable Care Act.”1

First, in October 2020, three federal agencies jointly issued the Transparency in Coverage Final Rule (TCR), a new regulation that requires plans to publish contracted provider rates and payment amounts on public-facing websites.2 The TCR also includes new rules that require plans to make cost-sharing information for specific services more easily accessible to members.

Then, on December 27, 2020, the President signed into law a $2.3 trillion year-end spending package known as the Consolidated Appropriations Act (CAA). In addition to the spending provisions and support of COVID-19 relief, the CAA includes a number of new healthcare requirements that impact commercial health insurance products.

In response to the substantial new requirements and fast-approaching CAA and TCR effective dates, Capital is continuing to work diligently to build new systems and processes to comply. The federal agencies are continuing to issue new regulations that provide guidance and detailed requirements needed for plans and providers to implement the new laws. Although some of the requirements have been delayed, many remain scheduled to take effect in January, 2022.

We also want to make information that is easy to understand available to your employees and our members. Although we’re still working through some of the detailed requirements and system updates, we’ll continue to update this page with additional information about our progress.

The CAA and TCR requirements

We’re managing the CAA and TCR as a corporate program, including the initiatives described below through corporate projects. Please contact your Account Executive with any questions.

No Surprises Act

The No Surprises Act takes effect January 1, 2022 and is intended to protect individuals from unexpected medical bills in certain circumstances where they may not be able to select an in-network provider.

The scenarios in which the new rules apply are:

  • Out-of-network emergency services.
  • Out-of-network specialists at in-network facilities.
  • Out-of-network air ambulance services.

The new legislation prohibits out-of-network providers from balance billing patients receiving treatment at an in-network facility, except in certain circumstances. In addition, members will only be responsible for in-network cost-sharing amounts for emergency services and any out-of-network services at an in-network facility.

The No Surprises Act also provides access to an independent dispute resolution (arbitration) process for out-of-network providers and plans who can’t agree on payment rates. The law also allows members to appeal through the external review process a plan decision that a claim does not meet the criteria for surprise billing protections.

What we’re doing

A dedicated cross-functional team worked to address all of the requirements for surprise billing, including holding the member harmless from a bill for emergency services provided by out-of-network providers, plus those being treated in an in-network facility (unless notice and consent requirements are met).

In addition, we worked to:

  • Develop the qualifying payment amount (QPA) methodology as the basis for payment rates and cost-sharing calculations for impacted out-of-network services.
  • Implement procedures for the independent dispute resolution process.
  • Ensure the appropriate patient consent process is in place.
  • Communicate our solutions:

Capital applied this federal mandate effective January 1, 2022 for all commercial groups and individual members.

IDR fees billed to Capital for provider appeals of QPA payments will be applied to large ASO groups’ monthly statements when applicable, beginning for dates of services on or after January 1, 2023.

CMS has released a new webpage to house information on Air Ambulance Data Collection (AADC). Data collection will not begin until after the final rules for reporting requirements are published. Capital will be prepared to submit this information once regulatory guidance is released.

Whom does it affect?

The No Surprises Act applies to both grandfathered and non-grandfathered group health plans, health insurance issuers, healthcare providers and facilities, and air ambulance service providers. The regulations affect all commercial market segments but do not apply to Medicare, which already protects members from balance billing.

Protecting patients and improving the accuracy of provider directory information

This provision of the CAA requires that, beginning January 1, 2022, we have a process in place to verify provider data in our Provider Directory at least every 90 days. Additionally, we must ensure that any updates or corrections received from providers appear in the Provider Directory within two (2) business days. Providers who don’t respond to the data verification must be removed from the provider directories, including MyCare Finder. However, they will not be removed from the network. Members who receive inaccurate information from the Provider Directory that a provider is in-network are only responsible for in-network cost sharing.

What we’re doing

A cross-functional team is working with a vendor to verify provider data at least every 90 days. Processes are already in place to ensure the Provider Directory reflects the most up-to-date information within two (2) business days of receiving any updates or corrections.

Continuity of care

We must provide up to 90 days of continued, in-network care to members who are:

  • Undergoing treatment for a serious and complex condition.
  • Pregnant.
  • Receiving inpatient care.
  • Scheduled for nonelective surgery.
  • Terminally ill.

