Regulatory Updates

Action is needed from self-insured accounts

In compliance with the Consolidated Appropriations Act (CAA) Prohibition on Gag Clauses provision, our provider contracts do not contain gag clauses as contemplated by the CAA.

As required by the CAA, self-insured accounts must submit a Gag Clause Prohibition Compliance Attestation (GCPCA) to the Health and Human Services (HHS) portal by December 31, 2024. Fully insured accounts don’t need to take any action: we’ll submit attestations on their behalf. However, please note that if an account changed financial arrangements in 2024 after January 1, they’ll need to submit their own attestation for the period of time they were self-insured. Blue Cross will provide attestation for the period of time they were fully-insured.

Self-insured accounts may use Third Party Administrators (TPAs) or may carve out medical, pharmacy, or mental health services involving provider contract administration. For these reasons, we can’t file the attestation on their behalf.

What is the CAA Prohibition on Gag Clauses?

The CAA Prohibition on Gag Clauses provision requires that a group health plan or insurer may not enter into an agreement with a health care provider, network or association of providers, TPA, or other service provider offering access to a network of providers, which directly or indirectly restrict a group health plan or insurer from providing provider-specific cost or quality-of-care information or data, electronically accessing de-identified claims and encounter information or data for each enrollee, or sharing that information or data with a business associate.

How to Submit an Attestation

1. Go to the Gag Clause Prohibition Compliance Attestation website.
2. Scroll down to Resources at the bottom of the page.
3. Click “Enter Webform Now for a GCPCA.”
4. Sign in and submit the attestation.

If you have any questions about the submission process, consult with your legal counsel and/or refer to the other links in the Resources section: Frequently Asked Questions, Instructions for submitting the GCPCA, or User Manual for submitting the GCPCA.

The attestation is due by December 31, 2024, and covers the period beginning January 1, 2024, through the date of the attestation.

Confirmation of Compliance

Blue Cross Blue Shield of Massachusetts hereby certifies that, for the period of January 1, 2024, through the date of an individual account’s attestation (no later than December 31, 2024), the provider agreements applicable to the provider networks in which the account and its plan participate with Blue Cross have been compliant with requirements pertaining to the CAA prohibition on gag clauses.

When submitting the attestation, you may use the above confirmation of compliance as support.

You can also download the confirmation here, or request it from your account service consultant.

Questions?

If you have any questions, read our FAQ document or contact your account service consultant.

Regulatory Update: Medical Loss Ratio Rebates

We’ll be distributing Medical Loss Ratio (MLR) rebates to affected small group and connector employers this year. Rebates will be processed starting September 4, 2024, and no later than September 13, 2024. Affected small group employers will be notified by email and/or mail beginning August 21, 2024.

Affected employee subscribers will also be notified by mail beginning September 5, 2024.

To ensure that rebates are sent to the correct location, check the address listed in the MLR letter we mailed you. If you need help changing your billing address, contact account service.

For more information about how employers may allocate MLR rebates, visit the Internal Revenue Service website: irs.gov/newsroom/medical-loss-ratio-mlr-faqs.

Learn More:

• MLR FAQ for employers and brokers
• Sample MLR letter
• Online Newsroom article (published 8/22)

If you have any questions, contact account service.

We Have Completed Submission of the CAA Prescription Drug Data Collection (RxDC) Report (2023 Reference Year)

Under the Consolidated Appropriations Act of 2021 (CAA, 2021), group health plans (fully-insured and self-funded) and health insurance issuers offering group or individual health insurance coverage must report certain prescription drug spending and medical cost data annually to the Departments of Health and Human Services, Labor, and the Treasury (Tri-Agencies).

We have successfully submitted plan sponsors’ 2023 RxDC information to CMS, based on benefits that Blue Cross administers and available data.

If you have any questions, contact your Account Service Consultant.

New Coverage for Annual Mental Health Wellness Exam

Starting March 31, 2024, Blue Cross will cover an annual mental health wellness exam. This exam may be conducted as part of the annual preventive visit with a primary care provider (PCP), or as a standalone visit with a PCP or licensed mental health professional. Because the mental health wellness exam is considered preventive care, there is no out-of-pocket cost for members in most plans.

The annual mental health exam is covered as required by the Act Addressing Barriers to Care (ABC Act) to improve mental health care across Massachusetts.

