Regulatory Updates

Transparency in Coverage Rule and the Consolidated Appropriations Act Update

Blue Cross Blue Shield of Massachusetts continues to actively plan our support of and compliance with the required capabilities for applicable provisions in both the Transparency in Coverage Rule and the Consolidated Appropriations Act. We've made significant operational progress and we're implementing a good-faith response as we strive towards meeting compliance standards. We'll adjust our approach as we receive further clarification and/or changes to the regulations from the federal government.

We have updated our overview and FAQs document which outlines how we will ensure compliance with new requirements.

Introducing the No Surprises Act of the Consolidated Appropriations Act

Beginning January 1, 2022, members of fully insured and self-insured accounts may see billing changes due to the federal No Surprises Act.

About the No Surprises Act

The No Surprises Act, which was enacted as part of the Consolidated Appropriations Act (“CAA”) in late 2020, provides new federal consumer protections against balance billing for certain medical bills under certain circumstances. For example, claims subject to the Act may occur in emergency situations when a member can’t control who is involved in their care, in non-emergency situations when a member schedules a visit at an in-network facility but is unexpectedly treated by an out-of-network provider, or when out-of-network air ambulance services are provided for services that would have been covered if the air ambulance provider was in-network.*

Member Cost Share

For medical bills subject to the No Surprises Act outside of Massachusetts, member cost share must be calculated based on the applicable Recognized Amount, which the Act defines as:

• an amount determined by an applicable All-Payer Model Agreement, or
• if there’s no applicable All-Payer Model Agreement, an amount determined by a specified state law, or
• if there’s no applicable All-Payer Model Agreement or specified state law, the lesser of the amount billed by the provider or facility, and the Qualifying Payment Amount (QPA), which is generally the median contracted rate for the item or service in the geographic region.

Member cost share for Massachusetts medical bills covered under the No Surprises Act will be based on whichever of the following amounts is lower:

• the amount billed by the provider or facility
• the Blue Cross Blue Shield of Massachusetts QPA

Payment to Non-Participating Providers

All claims subject to the No Surprises Act must be paid to the provider, not the member. Pending Division of Insurance (DOI) approval for fully insured accounts, we’re changing the payment methodology used to pay non-participating providers for all bills subject to the Act. This includes ERAP (emergency, radiology, anesthesiology, pathology) claims, which we’ve been paying at charge to prevent members from being balance billed.

For Massachusetts claims covered by the Act, we’ll pay providers the lesser of charges or QPA. For out-of-state claims, we’ll pay providers the applicable Recognized Amount.

Negotiation and Independent Dispute Resolution (IDR)

The federal law also includes provisions allowing providers to request negotiation of the payor’s payment for bills subject to the No Surprises Act, and if negotiation fails, either party can initiate an Independent Dispute Resolution (IDR) process, also known as arbitration, to determine the allowed payment amount. Both parties submit their best offer, and one offer is approved. The decision of the IDR entity is binding. Members will not be involved at any point in the negotiation and IDR processes. Those processes take place between the provider, the payor, and the IDR entity.

As a result of the negotiation and IDR processes, the rate of payment to the provider could be adjusted post-payment. Regardless of any change to the provider’s payment amount, member cost share, which constitutes the member’s maximum liability, is the same as described above.

Notice and Consent

There are limited circumstances set forth in the law that allow providers to balance bill members for certain types of services covered by the No Surprises Act. Providers must provide proper notice to the member of the provider’s non-participating status at least 72 hours in advance of service delivery, and the member must provide written consent to be balance billed. The notice and consent provisions do not apply to all medical services included in the statute or to all provider types. The member is not required to provide written consent.

Member Notification

We’ll post disclosures that outline our members’ rights and protections under the No Surprises Act at bluecrossma.org/disclaimer/member-rights in late December. The Explanation of Benefits (EOB) we send to members when we pay bills covered by the law will also direct members to this information.