This continuity of care must be under the same terms and conditions if:

  • A provider group or facility leaves the network.
  • A provider group or facility’s contract terms change in a way that impacts coverage.
  • A fully insured group health plan is terminated and the provider group is no longer considered in network under the group’s health plan.

We must notify members who are continuing care patients of the network change. We also must provide members the option to continue care for up to 90 days or the date the member is no longer a continuing care patient with the provider group, whichever occurs first. The provider groups/facilities must accept payment for any continuing care patients under the same terms and conditions as before the contract was terminated or modified.

What are we doing?

We already have continuity of care provisions in certain circumstances. We’re updating these requirements to reflect any new guidance added by the CAA.

Plan ID card requirements

We satisfied this requirement on time for renewals/enrollments on or after January 1, 2022. This provision required that we include the following in “clear writing” on physical and electronic ID cards:

  • The amount of in-network and out-of-network deductibles.
  • The in-network and out-of-network maximum out-of-pocket limits.
  • A telephone number and website address for consumer assistance information. This includes the network status for hospitals and urgent care facilities.

What we’re doing

We’ll continue to issue new, compliant cards upon a group or member’s renewal throughout 2022. Here is a sample of a new CAA compliant ID card.

Member ID card front ID card back

Advance estimation of benefits (AEOB)

We’re required to provide an AEOB to members, if a member or provider requests one, for scheduled services within one or three business days (depending on the circumstances) before the scheduled service(s).

This helps give members transparency into:

  • Which providers are expected to provide treatment and their network status.
  • Estimated plan and member payments.
  • Applicable medical management techniques.

Providers must first give us certain details about the proposed services, so we have sufficient information to issue the AEOB. This makes AEOBs a shared responsibility between providers and health plans.

What we’re doing

We’re working to develop the tools and processes to accept and satisfy requests for scheduled services. We’ll process estimates and provide AEOBs to our members based on their communication preferences for their medical claim EOBs.

Although the federal government recently announced that they will not begin enforcement of the AEOB requirements on January 1, 2022, we’ll continue to work on AEOBs as we wait on further guidance from the government and the issuance of a new enforcement date.

Transparency in Coverage Final Rule (TCR)

Before the CAA, the Departments of the Treasury, Health and Human Services (HHS), and Labor (“Tri-Agencies”) released the Transparency in Coverage Final Rule (TCR). The TCR includes broad requirements for most employer-based group health plans and insurers to disclose price and cost-sharing information to consumers through specific tools and required publications. It doesn’t apply to Medicare or Medicaid.

There’s some overlap between this and other CAA requirements.

The TCR requires:

  1. Website publication of “machine-readable files” containing in-network rates, out-of-network historic payments and charges, as well as prescription drug rates and charges. Although originally due for publication by January 1, 2022, CMS extended the due date until July 1, 2022 and also delayed indefinitely the prescription drug publication requirements.
  2. Personalized disclosure of member out-of-pocket costs for an initial list of 500 specific “shoppable services” for plan years starting January 1, 2023. All other items and services must be disclosed by January 1, 2024.

What we’re doing

The machine-readable files will be posted on this public-facing website sometime on July 1, 2022. Once posted, these files will include the following information for both fully insured and self-funded plans, including:

  • Negotiated rates for in-network providers.
  • Historical allowed amounts and billed charges for out-of-network providers.

It is important to note that the machine-readable files will not appear on the link above until the files are populated sometime on July 1. Groups can post the link above on their public site for users to access. The data files will be updated on the first of every month.

Machine-readable files are a digital representation of data or information that can be imported or read into a computer system for further processing. The data is not meaningful at first glance, without that processing.

Capital will not charge for use of the machine-readable files posted on our site. Those who wish to interpret the data will need to process and evaluate it on their own or use a third party vendor.

Disclosure of member out-of-pocket cost estimates for all shoppable services

On December 13, 2023, we updated MyCare Finder with member out-of-pocket cost estimates for all shoppable services as defined by CMS. The estimated costs for these services are displayed in the member’s choice of either the negotiated rate or an average of historical claims paid over 12 months (defaults to Negotiated Rates).

Please note, the rates won’t always match because the nature of the way the numbers are calculated. All rates should be considered estimates.

This information will be posted through MyCare Finder at CapitalBlueCross.com for all segments except FEP and Medicare. Members must be logged in through their secure account to access these cost estimates.