What is the mental health wellness exam?

The exam will consist of taking the patient’s mental health history, a mental health exam and appropriate screening tests, shared decision making (that could include lifestyle education and counseling), and a discussion about next steps. This may include referrals for treatments and medication options. The mental health wellness exam may or may not result in a diagnosis.

Who may administer the exam?

• A licensed mental health professional
• A PCP, including OB/GYNs, as a separate exam or as part of the annual wellness visit

Questions?

If you have any questions, contact your account executive.

Action Needed: Pharmacy Data Reporting Requirement for the Consolidated Appropriations Act (CAA)

Under the Consolidated Appropriations Act of 2021 (CAA, 2021), group health plans (fully insured and self-insured) and health insurance issuers offering group or individual health insurance coverage must annually report premium (or premium equivalent for self-insured accounts) information, enrollment data, prescription drug spending, and medical cost data annually to the Departments of Health and Human Services, Labor, and the Treasury (Tri-Agencies).

The data is being collected to:

• Identify major drivers of increases in prescription drug and health care spending
• Understand how prescription drug rebates impact premiums and out-of-pocket costs
• Promote transparency in prescription drug pricing

While Blue Cross Blue Shield of Massachusetts and our Pharmacy Benefit Manager (PBM) have access to much of the required data for reporting, we still need to collect certain information pertaining to the D1 (Premium and Life Years) and P2 (Group Health Plan List) files from each group customer to be fully compliant with the Prescription Drug Data Collection (RxDC) reporting requirements. To get this information, we’ll be providing accounts with an electronic survey to complete.

• Our filing deadline for 2023 data is June 1, 2024.
• The survey will be sent out Monday, February 5, 2024 from BCBSMA@sphsurvey.com with the subject line “Action Needed: Complete the Blue Cross RxDC survey by March 8”. The survey needs to be completed and submitted by Friday, March 8, 2024.
• We’ll be requesting the following data from all accounts:
  • Employer Identification Number (EIN)
  • Group health plan name and number
  • Average percent of the premium (or premium equivalent for self-insured accounts) paid by the account’s subscribers
  • The name of the outside PBM vendor that a self-insured account may be contracting with (as applicable)
  • Form 5500 number (as applicable)

If the survey response isn’t completed and received by Friday, March 8, 2024, we’ll submit the available/limited data in our system on or before the June 1 due date. However, the submission won’t be complete. Data elements not provided to us will need to be submitted to CMS by the health plan or another reporting entity.

Our reporting approach

• On behalf of all fully insured accounts active with Blue Cross in 2023, we’ll be submitting the P1 or P2 (Group Health Plan List), D1 (Premium and Life Years) and D2 (Medical Spending by Category) files, as well as the D3-D8 files pertaining to prescription drug benefits. We only need requested information from these accounts as addressed in the survey.
• We’re also offering to submit the P2, D1, and D2 files on behalf of all our self-insured accounts (active with Blue Cross in 2023 and pertaining to benefits for which we administer), as well as the D3-D8 files for self-insured accounts with prescription drug benefits administered by Blue Cross. For these accounts, we only need requested information as addressed in the survey.
  • Aside from the requested information as addressed in the survey, self-insured accounts that carve out prescription drug benefits to another PBM must work with that PBM to submit the D3-D8 files and applicable D1 and P2 files.
• Groups wishing to take responsibility to submit all data to CMS themselves (self-insured accounts only), must indicate their decision to opt out of Blue Cross filing their data in the provided survey. If not indicated, we’ll assume the group is taking responsibility to submit the self-funded account’s available data pertaining to benefits it administers on the account’s behalf.
  • For opting-out self-insured accounts that carve in prescription drug benefits, we’ll be providing the account with the available data for its P2 and D2-D8 files, but these accounts must sign a non-disclosure agreement (NDA) to access relevant prescription drug data as provided by our PBM. The account is responsible for data collection of its D1 file.
  • For opting-out self-insured accounts that carve out prescription drug benefits, we’ll be providing the account its available data for its P2 and the D2 file, and no NDA is necessary. The account is responsible for data collection of its D1 and D3-D8 files and associated P2 files.
• We aren’t asking for information pertaining to other health care vendors that an account may be contracting with. For accounts with multiple vendors providing health care benefits, the account may need to do a P2 filing that lists all of its other health care service providers as well as a supplemental D1 and D2 filing as applicable.

