CMS 9915-F

Note: This HHS-approved document will be submitted to the Office of the Federal

in the Federal Register. The document may vary slightly from the published document if

minor editorial changes have been made during the OFR review process. The document

published in the Federal Register is the official HHS-approved document.

[Billing Code: 4830-01-F; 4510-29-F; 4120-01-F]

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 54

[TD 9929]

RIN 1545-BP47

DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2590

RIN 1210-AB93

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Parts 147 and 158

[CMS-9915-F]

RIN 0938-AU04

Transparency in Coverage

AGENCY: Internal Revenue Service, Department of the Treasury; Employee Benefits Security

Administration, Department of Labor; Centers for Medicare & Medicaid Services, Department

of Health and Human Services.

ACTION: Final rule.

CMS-9915-F 2

SUMMARY: The final rules set forth requirements for group health plans and health insurance

issuers in the individual and group markets to disclose cost-sharing information upon request to a

participant, beneficiary, or enrollee (or his or her authorized representative), including an

estimate of the individual’s cost-sharing liability for covered items or services furnished by a

particular provider. Under the final rules, plans and issuers are required to make this information

available on an internet website and, if requested, in paper form, thereby allowing a participant,

beneficiary, or enrollee (or his or her authorized representative) to obtain an estimate and

understanding of the individual’s out-of-pocket expenses and effectively shop for items and

services. The final rules also require plans and issuers to disclose in-network provider negotiated

rates, historical out-of-network allowed amounts, and drug pricing information through three

machine-readable files posted on an internet website, thereby allowing the public to have access

to health coverage information that can be used to understand health care pricing and potentially

dampen the rise in health care spending. The Department of Health and Human Services (HHS)

also finalizes amendments to its medical loss ratio (MLR) program rules to allow issuers offering

group or individual health insurance coverage to receive credit in their MLR calculations for

savings they share with enrollees that result from the enrollees shopping for, and receiving care

from, lower-cost, higher-value providers.

DATES: Effective date: The final rules are effective on [INSERT DATE 60 DAYS AFTER

PUBLICATION IN THE FEDERAL REGISTER].

Applicability date: See the SUPPLMENTARY INFORMATION section for information on the

applicability dates.

FOR FURTHER INFORMATION CONTACT: Deborah Bryant, Centers for Medicare &

Medicaid Services, (301) 492-4293. Christopher Dellana, Internal Revenue Service,

CMS-9915-F 3

(202) 317-5500. Matthew Litton or Frank Kolb, Employee Benefits Security Administration,

(202) 693-8335.

Customer Service Information: Individuals interested in obtaining information from the

Department of Labor (DOL) concerning employment-based health coverage laws may call the

Employee Benefits Security Administration (EBSA) Toll-Free Hotline at 1–866–444–EBSA

(3272) or visit DOL’s website (http://www.dol.gov/ebsa). In addition, information from HHS on

private health insurance for consumers can be found on the Centers for Medicare & Medicaid

Services (CMS) website (www.cms.gov/cciio) and information on health reform can be found at

http://www.healthcare.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The final rules require group health plans and health insurance issuers in the individual

and group markets to disclose cost-sharing information upon request, to a participant,

beneficiary, or enrollee, which, unless otherwise indicated, for the purpose of the final rules

includes an authorized representative, and require plans and issuers to disclose in-network

provider rates, historical out-of-network allowed amounts and the associated billed charges, and

negotiated rates for prescription drugs in 26 CFR part 54, 29 CFR part 2590, and 45 CFR part

147. HHS also finalizes amendments to its MLR program rules in 45 CFR part 158.

A. Statutory Background and Enactment of PPACA

The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on

March 23, 2010, and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-

152) was enacted on March 30, 2010 (collectively, PPACA). As relevant here, PPACA

reorganized, amended, and added to the provisions of part A of title XXVII of the Public Health

CMS-9915-F 4

Service (PHS) Act relating to health coverage requirements for group health plans and health

insurance issuers in the group and individual markets. The term group health plan includes both

insured and self-insured group health plans.

PPACA also added section 715 to the Employee Retirement Income Security Act of 1974

(ERISA) and section 9815 to the Internal Revenue Code (Code) to incorporate the provisions of

part A of title XXVII of the PHS Act, PHS Act sections 2701 through 2728, into ERISA and the

Code, making them applicable to group health plans, and health insurance issuers providing

coverage in connection with group health plans.

1. Transparency in Coverage

Section 2715A of the PHS Act provides that group health plans and health insurance

issuers offering group or individual health insurance coverage must comply with section

1311(e)(3) of PPACA, which addresses transparency in health coverage and imposes certain

reporting and disclosure requirements for health plans that are seeking certification as qualified

health plans (QHPs) that may be offered on an Exchange. A plan or coverage that is not offered

through an Exchange (as defined by section 1311(b)(1) of PPACA) is required to submit the

information required to the Secretary of HHS and the relevant state’s insurance commissioner,

and to make that information available to the public.

Paragraph (A) of section 1311(e)(3) of PPACA requires a plan seeking certification as a

QHP to make the following information available to the public and submit it to state insurance

regulators, the Secretary of HHS, and the Exchange:

• claims payment policies and practices,

• periodic financial disclosures,

• data on enrollment,

CMS-9915-F 5

• data on disenrollment,

• data on the number of claims that are denied,

• data on rating practices,

• information on cost-sharing and payments with respect to any out-of-network

coverage, and

• information on enrollee and participant rights under Title I of PPACA.

Paragraph (A) also requires a plan seeking certification as a QHP to submit any “[o]ther

information as determined appropriate by the Secretary.”

Paragraph (C) of section 1311(e)(3) of PPACA requires plans, as a requirement of

certification as a QHP, to permit individuals to learn the amount of cost sharing (including

deductibles, copayments, and coinsurance) under the individual’s coverage that the individual

would be responsible for paying with respect to the furnishing of a specific item or service by an

in-network provider in a timely manner upon the request of the individual. Paragraph (C)

specifies that, at a minimum, such information must be made available to the individual through

an internet website and through other means for individuals without access to the internet.

Together these statutory provisions require the overriding majority of private health plans

to disseminate a substantial amount of information to provide transparency in coverage. The

portions of the final rules that require plans and issuers to disclose cost-sharing information upon

As of 2018, private, non-grandfathered health plans that must comply with these statutory provisions covered more

than 92 percent of the almost 177 million people covered by private health coverage. The remaining 7.7 percent

were covered by grandfathered health plans or were enrolled in short-term limited duration coverage or health care

sharing ministries. See Kaiser Family Foundation, Health Insurance Coverage of the Total Population in 2018,

https://www.kff.org/other/state-indicator/total-

population/?dataView=1&currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%2

2asc%22%7D, last accessed October 5, 2020.

CMS-9915-F 6

request, to a participant, beneficiary, or enrollee implement paragraph (C) of section 1311(e)(3)

of PPACA. The portions of the final rules that require plans and issuers to disclose in-network

provider rates, historical out-of-network allowed amounts and the associated billed charges, and

negotiated rates for prescription drugs implement paragraph (A) of section 1311(e)(3) of PPACA.

The requirements to disclose out-of-network allowed amounts specifically implements the

requirement in section 1311(e)(3)(A)(vii) to provide information on “payments with respect to

any out-of-network coverage.” In addition to payment information on out-of-network charges,

the Secretary of HHS determined that payment information on in-network rates and prescription

drugs is also appropriate information to require plans and issuers to disclose to provide

transparency in coverage under section 1311(e)(3)(A)(ix).

PPACA’s transparency in coverage requirements were enacted in coordination with a set

of requirements that transformed the regulation of private market health plans and issuers. These

requirements for the first time apply a comprehensive framework for regulating private health

coverage through federal law.

Prior to PPACA, federal law relied on states to be the primary

regulators of health insurance, but applied only a limited set of federal requirements to govern

private health coverage. Where federal law regulated private health coverage, there was a

substantial variation in how these regulations applied, depending on whether private health

See Jost, T.S. “Loopholes in the Affordable Care Act: Regulatory gaps and border crossing techniques and how to

address them.” St. Louis University Journal of Health Law and Policy, Washington & Lee Legal Studies Paper No.

2011-16. August 15, 2011 (explaining that “[t]he Affordable Care Act was meant to regulate health care plans

comprehensively” and providing further details on the scope of PPACA). Available at:

https://scholarlycommons.law.wlu.edu/wlufac/265/.

CMS-9915-F 7

coverage was self-insured group coverage, large group insurance coverage, small group insurance

coverage, or individual insurance coverage. To establish a comprehensive framework for

regulating private health coverage, PPACA first set out a series of requirements on “Improving

Coverage” that generally apply to group health plans and health insurance issuers offering group

or individual health insurance coverage.

These requirements ranged from the prohibition on

lifetime or annual dollar limits in section 2711 of the PHS Act to the requirement to cover out-of-

network emergency services in section 2719A of the PHS Act and include the transparency in

coverage requirements in section 2715A of the PHS Act.

By including transparency in coverage

in this set of requirements that apply to most private coverage, Congress established transparency

as a key component to PPACA’s comprehensive framework for regulating private health

coverage.

On March 27, 2012, HHS issued the Exchange Establishment final rule that implemented

sections 1311(e)(3)(A) through (C) of PPACA at 45 CFR 155.1040(a) through (c) and 156.220.

The Exchange Establishment final rule created standards for QHP issuers to submit specific

information related to transparency in coverage. QHPs are required to post and make data

Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010), section 1001.

In addition to these requirements, PPACA’s “Improving Coverage” requirements include, among other things: the

prohibition on rescissions in section 2712 of the PHS Act; the requirement to cover preventive health services

without cost sharing requirements in section 2713 of the PHS Act; the extension of coverage to dependents up to age

26 in section 2714 of the PHS Act; the requirement to provide a summary of benefits and coverage in section 2715

of the PHS Act; quality reporting requirements in section 2717 of the PHS Act; and appeals process requirements in

section in 2719 of the PHS Act.

Transparency was included as an important and transformative element in other leading comprehensive health

reform proposals. See Porter, M. and Teisberg, E. Redefining Health Care. Harvard Business School Press.

Boston, MA. 2006. (“Perhaps the most fundamental role of government in enabling value-based competition is to

ensure that universal, high-quality information on provider outcomes and prices for every medical condition is

collected and disseminated. This single step will have far-reaching and pervasive effects throughout the system

.…”).

77 FR 18310 (Mar. 27, 2012).

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related to transparency in coverage available to the public in plain language and submit this

same data to HHS, the Exchange, and the relevant state insurance commissioner. In the

preamble to the Exchange Establishment final rule, HHS noted that “health plan standards set

forth under the final rules are, for the most part, strictly related to QHPs certified to be offered

through the Exchange and not the entire individual and small group market. Such policies for

the entire individual and small and large group markets have been, and will continue to be,

addressed in separate rulemaking issued by HHS, and the Departments of Labor and the

Treasury.”

2. Medical Loss Ratio

Section 2718(a) of the PHS Act, as added by PPACA, generally requires health insurance

issuers offering group or individual health insurance coverage (including a grandfathered health

insurance plan) to submit an annual report to the Secretary of HHS that details the percentage of

premium revenue (after certain adjustments) expended on reimbursement for clinical services

provided to enrollees under health coverage and on activities that improve health care quality.

The proportion of premium revenue spent on clinical services and quality improvement activities

is called the MLR. Section 2718(b) of the PHS Act requires an issuer to provide annual rebates

to enrollees if its MLR falls below specified standards (generally 80 percent for the individual

and small group markets, and 85 percent for the large group market). HHS published an interim

final rule to implement the MLR program in the December 1, 2010 Federal Register (75 FR

74863). A final rule was published in the December 7, 2011 Federal Register (76 FR 76573).

The MLR program requirements were amended in final rules published in the December 7, 2011

Federal Register (76 FR 76595), the May 16, 2012 Federal Register (77 FR 28790), the March

11, 2014 Federal Register (79 FR 13743), the May 27, 2014 Federal Register (79 FR 30339),

CMS-9915-F 9

the February 27, 2015 Federal Register (80 FR 10749), the March 8, 2016 Federal Register

(81 FR 12203), the December 22, 2016 Federal Register (81 FR 94183), the April 17, 2018

Federal Register (83 FR 16930), the April 25, 2019 Federal Register (84 FR 17454), and the

February 6, 2020 Federal Register (85 FR 7088).

B. Benefits of Transparency in Health Coverage and Past Efforts to Promote Transparency

PPACA’s transparency in coverage requirements can help ensure the accurate and timely

disclosure of information appropriate to support an efficient and competitive health care market.

A well-functioning, competitive market depends on information being available to buyers and

sellers.

As President Trump’s “Executive Order on Improving Price and Quality Transparency

in American Healthcare to Put Patients First” explains: “To make fully informed decisions about

their health care, patients must know the price and quality of a good or service in advance.” Yet,

as the Executive Order then notes, “patients often lack both access to useful price and quality

information and the incentives to find low-cost, high-quality care.” The lack of this information

is widely understood to be one of the root problems causing dysfunction within America’s health

care system.

The Departments of Labor, HHS, and the Treasury (Departments) are of the view that

transparency in health coverage requirements will strengthen America’s health care system by

giving health care consumers, researchers, regulators, lawmakers, health innovators, and other

health care stakeholders the information they need to make, or assist others in making informed

Porter, M. and Teisberg, E. Redefining Health Care. Harvard Business School Press. Boston, MA. 2006, pg. 54.

(“Information is fundamental to competition in any well-functioning market. It enables buyers to shop for the best

value and allows sellers to compare themselves to rivals. Without relevant information, doctors cannot compare

their results to best practice and to other providers. And without appropriate information, patient choice has little

meaning.”).

CMS-9915-F 10

decisions about health care purchases. Health care consumers include various persons and

entities that finance health care needs through the purchase of insurance. Health care consumers

also include uninsured persons without health coverage who must pay out-of-pocket for health

care items and services and uninsured persons who may be shopping for health coverage.

Employers that sponsor health plans for their employees and government programs that provide

health care services and benefits to consumers are also health care consumers.

By requiring the dissemination of price and benefit information directly to consumers and

to the public, the transparency in coverage requirements will provide the following consumer

benefits:

• enables consumers to evaluate health care options and to make cost-conscious

decisions;

• strengthens the support consumers receive from stakeholders that help protect and

engage consumers;

• reduces potential surprises in relation to individual consumers’ out-of-pocket costs for

health care services;

• creates a competitive dynamic that may narrow price dispersion for the same items and

services in the same health care markets; and

• puts downward pressure on prices which, in turn, potentially lowers overall health care

costs.