Mental health parity (MHP)

Group health plans and health insurance issuers that offer individual or group coverage are required to perform and document comparative analyses of the design and application of nonquantitative treatment limitations (NQTLs) that apply to medical/surgical (M/S) and mental health/substance use disorder (MH/SUD) benefits. MHP doesn’t apply to Medicare plans.

Examples of NQTLs include:

  • Preauthorization and other utilization management mechanisms.
  • Formulary design and tiering.
  • Provider reimbursement and network recruitment strategies.

The CAA requires us to make the analyses, their results, and supporting documentation available to state and federal regulators upon request to show that the design and use of the NQTLs are comparable between and not more stringently applied to MH/SUD benefits than to M/S benefits.

What we’re doing

An internal team at Capital Blue Cross performed a significant, time-consuming effort to ensure all of our standard plan designs comply with the new MHPAEA comparative analyses requirements under the Consolidated Appropriations Act, 2021 ("CAA"). This process involved gathering and examining all relevant policies, procedures, practices and strategies, and reviewing and analyzing claims, appeals, and other data to confirm parity between the design and administration of M/S and MH/SUD benefits.

Upon request, and following execution of a non-disclosure agreement, Capital will provide group customers with a copy of our non-quantitative treatment limitation (NQTL) analyses, which are applicable to groups that have adopted Capital's standard health plan designs. Group customers who have customized their plans with NQTL(s) different from those used in our standard plans may require different and/or additional NQTL analyses. In such cases, a fee may apply for Capital's assistance in the preparation of these NQTL analyses. Self-funded plans are reminded that although Capital administers their benefits, including the application of the NQTLs, MHPAEA compliance remains the responsibility of the self-funded plan.

Gag clauses

Federal law prohibits insurers and health plans from including language in network contracts (e.g., provider agreement and ASO agreements) that forbids the disclosure of certain provider-specific cost and/or quality information.

What is required?

Plans and issuers must submit an attestation of compliance with the CAA Gag Clause requirements for the time period of November 1, 2023 through October 1, 2024, or the effective date of the applicable group health plan or health insurance coverage (if later), to CMS no later than December 31, 2024. Attestations will be due every year by December 31. Learn more about the Gag Clause Prohibition Compliance Attestation from CMS.

What are we doing to assist groups with attestation compliance?

Capital is preparing to submit the CAA Gag Clause Prohibition Compliance Attestation (GCPCA) on behalf of fully-insured and small business ASO group customers. Additionally, self-funded ASO group customers may elect to have Capital submit an attestation on their behalf by completing this form by November 22, 2024. This deadline allows our teams time to prepare files and submit our final report to CMS prior to the December 31, 2024 deadline. There is no charge for this service and we will issue an update here when the submission is complete. This form must be completed by an authorized employee of the group and cannot be completed by a producer.

Self-funded ASO group customers are not required to submit their attestation through Capital Blue Cross and can submit their attestation on their own.

Please direct any questions to your legal counsel or Account Executive.

Price comparison tool

By January 1, 2023, group health plans and insurers must offer price comparison guidance by phone and maintain a website-based price comparison tool. The tool must allow members to compare their cost-sharing responsibility for a specific item or service provided during the plan year by an in-network provider in a specified geographic region.

What we’re doing

We already have a robust price comparison tool, MyCare Finder, which is available to all of our members and will satisfy the CAA price comparison tool requirements. Compliance includes a member-facing tool that:

  • Allows members to search based on billing code or description.
  • Informs members of any accumulated deductible or other out-of-pocket expenses to date.
  • Provides cost estimates in paper format at the member’s request.

Broker/consultant compensation disclosure

Group market

Disclosures by covered service providers

The new rules require disclosures of compensation to plan sponsors by agents, brokers and consultants meeting the definition of a “covered service provider” and which reasonably expects to receive $1,000 or more in direct or indirect compensation for brokerage and consulting services.

Individual market

Compensation disclosures by health plan

Health plan issuers offering individual coverage or short-term limited duration insurance must disclose the direct and indirect compensation paid to an agent or broker before the individual finalizes their plan selection and again with enrollment documents. Health plans also have to report this amount annually to HHS.

What we’re doing

We’re preparing to make required disclosures and reporting in the individual market and evaluating how we may cooperate with affected covered service providers in the group market.