Administrative fees

For the June 2024 RxDC report, we won't be assessing any fees to collect and report data (pertaining to benefits for which we administer) on behalf of fully-insured and self-insured accounts (regardless of a self-insured account’s prescription drug carve-in or carve-out status).

However, for self-funded accounts wishing to submit the filings themselves, please note:

• For self-funded accounts with prescription drug benefits administered by Blue Cross and who are wishing to self-submit, there is a $5,000 flat fee.
• For self-funded accounts with prescription drug benefits carved-out to another pharmacy benefit manager, and who are wishing to self-submit, there is a $10,000 flat fee.

Learn more with these helpful resources:

• Blue Cross Blue Shield of Massachusetts CAA Rx DC FAQ
• RxDC data elements/reporting instructions
• Non-Disclosure Agreement
• View survey content
• Summary of submission options
• CMS website

Please send questions to our CAA RxDC mailbox at CAAPharmRpt@bcbsma.com or contact your account service consultant.

You may also sign up for email announcements and register for training webinars at the Registration for Technical at Assistance Portal (REGTAP).

Thank you for your assistance in helping us meet the CAA RxDC requirements.

Important Information About Medicaid and Children’s Health Insurance Program Eligibility

As states return to normal operations, they’re restarting eligibility reviews for Medicaid and Children’s Health Insurance Program (CHIP). This means that your employee members and their family members currently enrolled in these programs could soon lose their health coverage.

To help avoid gaps in care and ensure that members maintain life-saving coverage, we encourage you to extend the period for special enrollment under these plans beyond the minimum 60-day period required by statute for individuals losing Medicaid or CHIP.

Why are eligibility reviews restarting?

Previously, eligibility reviews for Medicaid and CHIP coverage were required each year. During the COVID-19 public health emergency, most coverage terminations were paused to minimize coverage loss during the pandemic. This continuous enrollment condition expired on March 31, 2023, under the terms of the Consolidated Appropriations Act, 2023. Across the country, state Medicaid agencies are currently in the process of resuming regular eligibility and enrollment operations, which includes renewing coverage for all individuals enrolled in Medicaid and CHIP, and terminating coverage for those who are no longer eligible.

Resources from the Centers for Medicare & Medicaid Services

To help communicate this important information to employees, you can access resources like this fact sheet at Medicaid.gov/unwinding. You can also direct employees to medicaid.gov/renewals for more information.

To learn more, talk to your account executive.

Member Months Coverage Report available for self-insured accounts at no cost

We’re offering a Member Months Coverage Report to our self-insured accounts for the 2023 tax year at no cost. The member information in the report is required by the IRS under the Affordable Care Act (ACA). Accounts are responsible for sending the report file to their tax vendor and filing with the IRS. To request a report, please contact your account executive before November 1, 2023.

This report contains data for each member enrolled for at least one month in one of our insurance plans. The report must include:

• Account number
• Group number
• Member number
• First, middle, and last name
• Member suffix
• Member Social Security Number (SSN)
• Date of birth
• Months covered for each member
• Dependent status
• Member insurance
• ID Member Taxpayer Identification Number (TIN) type
• Member TIN type
• Subscriber SSN
• Subscriber address

We won’t be asking for social security numbers. We’ll rely on accounts to update this information through the electronic enrollment file process or BluesEnroll before January 1, 2024.

This report will be delivered using Secure File Transfer Protocol (SFTP) and posted in January 2024. This security measure enhances our ability to safeguard the personal information that’s included in these reports.

Medical Loss Ratio Rebates

We’ll be distributing Medical Loss Ratio (MLR) rebates to affected small group and connector employers this year. Rebates will be processed starting September 1, 2023, and no later than September 15, 2023. Affected small group employers will be notified by email and/or mail beginning August 30, 2023.

Affected employee subscribers will also be notified by mail beginning September 15, 2023.

To ensure that rebates are sent to the correct location, check the address listed in the MLR letter we mailed you. If you need help changing your billing address, contact account service.

For more information about how employers may allocate MLR rebates, visit the Internal Revenue Service website.

Learn More:

• MLR FAQ for employers and brokers
• Sample MLR letter
• Press release (published August 31, 2023)

If you have any questions, contact account service.