The goal of the final rules is to deliver these benefits to all consumers and health care

stakeholders through greater transparency in coverage.

Comments received in response to the proposed rules on transparency in coverage

(discussed in more detail later in this preamble) have strengthened the Departments’ view that

CMS-9915-F 11

this price transparency effort will equip the public with information to actively and effectively

participate in the health care system as consumers.

The majority of commenters acknowledged

the importance of the availability of health care pricing information and appropriate tools to

assist consumers in health care decision-making and managing health care costs. For these

reasons and those explained in more detail below in this preamble, the Departments continue to

be of the view that price transparency efforts are crucial to providing consumers (individual and

institutional) with meaningful and actionable pricing information in an effort to contain the

growth of health care costs.

1. Transparency provides necessary information for consumers to make more informed

health care spending decisions

As explained in the report, “Reforming America’s Healthcare System Through Choice

and Competition,” consumers have an important role to play in controlling costs, but consumers

must have meaningful information in order to create the market forces necessary to achieve

lower health care costs.

When consumers seek care, they do not typically know whether they

could have received the same service from another provider at lower prices. Third-party payers

negotiate prices on the consumer’s behalf and reimburse costs directly to health care providers,

concealing the actual price from the consumer at the point of care. After receiving care,

84 FR 65464 (Nov. 27, 2019).

Azar, A. M., Mnuchin, S.T., and Acosta, A. “Reforming America's Healthcare System Through Choice and

Competition.” United States, Department of Health and Human Services. December 3, 2018. Available at:

https://www.hhs.gov/sites/default/files/Reforming-Americas-Healthcare-System-Through-Choice-and-

Competition.pdf.

CMS-9915-F 12

consumers typically receive an Explanation of Benefits (EOB), which details the price charged

by the provider, contracted or negotiated rate, and consumer cost sharing. Often, only after

services are rendered is the cost of care disclosed to the consumer.

Historically, there has been little to no incentive for some consumers to consider price

and seek lower-cost care.

Rapidly rising health care spending in the past 20 years, however,

has led to consumers shouldering a greater portion of their health care costs through increases in

out-of-pocket expenses.

Since 1970, per capita out-of-pocket expenditures have nearly doubled due to a number

of factors.

These factors include increased enrollment in high deductible health plans (HDHPs)

and accompanying health savings accounts (HSAs), and increased plan and issuer reliance on

payments towards deductibles comprising the proportion of total cost-sharing payments.

explained in the preamble to the proposed rules, these shifts in plan design and enrollment are

correlated with consumers bearing a greater share of their overall health care costs in the private

health insurance market than in previous years.

From 2002 to the enactment of PPACA in

2010, nationally, the percentage of private sector employees enrolled in a health plan with a

Id.

Claxton, G., Levitt, L., Long M. “Payments for cost sharing increasing rapidly over time.” Peterson-Kaiser

Health System Tracker. April 2016. Available at: https://www.healthsystemtracker.org/brief/payments-for-cost-

sharing-increasing-rapidly-over-time/.

“Out-of-pocket spending.” Peterson-KFF Health System Tracker. May 2020. Available at:

https://www.healthsystemtracker.org/indicator/access-affordability/out-of-pocket-spending/.

HDHP as defined in section 223(c)(2) of the Code; see also Claxton, G., Levitt, L., Long, M. “Payments for cost

sharing increasing rapidly over time.” Peterson-KFF Health System Tracker. April 2016. Available at:

https://www.healthsystemtracker.org/brief/payments-for-cost-sharing-increasing-rapidly-over-time/

84 FR 65464, 65465 (Nov. 27, 2019).

CMS-9915-F 13

deductible increased from 47.6 percent to 77.5 percent and continued to increase to 86.6 percent

in 2019.

Average family deductibles for private sector employees grew from $958 in 2002 to

$1,975 in 2010, and then to $3,655 in 2019—an 85 percent increase since the enactment of

PPACA.

These changes represent a substantial increase in the amount that consumers must pay

for health care before insurance begins to cover items or services.

Deductibles made up 52

percent of cost-sharing spending in 2016, up from 30 percent in 2006, while copays dropped

from 43 percent to 17 percent of cost-sharing payments over the same period.

The gradual

shift away from copayments, which are predictable to the consumer through their set dollar

amounts for each covered item or service, to deductibles and coinsurance, has increased the need

for consumers to know the negotiated price in order to plan ahead and budget for out-of-pocket

costs. Over time, price disclosure can improve consumers’ ability to better manage costs of

utilized health care for a variety of health care plans. Increased enrollment in HDHPs and the

shift to coinsurance across plan and benefit designs means that consumers have a vested interest

in learning the costs of care prior to paying for items or services, as they are responsible for

See “Medical Expenditure Panel Survey. Insurance Component National-Level Summary Tables.” United States

Department for Health and Human Services Agency for Healthcare Research and Quality. Available at:

https://www.meps.ahrq.gov/mepsweb/data_stats/quick_tables_search.jsp?component=2&subcomponent=1

Id.

McCarthy-Alfano, M., et al. “Measuring the burden of health care costs for working families.” Health Affairs.

April 2, 2019. Available at: https://www.healthaffairs.org/do/10.1377/hblog20190327.999531/full/.

Claxton, G. et al. “Increases in cost-sharing payments continue to outpace wage growth.” Peterson-KFF Health

System Tracker. June 15, 2018. Available at: https://www.healthsystemtracker.org/brief/increases-in-cost-sharing-

payments-have-far-outpaced-wage-growth/.

CMS-9915-F 14

paying out-of-pocket expenditures, which are directly dependent on the negotiated or contractual

price.

These trends in designing health plans have led to consumers bearing an increased share

of their health care costs. The fact that more consumers are bearing greater financial

responsibility for the cost of their health care provides an opportunity to establish a more

consumer-directed and consumer-driven health care market. Eighty-eight percent of consumers

support requirements for providers and issuers to disclose prices prior to care.

If consumers

have better pricing information and can shop for health care items and services more efficiently,

they can increase competition and demand for lower prices.

However, consumers generally

have little information regarding negotiated rates or out-of-network costs until after services are

rendered. There is also wide variability in health care prices for the same service.

As a result,

it can be difficult for consumers to estimate potential out-of-pocket costs.

2. Transparency strengthens stakeholders’ ability to support consumers

Making price transparency information publicly available strengthens the work of other

health care stakeholders that help provide care or promote access to care to consumers, or

otherwise aim to protect consumers and their interests in the health care system. These entities

include researchers, regulators, lawmakers, patient and consumer advocates, and businesses that

“Harvard CAPS Harris Poll.” Harvard University. May 2019. Available at: https://harvardharrispoll.com/wp-

content/uploads/2019/06/HHP_May19_vF.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz--

NgSdTYggGUP4tWyR2IEQ7i8TCg1s3DcHuQyhErIgkX3KFUi3SFgl9OZKm4-JUOOi9tmMQ.

Azar, A.M., Mnuchin, S.T., and Acosta, A. “Reforming America's Healthcare System Through Choice and

Competition.” United States, Department of Health and Human Services. December 3, 2018. Available at:

https://www.hhs.gov/sites/default/files/Reforming-Americas-Healthcare-System-Through-Choice-and-

Competition.pdf.

Cooper, Z., et al. “The Price Ain’t Right? Hospital Prices and Health Spending on the Privately Insured.” The

Quarterly Journal of Economics, Vol. 134. Issue 1. February 2019. September 4, 2018. Available at:

https://academic.oup.com/qje/article/134/1/51/5090426?searchresult=1.

CMS-9915-F 15

provide consumer support tools and services. A key aspect of transparency in coverage is to

make health care pricing information more accessible and useful to consumers by making the

information available to persons and entities with the requisite experience and expertise to assist

individual consumers and other health care purchasers to make informed health care decisions.

With information on pricing, these other health care stakeholders can better fulfill each of

the unique roles they play to improve America’s health care system for consumers. For instance,

with pricing information researchers could better assess the cost-effectiveness of various

treatments; state regulators could better review issuers’ proposed rate increases; patient

advocates could better help guide patients through care plans; employers could adopt incentives

for consumers to choose more cost-effective care; and entrepreneurs could develop tools that

help doctors better engage with patients.

3. Transparency reduces the potential for surprise billing

Making the price of care available to consumers before they receive care can reduce the

potential for consumers to be surprised by the price of a health care item or service when they

receive the bill after receiving care. However, accessible pricing information holds special value

for insured consumers.

Surprise billing has become a substantial concern for insured

consumers, in particular, consumers who receive a bill from an out-of-network provider when

they thought an in-network provider was treating them. While price transparency alone is not a

complete solution to this problem, the disclosure of pricing directly to consumers could help

See Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health & Human Services.

Secretary of Health and Human Services’ Report on: Addressing Surprise Medical Billing, at p. 3. July 2020.

(recognizing that HHS regulatory action to encourage price transparency by insurers “can serve as the backbone for

a more comprehensive surprise billing solution”). Available at

https://aspe.hhs.gov/system/files/pdf/263871/Surprise-Medical-Billing.pdf

CMS-9915-F 16

mitigate some unexpected health care costs. As just noted, making pricing information public

can also strengthen other health care stakeholders’ ability to protect consumers. In the case of

surprise billing, public information on pricing for in-network and out-of-network services could

allow stakeholders to develop better tools to help patients avoid surprises and improve oversight

of health insurance issuers, plans, and providers.

4. Transparency increases competition and contains costs.

Without transparency in pricing, market forces cannot drive competition. This lack of

competition in many health care markets is demonstrated by significant, unexplained variations

in prices for procedures, even within a single region.

For example, studies of price variation

within California and nationally suggest that there is substantial opportunity for increased

transparency to save money by shifting patients from high to lower-cost providers.

The

Departments are of the view that consumers will take advantage of increased transparency to

shop for their health care if price transparency is put into place nationwide.

Many empirical

studies have investigated the impact of price transparency on non-health care markets, with most

research showing that “price transparency leads to lower and more uniform prices, a view

Id.

Boynton, A., Robinson, J. “Appropriate Use of Reference Pricing Can Increase Value.” Health Affairs Blog.

July 7, 2015. Available at: https://www.healthaffairs.org/do/10.1377/hblog20150707.049155/full/; see also Sinaiko,

A., Rosenthal, M. "Examining a Health Care Price Transparency Tool: Who Uses it, and How They Shop for Care."

35 Health Affairs 662. April 2016. Available at: https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2015.0746.

See Gordon, D., et al. “Health Care Consumer Shopping Behaviors and Sentiment: Qualitative Study.” Journal of

Participatory Medicine. Volume 12. No. 2. 2020. Available at: https://jopm.jmir.org/2020/2/e13924/ (study

demonstrating that consumers already engage in “behaviors related to seeking, comparing, or knowing the prices of

care” regardless of the presence of price transparency tools).

CMS-9915-F 17

consistent with predictions of standard economic theory.”

Studies suggest that consumers want

and will use actionable pricing information to shop for more cost-effective care.

For example,

when automobile prices were presented transparently on the internet, inclusive of the dealer

invoice price, the consumers who did not like the traditional bargaining process were able to

reduce spending overall by 1.5 percent.

Another study demonstrated the public display of life

insurance prices for comparison led to a 5 percent decrease in the consumer price.

Price

transparency also reduced price dispersion across other markets, such as the airline industry,

which saw a reduction in price dispersion from 18 percent in 1997 narrowing to 0.3-2.2 percent

in 2002 for fares available at multiple travel websites.

These lessons from other markets

suggest that more thoroughly implementing price transparency across the health care industry

could increase competition to provide lower costs and limit price variation.

Austin, D. A., and Gravelle, J. G. “Does Price Transparency Improve Market Efficiency? Implications of

Empirical Evidence in Other Markets for the Health Sector.” United States Congress Congressional Research

Service. April 29, 2008. Available at: https://crsreports.congress.gov/product/pdf/RL/RL34101

; see also Grennan,

M., Swanson, A. “Transparency and Negotiated Prices: The Value of Information in Hospital-Supplier Bargaining.”

128 Journal of Political Economy. April 2020 (Citing research in consumer goods showing that information can

help decision making when buyers have imperfect information on costs.). Available at:

https://www.nber.org/papers/w22039; see also 84 FR 65464, 65466 (Nov. 27, 2019).

Semigran, H.L., et al. “Patients’ Views on Price Shopping and Price Transparency.” The American Journal of

Managed Care. June 26, 2017. Available at: https://www.ajmc.com/view/patients-views-on-price-shopping-and-

price-transparency.

Zettlemeyer, F., Morton, F.S., and Silva-Risso, J. “How the Internet Lowers Prices: Evidence from Matched

Survey and Automobile Transaction Data.” Journal of Marketing Research. May 2006. Available at:

https://doi.org/10.1509%2Fjmkr.43.2.168.

Brown, J., and Goolsbee, A. “Does the Internet Make Markets More Competitive? Evidence from the Life

Insurance Industry.” Journal of Political Economy, vol. 110, June 2002, pp. 481-507.

Clemons, E.K., Hann, I., and Hitt, L. “Price Dispersion and Differentiation in Online Travel: An Empirical

Investigation,” Management Science, vol. 48, no. 4, 2001, pp. 521-39; see also “Occupational Labor Statistics.”

United States Bureau of Labor Statistics. Available at: https://www.bls.gov/oes/current/oes_stru.htm.

84 FR 65464, 65466 (Nov. 27, 2019).

CMS-9915-F 18

Despite the general absence of price transparency in the health care sector, there is

research showing how price transparency leads to lower and more uniform pricing in health care

markets. For instance, as noted in the preamble to the proposed rule, research shows patients

saved $7.9 million and issuers saved $36 million on imaging services in New Hampshire after

the state launched a website publishing health prices for most consumers with private health

insurance.

One study found use of a telephone- and email-based tool to search for health care

prices reduced the price paid by 10 to 17 percent and reduced the prices paid for care on average

by 1.6 percent.

Another study of a program that provided health plan participants,

beneficiaries, or enrollees with price and quality information to help select high-value imaging

services found an increase in the use of lower-cost facilities.

This consumer behavior prompted

higher-cost facilities to lower their prices, which resulted in a 30 percent reduction in the price

variation between low- and high-cost facilities.

These studies, as well the numerous studies

highlighted in subsequent sections of this rule, offer substantial evidence that price transparency

in health care markets will result in consumer benefits similar to those that result from

transparency in other markets.

5. The final rules will fill gaps left by state and private transparency efforts.

Currently, the information that consumers need to make informed decisions based on the

prices of health care services is not readily available or is presented in a manner that makes it

Id.

Lieber, E. “Does It Pay to Know Prices in Health Care?” American Economic Journal: Economic Policy.

