We at CHIR have been urging the federal agencies responsible for implementing the Affordable Care Act (the Departments of Health & Human Services, Labor and Treasury, often called the “tri-agencies”) to move forward with two key provisions designed to improve health plan transparency and regulatory oversight. The agencies have been slow to act, in part because they’ve had a lot on their plates but also because of opposition from insurers and employers.

The transparency provisions require insurers and group health plans to report to the federal government, state departments of insurance, the health insurance marketplaces and the public a range of data, including information about their practices for setting premium rates and paying or denying claims, the enrollment and disenrollment of their members, and cost-sharing and out-of-network costs. Congressional drafters wanted policymakers and the public to see how insurance is working (or not working) for people and gain insights into how insurers are designing plans and paying for care in both employer-sponsored and marketplace coverage.

This week the tri-agencies released new guidance to insurers and employers about how they intend to implement these provisions. The short answer is that, at least for now, the industry has little to fear. To the extent the federal government is moving forward, they’re doing it slowly and for, now, only for plans sold through the federally run or supported marketplaces.

Requirements for off-marketplace and employer group plans

The tri-agencies are quick to reassure employers and insurers that don’t sell marketplace plans that they don’t need to do anything to comply with the ACA’s transparency provisions until sometime “in the future.” They further promise that any reporting requirements they do impose will take into account “differences in markets,” avoid any duplication of effort, and be announced far enough in advance to provide plenty of time to comply. The bottom line? This is a big victory for insurers and employers, especially given that they were supposed to start reporting efforts back in 2010. The federal rulemaking process can take a long time, so they likely won’t have to do any reporting for at least another year.

Requirements for marketplace plans

Insurers selling marketplace plans through the federally facilitated and supported marketplaces are required to comply with reporting requirements beginning in 2016. The Department of Health & Human Services (HHS) indicates that they’ll publish standards for plans sold through state-based marketplaces at a later date. In any event, marketplace plans are not being asked to do much that is new or different.

The only real new thing insurers are being asked to provide is a link to a web page with information on the companies’ claims payment policies, including policies related to:

• The use of out-of-network services;
• Balance billing;
• Grace periods for failure to pay premiums;
• Retroactive claim denials;
• Timeframes for gaining medical necessity determinations or prior authorization;
• Information about Explanation of Benefit (EOB) forms; and
• Insurer contact information.*

All of this is information many insurance plans already provide to their members. In making it available publicly, HHS has indicated that it hopes consumers will use it to inform their marketplace plan selection. Undoubtedly such data will be helpful to the handful of consumers with extensive time on their hands and a strong motivation to do plan research. Beyond that, it’s unclear who will benefit. HHS has also said that insurers will not yet be required to report on two statutorily required categories – disenrollments and denied claims. We should expect standards for reporting those in “future” guidance.

A missed opportunity

What HHS has not yet done – and is missing the opportunity to do – is deploy the ACA provisions to fulfill their primary purpose, which is to help policymakers at the state and federal levels better understand and monitor how health insurance is actually working for people. In fact, HHS promises insurers and employers that it “does not intend to use the information submitted…for oversight purposes.” However, they may yet do so. HHS’ latest guidance is “phase one” in a multi-phase process, so perhaps a more robust data collection and oversight scheme is on the horizon.

*This is an illustrative list. For the full set of policies HHS is asking insurers to provide, download the Transparency PRA Supporting Statement, available here.