Medical Loss Ratio Rebates

We’ll be distributing Medical Loss Ratio (MLR) rebates to affected small group and connector employers this year. Rebates will be processed starting September 1, 2023, and no later than September 15, 2023. Affected small group employers will be notified by email and/or mail beginning August 30, 2023.

Affected employee subscribers will also be notified by mail beginning September 15, 2023.

To ensure that rebates are sent to the correct location, check the address listed in the MLR letter we mailed you. If you need help changing your billing address, contact account service.

For more information about how employers may allocate MLR rebates, visit the Internal Revenue Service website.

Learn More:

• MLR FAQ for employers and brokers
• Sample MLR letter
• Press release (published August 31, 2023)

If you have any questions, contact account service.

Action is needed from self-insured accounts

In compliance with the Consolidated Appropriations Act (CAA) Prohibition on Gag Clauses provision, we’ve removed all gag clauses from our provider contracts.

As required by the CAA, self-insured accounts must submit a Gag Clause Prohibition Compliance Attestation (GCPCA) to the Health and Human Services (HHS) portal by December 31, 2023. Fully insured accounts don’t need to take any action: we’ll submit attestations on their behalf.

Self-insured accounts may use Third Party Administrators (TPAs) or may carve out medical, pharmacy, or mental health services involving provider contract administration. For these reasons, we can’t file the attestation on their behalf.

What is the CAA Prohibition on Gag Clauses?

The CAA Prohibition on Gag Clauses provision requires that a group health plan or insurer may not enter into an agreement with a health care provider, network or association of providers, TPA, or other service provider offering access to a network of providers, which directly or indirectly restrict a group health plan or insurer from providing provider-specific cost or quality-of-care information or data, electronically accessing de-identified claims and encounter information or data for each enrollee, or sharing that information or data with a business associate.

How to Submit an Attestation

1. Go to the Gag Clause Prohibition Compliance Attestation website.
2. Scroll down to Resources at the bottom of the page.
3. Click “Enter Webform Now for a GCPCA.”
4. Sign in and submit the attestation.

If you have any questions about the submission process, refer to the other links in the Resources section: Frequently Asked Questions, Instructions for submitting the GCPCA, or User Manual for submitting the GCPCA.

The attestation is due by December 31, 2023, and covers the period beginning December 27, 2020, through the date of the attestation.

Confirmation of Compliance

Blue Cross Blue Shield of Massachusetts hereby certifies that, for the period of December 27, 2020, through the date of an individual account’s attestation (no later than December 31, 2023), the provider agreements applicable to the provider networks in which the account and its plan participate with Blue Cross have been compliant with requirements pertaining to the CAA prohibition on gag clauses.

When submitting the attestation, use the above confirmation of compliance as support. You can also download the confirmation here, or request it from your account service consultant.

Questions?
If you have any questions, read our FAQ document or contact your account service consultant.

Updated Overview and FAQ now available for the Transparency in Coverage Rule and the Consolidated Appropriations Act

We continue to actively plan our support of and compliance with the required capabilities for applicable provisions within both the Transparency in Coverage Rule (TCR) and the Consolidated Appropriations Act (CAA). To update you with the latest information, we’ve recently updated our comprehensive Overview and FAQ.

We Have Completed Submission of the CAA Prescription Drug Data Collection (RxDC) Report (2022 Reference Year)

Under the Consolidated Appropriations Act of 2021 (CAA, 2021), group health plans (fully-insured and self-funded) and health insurance issuers offering group or individual health insurance coverage must report certain prescription drug spending and medical cost data annually to the Departments of Health and Human Services, Labor, and the Treasury (Tri-Agencies).

We have successfully submitted plan sponsors’ 2022 RxDC information to CMS, based on benefits that Blue Cross administers and available data.

If you have any questions, contact your Account Service Consultant.

Our approach to CAA Prescription Drug Data Collection (RxDC) Reporting in 2023

Under the Consolidated Appropriations Act of 2021 (CAA, 2021), group health plans (fully-insured and self-funded) and health insurance issuers offering group or individual health insurance coverage must report premium/premium equivalent (ASC-only), enrollment data, prescription drug spending and medical cost data annually to the Departments of Health and Human Services (HHS), Labor, and the Treasury (Tri-Agencies).