February 2017. Available at https://pubs.aeaweb.org/doi/pdfplus/10.1257/pol.20150124.

Wu, S. J. et al. “Price transparency for MRIs increased use of less costly providers and triggered provider

competition.” Health Affairs. August 2014. Available at:

https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2014.0168.

Id.

CMS-9915-F 19

challenging to understand. As noted in the preamble to the proposed rules, the 2011 Government

Accountability Office (GAO) report, “Health Care Price Transparency: Meaningful Price

Information is Difficult for Consumers to Obtain Prior to Receiving Care,” found that the lack of

transparency in health care prices, coupled with the wide pricing disparities for particular

procedures within the same market, can make it difficult for consumers to understand health care

prices and to shop effectively based on cost.

The report also explored various price

transparency initiatives, including tools that consumers could use to generate price estimates

before receiving a health care service. The report notes that pricing information displayed by

tools varies across initiatives, in large part due to limits reported by the initiatives in their access

or authority to collect certain necessary price data. In particular, the report notes the lack of

public disclosure of rates negotiated between providers and third-party payers. The GAO report,

therefore, recommended that HHS determine the feasibility of, and the next steps for, making

estimates of out-of-pocket costs for health care services available to consumers.

States have been at the forefront of transparency initiatives and have adopted a variety of

approaches to improve price transparency.

More than half of the states have passed legislation

establishing price transparency websites or mandating that health plans, hospitals, or physicians

make pricing information available to patients.

For example, as of September 2020, thirty one

84 FR 65464, 65466-65467 (Nov. 27, 2019); see also GAO-11-791 at p. 28 (Sep. 2011).

De Brantes, F., et al. “Price Transparency & Physician Quality Report Card 2017.” Catalyst for Payment Reform.

Available at: https://www.catalyze.org/product/2017-price-transparency-physician-quality-report-card/.

Frakt, A., and Mehrotra, A. “What Type of Price Transparency Do We Need in Health Care?” Annals of Internal

Medicine. April 16, 2019. Available at: https://www.acpjournals.org/doi/10.7326/M19.

CMS-9915-F 20

states have enacted laws that provide participants, beneficiaries, and enrollees with at least

partial protection against the practice of “balance billing.”

At least eighteen states have All-

Payer Claims Databases. However, state transparency requirements are generally not applicable

to self-insured group health plans, which cover approximately 58.7 percent of private-sector

workers.

As a result, the data collected under state law does not include data from self-insured

plans, and a significant portion of consumers may not have access to information on their plans.

In response to state action and consumer demands for more information on health care

pricing, and to align with increased price transparency in other markets, health insurance issuers

and self-insured plans have moved to increase price transparency. For example, some plans are

using price transparency tools to incentivize employees to make cost-conscious decisions when

purchasing health care services. Most large issuers have comparative cost information, which

includes rates that plans and issuers have negotiated with in-network providers and suppliers.

However, many existing tools are either insufficient in the amount of detail they provide

or the level of accuracy available. In order to expand price transparency to all consumers,

federal action is therefore necessary to establish standards and universal access to this

information. In preparation for writing the proposed rules, the Departments met with over 50

Kona, M. “State Balance-Billing Protections.” The Commonwealth Fund. September 16, 2020. Available at:

https://www.commonwealthfund.org/publications/maps-and-interactives/2020/sep/state-balance-billing-protections

“Report to Congress: Self-Insured Health Benefit Plans 2019: Based on Filings through Statistical Year 2016.”

March, 2019. Available at: https://www.dol.gov/sites/dolgov/files/EBSA/researchers/statistics/retirement-

bulletins/annual-report-on-self-insured-group-health-plans-2019.pdf; see also Fronstin, P. “Self-Insured Health

Plans: Recent Trends by Firm Size 1996-2018.” Employee Benefit Research Institute. No. 488. August 1, 2019.

Available at: https://www.ebri.org/docs/default-source/ebri-issue-brief/ebri_ib_488_selfinsur-

1aug19.pdf?sfvrsn=bd7e3c2f_6.

CMS-9915-F 21

stakeholders including plans, issuers, and third-party tool developers. Several stakeholders

provided demonstrations of their tools to the Departments. The Departments note that over 90

percent of plans offer some version of a price comparison tool.

However, many of the plans

and issuers that the Departments met with, who did not have a tool serve large portions of

participants, beneficiaries, and enrollees. It is therefore the Departments’ understanding that

there are still millions of insured Americans that do not have access to any type of health care

pricing tool. Also based on these demonstrations, the Departments are of the view that many

price transparency tools on the market only offer wide-range estimates or average estimates of

pricing that use historical claims data and do not always take into account the accumulated

amount a participant, beneficiary, or enrollee has paid toward their deductible or out-of-pocket

limit (sometimes referred to as an “accumulator”). The Departments are of the view that wide-

range estimates are of limited value to consumers, given that they may not accurately reflect an

individual’s plan design and benefits, and that ranges should be replaced by actual estimated out-

of-pocket costs, in order to allow the consumer to meaningfully predict costs. In addition, the

inclusion of negotiated rates in these tools could help show the changes to a participant’s,

beneficiary’s, or enrollee’s costs if they have a future need for the same service, conditioned on

the level of fulfillment of any cost-sharing responsibilities. This could help the consumer better

understand the full value of the health care they are considering and how the cost may be

“Study: Health Plans Implement Price Transparency Tools for Consumers.” ACA International. April 2016.

Available online at: https://www.expressrecovery.com/file/86c228ef-245f-45cb-abd7-a30edbdec1f3.

CMS-9915-F 22

different in the future when the participant’s, beneficiary’s, or enrollee’s accumulator resets in a

new plan year. Information on quality and results are also important for assessing the value of

care.

Through this increased availability of information and consumer comprehension,

transparent pricing can apply pressure on providers to demonstrate and improve quality and

health care results. Providers may likely then be in the position of having to justify their costs

relative to alternative options.

The Departments are of the view that existing price transparency tools often function in a

way that makes them difficult for users to navigate. These tools often display information that

makes it difficult to compare one plan against another, understand the scope of services covered

and their costs, and interpret the terminology plans and issuers use. Consumers may be

discouraged by these difficult user interfaces and may be less likely to make fully informed

decisions with their healthcare choices. Research demonstrates that poor or confusing user

interfaces will lead users to abandon engagement with the hosting website.

The Departments

are of the view that it is important to establish a minimum set of standards regarding what is

acceptable so that consumers can fully utilize all relevant information. Tools that provide

consistent information to every consumer across all markets, and that base cost estimates on

accurate and recent information, will be a significant improvement over all or most existing

options. Accuracy and consistency are intended to give consumers confidence that the

information presented by these tools will not change significantly from the prices they are

ultimately charged. Reliability should assure consumers that information in these tools

See additional discussion of quality information in section II.C.1 of the preamble.

Georgiou, M. “User Experience Is the Most Important Metric You Aren’t Measuring.” Entrepreneur. March 1,

2018. Available at: https://www.entrepreneur.com/article/309161.

CMS-9915-F 23

accurately reflects plans’ and issuers’ best estimates of consumer out-of-pocket costs. The

availability of these tools across most private markets will ensure broad access for all

participants, beneficiaries, or enrollees to the intended outcomes and potential benefits of the

final rules. The Departments anticipate that participants, beneficiaries, and enrollees will

become accustomed to having access to this standardized information, no matter what private

market plan or coverage they choose, which will make them more comfortable with using this

information in health care purchasing decisions. The Departments further anticipate and

encourage plans and issuers to include additional functionality and innovation in existing price

transparency tools, but a baseline is necessary to give participants, beneficiaries, and enrollees

the confidence that, regardless of the tool they use, they can expect the same standard

information and functionality.

C. Stakeholder Feedback and Prior Actions in Support of Transparency

In the HHS 2020 Notice of Benefit and Payment Parameters (2020 Payment Notice)

proposed rule,

HHS sought input on ways to provide consumers with greater transparency

regarding their own health care data, QHP offerings on the Federally-facilitated Exchanges

(FFEs), and the cost of health care services.

Additionally, HHS sought comment on ways to

further implement section 1311(e)(3) of PPACA, as implemented by 45 CFR 156.220(d), under

which, upon the request of an enrollee, a QHP issuer must make available in a timely manner the

amount of enrollee cost sharing under the enrollee's coverage for a specific service furnished by

an in-network provider. HHS was particularly interested in what types of data would be most

84 FR 227 (Jan. 24, 2019).

The term “Exchanges” means American Health Benefit Exchanges established under section 1311 of PPACA.

See section 2791(d)(21) of the PHS Act.

CMS-9915-F 24

useful to improving consumers’ abilities to make informed health care decisions, including

decisions related to their coverage specifications and ways to improve consumer access to

information about health care costs.

Commenters on the 2020 Payment Notice overwhelmingly supported the idea of

increased price transparency. Many commenters provided suggestions for defining the scope of

price transparency requirements, such as providing costs for both in-network and out-of-network

health care, and providing health care cost estimates that include an accounting for consumer-

specific benefit information, like progress toward meeting deductibles and annual limitations on

cost sharing, as well as remaining visits under visit limits. Commenters expressed support for

implementing price transparency requirements across all private markets and for price

transparency efforts to be a part of a larger payment reform effort and a provider empowerment

and patient engagement strategy. Some commenters advised HHS to carefully consider how

such policies should be implemented, warning against federal duplication of state efforts and

requirements that would result in plans and issuers passing along increased administrative costs

to consumers and cautioning that the proprietary and competitive nature of payment data should

be protected.

In the summer and fall of 2018, HHS hosted listening sessions related to the goal of

empowering consumers by ensuring the availability of useable pricing information. The

listening sessions included a wide representation of stakeholders including providers, issuers,

researchers, and consumer and patient advocacy groups. Attendees noted that currently available

CMS-9915-F 25

pricing tools are underutilized, in part because consumers are often unaware that they exist,

and

even when used, the tools sometimes convey inconsistent and inaccurate information.

Attendees also commented that tool development could be expensive, especially for

smaller health plans, which tend to invest less in technology because of the limited return on

investment. Attendees further commented that most tools developed to date do not allow for

comparison shopping. Attendees stated that existing tools usually use historical claims data,

which results in broad, sometimes regional, estimates, rather than accurate and individualized

prices. In a national study, there was alignment among patients, employers, and providers in

wanting to know and discuss the cost of care at the point of service.

However, attendees noted

pricing tools are rarely available when and where consumers are likely to make health care

decisions, for example, during interactions with providers. Thus, patients are not able to

consider relevant cost issues when discussing referral options or the tradeoffs of various

treatment options with referring providers. With access to patient-specific cost estimates for

services furnished by particular providers, referring providers and their patients could take

pricing information into account when considering clinically appropriate treatment options.

Separately, CMS has met with members from several state Departments of Insurance to discuss

the limits to state authority to require price transparency in a meaningful way and the benefits

and drawbacks of All Payer Claims Databases (APCDs). During these discussions, it became

clear that APCDs’ reliance on historical claims data that is not necessarily linked to a specific

Miller, S. “Healthcare Shopping Tools Often Go Unused.” Society for Human Resource Management. May 19,

2016. Available at: https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/health-care-shopping.aspx.

“Let’s Talk About Money.” University of Utah Health Home. Available at:

https://uofuhealth.utah.edu/value/lets-talk-about-money.php.

CMS-9915-F 26

plan or issuer limits the utility of such databases for consumers. These conversations helped

clarify the types of price transparency information necessary to empower consumers.

CMS has pursued initiatives in addition to the final rules to improve access to the

information necessary to empower consumers to make more informed decisions about their

health care costs, including a multi-step effort to implement section 2718(e) of the PHS Act.

Section 2718(e) of the PHS Act requires each hospital operating within the United States, for

each year, to establish (and update) and make public (in accordance with guidelines developed

by the Secretary of HHS) a list of the hospital’s standard charges for items and services provided

by the hospital, including for diagnosis-related groups established under section 1886(d)(4) of

the Social Security Act (SSA). In the Fiscal Year (FY) 2015 Hospital Inpatient Prospective

Payment System and Long-Term Care Hospital Prospective Payment System (IPPS/LTCH PPS)

proposed and final rules, CMS reminded hospitals of their obligation to comply with the

provisions of section 2718(e) of the PHS Act and provided guidelines for its implementation.

At that time, CMS required hospitals to either make public a list of their standard charges or their

policies for allowing the public to view a list of those charges in response to an inquiry. In

addition, CMS stated that it expected hospitals to update the information at least annually, or

more often as appropriate, to reflect current charges. CMS also encouraged hospitals to

undertake efforts to engage in consumer-friendly communication of their charges to enable

79 FR 27978, 28169 (May 15, 2014) and 79 FR 49854, 50146 (Aug. 22, 2014), respectively.

CMS-9915-F 27

consumers to compare charges for similar services across hospitals and to help them understand

what their potential financial liability might be for items and services they obtain at the hospital.

In the FY 2019 IPPS/LTCH PPS proposed and final rules, CMS again reminded hospitals

of their obligation to comply with section 2718(e) of the PHS Act and announced an update to its

guidelines.

The updated guidelines, which have been effective since January 1, 2019, require

hospitals to make available a list of their current standard charges (whether in the form of a

“chargemaster” or another form of the hospital’s choice) via the internet in a machine-readable

format and to update this information at least annually, or more often as appropriate.

In response to stakeholder feedback and in accordance with Executive Order 13877,

issued on June 24, 2019,

CMS took another important step toward improving health care value

and increasing competition in the Calendar Year 2020 Hospital Outpatient Policy Payment

System (OPPS) Policy Changes and Payment Rates and Ambulatory Surgical Center Payment

System Policy Changes and Payment Rates: Price Transparency Requirements for Hospitals to

Make Standard Charges Public final rule (Hospital Price Transparency final rule) by codifying

regulatory requirements that implement section 2718(e) of the PHS Act, as well as a regulatory

scheme under section 2718(b)(3) of the PHS Act that enables CMS to enforce those

requirements.

The price transparency disclosure requirements that CMS finalized in the

Hospital Price Transparency final rule will be effective on January 1, 2021, and they require

hospitals to make publicly available, as applicable, their gross charges (as found in the hospital’s

83 FR 20164, 20548 (May 7, 2018) and 83 FR 41144, 41686 (Aug. 17, 2018), respectively.

84 FR 30849 (Jun. 27, 2019). The Executive Order was issued on June 24, 2019 and was published in the Federal

84 FR 65524 (Nov. 27, 2019).

CMS-9915-F 28

chargemaster), payer-specific negotiated charges, discounted cash prices, and de-identified

minimum and maximum negotiated charges for all items and services they provide through a

single online machine-readable file that is updated at least once annually. Additionally, the

Hospital Price Transparency final rule requires hospitals to display online in a consumer-friendly

format, as applicable, the payer-specific negotiated charges, discounted cash prices (or, to the

extent one does not exist for a shoppable service, the undiscounted gross charge) and de-

identified minimum and maximum negotiated charges for as many of the 70 shoppable services

selected by CMS that the hospital provides and as many additional hospital-selected shoppable

services as are necessary for a combined total of at least 300 shoppable services (or if the

hospital provides fewer than 300 shoppable services, then for as many as the hospital provides).