Regulatory Updates

As the regulations supporting the No Surprises Act continue to evolve, we’ll update you on any related changes.

If you have any questions, please contact your account executive.

*Ground ambulance claims aren’t included under the No Surprises Act.

Transparency in Coverage Rule (TCR) and the Consolidated Appropriations Act (CAA)

On Aug. 20, 2021, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury jointly released guidance in the form of Frequently Asked Questions (FAQs) to clarify the requirements and timelines for implementation of certain provisions within the Transparency in Coverage (TCR) and Consolidated Appropriations Act (CAA).

In general, the FAQ delays enforcement of certain provisions of the TCR and CAA and takes a good faith compliance approach to other provisions. This is a positive update by the federal government as it will allow health plans and issuers more flexibility in implementing key aspects of the requirements. BCBSMA is currently reviewing the updates provided in the FAQs and will update our customers as to whether there will be any changes to previously announced approaches and paths to compliance. We are working to update our external FAQ document which is available on our account and broker portals and will include updates to our approach in the next edition in the next few weeks.

There are several critical updates we would highlight that are included in the updated FAQ including:

Enforcement of machine-readable files (Transparency in Coverage Final Rule)

Prescription drug file

The Departments will defer enforcement of the requirement within TCR Final Rules that plans/issuers must include the negotiated rates and historical net prices for covered prescription drugs in their public machine-readable files (MRFs) while it considers, through future notice/comment rulemaking, whether the prescription drug MRF requirement remains appropriate.

• The Departments have acknowledged that the subsequent CAA requirements, particular to prescription drug reporting, significantly changed the regulatory landscape since the TCR Final Rules were adopted. The Departments recognized concern about potentially duplicative and overlapping reporting requirements for prescription drugs.

In-network rate and out-of-network allowed amount files

The Departments will defer enforcement of the TCR Final Rules’ requirement to publish in-network (IN) negotiated provider rates and the historical allowed amount payments to out-of-network (OON) providers until July 1, 2022. Given this updated guidance, BCBSMA will delay publishing the in-network and out-of-network files until July 1, 2022.

Following this six (6) month delay, the Departments intend to begin enforcement on July 1, 2022, for anniversary dates (in the individual market, policy years) on or after January 1, 2022.

For 2022 plan years and policy years beginning after July 1, 2022, plans and issuers should post the MRFs in the month in which the plan year (in the individual market, policy year) begins, consistent with the TCR Final Rules.

Price comparison tools

The regulations on price comparison tools outlined in the CAA have been determined to be duplicative of those that are outlined under the Transparency in Coverage final rule. Therefore, the consumer tool requirements will begin in alignment with existing TCR language for price comparison tools for the HHS-determined 500 items/services, on and after January 1, 2023.

• BCBSMA will continue its work to expand cost estimation to our Indemnity members and certain accounts which do not currently have access to our Estimate Costs tool and will add an additional 106 treatment categories effective January 1, 2022.
• Potential alignment is complicated given CAA’s added requirement that price information must be also be provided over the telephone upon request (not included in TCR).
  • Therefore, the Departments intend to propose new rulemaking requiring within the TCR that the same pricing information that is available through the online tool or in paper form be also provided over the telephone upon request.

ID cards

The Departments announced that plans and issuers should not expect further regulations pertaining to member ID cards prior to the 1/1/22 effective date. As such, the guidance requires good faith compliance beginning 1/1/22.

• Plans and Issuers will be considered to be in compliance with ID card requirements when the following information is provided on any physical or electronic ID card:
  • The applicable major medical deductible and applicable out-of-pocket maximum, as well as a telephone number and website address for individuals to seek consumer assistance and access additional information pertaining to applicable deductibles and maximum out-of-pocket limits.

Good faith estimates

Given concerns around complexities of developing the technical infrastructure for transmission of the necessary data from providers and facilities to plans and issuers, the Departments now acknowledge that compliance around good faith estimates related to individuals who are enrolled in a health plan or coverage and are seeking to have a claim for the scheduled items or services submitted to the plan or coverage is likely not possible by January 1, 2022.

