September 265, 2022
Agencies Issue RFI on Advanced Explanations of Benefits
The U.S. departments of Health and Human Services, Labor and Treasury (the “tri-agencies”) issued a request for information (RFI) on September 16 on the requirement that health plans and insurers provide advanced explanations of benefits (AEOBs) to participants – based on a good faith estimates (GFEs) the plan is to receive from the provider – as provided for under the Consolidated Appropriations Act, 2021 (CAA).
For individuals who schedule an item or service at least three business days in advance, the CAA requires health care providers and facilities to inquire if the individual is enrolled in a group health plan or other insurance coverage and to provide a GFE of the expected charges (with diagnostic and billing codes) to the plan or issuer. The CAA then requires plans and insurers to provide an AEOB to participants for each GFE the plan or insurer receives from a provider. The CAA sets out the information that must be provided in the GFE and AEOB, as well as the short time frames for when the GFE and AEOB must be provided by the respective parties.
The Council has been long been supportive of these provisions, based on the likelihood that disclosures provided before a service is rendered will improve consumer decision-making. We previously offered detailed recommendations to the tri-agencies as they develop implementing regulations, as reported in the July 23, 2021, Benefits Byte.
These requirements were set to take effect in 2022 but, as reported in the August 25, 2021, Benefits Byte, in August 2021 the tri-agencies announced that they would defer enforcement until notice and comment rulemaking had been completed. (This delay was consistent with our comments to the tri-agencies that a 2022 effective date was not feasible and that clear guidance was needed before plans could implement this provision). The recently-issued RFI is the first step towards regulations – signaling that it may well be a while yet before there are proposed, and eventually, final regulations.
In the RFI, the tri-agencies provide that in recognition of the complexity of the forthcoming regulations they are requesting information on a range of issues. Below we provide a summary of the RFI:
- A large portion of the RFI is focused on issues related to the transfer of data from providers and facilities to plans and insurers in connection with the provider’s development and delivery of the GFE, including questions on specific interoperability standards, privacy concerns, the use of manual or paper-based technologies, and issues for small or rural providers/facilities.
- The RFI also includes several questions related to ensuring that the necessary information is transferred from providers and facilities to plans and insurers so such plans and insurers can prepare AEOBs that account for how the No Surprises Act (NSA) may affect an individual’s benefits related to the item or service at issue in the AEOB. Questions include whether out-of-network providers should be required to include information in the GFE as to whether the applicable facility is in-network, whether the GFE should be used to convey whether a participant has opted out of protections against surprise billing (in the limited circumstances when this is permissible), and whether AEOBs should reflect the extent to which the surprise billing prohibition in the NSA applies.
- The RFI addresses a range of other issues – including to what extent the tri-agencies could coordinate the AEOB requirement with the requirement that plans provide cost-sharing estimates under the transparency in coverage regulations, how to implement the provision allowing participants to directly request an AEOB from a plan, how the rules should account for unique benefit designs, whether and how the timeframes provided in the statute should be modified for specific items and services, and how to take health equity issues into account in developing the regulations.
- The RFI also asks a series of questions on the potential economic impacts of implementing the AEOB and GFE requirements for various affected stakeholders, including plans.
The agencies are soliciting feedback on the RFI by November 15. The Council intends to comment and welcomes member input. For more information, please contact Katy Johnson, senior counsel, health policy.