The rule defines a shoppable service as a service that can be scheduled by a health care consumer

in advance and further explains that a shoppable service is typically one that is routinely

provided in non-urgent situations that does not require immediate action or attention to the

patient, thus allowing patients to price shop and schedule such a service at a time that is

convenient for them.

In addition to making pricing information available for items and services provided by

hospitals, the Administration has also been engaged in increasing transparency of prescription

drug pricing and lowering the costs of prescription drugs. Four Executive Orders direct CMS

and other HHS agencies to develop and issue tools, models, and several regulations to increase

84 FR 65524, 65564 (Nov. 27, 2019).

CMS-9915-F 29

competition and lower patients’ drug costs.

The actions directed in these Executive Orders

supplement those CMS has already taken to increase drug-pricing transparency and lower drug

costs. Through the Drug Spending Dashboard, CMS publishes data on Medicare and Medicaid

spending for prescription drugs in an interactive web-based tool so researchers and consumers

can easily sort the data to identify trends. Over the past four years, CMS has expanded this

dashboard to include reporting on payments for prescription drugs in their first year on the

market and information on the drugs’ manufacturers.

Through the Part D Senior Savings

model, beginning January 1, 2021, CMS is testing a change to the Manufacturer Coverage Gap

Discount Program (the “discount program”) to allow Part D sponsors to offer a Part D benefit

design that includes predictable copays in the deductible, initial coverage, and coverage gap

phases for a broad range of insulins included in the Model by offering supplemental benefits that

apply after manufacturers provide a discounted price.

“Trump Administration Announces Historic Action to Lower Drug Prices for Americans.” United States

Department of Health and Human Services. July 24, 2020. Available at:

https://www.hhs.gov/about/news/2020/07/24/trump-administration-announces-historic-action-lower-drug-prices-

americans.html.

“CMS Releases Enhanced Drug Dashboards Updated with Data for 2018.” Centers for Medicare & Medicaid

Services.” December 19, 2019. Available at: https://www.cms.gov/newsroom/press-releases/cms-releases-

enhanced-drug-dashboards-updated-data-2018; see also “CMS Updates Drug Dashboards with Prescription Drug

Pricing and Spending Data.” Centers for Medicare & Medicaid Services. March 14, 2019. Available at:

https://www.cms.gov/newsroom/press-releases/cms-updates-drug-dashboards-prescription-drug-pricing-and-

spending-data.

“Part D Senior Savings Model.” Centers for Medicare & Medicaid Services. Available online at:

https://innovation.cms.gov/innovation-models/part-d-savings-model.

CMS-9915-F 30

CMS issued regulations addressing prescription drug transparency,

including a

regulation implementing the statutory prohibition on pharmacist gag clauses,

helping to ensure

patients have information on lower cost alternatives or that they can save money by paying cash.

As part of the Calendar Year (CY) 2018 Medicare Physician Fee Schedule, CMS adopted a

policy that all FDA-approved Part B biosimilars would be assigned their own HCPCS codes.

Under this revised coding policy, CMS pays for separately payable Part B biosimilars based on

its own Average Sales Price (ASP) plus 6 percent of the ASP of its reference product. This

policy change was made to promote a stable and robust biosimilars market that drives

competition and lowers prices.

In the CY 2019 Medicare Advantage and Part D final rule, CMS adopted a policy to

allow for certain low-cost generic drugs to be substituted onto plan formularies at any point

during the year, so beneficiaries immediately benefit and have lower cost sharing.

The

Modernizing Part D and Medicare Advantage To Lower Drug Prices and Reduce Out-of-Pocket

Expenses rule

finalized in May 2019 requires Part D plans to implement, no later than

See 84 FR 23832 (May 23, 2019) (HHS final rule finalizing policies that aimed to “increase transparency of drug

pricing and drug price increases, giv[e] beneficiaries and prescribers tools to help improve adherence, lower

prescription drug costs, and minimize beneficiary out-of-pocket costs”); see, for example, 42 CFR 423.128

(requiring additional information in Part D explanations of benefits to increase transparency); 42 CFR 423.160

(requiring adoption of e-prescribing standards to increase transparency).

42 CFR 423.120(9a)(8)(iii); see also Verma, S. “Memorandum to All Part D Plan Sponsors: Unacceptable

Pharmacy Gag Clauses.” Centers for Medicare & Medicaid Services. May 17, 2018. Available at:

https://downloads.cms.gov/files/2018-05-17.pdf

“CMS lowers the cost of prescription drugs for Medicare beneficiaries.” Centers for Medicare & Medicaid

Services. April 2, 2018. Available at: https://www.cms.gov/newsroom/press-releases/cms-lowers-cost-prescription-

drugs-medicare-beneficiaries.

84 FR 23832 (May 23, 2019).

CMS-9915-F 31

January 1, 2021, a real-time benefit tool that can be integrated into at least one prescriber’s

electronic prescribing or EHR system to provide patient-specific formulary and benefit

information, including cost sharing.

The rule also requires that beginning January 2021, the

Explanation of Benefits document that Part D enrollees receive each month must include

information on drug price increases and lower-cost therapeutic alternatives. In June 2020, CMS

proposed

further policy changes that would begin removing barriers to value-based purchasing

arrangements between drug manufacturers and payers.

Value-based payments for prescription

drugs has the potential to increase patient access to new medicines by holding prescription drug

manufacturers accountable for outcomes their drug achieves, as well as creating alternatives to

traditional cost controls that may impede patient access.

As part of its effort to incentivize states to pursue innovative responses to rising drug

prices, CMS approved nine states’ (and the District of Columbia’s) plan amendment proposals to

negotiate supplemental rebate agreements involving value-based purchasing arrangements with

“CMS Takes Action to Lower Prescription Drug Prices and Increase Transparency.” Centers for Medicare &

Medicaid Services. May 16, 2019. Available at: https://www.cms.gov/newsroom/press-releases/cms-takes-action-

lower-prescription-drug-prices-and-increase-transparency.

“Establishing Minimum Standards in Medicaid State Drug Utilization Review (DUR) and Supporting Value-

Based Purchasing (VBP) for Drugs Covered in Medicaid, Revising Medicaid Drug Rebate and Third Party Liability

(TPL) Requirements (CMS 2482-P) Fact Sheet. Centers for Medicare & Medicaid Services. June 17, 2020.

Available at:

https://www.cms.gov/newsroom/fact-sheets/establishing-minimum-standards-medicaid-state-drug-

utilization-review-dur-and-supporting-value-based.

85 FR 37286 (Jun. 19, 2020).

Verma, S. “CMS’s Proposed Rule On Value-Based Purchasing For Prescription Drugs: New Tools For

Negotiating Price For The Next Generation Of Therapies.” Health Affairs. June 17, 2020. Available at:

https://www.healthaffairs.org/do/10.1377/hblog20200617.728496/full/

CMS-9915-F 32

drug manufacturers.

These supplemental rebate agreements allow states to link payment for

prescription drugs to the value delivered to patients. Increasing states’ flexibility empowers

them to develop policies that are effective and responsive to local conditions and price “hot

spots” that lower costs, increase the predictability of expenses, and improve access for patients.

As it currently stands, and despite ongoing Federal efforts to improve price transparency,

there continues to be a lack of standardized pricing information to assist consumers in the private

market when shopping for health care items and services. While there are several efforts across

states, 33 still do not have comprehensive statewide price transparency initiatives,

and as noted

earlier, sometimes cannot legally require private market plans and issuers to provide real-time,

out-of-pocket cost estimates to participants, beneficiaries, and enrollees.

The Departments have concluded that the Hospital Price Transparency final rule and the

other efforts described earlier in this section cannot result in enrollees receiving complete price

estimates for health care items and services because, as the GAO concluded, complete price

estimates require pricing information from both providers and health insurance issuers.

other words, this rule complements existing State, Federal, and private sector price transparency

efforts by ensuring that pricing information is available from both hospitals and payers in both

the public and private markets and by expanding transparency to pricing information for health

care items and services provided outside of a hospital setting. As a result of these rules,

regardless of where a consumer seeks information, be it their plan or issuer, or their hospital,

“Medicaid State Plan Amendments.” Centers for Medicare & Medicaid Services. Available online at:

https://www.medicaid.gov/medicaid/medicaid-state-plan-amendments/index.html.

LaPointe, J. “Few States Have Robust Healthcare Transparency Laws.” RevCycle Intelligence. May 11, 2020.

Available at: https://revcycleintelligence.com/news/few-states-have-robust-healthcare-price-transparency-laws.

GAO-11-791 (Sep. 2011).

CMS-9915-F 33

they will have guaranteed access to up to date and accurate pricing information. In addition,

because section 2718(e) of the PHS Act applies only to items and services provided by hospitals

the Hospital Price Transparency final rule does not address price transparency with respect to

items and services provided by other health care providers. Accordingly, the Departments have

concluded that additional price transparency efforts are necessary and required under the statute

to empower a more price-conscious and responsible health care consumer, promote competition

in the health care industry, and lower the overall rate of growth in health care spending.

The Departments are of the view that the disclosures required under the final rules are

necessary and appropriate to more fully implement section 2715A of the PHS Act and section

1311(e)(3)(C) of PPACA to ensure that consumers have ready access to the information they

need to estimate their potential out-of-pocket costs for health care items and services before that

service is rendered or that item is delivered. The final rules are also intended to empower

consumers by incentivizing market innovators to help consumers understand how their plan or

coverage pays for health care and to shop for health care items and services based on price,

which is a fundamental factor in any purchasing decision.

D. Executive Order

On June 24, 2019, President Trump issued Executive Order 13877, “Executive Order on

Improving Price and Quality Transparency in American Healthcare to Put Patients First.”

This view is consistent with the legislative history of PPACA. As initially introduced in the Senate on November

19, 2009, PPACA included only the requirement on hospitals to disclose standard charges included in section 2718.

On December 1, 2009, in comments supporting the hospital transparency requirement, Sen. Max Baucus noted, “I

think the same should also apply to physicians so people have a better idea what they will pay or their insurance

company will pay for these procedures.” https://www.congress.gov/111/crec/2009/12/08/CREC-2009-12-08.pdf

Sections 2715A and 1311(e)(3)(C) were then amended to PPACA on December 19 in the final managers

amendment before passage in the Senate. Available at: https://www.congress.gov/111/crec/2009/12/19/CREC-

2009-12-19.pdf.

CMS-9915-F 34

Section 3(b) of Executive Order 13877 directed the Secretaries of the Departments to issue an

advance NPRM (ANPRM), consistent with applicable law, soliciting comment on a proposal to

require health care providers, health insurance issuers, and self-insured group health plans to

provide or facilitate access to information about expected out-of-pocket costs for items or

services to patients before they receive care. The Departments considered the issue, including by

consulting with stakeholders, and determined that an NPRM, rather than an ANPRM, would

allow for more specific and useful feedback from commenters, who would be able to respond to

specific proposals.

E. Proposed Rules

In response to Executive Order 13877 and to also implement legislative mandates under

sections 1311(e)(3) of PPACA and section 2715A of the PHS Act, the Departments published an

NPRM entitled “Transparency in Coverage” on November 27, 2019 (to be codified at 26 CFR

part 54, 29 CFR part 2590, and 45 CFR part 147) (the proposed rules) with comments requested

by January 14, 2020.

In response to requests from stakeholders, the Departments extended the

comment period 15 days, to January 29, 2020.

The proposed rules set forth proposed

requirements for group health plans and health insurance issuers in the individual and group

markets to disclose cost-sharing information upon request to a participant, beneficiary, or

enrollee, including an estimate of an individual’s cost-sharing liability for covered items or

services furnished by a particular provider. The Departments proposed that plans and issuers be

required to make such information available on an internet website and, if requested, through

84 FR 65464 (Nov. 27, 2019).

85 FR 276 (Jan. 3, 2020).

CMS-9915-F 35

non-internet means, thereby allowing a participant, beneficiary, or enrollee to obtain an estimate

and understanding of the individual’s out-of-pocket expenses and effectively shop for items and

services. The proposed rules also included proposals to require plans and issuers to disclose in-

network provider negotiated rates, and historical out-of-network allowed amounts through two

machine-readable files posted on an internet website, thereby allowing the public to have access

to health coverage information that can be used to understand health care pricing and potentially

dampen the rise in health care spending.

The proposed rules also included requests for information (RFIs) on topics closely related

to the rulemaking. Due to the design and capability differences among the information

technology (IT) systems of plans and issuers, as well as difficulties consumers experience in

deciphering information relevant to health care and health insurance, the Departments sought

comment on additional price transparency requirements that could supplement the proposed

requirements for disclosing cost-sharing information to participants, beneficiaries, or enrollees

and the proposed requirements for public disclosure of negotiated rates and historical allowed

amount data for covered items and services from out-of-network providers. Specifically, the

Departments sought comment on whether plans and issuers should be required to disclose

information necessary to calculate a participant’s, beneficiary’s, or enrollee’s cost-sharing

liability through a publicly-available, standards-based application programming interface (API).

Such a requirement would build off a final rule, “Medicare and Medicaid Programs;

Patient Protection and Affordable Care Act; Interoperability and Patient Access for Medicare

Advantage Organization and Medicaid Managed Care Plans, State Medicaid Agencies,

Children’s Health Insurance Program (CHIP) Agencies and Chip Managed Care Entities, Issuers

of Qualified Health Plans in the Federally-Facilitated Exchanges and Health Care Providers”

CMS-9915-F 36

(CMS Interoperability & Patient Access final rule), that CMS published on May 1, 2020.

That

rule requires Medicare Advantage organizations, Medicaid and CHIP Fee-for-Service programs,

Medicaid managed care plans, CHIP managed care entities, and QHP issuers in the FFEs to

provide enrollees with access to select data, including claims data, through a standards-based

API that conforms to the technical standards adopted in the Office of the National Coordinator

for Health Information Technology (ONC) 21

Century Cures Act final rule at 45 CFR 170.215.