Therefore, the Departments will defer enforcement of this requirement until rulemaking to fully implement this requirement is adopted and applicable.

Advanced EOBs

Given concerns from stakeholders regarding the ability to build good faith estimates as noted above, the Departments now acknowledge that AEOB compliance is likely not possible by 1/1/22.

• The Departments intend to develop a new notice and rulemaking process to implement this provision; until that time, Departments will defer enforcement of AEOBs.
• BCBSMA is reassessing our approach and next steps and will continue to keep our accounts and brokers updated on how we plan to move forward.

Gag clauses

The Departments will not be issuing regulations addressing the prohibition of gag clauses, as they have noted that this section is self-implementing.

• Pending future guidance on how to submit attestations of compliance, plans and issuers are expected to implement the requirements prohibiting gag clauses using a good faith compliance approach.

Provider directories

Until further rulemaking is issued (after January 1, 2022), plans and issuers are expected to implement provider directory provisions using a good faith compliance approach.

• Pending any future implementing rulemaking, the Departments clarify that good faith compliance requires plans and issuers to impose in-network cost-sharing where a participant receives items or services from a nonparticipating provider and the participant was provided inaccurate information by the plan or issuer through a provider directory or other response protocol.

Continuity of care

Until rulemaking to fully implement these provisions is adopted and applicable, plans, issuers, providers, and facilities are expected to implement the requirements using a good faith compliance approach.

• The Departments note that any rulemaking to implement continuity of care provisions will include a prospective applicability date that provides plans, issuers, providers, and facilities with a “reasonable” amount of time to comply with any new requirements.

Reporting on Rx benefits and drug costs

The Departments now acknowledge the significant operational challenges that plans and issuers may encounter in complying with these reporting requirements by the statutory deadlines. The Departments anticipate that plans and issuers may also need additional time to modify contractual agreements to enable disclosure and transfer of the required data between various entities; to develop internal processes and procedures; and to identify, compile, prepare, and validate the required data.

• The Departments will defer enforcement of the requirement to report the specified information by the first deadline for reporting on December 27, 2021 and 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.

ACA Member Months Coverage Report Available for ASC Accounts - 2018

Our Administrative Services Contract (ASC) accounts will gain access to a tax reporting service, which follows the Affordable Care Act (ACA) guidelines. As part of our continued efforts to provide service enhancements, we will once again give you the choice to have us run your Member Months Coverage Report at no cost. This service is available to ASC accounts for the 2018 tax year. The Member Months Coverage Report provides data for each of our members enrolled for at least one month in one of our plans. The report will include:

We will not be soliciting Social Security numbers—and will instead rely on you to accurately update this information through FileLink or BlueLinks prior to January 1, 2019. Each account is responsible for sending the report file to your tax vendor and filing the data with the IRS.

Retroactive enrollment will be included in an incremental file that we will generate in February, 2019.

To request a Member Months Coverage Report, please notify your account executive by November 1, 2018.

Pharmacy Benefit Update for Statin Medications, Effective December 1, 2017

To comply with new United States Preventative Services Task Force (USPSTF) recommendations, we are updating our statin medications benefit beginning December 1, 2017. In this update, the following statin medications will be covered at no cost^* to eligible employees:

• Atorvastatin 10-20 mg
• Fluvastatin IR and XL 20-80 mg
• Lovastatin 10-40 mg
• Pravastatin 10-80 mg
• Rosuvastatin 5-10 mg
• Simvastatin 5-40 mg

In order to be eligible, employees must meet the conditions below:

• No history of cardiovascular disease (CVD) (i.e., symptomatic coronary artery disease or ischemic stroke)
• Meet the age requirement (40 to 75)
• Have one or more CVD risk factors (dyslipidemia, diabetes, hypertension, or smoking), and
• Have a calculated 10-year risk of a cardiovascular event of 10% or greater

For more information about our prescription coverage, visit bluecrossma.com/bluelinks.

