The No Surprise Act (NSA) is most well known for the Federal surprise medical billing protections. However, there are a number of other provisions included in the NSA that are intended to increase medical literacy and shine a light on participant out-of-pocket costs on scheduled medical procedures. One such statutory provision that is intended to help a participant understand their out-of-pocket exposure for covered medical items or services is the Advanced Explanation of Benefits (AEOB).
While Congress was busy at work drafting the NSA statute, the Federal Departments were also hard at work developing regulatory rules that required self-insured plans and insurance carriers to provide participants with out-of-pocket cost-sharing liability information for covered medical items and services through an electronic, online tool that can be accessed directly by participants at any given time during the plan year. This real-time electronic disclosure tool is known as the Cost-Sharing Liability Tool.
The AEOB Statutory Requirement
According to the AEOB statutory requirement, a self-insured plan/insurance carrier MUST send the following information to a participant in advance of a scheduled medical procedure or service:
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The medical provider’s “good faith estimate” (GFE) of the cost of the medical item or service.
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A GFE of how much the health plan is responsible to pay for the medical item or service.
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A GFE of how much the participant is responsible to pay for the medical item or service.
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A GFE of the health plan’s deductible – and out-of-pocket maximum limit – that the participant has used to date, if any.
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In cases where the medical item or service is subject to cost-containment measures (e.g., concurrent review, pre-authorization, step-therapy), a disclaimer that the medical item or service is subject to such measures.
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Whether the provider that is furnishing the medical item or service is IN-NETWORK or OUT-OF-NETWORK.
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The amount of the IN-NETWORK rate for the medical item or service, if any.
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If the provider is OUT-OF-NETWORK, a description of how the participant may obtain information about IN-NETWORK providers that may be able to furnish the same medical item or service.
The Cost-Sharing Liability Tool Regulatory Rule
According to the Cost-Sharing Liability Tool regulatory rule, a self-insured plan/insurance carrier MUST provide information for the following “content elements” in real-time upon a participant’s request:
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The estimated cost-sharing liability for the medical item or service requested by the participant.
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The estimated amount of the IN-NETWORK deductible and out-of-pocket maximum limit that the participant has used to date, if any.
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The IN-NETWORK negotiated rate for the medical item or service requested by the participant.
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If the provider furnishing the requested medical item or service is OUT-OF-NETWORK, the estimated amount payable by the insurer or plan for the OUT-OF-NETWORK service, if any;
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A notice of prerequisites to coverage, if any (e.g., concurrent review, or pre-authorization, or step-therapy).
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A list of medical items and services that are subject to a bundled payment arrangement, if any.
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A disclosure notice with specified information.
Request for Information on the AEOB Statutory Requirement
On September 16, 2022, the Federal Departments issued a Request for Information (RFI) asking health care industry stakeholders to submit public comments suggesting how the Departments should develop proposed regulations implementing the AEOB statutory requirement. One particular question that the Federal Departments asked:
“Would coordination of the Cost-Sharing Liability Tool regulatory rule with the AEOB statutory requirement help minimize the burden on plans/carriers in implementing both requirements?”
Answer: YES
As you can see above, there is a significant amount of overlap in the required information that must be included in the AEOB and the required information that must be provided to a participant through the Cost-Sharing Liability Tool.
For example, out of the seven content elements that must be disclosed through the Cost-Sharing Liability Tool, five of these content elements must generally be disclosed through the AEOB. And similarly, of the eight data points that must be included in the AEOB, five of these data points must generally be disclosed through the Cost-Sharing Liability Tool. Importantly, the Federal Departments have explained that the main purpose for creating the Cost-Sharing Liability Tool regulatory rule was to furnish to a participant information that must otherwise be included in an EOB and a Summary of Benefits and Coverage (SBC), but in ADVANCE. Which is precisely the SAME policy goal underpinning the AEOB statutory requirement.
Based on this overlap – and consistent with the underlying policy goal here – it makes sense for the Federal Departments to develop regulations that deem a plan/carrier to be in compliance with BOTH the AEOB and Cost-Sharing Liability Tool requirements if, for example, the plan/carrier furnishes ALL of AEOB’s information through the Cost-Sharing Liability Tool within the required statutory timelines, while also ensuring that the required content elements are delivered to participants through the Cost-Sharing Liability Tool in real-time upon a participant’s request.
The overarching goal here is to incorporate simplicity into every aspect of plan administration. And, hopefully, the Federal Departments will agree in forthcoming proposed regulations implementing the AEOB statutory requirement, which we should see some time in the second quarter of 2023, if not sooner. Stay tuned…