The CMS Interoperability & Patient Access final rule requires certain entities, such as FFE QHP

issuers, to provide certain data through a standards-based API. The Departments appreciate the

comments received in response to the API RFI and will use the comments to inform the need for

future rulemaking regarding whether plans and issuers should be required to disclose information

necessary to calculate cost-sharing liability through a publicly-available, standards-based API.

HHS will also monitor the implementation of the CMS Interoperability & Patient Access final

rule to inform any such future rulemaking.

The proposed rule also included RFIs on how provider quality measurements and

reporting in the private health insurance market may be used to complement cost-sharing

information for plans and issuers in the private health insurance market. The Departments

sought comment on how existing quality data on health care provider items and services could be

leveraged to complement the proposals in the proposed rules. The primary goal of the proposed

and final rules is making information available to address the absence of price transparency in

the health care market; the final rules do not address health care quality at this time.

85 FR 25510 (May 1, 2020).

CMS-9915-F 37

HHS also proposed to amend its MLR program rules using the authority under section

2718(c) of the PHS Act, under which the standardized methodologies for calculating measures of

the activities reported under section 2718(a) of the PHS Act shall be designed to take into

account the special circumstances of smaller plans, different types of plans, and newer plans.

Specifically, HHS proposed to recognize the special circumstances of a different and newer type

of plan for purposes of MLR reporting and calculations for plans that share savings with

consumers who choose lower-cost, higher-value providers. HHS proposed to amend 45 CFR

158.221 to add a new paragraph (b)(9) to allow any such “shared savings” payments made by an

issuer to an enrollee as a result of the enrollee choosing to obtain health care from a lower-cost,

higher-value provider, to be factored into an issuer’s MLR numerator, beginning with the 2020

MLR reporting year (for reports filed by July 31, 2021).

The Departments requested comments on all aspects of the proposed rules, as well as a

number of specific issues. The Departments received over 25,000 comments in response to the

proposed rules from a range of stakeholders, including plans and issuers, health care providers,

prescription drug companies, employers, state regulators, health IT companies, health care policy

organizations and think tanks, and individuals. No requests for a public hearing were received.

The Departments received a number of comments and suggestions that were outside the scope of

the proposed rules that are not addressed in the final rules (for example, regarding hospital

prices, other methods for reducing health care and prescription drug costs, consumer education

and provider directories). After careful consideration of the comments, the Departments are

finalizing the proposed rules with certain modifications made in response to comments. These

modifications are discussed later in this preamble.

CMS-9915-F 38

F. Legal Authority

Several commenters questioned the Departments’ legal authority regarding various

aspects of the proposed rules. The Departments are of the view that the legal authorities

identified earlier in this preamble are sufficient to support the final rules.

1. Statutory authority under section 1311(e)(3) of PPACA

Several commenters contended that section 1311(e)(3)(A)(ix) of PPACA does not give

the Departments statutory authority to require that plans and issuers make the rates they have

negotiated with providers and out-of-network allowed amounts publicly available. The

commenters noted that section 1311(e)(3)(A) of PPACA enumerates eight specific categories of

information subject to the transparency in coverage mandate followed by a ninth “catchall”

category consisting of “other information as determined appropriate by the Secretary.”

These

commenters maintained that the Secretary of HHS’s authority under section 1311(e)(3)(A)(ix) of

PPACA is insufficient to support a requirement to publicize negotiated rates because they are not

sufficiently similar to the other categories of information identified under section 1311(e)(3)(A)

of PPACA.

The Departments disagree with these comments and are of the view that the information

required to be disclosed under this rule fits squarely within the scope of information that plans

and issuers may be required to disclose under section 1311(e)(3)(A)(ix) of PPACA and section

2715A of the PHS Act. Section 1311(e)(3)(A)(i) to (viii) of PPACA outlines specific

information and data that must be submitted to the Exchange, the Secretary of HHS, the relevant

State insurance commissioner, and the public on an accurate and timely basis. In addition,

See section 1311(e)(3)(A)(i) through (viii) of PPACA.

CMS-9915-F 39

section 1311(e)(3)(A)(ix) of PPACA requires health plans to submit “other information as

determined appropriate by the Secretary.” Under established principles of statutory construction,

when a general term follows a list of specific terms in a statute, the general term is construed to

encompass subjects of a similar character to the specific terms. The principle of ejusdem generis

guides courts in evaluating a catch-all at the end of a list. Therefore, when a statute allows an

implementing agency to exercise its discretion by adding additional items to a list, the

implementing agency is empowered to add additional items as long as those items are of similar

character to the items enumerated in the statute.

In this case, the statutory list includes

information and data useful to evaluate the coverage offered by plans and issuers with an

emphasis on business practices, financial stability, and consumer experience. The list also

includes information useful to regulators and the public in general to evaluate plans’ and issuers’

business practices and activity in the market. Given that the list includes some disclosures that

are more immediately useful to individual consumers and others that are more immediately

useful to regulators, the catchall provision is reasonably and best read as Congress’ recognition

that the Secretary of HHS (and, therefore, the Departments, by virtue of their joint authority

under section 2715A of the PHS Act) would need broad flexibility to require the disclosure of

information as appropriate to deliver the transparency necessary for consumers to understand

their coverage options and for regulators to hold plans and issuers accountable.

See Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 128-29 (1991).

CMS-9915-F 40

It is important to note that Congress considered one amendment that would have only

required public disclosure at least annually of in-network allowed charges and expected allowed

charges for out of network without allowing the Secretary discretion to add to the content of the

required disclosure.

Instead of adopting this prescriptive approach, Congress required public

disclosure of a broader set of information that similarly included payments for out-of-network

services, as well as providing the Secretary discretion to require disclosure of other information.

While Congress did not specifically include in-network allowed charges in the provision enacted,

the discretion they provided suggests they understood that the Secretary might later find that

requiring the disclosure of additional information, including information considered by

Congress, might be useful and appropriate. That Congress considered and rejected a more

prescriptive approach strongly suggests Congress intended that the Secretary have the ability to

mandate more particularized disclosures in the future, including the disclosure of in-network

negotiated rates.

A plan’s or issuer’s negotiated rates provide important information to help consumers

both evaluate their options before buying coverage and, after choosing coverage, evaluate how to

use their coverage when they need care. Those shopping for coverage will benefit from knowing

how effectively a plan or issuer negotiates rates; for example, by comparing the rates one plan or

issuer pays a provider for a particular item or service that this consumer knows they, or their

family, will need in the future, which can then allow them to shop and compare which plans and

Congressional Record 155: 183 (December 8, 2009) p. S12716. Available at:

https://www.congress.gov/111/crec/2009/12/08/CREC-2009-12-08-senate.pdf.

See, for example, Lehman v. Nakshian, 453 U.S. 156, 167-8 (1981) (citing a rejected amendment to a federal

statute as evidence of Congressional intent).

CMS-9915-F 41

issuers offer the most value. Once coverage is obtained, knowing negotiated rates upfront will

ensure consumers covered under a variety of plan designs and coverage options to, in each case,

have access to the information they need to obtain health care services in an efficient, cost-

effective manner, when considering available options for a shoppable service. As discussed

earlier in this preamble, making negotiated rates public also strengthens other health care

stakeholders’ ability to support consumers. Because negotiated rates provide important

information to help people—including consumers, regulators and the general public—evaluate

the coverage offered by a plan or issuer, it clearly falls within the scope of information already

required under section 1311(e)(3)(A) of PPACA. As discussed in more detail later in this

section, out-of-network allowed amounts likewise provide vital information to help evaluate

coverage.

Out-of-network allowed charges also provide consumers with important information.

Consumers may opt for out-of-network services for numerous reasons, such as the unavailability

of an in-network provider who can meet certain medical needs, an existing relationship with an

out-of-network provider, the recommendation of another provider, or personal convenience.

Disclosure of estimates of out-of-network allowed amounts is essential to the ability of

consumers considering out-of-network services to form an estimate of their potential liability.

Limiting transparency in pricing requirements to only providers under contract with a carrier

would prevent transparency for all such services, contrary to the plain language of the statute.

Indeed, the language of the statute (for example, the requirement of section 1311(e)(3)(B) of

PPACA that the intended audience, including individuals with limited English proficiency, can

Section 1311(e)(3)(A)(vii) of PPACA.

CMS-9915-F 42

readily understand and use because that language is concise, well-organized, and follows other

best practices of plain language writing) indicates an intention to assist consumers by enhancing

their ability to make cost-conscious decisions; this is an essential component of establishing and

maintaining robust market competition with costs that are reasonable and plausibly tethered to

standard market discipline. As the preamble to the proposed rules observed, there is substantial

evidence that increased price transparency provides consumers and the public at large with the

information that is necessary to improve market efficiency.

For these reasons, the Departments

are of the view that requiring disclosure of estimates of out-of-network allowed amounts, which

reflect out-of-network benefits under a plan, is well within both the text and spirit of the statute

and its aims to assist consumers in selecting providers, evaluating market options, increasing

competition, and reducing market disparities. The Departments have identified these

requirements as beneficial to the ongoing efforts of employers and regulators to aid consumers,

and as consistent with the goals of the statute; thus, the Departments reject the assertion of

commenters that these purposes are beyond the scope of the statute.

Several commenters asserted that the specific justifications the Departments cite as

support for mandating the disclosure of negotiated rates are unrelated to the purposes authorized

by statute. They asserted that those purposes – assisting consumers in selecting health care

84 FR 65464, 65489, 65495 (Nov. 27, 2019); see also Austin, D.A., and Gravelle, J. G. “Does Price

Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Healthcare

Sector.” United States Congress Congressional Research Service. July 24, 2007. Available at:

https://fas.org/sgp/crs/secrecy/RL34101.pdf

; see also Brown, Z. Y. “Equilibrium Effects of Health Care Price

Information.” 100 R

EV. ECON. & STAT. 1 (2018). Available at: http://www-

personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf; see also Enthoven, A. Market Forces and

Efficient Health Care Systems. Health Affairs, Vol. 23, No. 2. Available at

https://www.healthaffairs.org/doi/full/10.1377/hlthaff.23.2.25.

CMS-9915-F 43

providers, assisting consumers in evaluating options in the market, increasing competition and

reducing disparities in the market, assisting employers, and assisting state regulators – have no

relationship to the statutory purpose of providing transparency in coverage for consumers.

Moreover, commenters stated that the statute does not authorize the use of price transparency

mechanisms to affect issuer and provider rate negotiations or health care costs generally, to assist

employers in negotiations, or to aid state regulators in their duties. The Departments, however,

find ample support in PPACA evidencing the relationship between the purposes intended to be

served by this final rule, the overall purposes of PPACA, and the PPACA’s price transparency

measures, including section 1311(e)(3).

The purposes underlying the final rule’s requirement to disclose negotiated rates are

directly tied to providing transparency in coverage to consumers. The negotiated rate

information that the final rules require to be disclosed pursuant to the Departments’ authority

under section 1311(e)(3)(A)(ix) of PPACA, and section 2715A of the PHS Act, is directly

relevant to providing consumers with transparent pricing information sufficient to allow them to

assess, in advance of receiving services, their liability under a health plan or health coverage in

the numerous instances in the course of any plan year in which the negotiated rate will determine

all or a portion of a consumer’s liability. This is important information that helps consumers

under a wide variety of plan designs and cost-sharing arrangements in both choosing and using

coverage. The Departments are requiring the disclosure of cost information to further the goal of

price transparency and are doing so under the authority of section 1311(e)(3) of PPACA.

Two commenters suggested that the proposal to require the release of negotiated rates in

machine-readable format is not authorized under the statute. The statute mandates that

transparency in coverage information “shall be provided in plain language... that the intended

CMS-9915-F 44

audience, including individuals with limited English proficiency, can readily understand and use

because it is concise, well-organized, and follows best practices of plain writing.”

These

commenters contended that machine-readable information is not plain language that is accessible

or understandable to the typical consumer, and is therefore not within the scope of information

authorized for public disclosure under section 1311(e)(3)(B) of PPACA.

The Departments disagree with this assertion. Consistent with the statute, the final rules

require the machine-readable files to include a plain language description for each billing code.

The proposed requirement that two data files be provided in “machine-readable format” – one

containing negotiated rates and the other containing out-of-network allowed amounts – is a

purely operational consideration intended to ensure that the file data can be imported or read by a

computer system directly, without altering the data, and without reliance on proprietary

software.

Under section 1311(e)(3)(B) of PPACA, the “plain language” requirement concerns

information to be made available to the public, the “intended audience,” per the statute. The

Departments require the publication of data in machine-readable files so that the required

information may be presented to all members of the intended audience in a concise, well-

organized manner that follows best practices of plain writing relevant to the intended audience.

The Departments explain elsewhere in the preamble that the intended audience for the

information required to be published under the final rules includes all consumers and purchasers

of health care items and services, including individual consumers, employers, and government

health care programs. The intended audience also includes health care stakeholders such as

Section 1311(e)(3)(B) of PPACA.

84 FR 65464, 65481 (Nov 27. 2019).

CMS-9915-F 45

researchers, legislators, and regulators, as well as application developers who could make the

information usable and easily understood by laypersons. Accordingly, application developers

will be able to access the data in a format that is easily used and understood using skills common

to application developers. This same expertise allows such innovators to incorporate large data

sets into easy-to-use internet-based tools and mobile applications that will present information to

laypersons in easy-to-understand, plain language that is sufficiently concise and well-organized.

The Departments are of the view that providing the files in machine-readable format is an

effective and necessary mechanism to ensure that price transparency information be made

available to all members of the intended audience in a consistent, understandable, plain language

format, as the statute requires.

One commenter suggested that the disclosures to the public required under section

1311(e)(3)(A) of PPACA consist of aggregated data only and do not contemplate or allow public

disclosure of specific rate and price information. The Departments disagree. While it is true that

several of the data elements listed under section 1311(e)(3)(A) of PPACA are general in nature,

such as financial disclosures and enrollment data, this fact does not compel the conclusion that

all elements listed must be construed as requiring aggregated information. As noted above, the

list encompasses information and data useful to the evaluation of plans and issuers by all

varieties of health care consumer, including individuals, employers, and government programs.

Certain elements provide information specific to the benefits and protections a plan or issuer’s

coverage provides to an individual, including claims payment policies and information on

enrollee rights under the law. In particular, the data element listed at section 1311(e)(3)(A)(vii)

of PPACA encompasses “information on cost sharing and payments with respect to any out-of-

CMS-9915-F 46

network coverage,” which, by its plain terms, does not contemplate general or cumulative

information.