^*For qualified members. Applies only to commercial health plans that are non-grandfathered and grandfathered plans that have the preventive services benefit under the Affordable Care Act.

A recap of recent activity related to health care reform as of 03.10.17

GOP Repeal and Replace Proposal

On Friday February 24, a Republican proposal to "Repeal and Replace" the ACA was leaked to the public. Because of the unofficial nature, this version is subject to change, but offers the first concrete look at the House legislative proposal to "Repeal and Replace". It was wide-ranging and consistent with themes of the past several months. In addition to the likelihood of the legislation changing, it should also be noted that the current legislation has different timing for different provisions and also allows state flexibility in a number of areas (which is especially notable for Massachusetts). We will share details as they are confirmed.

Broadly speaking, next steps include:

• The House committee will make changes to the bill the week of March 6 (this is termed "Mark Up").
• The Congressional Budget Office (CBO) will "score" the final bill (determine its cost and impact to the budget).
• Then, the full House will vote on the bill and it will move to the Senate.
• The Senate parliamentarian will then decide if it passes procedural muster.
• If the Senate makes any changes to the bill, the House must pass the "reconciled" bill before it can be sent to the President to be signed into law.

This is expected to be complicated process, politically, substantively and procedurally.

President Addresses Congress in formal Joint Session February 28

President Trump addressed the joint session of Congress on Tuesday, February 28, and touched on topics highlighted throughout his campaign, such as controlling immigration, and health care – specifically, the repeal of the Affordable Care Act. Based on previous statements by the President and HHS Secretary Tom Price, a proposal from the White House is expected by mid-March.

March will be an intense month for activity related to health care. In addition to the Market Stabilization regulation expected to become final, the legislative process is expected to move forward at a more significant pace.

Tom Price Confirmed as Secretary of Health & Human Services

On February 10, 2017 the United States Senate confirmed Representative Tom Price (R-GA) as Secretary of the Department of Health and Human Services. While no action has been taken as yet to officially repeal and replace the ACA, Price has been vocal opponent of the law and is expected to make changes. As Secretary of HHS, he will have authority to make changes to current regulations that could have implications for our business and customers. Seema Verma, a health care consultant from Indiana and President Trump's nominee to lead the Center for Medicaid and Medicare Services (CMS) is also expected to be confirmed following Senate hearings. Verma's background is primarily Medicaid, although she will have oversight over multiple programs that CMS administers, including the ACA, Medicare and Medicaid.

CMS issues "Market Stabilization Rule"

On February 15, 2017, the U.S. Department of Health and Human Services (HHS) released a proposed Market Stabilization rule intended to stabilize the individual and small group markets that exist nationally under the Affordable Care Act (ACA). The proposed rule is intended to provide additional stability to this market as insurance companies begin planning for 2018. The exact timing of the release of a final rule from CMS is not clear.

The rule addresses a number of issues that could encourage more plans to remain in the market across the country. This includes wider variation on actuarial value, tightening of special enrollment periods and a change to the open enrollment period that would begin November 1 and end on December 15.

The Rule is not yet final, but GRA expects it to become final by April, in time for health plans to update their 2018 product filings.

ACA ("Affordable Care Act") Still Stands

Questions have arisen about the status of the ACA, for instance whether current reporting requirements are still in effect and whether CMS market rules (also known as payment parameters) for the merged market remain intact. Because no official actions have been taken to legally reverse or otherwise change the law, all current regulations stand and BCBSMA will continue to comply with the current laws until changes are made official.