Drug cost reporting

Date last updated May 15th, 2024.

What are we doing to satisfy this provision?

Capital Blue Cross appreciates the continued collaboration as we have worked with producers and groups to fulfill the Consolidated Appropriations Act’s (CAA) prescription drug data collection (RxDC) requirements. We have submitted data and narrative summaries ahead of the June 1, 2024 deadline for commercial group customers to the tri-agencies as follows:

Group type

Filings submitted

Fully Insured (PPACA, Mid-Market, Large Group)

Small Group ASO

D1-D8, P1, and accompany P-2 files (aggregated at the group level, consistent with CMS instructions) for all Fully Insured and Small ASO Groups.

ASO groups with pharmacy carved in

D13, D2, D3-D8, and accompanying P2 files directly to CMS (aggregated at the group level, consistent with CMS instructions).

ASO groups with pharmacy carved out

D13, D2, and accompanying P2 files (aggregated at the group level, consistent with CMS instructions).

3Capital provided this service for ASO customers who would like us to assist them in meeting their reporting requirements under the CAA. Large ASO clients already completing their reporting requirements or working with another party to fulfill their reporting obligations are encouraged to continue with their current reporting plans.

Capital ASO with pharmacy carved-in

Capital ASO with pharmacy carved-out

Capital fully insured groups and small group ASO

Capital will submit D14, D2, D3-D8, and corresponding P2 data directly to CMS. Data will be aggregated at the group level consistent with CMS instructions.

Please note: It is the group's responsibility to send Capital its D1/P2 data and the producer or group attestation form by the deadline of Friday, March 29, 2024. If we do not have your data and attestation form, we cannot submit it, and must file our report without it.

Capital will submit D14, D2, and accompanying P2 file directly to CMS. Data will be aggregated at the group level consistent with CMS instructions.

Please note: It is the group's responsibility to send Capital its D1/P2 data and the producer or group attestation form by the deadline of Friday, March 29, 2024. If we do not have your data and attestation form, we cannot submit it, and must file our report without it.

Capital will submit D1-D8, P1, and accompanying P2 files directly to CMS. Data will be aggregated at the group level consistent with CMS instructions.

Please note: It is the group's responsibility to send Capital its D1/P2 data and the producer or group attestation form by the deadline of Friday, March 29, 2024. If we do not have your data and attestation form, we cannot submit it, and must file our report without it.

Capital will not submit D1/P2 for groups that decide to submit on their own, already submitted, or do not provide the requested data in the prescribed format for Capital to submit the D1 on group's behalf on or before Friday, March 29, 2024.

Capital will not submit D3-D8 or its accompanying P2 data to CMS.

Groups should work with their pharmacy benefit manager for these data requirements. Capital will not accept or report data from external pharmacy benefit managers, brokers, or other entities.

Capital will not submit D1/P2 for groups that decide to submit on their own, already submitted, or do not provide the requested data in the prescribed format for Capital to submit the D1 on group's behalf on or before Friday, March 29, 2024.

 

4Capital provided this service for customers who wanted us to assist them in meeting their reporting requirements under the CAA. ASO groups can complete their own reporting or work with another party to fulfill their reporting obligations if they choose or if they missed our reporting window.

Compliance with the CAA Pharmacy Drug Cost reporting requirements remains the responsibility of ASO groups. Capital's reporting on behalf of groups does not transfer a group's compliance obligations to Capital. Groups will need to attest to the accuracy of data provided to Capital and must hold Capital harmless for the group's compliance liability.

Capital will submit required information to the tri-agencies for the Narrative Response for customers included in our data submission on or before the deadline of June 1, 2024. Once submitted, Capital will update this webpage and send communications to groups and producers to confirm submission.

Helpful information for ASO groups that decide to submit their own report to the tri-agencies.

If your group was both a small business ASO or fully insured group or an ASO group for any part of 2023, you will need to complete the form multiple times. One for the designation as a small business ASO or fully insured group and one for the designation as a large group ASO.

Here is a chart to define the report contents:

Report designation

Report name

D1

Premium and life years

D2

Spending by category

D3

Top 50 most frequent brand drugs

D4

Top 50 most costly drugs

D5

Top 50 drugs by spending increase

D6

Rx totals

D7

Rx rebates by therapeutic class

D8

Rx rebates for the top 25 drugs

P1

Individual and student market plan list

P2

Group health plan lists

P3

FEHB plan list

New for 2023

The calculation for D1 average member premium was simplified by CMS for 2023 reporting. The calculation formula is annual member premium divided by 12. This amount should include premium equivalent, premium paid by members, and subsidies. Exclude premium and premium equivalents paid by the employer or other plan sponsors.