The final rules specify the nature of the information that must be made available pursuant

to sections 1311(e)(3)(A)(vii) and (ix) of PPACA, and the manner in which it is to be made

available to fully implement the goals and purposes of the statute. Section 1311(e)(3)(C) of

PPACA concerns disclosures to participants, beneficiaries, and enrollees receiving services from

participating providers only, whereas section 1311(e)(3)(A) of PPACA concerns disclosures to

the public generally and incorporates out-of-network payment information as well. Taken

together, and as implemented under the final rules, the statute and regulatory schemes cover all

persons seeking health pricing information in a given market, and advance the purposes of

enhancing competition, reducing price disparities, and ultimately lowering costs through

transparency in coverage.

Ultimately, by adding section 2715A of the PHS Act and section 1311(e)(3) of PPACA

through the manager’s amendment prior to passing PPACA in the Senate, Congress made

transparency a key component of the PPACA’s comprehensive framework for regulating private

health coverage through federal law. Notably, in contrast to the amendment rejected by

Congress discussed earlier in this preamble, the transparency in coverage provisions signed into

law provide a far more comprehensive and expansive approach toward providing transparency.

The law covers nearly all private health plans, requires disclosure by plans through an internet

website, requires disclosures to more entities, requires a broader set of information disclosures,

and provides additional discretion to expand information disclosures. By taking this approach,

Congress recognized both the importance and the complexity of requiring transparency. The

discretion provided under the statute ensures that the Departments can accommodate changes in

CMS-9915-F 47

technology and health care markets, as well as build on the information disclosures specifically

itemized in the statute.

A commenter also contended that the proposal to require issuers to make estimates of

out-of-network allowed amounts available through the internet-based self-service tool is not

authorized by the statute. This commenter asserted that section 1311(e)(3)(C) of PPACA only

authorizes a requirement that payers make available information concerning cost-sharing

obligations with respect to items or services furnished by a participating provider, not by out-of-

network providers.

The Departments disagree and are of the view that the statute fully supports a

requirement that plans and issuers make available information concerning cost-sharing

obligations with respect to items or services furnished by out-of-network providers. The

information to be made available under section 1311(e)(3) specifically includes “[i]nformation

on cost sharing and payments with respect to any out-of-network coverage,” as well as “[o]ther

information as determined appropriate by the Secretary.”

While section 1311(e)(3)(C) of

PPACA focuses primarily on providing information to enrollees, section 1311(e)(3)(A) of

PPACA authorizes the Departments to make certain out-of-network information available to the

public, which includes participants, beneficiaries, and enrollees. Thus the Departments

reasonably determined that section 1311(e)(3)(A) and (C), together, authorize the requirement

that plans and issuers provide cost estimates for covered items and services provided by out-of-

network providers.

Section 1311(e)(3)(A) of PPACA; see also Section 1311(e)(3)(A)(vii) and (ix) of PPACA.

CMS-9915-F 48

2. Constitutional Concerns

Several commenters asserted that requiring issuers to make rates they have negotiated

with providers available to the public constitutes compelled commercial speech in violation of

the First Amendment to the Constitution, and an unlawful taking of trade secrets without just

compensation in violation of the Fifth Amendment. Commenters cited various reasons for their

belief that the requirement in the proposed rules to disclose negotiated rates to the public could

not survive constitutional scrutiny.

Several commenters contended that the proposed requirement constituted compelled

commercial speech, and that the rationale the Departments articulated to justify the proposed

requirement failed to meet the legal standard necessary to justify such action. One commenter

asserted that a standard of constitutional scrutiny higher than that relevant to compelled

commercial speech applies to the requirement to publish negotiated rates because, the

commenter contended, the disclosure of negotiated rates does not propose a future commercial

transaction. Some commenters challenged the proposed rules on the basis that negotiated rates

have little or no relevance or value to consumers attempting to ascertain their potential liability

for a particular service at a given point in time in the future because negotiated rates do not

reflect the terms of different plan designs or the status of the individual consumer at a given

point in time in relation to cost-sharing obligations, in particular any annual deductible.

Two commenters asserted that the requirement to publicly disclose negotiated rates

would go well beyond the stated goal of providing notice to participants, beneficiaries, and

enrollees of cost-sharing liability for covered services because it calls for negotiated rates to be

available to the public generally, not just to enrolled consumers inquiring about their coverage.

They also claimed that disclosure of negotiated rates would be extremely burdensome because

CMS-9915-F 49

fulfilling the mandate would require the disclosure of millions, or even billions, of data points.

One commenter asserted that because the requirement to publish negotiated rates would not be

useful to consumers in all situations, the requirements in the proposed rules were not narrowly

tailored enough to survive constitutional scrutiny.

Some commenters also contended that the Departments’ other stated interests in

mandating the publication of negotiated rates, including lowering prices, increasing competition,

and informing decision-making in the market generally, are not authorized under relevant statute;

therefore, the breadth of these requirements is overly burdensome and inclusive of information

not necessary to advance the goals of the statute. These commenters concluded that, to the

extent the mandated publication of negotiated rates is calculated to advance those purposes, they

are not sufficiently tailored to statutory goals to survive constitutional scrutiny.

a. First Amendment Compelled Speech.

The Departments disagree that the proposed rules and the final rules run afoul of the First

Amendment and would not survive constitutional scrutiny. As the United States Supreme Court

recognized in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) and recently

confirmed in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 2372,

2376 (2018) (“NIFLA”), required disclosures of factual, uncontroversial information in

commercial speech are subject to more deferential First Amendment scrutiny. Under the

approach articulated in Zauderer, courts have upheld required disclosures of factual information

in the realm of commercial speech where the disclosure requirement reasonably relates to a

government interest and is not unjustified or unduly burdensome such that it would chill

protected speech. See, e.g., Am. Meat Inst. v. U.S. Dept. of Agric., 760 F.3d 18, 27 (D.C. Cir.

2014); Mass. Ass’n of Private Career Sch. v. Healey, 159 F. Supp. 3d 173, 201 (D. Mass. 2016).

CMS-9915-F 50

The Departments articulated substantial governmental interests in proposing these

requirements: assisting consumers of health care services in understanding the costs for which

they will be liable for covered services prior to the delivery of the services; assisting other

consumers of health care, such as employers and government health benefits programs, in

evaluating and negotiating coverage options and obtaining the most value for health care dollars;

and supporting a market-driven health care economy that is sustainable. The preamble to the

proposed rules also explained how the information required to be disclosed under the proposed

rules is of substantial value to consumers, including health plan participants, beneficiaries, and

enrollees who have and have not satisfied their annual deductible or reached their maximum out-

of-pocket limit, and that remains true under the final rules. For such consumers who have not

met their deductibles, knowledge of negotiated rates is necessary for estimating their out-of-

pocket costs because these consumers generally will be responsible for paying the full negotiated

rate for health care items and services until they reach their deductible (or the maximum annual

limit on cost sharing).

As the Departments noted earlier in the preamble, between the enactment of PPACA and

2019, average family deductibles for private sector employees increased by 85 percent, up to

$3,655 in 2019.

Consumers in the private health insurance market are increasingly responsible

for a greater share of their health care costs through higher deductibles and shifts from

See “Medical Expenditure Panel Survey. Insurance Component National-Level Summary Tables.” United States

Department for Health and Human Services Agency for Healthcare Research and Quality. Available at:

https://www.meps.ahrq.gov/mepsweb/data_stats/quick_tables_search.jsp?component=2&subcomponent=1

CMS-9915-F 51

copayments to coinsurance.

The final rules will give health care consumers and stakeholders

information vital to their roles in creating and supporting a sustainable market-driven health care

economy.

The final rules also will provide critical information to consumers who have satisfied

their deductibles or reached their out-of-pocket limit. These consumers may wish to base their

health care spending decisions on underlying prices to avoid excess spending by their issuer or

employer that could lead to premium increases, increased out-of-pocket obligations, or lower

employer contributions toward employer-sponsored coverage. Knowing the rates negotiated by

other issuers in their geographic market will assist consumers during open enrollment, as they

search for a plan that may lower their out-of-pocket costs in the coming year.

The government also has a substantial interest in assisting other health care spenders,

such as employers and government benefits programs, to make coverage choices that drive value

for the public. Given the size and scope of the country’s health care market and the fact that

choices made by employers and benefits programs operate at scale to direct health care spending,

the government can increase the value of health care expenditures by ensuring those entities have

access to accurate information. Providing employers and government benefit programs with

The preamble to the proposed rules contains a detailed discussion regarding increases in deductibles. See 84 FR

65464, 65465 (Nov. 27, 2019) (citing Ray, M., Copeland, R., Cox, C. ‘‘Tracking the rise in premium contributions

and cost-sharing for families with large employer coverage,’’ Peterson-Kaiser Health System Tracker. August 14,

2019. Available at: https://www.healthsystemtracker.org/brief/tracking-the-rise-in-premium-contributionsand-cost-

sharing-for-families-with-large-employercoverage/.).

CMS-9915-F 52

actionable data may also help drive down total health care spending, as issuers compete to offer

higher-value programs.

The government’s interest in promoting a sustainable health care economy driven by

market forces is substantial, as reflected in section 1311(e) of PPACA. As of 2018, U.S. health

care spending had reached $3.6 trillion, or $11,172 per person and accounted for 17.7 percent of

the nation’s Gross Domestic Product.

Given the scope of the market and the earlier-discussed

data suggesting that price transparency and market forces can drive down health care costs, the

government’s interest in increasing price transparency is substantial.

Each of the three interests identified above is furthered by the final rules. For

individuals, the data provided will permit them to compare prices for health care items and

services and allocate their funds accordingly. For benefit plans and employers, the information

provided will guide decision-making about which coverage options to offer, and which providers

or third parties, like pharmacy benefit managers (PBMs), to contract with. For the health care

economy as a whole, the Departments are of the view (based on available data) that transparency

and market forces will drive savings and reduce expenditures. Accordingly, the Departments

continue to hold the view that the final rules serve substantial government interests.

Furthermore, the requirement to provide these disclosures does not unduly burden plan or

issuer speech because nothing in the final rules would “drown out [a plans’ or issuers’] own

message” or “effectively rule out” any mode of communication. See NIFLA, 138 S. Ct. at 2378.

“Historical National Health Expenditure Data.” Centers for Medicare and Medicare Services. Available at:

https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-

Reports/NationalHealthExpendData/NationalHealthAccountsHistorical.

CMS-9915-F 53

Plans and issuers remain free to communicate with consumers using methods and media they

have always used or may choose to use in the future.

The Departments further disagree that the final rules would be subject to a standard of

constitutional scrutiny higher than that applied to compelled commercial speech. For First

Amendment purposes, commercial speech is speech “related solely to the economic interests of

the speaker and its audience.” Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y.,

447 U.S. 557, 561 (1980). Price information concerning the cost of health services is related

solely to the economic interests of providers and the consumers who seek their services. The

speech in question here, therefore, is commercial speech.

Furthermore, the disclosure of negotiated rates is one concerning “purely factual and

uncontroversial information about the terms [i.e., the price] under which services are available.”

See Zauderer, 471 U.S. at 651; see also Am. Meat Inst. v. U.S. Dept. of Agric., 760 F.3d 18, 27

(D.C. Cir. 2014). Therefore, the imposition on commercial speech by the final rules need only

be “reasonably related” to the government’s stated interest. For the reasons discussed above, the

Departments are of the view that making available negotiated rates to consumers is reasonably

related to the government’s stated interests in providing greater cost information to consumers

and benefit plans, as well as increasing price transparency in the health care market more

broadly. While the Departments disagree that the stricter constitutional scrutiny under Central

Hudson would apply to the final rules for the reasons discussed above, the Departments also are

of the view that the government interests described above are “substantial,” and the regulations,

for the reasons described above, directly advance that governmental interest and are not more

extensive than necessary to serve that interest. None of the alternatives considered by the

Departments would provide the full panoply of information necessary to achieve the identified

CMS-9915-F 54

interests. Specifically, the only way to provide information concerning a consumer’s personal

liability for health care services when the negotiated rate is all or any portion of that liability is

by disclosing those rates.

The Departments disagree that the rules are excessively burdensome and are invalid

because they purportedly exceed the statute’s goal of providing notice of cost-sharing liability.

The Departments are of the view that, in addition to providing participants, beneficiaries, and

enrollees with notice of cost-sharing liability, the final rules are intended to advance a number of

concurrent goals, as described earlier in this preamble. These goals are consistent with the full

text of section 1311(e)(3) of PPACA and section 2715A of the PHS Act. They include the

overarching goal of facilitating a market-driven heath care system by giving consumers of health

care services data that will enable consumers to make fully informed, cost-conscious decisions

when choosing health care. These transparency requirements will support the creation of a

competitive dynamic in health care markets that leads to narrower price differentials for the same

services, fosters innovation, and potentially lowers overall health care costs over time.

These

goals are consistent with the statutory mandate to promote transparency in coverage by making

available to the public accurate and timely health care information, including cost-sharing

information, and other information as deemed appropriate by the Departments.

The Departments also disagree with any notion that, because published negotiated rates

would not be useful to all consumers in all situations, the final rules are not sufficiently tailored

to survive constitutional scrutiny. Consumers seeking in-network items or services must have

access to negotiated rate information to calculate out-of-pocket costs under the majority of health

84 FR 65465 (Nov. 27, 2019).

CMS-9915-F 55

care payment models. These negotiated rates determine the price they will be obliged to pay, up

to the applicable out-of-pocket limit. Thus, disclosing the negotiated rate is important to the

consumer’s ability to reasonably estimate his or her personal financial liability in advance of

receiving services. In particular, and as explained earlier in this preamble, annual deductibles for

plans and issuers now routinely obligate consumers to pay several thousand dollars before the

plan or issuer pays any benefits. The requirement to disclose negotiated rates to consumers is,

therefore, crucial to providing meaningful transparency in health care markets.

b. Fifth Amendment Taking

The Departments also disagree that the requirement to disclose negotiated rates in the

final rules constitutes an unlawful taking without just compensation under the Fifth Amendment.

As an initial matter, the subject of any “taking” is a cognizable property interest. Commenters

asserted that their negotiated rates constitute property because they are trade secrets. The

Departments disagree. In order for a piece of information to qualify as a trade secret, it must be

the subject of efforts to maintain its secrecy that are reasonable under the circumstances. Under

most circumstances, if a piece of information is disclosed to third parties who have no obligation

to keep it a secret, it does not qualify for trade secrets protection. Negotiated rates for health care

items and services are routinely disclosed in EOBs provided to participants, beneficiaries, and

enrollees. Participants, beneficiaries, and enrollees have no obligation to keep the information

contained in their EOBs secret; some patients provide them to journalists or upload them to

CMS-9915-F 56

crowd-sourcing websites.