The data is being collected to: (i) identify major drivers of increases in prescription drug and health care spending; (ii) understand how prescription drug rebates impact premiums and out-of-pocket costs; and (iii) promote transparency in prescription drug pricing.

While Blue Cross Blue Shield of Massachusetts and our Pharmacy Benefit Manager (PBM) have access to much of the required data elements for reporting, we still need to collect certain information pertaining to the P2 (Group Health Plan List) and D1 (Premium and Life Years) files from each group customer to be fully compliant with the RxDC reporting requirements. In this effort, we will be providing accounts with an electronic survey to complete.

• The survey will be sent out Tuesday, February 28, and needs to be completed and submitted by Tuesday, March 21.
• Our filing deadline for 2022 data is June 1, 2023
• We’ll be requesting the following data from all accounts:
  • Employer Identification Number (EIN)
  • Account’s IRS Form 5500 number (if applicable)
  • Group Health Plan Name and Number
  • Average percent of the premium (or premium equivalent for self-insured accounts) paid by the account’s subscribers
• If the survey response is not completed and received by Tuesday, March 21, we’ll submit the available/limited data in our system on or before the June 1 due date. However, the submission won’t be complete. Data elements not provided to us will need to be submitted to CMS by the health plan or another reporting entity.

Our Reporting Approach

• On behalf of all fully-insured accounts active with Blue Cross in 2022, we’ll be submitting the P2 (Group Health Plan), D1 (Premium and Life Years) and D2 (Medical Spending by Category) files, as well as the D3-D8 files pertaining to prescription drug benefits. We only need requested information from these accounts as addressed in the survey.
• We’re also offering to submit the P2, D1, and D2 files on behalf of all our self-insured accounts (active with Blue Cross in 2022 and pertaining to benefits for which we administer), as well as the D3-D8 files for self-insured accounts with prescription drug benefits administered by Blue Cross. For these ASC accounts, we only need requested information as addressed in the survey.
  • Aside from the requested information as addressed in the survey, self-insured accounts that carve-out prescription drug benefits to another PBM, must work with that PBM to submit the D3-D8 files and applicable D1 and P2 files.
• Groups wishing to take responsibility to submit all data to CMS themselves (ASC accounts only), must indicate their decision to opt-out of Blue Cross filing their data in the provided survey. If not indicated, we’ll assume the group is taking responsibility to submit the self-funded account’s available data pertaining to benefits it administers on the account’s behalf.
  • For opting out self-insured accounts that carve-in prescription drug benefits, we’ll be providing the account with the available data for its P2, and D2-D8 files, but these accounts must sign a non-disclosure agreement (NDA) in order to access relevant prescription drug data as provided by our PBM. The account is responsible for data collection of its D1 file.
  • For opting out self-insured accounts that carve-out prescription drug benefits, we’ll be providing the account its available data for its P2 and the D2 file, and no NDA is necessary. The account is responsible for data collection of its D1 and D3-D8 files, and associated P2 files.
• In general, we aren’t asking for information pertaining to other health care vendors that an account may be contracting with. For accounts with multiple vendors providing health care benefits, the account may need to do a P2 filing that lists all of its other health care service providers.

Administrative Fees:

For the June 2023 RxDC report, we won't be assessing any fees to collect and report data (pertaining to benefits for which we administer) on behalf of fully-insured and ASC accounts (regardless of ASC account’s prescription drug carve-in or carve-out status).

However, for self-funded accounts wishing to submit the filings themselves, please note:

• For self-funded accounts with prescription drug benefits administered by Blue Cross and who are wishing to self-submit, there is a $5,000 flat fee.
• For self-funded accounts with prescription drug benefits carved-out to another pharmacy benefit manager, and who are wishing to self-submit, there is a $10,000 flat fee.

Helpful resources:

• Blue Cross Blue Shield of Massachusetts CAA Rx DC FAQ
• RxDC data elements/reporting instructions
• Non-Disclosure Agreement
• View survey content
• Summary of submission options

For additional questions to Blue Cross on our approach in RxDC reporting, please contact your Account Service Consultant or email us at: 2023CAAPharmRpt@bcbsma.com.

You can also go to the CMS website.

You may also sign up for email announcements and register for training webinars at the Registration for Technical at Assistance Portal (REGTAP).

Thank you for your assistance in helping us meet the CAA RxDC requirements.