Governor Baker Includes Health Care Provisions in Budget

On January 25, 2017, Governor Baker unveiled his FY2018 $40.5 billion budget proposal known as House 1. The proposal includes several measures intended to help control spending growth at MassHealth which has grown to approximately 40% of the total state budget due in part to individuals shifting out of commercial coverage. The proposals include a growth cap on provider rates and an overall provider rate cap within the Group Insurance Commission (GIC). Other provisions include a new $300M assessment on employers with 11 or more full time employees that do not provide a minimal level of insurance, an additional $13M assessment on acute hospitals, a new state transparency website, and a five year moratorium on new benefit mandates. The budget will be taken up by the House in April and the Senate in May with a final negotiated version to be submitted to the Governor in late June before the start of the FY on July 1.

MA Health Connector Moving Ahead

While various proposals are discussed and debated at the federal level, locally in Massachusetts the Connector is scheduled to proceed with plans for 2018. The Seal of Approval process will kick-off in March for health plans to be offered on the Exchange starting in January 2018. The biggest change recently announced by the Connector is to partner with the existing state Exchange in Washington DC to create a new shopping platform for small groups. The new platform will include the concept of Employee Choice where an employer selects a plan and the employees may then disaggregate and buy other coverage. Employers will still have the option to buy coverage in the Connector sole source as they do today. The Connector expects to have the new platform ready for employers to purchase plans in November for January coverage.

Health Care Reform Activity 

We are currently reviewing the bill released by House Republican leadership last night (on March 6) to assess its potential impact on Blue Cross Blue Shield of Massachusetts customers as well as the Massachusetts health care system more broadly. It is important that we protect the coverage gains made in Massachusetts, where we have the lowest rate of uninsured in the nation. We will continue to be strong advocates for measures that ensure stability and security for our customers and for all of the individuals and families who have benefited from having access to affordable health insurance.

Recent Activity in Health Care Reform

With the inauguration of President Donald Trump, the national health care landscape seems to be shifting, raising questions about the Affordable Care Act (ACA) and what it all means to our industry – and your businesses. While there is nothing definitive from policymakers in Washington, we do expect there to be changes to the law over time.

At Blue Cross Blue Shield of Massachusetts, we want to ensure that everyone in the state continues to have access to high–quality, affordable health care. We also want to ensure the marketplace remains competitive, affordable, and stable. We're committed to working in a spirit of shared responsibility to maintain what we have achieved.

Through all this uncertainty, our focus remains on our accounts, brokers, and members. As your trusted advisor on health care, Blue Cross will be prepared to help you – answering questions, navigating changes.

We're committed to keeping you updated and apprised as decisions are made in Washington, and here in Massachusetts. Below is a summary of recent activity at the state and federal levels.

• Governor Charlie Baker weighed in on "Repeal and Replace" in his response to U.S. House Majority Leader Kevin McCarthy, who had asked governors across the country to detail their state's experience with reform. Governor Baker outlined how Massachusetts was successful in expanding health care coverage to almost everyone in the state, discussed our work in the state to control the rising cost of health care, and wrote that he intends to protect the gains made in Massachusetts.
• President Trump signed an executive order generally directing the federal government to move forward in "easing the burden of the Affordable Care Act" and use their authority under the Act "to minimize the unwarranted economic and regulatory burdens" of the ACA.
• Congress has already begun to take initial steps necessary to roll back certain provisions of the ACA. Both chambers passed a budget resolution allowing "Repeal and Replace" to move forward through the reconciliation process.

Mass Connector Certifies New High Deductible Health Plans

Blue Cross Blue Shield of Massachusetts has received Minimum Creditable Coverage (MCC) certification from the Massachusetts Health Connector for several high deductible health plans for 2016 and 2017. The specific plans noted below on their own are now MCC-compliant and no longer need to be paired with a Health Reimbursement Account (HRA) or require an account attestation form confirming an HRA has been funded.

The plans referenced above are standard base plans or are available with rider options. We requested MCC certification based on $100 increments only. Any amount between $2,000 and $3,000 that is not a $100 increment will either require the use of the existing attestation process or require the account to request separate Certification to the Connector.