The Departments are of the view that this routine disclosure of

negotiated rate information is sufficient to defeat any asserted trade-secret protection, and,

therefore, the issuers have no proprietary interest in the negotiated rates that could be the subject

of a constitutional “taking.”

Moreover, plans’ and issuers’ expectations of confidentiality in information provided as a

condition of participation in a highly regulated industry (for example, health insurance) are

substantially diminished by the highly regulated nature of the industry. See, e.g., Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1007 (1984) (noting that expectations are necessarily adjusted in

areas that “ha[ve] long been the source of public concern and the subject of government

regulation”); Me. Educ. Ass’n Benefits Trust v. Cioppa, 695 F.3d 145 (1st Cir. 2012) (discussing

a Maine law requiring health issuers to disclose loss information); Franklin Mem’l Hosp. v.

Harvey, 575 F.3d 121, 128 (1st Cir. 2009) (holding that a claimant’s investment-backed

expectations were “tempered by the fact that it operate[d] in the highly regulated hospital

industry”).

Plans and issuers are already subject to extensive regulation under federal and state

law. As noted by the 1st Circuit in Pharmacy Care v. Rowe:

If [regulated parties] truly assumed that they would be free from disclosure

requirements … this would be more wishful thinking than reasonable expectation.

Kliff, S. “Why I’m Obsessed With Patients’ Medical Bills, New York Times. August 7, 2020. Available at

https://www.nytimes.com/2020/08/07/insider/coronavirus-medical-bills.html; see also Cerullo, M. “As medical

costs soar, more Americans turn to crowdfunding.” CBS News. February 21, 2020. Available at:

https://www.cbsnews.com/news/health-care-costs-crowdfunding-medical-bills/.

PBMs serve as intermediaries between pharmacies and health benefit plans, including plans covered by ERISA.

PBMs contract with pharmacies to establish pharmacy networks and contract with health benefit plans to provide

access to those pharmacy networks. When a participant in a health benefit plan fills a drug prescription at a network

pharmacy, the PBM pays the pharmacy at the rate negotiated in the contract between the PBM and the pharmacy

(less any copayment by the participant), and the health benefit plan then reimburses the PBM at the rate negotiated

in the contract between the PBM and the health benefit plan.

CMS-9915-F 57

Whether or not the law strikes the right economic balance between competing

producer and consumer interests, it is no more a taking than the requirement that

public corporations disclose private corporate information about financial prospects

to the public through regular SEC filings.

Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (joint concurring opinion

representing the opinion of the court). The Court further stated: “Given the absence of a full-

scale taking and the presence of a traditional regulatory interest, it is enough to defeat the takings

claim that no reasonable investment-backed expectation is present at all.” Id. at 315; see also

Good v. United States, 189 F.3d 1355, 1363 (Fed. Cir. 1999) (“We have previously held that the

government is entitled to summary judgment on a regulatory takings claim where the plaintiffs

lacked reasonable, investment-backed expectations….”).

Even if there were some property interest in negotiated rates, the Departments are of the

view that this regulation is not a taking. The Supreme Court “has identified several factors that

should be taken into account when determining whether a governmental action has gone beyond

‘regulation’ and effects a ‘taking.’” Monsanto, 467 U.S. at 1005. Among those factors are “the

character of the governmental action, its economic impact, and its interference with reasonable

investment-backed expectations.” Id. (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,

83 (1980)); see also Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Cent.

Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978).

In requiring disclosure under the final rules, the government does not do so with the

intention that the information is primarily and explicitly for the government’s own use, or that

any such potential impact is the purpose for requiring the disclosure. Instead, the final rules are

intended to, and will, enable consumers to access information needed to make informed

CMS-9915-F 58

decisions on health care services. Under Penn Central, “[a] ‘taking’ may more readily be found

when the interference with property can be characterized as a physical invasion by government

than when interference arises from some public program adjusting the benefits and burdens of

economic life to promote the common good.” Penn Central, 438 U.S. at 124 (citation omitted).

The final rules clearly fall on the other end of the spectrum, arising from statutory provisions,

section 1311(e)(3) of PPACA and section 2175A of the PHS Act, that “adjust[t] the benefits and

burdens of economic life to promote the common good.” Connolly v. Pension Benefit Guar.

Corp., 475 U.S. 211, 212 (1986).

3. Protections for proprietary, confidential business information, and trade secrets.

Several commenters objected to the proposed rules on grounds that the requirement that

issuers make public negotiated rates with providers would require the disclosure of allegedly

confidential, proprietary business information, and trade secrets that are expressly protected from

disclosure by a variety of federal and state laws, and the statute does not in any way purport to

abrogate those protections. Several commenters pointed to the Defend Trade Secrets Act,

(DTSA) which protects the property rights of trade secret holders,

and the Freedom of

Information Act (FOIA),

which protects confidential, proprietary business information, and

trade secrets from public disclosure, as examples of Congress’ intent that such information be

protected.

The Departments disagree. As discussed above, the Departments are of the view that the

routine disclosure of negotiated rate information to third parties via EOBs means that the rate

18 U.S.C. 1836(b).

5 U.S.C. 552.

CMS-9915-F 59

information is not a trade secret, and the DTSA, therefore, does not apply. Even if it did, there

can be no meaningful sense in which the disclosure of this information pursuant to the final rules

would constitute a misappropriation by improper means prohibited by the DTSA. The

disclosures in question would be made pursuant to a regulatory mandate authorized by law, to

effectuate policy priorities enacted by Congress: namely, transparency in health care. These

disclosures cannot reasonably be construed as “theft, bribery, or misrepresentation.”

The disclosures required under the final rules would also not constitute a breach or

inducement of a breach of a duty to maintain secrecy, as the final rules apply prospectively in a

regulatory environment in which all parties to provider agreements, and all affected plans and

issuers, are being placed on notice and should be aware in advance of the requirements of the

final rules. All parties to these contracts are therefore positioned to modify contractual

arrangements, or similar policies, practices, or expectations relating to privacy or trade secrets to

conform to the final rules. Otherwise, the final rules will supersede these arrangements to the

extent necessary to implement these rules.

FOIA is also not relevant to the disclosure that would be required by the final rules.

FOIA is a public information law that applies to federal agencies, and generally enables the

public to obtain records in possession of an agency.

Under the final rules, by contrast,

negotiated rate information and out-of-network allowed amount information would be made

available for the express purpose of making the information broadly available to the public,

consistent with the authority Congress vested in the Departments. FOIA does not apply to

18 U.S.C. 1839(5)-(6).

5 U.S.C. 552.

5 U.S.C. 552(b)(4).

CMS-9915-F 60

disclosures by private entities such as the plans and issuers that would be subject to the

disclosure requirements in the final rules. The exemptions found in the FOIA statute apply to

disclosures by the government; that a piece of information might be subject to a FOIA exemption

does not mean it is entitled to a heightened protection from disclosure when held by a private

party.

Neither does FOIA apply to information maintained by private entities and not by an

agency or government contractor, as that information would not constitute an agency record. To

be an agency record subject to FOIA, an agency must have created or obtained the materials and

must be in control of the materials. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 145

(1989). Regardless of whether the negotiated rates and allowed amounts would constitute trade

secrets or commercial information under FOIA, a requirement that private entities make certain

information public does not implicate FOIA.

One commenter contended that the proposed disclosure of negotiated rates does not

concern trade secrets, and is therefore not prohibited for that reason. The commenter asserted

that the proposed disclosures concern end prices, which are comparable to the “sticker price” of a

medical service or device. The commenter stated that those prices are not themselves trade

secrets, which the commenter contended consist of negotiating tactics which the proposed rules

would not require issuers to make available to the public. As indicated above in relation to the

DTSA, the Departments agree that the final rules do not implicate trade secrets.

In support of the proposition that Congress could not have intended to undermine existing

protections for confidential or proprietary business information and trade secrets when it enacted

section 1311(e)(3) of PPACA, one commenter noted that elsewhere in PPACA, where Congress

mandated pricing-related disclosures, it included language or arrangements that protected

CMS-9915-F 61

individual negotiated rates and pricing information from disclosure. A provision relating to the

disclosure of drug cost information mandates release of only aggregated information and

includes a specific designation of the information as confidential and protected from publication

except in specific formats and for limited purposes that protect the identity of the parties to

particular pricing arrangements.

Another provision mandates that hospitals make public a list

of standard charges for items and services, not negotiated rates, on an annual basis only.

Both

of these provisions, the commenter suggested, indicate Congressional intent to protect

proprietary business information that is contrary to the requirements of the proposed rule.

The Departments are aware that Congress included provisions preventing or limiting

disclosures of health care information in other sections of PPACA but note that Congress did not

include such provisions in section 1311(e)(3)(A) of PPACA, indicating no intention that such

restrictions apply in this context.

Several commenters also pointed to the Sherman Antitrust Act, and specific applications

of antitrust principles relating to the disclosure of trade secrets, including negotiated rates

between issuers and providers in the health care context. They contend that Congress could not

have intended to indirectly undermine these long-standing standards and policies when it enacted

section 1311(e)(3) of PPACA. Several commenters also cited interpretive communications and

similar guidance from the Federal Trade Commission (FTC) and the Antitrust Division of the

Department of Justice for the proposition that public disclosure of negotiated prices can have

42 U.S.C. 1320b-23(c).

42 U.S.C. 300gg(18)(e).

See, for example, Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular

language in one section of a statute but omits it in another . . . it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”).

CMS-9915-F 62

anticompetitive effects and harm consumers, contrary to long standing principles of antitrust law.

One commenter recommended that any plan to make public privately negotiated rates should

include requirements to aggregate information to ensure that arrangements of specific market

participants remain confidential, and that a time lag also should be applied to any released data to

ensure current information is not compromised.

The Departments disagree with the notion that the final rules will lead to anticompetitive

behavior by plans, issuers, and providers. The Sherman Antitrust Act prohibits any contract,

combination, or conspiracy in restraint of trade or commerce.

Specifically, the law prohibits

any “person” from entering into any such contract, trust, or similar arrangement.

“The primary

purpose of the antitrust laws is to protect interbrand competition.” State Oil Co. v. Khan, 522

U.S. 3, 15 (1997) (citing Bus. Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 726 (1988)). The

Departments are not of the view that publication of plans’ and issuers’ negotiated rates with

providers is likely to spur plans and issuers (“persons”) to violate the law by colluding to fix

their prices in a manner that restrains trade. Rather, while the publication of price information

sometimes facilitates tacit collusion, based on public comments and the many empirical studies

that have investigated the impact of price transparency on other, non-health care markets, the

Departments are of the view that transparency of negotiated rates will likely motivate plans,

15 U.S.C. 1.

Id. “Person” or “persons” are defined at 15 U.S.C. 12(a) (“[P]erson” or “persons” wherever used in this Act shall

be deemed to include corporations and associations existing under or authorized by the laws of either the

United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country”).

CMS-9915-F 63

issuers, and providers to reassess the competitiveness of their prices in order to continue to

successfully compete with lower premiums, deductibles, and other cost-sharing responsibilities,

and lower priced health care items and services. As stated in the preamble of the Hospital Price

Transparency Final Rule, many empirical studies have investigated the impact of price

transparency on markets, with most research, consistent with predictions of standard economic

theory, showing that price transparency leads to lower and more uniform prices.

Traditional

economic analysis suggests that if consumers were to have better pricing information for health

care services, providers would face pressure to lower prices and provide better quality care.

Falling prices may, in turn, expand consumers’ access to health care.

By disclosing negotiated rates, the Departments are of the view that the public (including

patients, employers, clinicians, and other third parties) will have the information necessary to

make more informed decisions about their care. The Departments expect that the impact of more

expansive transparency in pricing information will increase market competition and may

ultimately drive down the cost of health care services, making care more affordable for all

consumers.

Although the Departments appreciate that regulated entities could seek to engage in

unlawful behavior in restraint of trade, antitrust law does not proscribe or limit action by the

federal government to address chronic issues in the nation’s health care markets. Such actions

include new, innovative measures that, based on evidence and research, are likely to improve

84 FR 65464, 65524 (Nov. 27, 2019).

Austin, A. D., and Gravelle, J. G. “Congressional Research Service Report for Congress: Does Price

Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Healthcare

Sector”. April 29, 2008. Available at: https://crsreports.congress.gov/product/pdf/RL/RL34101.

CMS-9915-F 64

competition and lower costs to consumers. The Departments also are of the view that the statute

and the final rules do not constitute an abrogation of antitrust law. Nothing under the final rules

creates, compels, or endorses agreements or conspiracies between or among persons to form

illegal arrangements or trusts in restraint of trade or commerce. To the contrary, antitrust law

enforcement remains an important tool to protect these markets from anticompetitive behavior.

The Departments are of the view that the disclosure of negotiated rates would serve a

greater public interest and that “concealing negotiated price information serves little purpose

other than protecting dominant providers’ ability to charge above-market prices….”

For

example, in Maine, one state official indicated that “to date, there is no evidence that the release

of [Maine Health Data Organization] claims data has resulted in an anticompetitive market.

Similarly, disclosure of claims data in New Hampshire has resulted increased competition and

reduced prices for health care.

For the reasons set forth in this preamble, the Departments are of the view that the final

rules will enhance competition, improve markets, and benefit all consumers of health care,

including individuals, employers, and government health care programs. Under the final rules,

disclosure of the negotiated rate is critical to the ability of consumers, including those who have

not met their annual deductible obligation, to be able to reasonably estimate in advance their

Catalyst for Payment Reform. “Report Card on State Price Transparency Laws.” July 2015. Available at:

https://www.catalyze.org/wp-content/uploads/woocommerce_uploads/2017/04/2015-Report-Card-on-State-Price-

Transparency-Laws.pdf.

Brown Z. Y. “Equilibrium Effects of Health Care Price Information.” 101 REV. OF ECON. & STAT. 699 (2019).

Available at: http://www-personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf.

CMS-9915-F 65

personal liability for covered services from participating providers. It is also critical in

estimating coinsurance liabilities that are calculated as a percentage of provider charges. In

addition, the Departments are of the view that accessible pricing information improves market

efficiency.

100

3. Administrative Procedure Act (APA) and Arbitrary and Capricious Agency Action

Some commenters asserted that the proposed rules were arbitrary and capricious and thus

violate the APA. Two commenters contended that the Departments’ rationale is entirely

speculative. They also contended that the Departments have not quantified in a reliable way the

costs or anticipated benefits of the proposed rules, examined relevant data, or articulated a

satisfactory explanation for the proposed rules. One commenter held the opposite position and

asserted that the proposed rules were fully consonant with APA requirements. The commenter

believed the Departments are implementing PPACA appropriately, and that the interpretation of

the authorities underlying the proposed rules was reasonable and rationally explained by the

Departments.