Consolidated Appropriations Act (CAA): Pharmacy Data Reporting Update

Under the CAA, group health plans (fully-insured and self-funded) and health insurance issuers offering group or individual health insurance coverage must report plan-specific prescription drug spending and medical cost data annually to the Departments of Health and Human Services (HHS), Labor, and the Treasury. The first report (for 2020 and 2021 data) is required by Dec. 27, 2022, and then by June 1 thereafter of the calendar year immediately following the “reference year”, which is the calendar year of the data contained within the prescription drug data collection (RxDC) report.

For the initial filing, Blue Cross is offering to report this data, on behalf of its fully-insured and self-funded accounts, for benefits which it administers. For those accounts that Blue Cross does not administer prescription drug coverage, we will provide support for some of the required reports, but the account is responsible for working with their pharmacy benefit manager (PBM) to ensure all other necessary reports are submitted.

For more information about what accounts need to do, please visit RX Data Reporting section of our CAA/TCR Overview.

Regulatory Update: Medical Loss Ratio Rebates

We’ll be distributing Medical Loss Ratio (MLR) rebates to impacted small group account holders this year. Please review the MLR letter(s) that you’ll receive by mail for more details about how this applies to you and your employees. We’re also notifying impacted employee subscribers by mail, postmarked between September 15 - 30, 2022.

Rebates will be issued no later than September 30, 2022.

Learn More:

• MLR FAQ for Employers and Brokers
• Sample MLR letter
• Press Release

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

The Transparency in Coverage Rule (TCR) and Machine-Readable Files

Under the Transparency in Coverage Rule, issued in November 2020, health plans are required to disclose in-network provider negotiated rates and historical out-of-network allowed amounts through machine-readable files (MRFs) on a publicly available website by July 1, 2022. This provision affects health insurance issuers in the individual and group markets as well as fully insured group health plans and self-funded accounts.

We’re currently working to become compliant as of July 1, 2022. At that time, members will be able to access this information at transparency-in-coverage.bluecrossma.com. Data production will continue to be addressed to advance file development over time.

Complete details about implementation of this MRF provision, other provisions of the Transparency in Coverage Rule and the Consolidated Appropriations Act (CAA) are available here.

Questions?


If you have any questions, contact your account executive.

Important Employer Surveys: Medical Loss Ratios and Employer Group Size

In July, fully insured Blue Cross Blue Shield of Massachusetts accounts will receive one or both of the following surveys in the mail:

• The Patient Protection and Affordable Care Act (PPACA) survey, which allows us to calculate medical loss ratios (MLR) accurately for the small- and large-employer group segments. If MLR standards aren't met, we'll issue premium rebates to the applicable employers.
• The federal Medicare Secondary Payer (MSP) survey, which allows us to annually track an account's total number of employees. This will help us determine whether Medicare or an employer group health plan pays for an employee's health claims first, based on MSP laws.

It's important that you respond as soon as possible. These surveys help determine the size of each of our accounts, so we can calculate our medical loss ratio, establish which accounts are eligible to receive a rebate in 2023, and ensure that your employees' claims are processed properly.

Which Survey(s) You’ll Receive

Questions?


If you have any questions, please contact your account executive. For more information about these surveys, medical loss ratios, or MSP rules, please see:

PPACA Frequently Asked Questions

MSP Frequently Asked Questions

Members to Receive Updated ID Cards With New Cost Information

Being transparent to our members about health care costs is of the utmost importance to us. That’s why we’re now including deductible and maximum out-of-pocket cost information on all member ID cards. Updated cards will be issued beginning in May 2022. Members whose plans have a renewal date between January 1 and May 31, 2022, will be issued new cards by the end of June. Members, whose plans are renewing with changes from June 1, 2022 onwards, will receive updated ID cards prior to their anniversary date. Members, whose plans are renewing with no changes from June 1, 2022 onwards, will receive updated ID cards in the month following their anniversary date.

Along with the card, members will be sent an insert informing them of the new change. You can see the insert here. Members who want to learn more about their health care costs can sign in to their MyBlue account at bluecrossma.org, or open the MyBlue app.

These changes also ensure that we’re supporting compliance with the Consolidated Appropriations Act (CAA). Learn more here about our response to the CAA as well as the Transparency in Coverage Rule (TCR) and Machine Readable Files.

Questions?

If you have any questions, contact your account executive.

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.