Groups that submit reports to CMS will need to submit them using their EIN. Capital Blue Cross has four legal entities under which medical coverage is underwritten. Please refer to your coverage documents with Capital to see which entity your coverage was purchased under. Many group contracts list both Capital Blue Cross and Capital Advantage Assurance Company. In these cases, please list Capital Advantage Assurance Company. Include the Company Name and its Federal EIN (below) in P2 when you submit.

You can find more information about this federal requirement from CMS.

Company name

Federal EIN

Capital Blue Cross

23-0455154

Capital Advantage Assurance Company

45-5492167

Capital Advantage Insurance Company

23-2195219

Keystone Health Plan Central

23-2399845

Prime Therapeutics LLC

26-0076803

Whom does it affect?

All commercial groups and members, not including indemnity, HRA, dental, or vision. CHIP or Medicare, and providers are out of scope.

Flexible spending account (FSA) relief

The CAA and the American Rescue Plan Act of 2021 allow several temporary changes to FSAs in response to the COVID-19 pandemic. These changes are optional, so employers can choose which, if any, they wish to adopt.

The temporary FSA changes that an employer may adopt include:

For both Health and Dependent Care FSAs:

  • May either (1) allow employees to carryover any unused amounts from 2020 to 2021 (and from 2021 to 2022), or (2) provide a 12-month grace period to spend unused contributions at the end of the 2020 and/or 2021 plan years. May also allow employees to make mid-year (prospective) election changes in 2021, without a qualified status change.

Health FSAs only

  • Amending the plan to allow employees who terminated employment or otherwise stop participating in 2020 or 2021 to spend down their remaining balance for the rest of the year in which they stopped participation (including any grace period) without needing to elect COBRA.

Dependent Care FSAs only

  • Reimbursement of qualifying expenses may be permitted for children up to age 14 (as opposed to age 13), if the child either turned 14 in 2020 (for calendar year FSAs), or will turn 14 in 2021, to the extent the employee has unused/carried over 2020 funds. In addition, the maximum annual benefit for the 2021 plan year only may be increased from $5,000 to $10,500 (or from $2,500 to $5,250 for married participants who file separate income tax returns).

Employers must amend the relevant plan document(s) to reflect and notify employees of any changes. The CAA permits employers to retroactively make cafeteria plan amendments to adopt some or all of the above relief, as long as the plan is administered accordingly in the meantime. Employers should consult their own tax counsel for guidance on how and when plan documents must be amended, and employees must be notified of the adopted changes.

What we’re doing

We’re prepared, upon request, to administer changes adopted by groups offering Capital Blue Cross-branded FSAs. Check out our FAQ page for more information.

COVID-19 testing/vaccines

The CAA included over $50 billion for testing, contact tracing, and buying vaccines and other therapeutics by the government during the public health emergency (PHE). The PHE ended on May 11, 2023. Check out our COVID-19 resources for members and this COVID-19 FAQ for groups with more information about how the end of the PHE impacts coverage for COVID-19 services.

What we’re doing

This initiative has been in place since the beginning of the PHE. The PHE ended on May 11, 2023.

Medicare sequestration

The temporary suspension of Medicare Sequestration (2% payment adjustment) was extended from December 31, 2020 to December 31, 2021.

Provider nondiscrimination

The CAA requires the Secretaries of the Tri-Agencies to issue a proposed rule implementing the following protections of the Public Health Service Act by January 1, 2022:

  • A group health plan and a health insurance issuer offering group or individual health insurance coverage can’t discriminate with respect to participation under the plan or coverage against any healthcare provider who is acting within the scope of that provider's license or certification under applicable State law.
  • This section shall not require that a group health plan or health insurance issuer contract with any healthcare provider willing to abide by the terms and conditions for participation established by the plan or issuer; but also, nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.

To date, the agencies haven’t issued a proposed rule. However, we already comply with these protections.

1Blue Cross Blue Shield Association

2Healthcare providers are already required to publish their rates under a related rule that became effective in 2021.