The Departments are also of the view that the final rules are consistent with the APA.

Section 1311(e)(3) of PPACA and section 2715A of the PHS Act are designed to assist

consumers by enhancing their ability to make cost-conscious decisions, which is essential to

establish and maintain the level of market competition necessary to ensure that health care costs

100

Austin, D. A., and Gravelle, J. G. “CRS Report for Congress: Does Price Transparency Improve Market

Efficiency? Implications of Empirical Evidence in Other Markets for the Healthcare Sector.” July 24, 2007.

Available at: https://fas.org/sgp/crs/secrecy/RL34101.pdf

CMS-9915-F 66

are rational, reasonable, and governed by standard market discipline. As the preamble to the

proposed rules observed, there is substantial evidence that increased price transparency improves

market efficiency.

101

For these reasons, it is within the scope of the statute to assist consumers

with selecting providers, evaluating market options, increasing competition, and reducing market

disparities. The carefully targeted information is essential to the goals of price transparency, and

there is no other means of making cost-sharing liability information available to consumers

whose personal liability is determined in whole or in part by reference to negotiated rates or

allowed amounts. The Departments further hold the view that the Departments have made

reasonable efforts to quantify all aspects of the final rules, and their potential effects, for which

data is available. The Departments also note that efforts have been made to qualitatively address

those areas where the Departments are unable to adequately derive quantitative assessments.

Responses to additional comments are discussed later in the Regulatory Impact Analysis (RIA)

and Regulatory Alternatives Considered sections of this preamble.

This preamble (as well as the preamble to the proposed rules) cites substantial research

indicating that increased price transparency increases competition and lowers costs, leads to

more uniform pricing within markets, and increases overall market efficiency.

102

This preamble

also cites an abundance of evidence indicating that industry and other stakeholders believe that

101

84 FR 65464, 65489; 65495 (Nov. 27, 2019); see also Austin, A. D., and Gravelle, J. G. “Congressional

Research Service Report to Congress: Does Price Transparency Improve Market Efficiency? Implications of

Empirical Evidence in Other Markets for the Healthcare Sector.” July 24, 2007. Available at:

https://fas.org/sgp/crs/secrecy/RL34101.pdf

; see also Brown, Z. Y. “Equilibrium Effects of Health Care Price

Information.” 100 Rev. E

CON. & STAT. 1. Available at: http://www-

personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf; see also Enthoven, A. “Market Forces

and Efficient Health Care Systems.” Health Affairs, Vol. 23, No. 2. Available at

https://www.healthaffairs.org/doi/full/10.1377/hlthaff.23.2.25.

102

84 FR 65464, 65466-67 (Nov. 27, 2019).

CMS-9915-F 67

increased price transparency will enhance competition and benefit consumers. As stated earlier

in this preamble in relation to comments regarding the First Amendment, the information the

final rules require to be disclosed is clearly identified and has a direct nexus to the government’s

legitimate and substantial interest in ensuring that consumers have sufficient information to

calculate out of pocket costs for health care items and services and ultimately assess whether the

payment terms of plans and coverages are fair, reasonable, or advantageous to the consumer.

Furthermore, in the Impact Estimates of the Transparency in Coverage Provisions and

Accounting Table section later in this preamble, the Departments identify ranges of relevant

factors and categories of information that the Departments have attempted to quantify, as well as

those factors and categories that the Departments cannot quantify at this time. Nevertheless, the

Departments are of the view that those determinations are reasonable and sufficiently thorough,

and that the Departments’ expectations regarding the impacts of the final rules are not

speculative.

4. Other legal concerns

Several commenters asserted that requiring issuers to make negotiated prices public could

violate various state laws, principles of common law, and tort laws concerned with the protection

of trade secrets and proprietary business information. Several commenters specifically stated

CMS-9915-F 68

that the proposal would violate the Uniform Trade Secrets Act (UTSA)

103

as adopted by several

states.

The Departments understand these concerns and appreciate that States have passed laws

and regulations that may address the same or similar information the final rules require to be

publicly disclosed, or disclosed to participants, beneficiaries, or enrollees. The final rules will

preempt these laws, to the extent they conflict with federal law and would prevent application of

federal requirements, as required under section 1321(d) of PPACA and section 2724(a) of the

PHS Act. The Departments discuss this issue in more detail later in this preamble in the context

of addressing federalism considerations.

Moreover, the Departments are also of the view that negotiated rates do not constitute

trade secrets as defined under the UTSA and under principles of tort law. A trade secret under

the UTSA is “information, including a formula, pattern, compilation, program, device, method,

technique, or process” that “derives independent economic value… from not being generally

known [or] readily ascertainable by proper means by… other persons who can obtain economic

value from its disclosure [and] is the subject of efforts to… maintain its secrecy.”

104

Critically,

and as discussed earlier, negotiated rates are routinely disclosed to beneficiaries in EOBs.

103

The Uniform Trade Secrets Act is a model statute that a majority of states have adopted in some form. The

UTSA is promulgated by the Uniform Law Commission. See generally, Uniform Trade Secrets Act with 1985

Amendments, Nat’l Conference of Commissioners on Uniform State Laws, August 1985. UTSA has been adopted

in some form by 48 states. New York and North Carolina are the exceptions. See “Trade Secrets Act.” Uniform

Laws Commission. Available at:

https://www.uniformlaws.org/committees/community-

home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792.

104

See Uniform Trade Secrets Act with 1985 Amendments, Nat’l Conference of Commissioners on Uniform State

Laws, August, 1985; Restatement (First) of Torts § 757 (1939).

CMS-9915-F 69

To the extent the final rules require disclosure of trade secrets, the activity that supports a

cause of action under tort law includes obtaining the information by improper means or a breach

of confidence.

105

No such scenario is implicated where the disclosure is made pursuant to a

regulatory mandate authorized by statute. In this context, the disclosure is a legal obligation, and

so the disclosure is by definition proper and made in the absence of any duty of confidence.

Finally, even if negotiated rates could constitute trade secrets under a state’s law, state

law cannot invalidate the authority Congress granted to the Departments under section

1311(e)(3) of PPACA to require disclosure of negotiated rates and other information that the

Departments determine appropriate to create a level of transparency in coverage sufficient to

address chronic issues in American health care markets, including rising health care prices.

Several commenters asserted that making negotiated rates public would violate

contractual arrangements between virtually all issuers and providers, in particular contractual

provisions that prohibit disclosure of negotiated rates. One commenter noted that this would, at

a minimum, require a considerable effort to amend many existing contracts.

The Departments understand that changes in applicable laws and regulations may

necessitate changes to certain business and contractual relationships over time. The Departments

are of the view, however, that the final rules are necessary to advance the interests of consumers

105

Restatement (First) of Torts § 757 (1939) (“GENERAL PRINCIPLE. One who discloses or uses another's trade

secret, without a privilege to do so, is liable to the other if (a) he discovered the secret by improper means, or (b) his

disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or (c)

he learned the secret from a third person with notice of the facts that it was a secret and that the third person

discovered it by improper means or that the third person's disclosure of it was otherwise a breach of his duty to the

other, or (d) he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him

by mistake.”).

CMS-9915-F 70

and to fulfill the goals of the relevant statutes. The Departments also anticipate that in most

cases, affected contracts include clauses that specifically anticipate the possibility of future

changes to applicable law or regulations. Additionally, even if a contract between a provider and

a payer includes a provision prohibiting the public disclosure of its terms, it is the Departments’

understanding that such contracts typically include exceptions if a particular disclosure is

required by federal law. Finally, as the Supreme Court has found, “[c]ontracts, however express,

cannot fetter the constitutional authority of Congress. Contracts may create rights of property,

but when contracts deal with a subject matter which lies within the control of Congress, they

have a congenital infirmity. Parties cannot remove their transactions from the reach of dominant

constitutional power by making contracts about them.” Norman v. Balt. & Ohio R.R. Co., 294

U.S. 240, 307–08 (1935) (“If the regulatory statute is otherwise within the powers of Congress…

its application may not be defeated by private contractual provisions.”); see also Connolly, 475

U.S. at 224.

Several commenters contended that the proposed rules would be inconsistent with certain

executive orders. One commenter contended that Executive Order 13877, which the

Departments cited as the impetus for the proposed rules, directs the agencies to “require… health

insurance issuers… to provide or facilitate access to information about expected out-of-pocket

costs for items or services to patients before they receive care.” The commenter asserted that

this directive does not rationally encompass a requirement that issuers make public all negotiated

rates and allowed amounts. The commenter also asserted that the proposed rules are

incompatible with section 3(b) of Executive Order 13877, which provides that any rulemaking be

“consistent with applicable law,” in that the proposed rules run contrary to antitrust law as well

as prohibitions against disclosing trade secrets.

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The Departments disagree with these comments. First, Executive Order 13877 clearly

states that it is “not intended to, and does not, create any right or benefit, substantive or

procedural, enforceable at law or in equity by any party against the United States, its

departments, agencies, or entities, its officers, employees, or agents, or any other person.”

Executive Order 13877, Sec. 8(c). Thus, an executive order cannot form the basis of a challenge

to a rulemaking. Second, for all the reasons detailed earlier in this preamble, the Departments

are of the view that the final rules are necessary and appropriate measures that are sufficiently

narrowly tailored to meet the stated goals of the Executive Order. Making public the negotiated

rates and out-of-network allowed amounts is essential for consumers to obtain useful information

about out-of-pocket costs they are likely to incur before receiving services. Due to the

prevalence of high deductibles throughout markets nationwide, this information will be crucial

for a significant cohort of persons enrolled in health plans to be able to anticipate costs in

advance of each plan year. For the public, access to information concerning allowed amounts is

essential to obtain reliable advance estimates of personal liability to facilitate cost-conscious

choices that enhance competition and lower overall costs. Finally, as described later in this

preamble, the Departments considered many alternatives to the proposed and final rules. The

Departments are of the view that the final rules are a straightforward implementation of the

mandate of section 1311(e)(3) of PPACA, and that the choices taken in particular instances are

well calculated to effectively and fully implement the goals of the authorizing statutes.

Moreover, the regulations provide tools and information to consumers that are critical to their

ability to access meaningful price information, including the personal liability associated with a

substantial portion of health care services. This directly facilitates the meaningful engagement of

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consumers with their own health care and protects patients from the likelihood of unanticipated

health care costs. As such, the regulations fulfill the mandate of Executive Order 13877.

For the foregoing reasons, the final rules adopt the majority of the provisions in the

proposed rules, with certain modifications, as described in detail in the following sections of this

preamble.

II. Overview of the Final Rules Regarding Transparency – the Departments of the

Treasury, Labor, and Health and Human Services

The Departments are finalizing price transparency requirements set forth in the final rules

in 26 CFR 54.9815-2715A1, 26 CFR 54.9815-2715A2, 26 CFR 54.9815-2715A3, 29 CFR

2590.715-2715A1, 29 CFR 2590.715-2715A2, 29 CFR 2590.715-2715A3, and 45 CFR 147.210,

147.211, and 147.212. The final rules separate the proposed regulations all contained in 26 CFR

54.9815-2715A, 29 CFR 2590.715-2715A, and 45 CFR 147.210, into three separate regulations

for each of the Departments. The regulations set forth the scope and relevant definitions in 26

CFR 54.9815-2715A1, 29 CFR 2590.715-2715A1, and 45 CFR 147.210 (which correspond with

paragraph (a) of the proposed regulations). The regulations at 26 CFR 54.9815-2715A2, 29 CFR

2590.715-2715A2, and, 45 CFR 147.211 (which correspond with paragraph (b) of the proposed

regulations) include: (1) a requirement that group health plans and health insurance issuers in the

individual and group markets disclose to participants, beneficiaries, or enrollees upon request,

through a self-service tool made available by the plan or issuer on an internet website, cost-

sharing information for a covered item or service from a particular provider or providers, and (2)

a requirement that plans and issuers make such information available in paper form, upon

request. As explained in more detail later in this preamble, the final rules adopt a three-year,

phased-in approach with respect to the scope of the requirement to disclose cost-sharing

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information. Plans and issuers must make cost-sharing information available for 500 items and

services identified by the Departments for plan years (in the individual market, for policy years)

beginning on or after January 1, 2023, and must make cost-sharing information available for all

items and services for plan years (in the individual market, for policy years) beginning on or

after January 1, 2024.

The regulations at 26 CFR 54.9815-2715A3, 29 CFR 2590.715-2715A3, and 45 CFR part

147.212 (at paragraph (c) of the proposed regulations) require that plans and issuers disclose

pricing information to the public through three machine-readable files. One file requires

disclosure of payment rates negotiated between plans or issuers and providers for all covered

items and services. The second file will disclose the unique amounts a plan or issuer allowed, as

well as associated billed charges, for covered items or services furnished by out-of-network

providers during a specified time period. To reduce the complexity and burden of including

prescription drug information in the negotiated rate machine-readable file, the final rules require

a third file that will include pricing information for prescription drugs. The final rules modify

the applicability date for these provisions to plan years (in the individual market, policy years)

beginning on or after January 1, 2022.

The provisions proposed at paragraph (d) of the proposed regulations are finalized in 26

CFR 54.9815-2715A2 and 26 CFR 54.9815-2715A3, 29 CFR 2590.715-2715A2, and 29 CFR

2590.715-2715A3, and 147.211 and 147.212 with non-substantive editorial changes for

increased readability, and with effective dates reflecting the phased approach to implementation

mentioned earlier and discussed in more detail later in this preamble.

In addition to splitting the final rules into three separate regulations for each Department,

the Departments have added severability clauses to the final rules to emphasize the Departments’

CMS-9915-F 74

intent that, to the extent a reviewing court holds that any provision of the final rules is unlawful,

the remaining rules should take effect and be given the maximum effect permitted by law. The

final rules provide that any provision held to be invalid or unenforceable by its terms, or as

applied to any person or circumstance, or stayed pending further agency action, shall be

severable from the relevant section and shall not affect the remainder thereof or the application

of the provision to persons not similarly situated or to dissimilar circumstances.

To streamline the final rules, the Departments have removed definitions of terms that are

defined in the applicable statute or elsewhere in such statutes’ implementing regulations and

have revised certain definitions to provide more clarity. Finally, based on comments received,

the Departments have reassessed the associated burden estimates in the Economic Impact

Analysis and Paperwork Burden section of this preamble.

A. Definitions

The final regulations at 26 CFR 54.9815-2715A1(a), 29 CFR 2590.715-2715A1(a), and

45 CFR 147.210(a) (paragraph (a) of the proposed regulations) set forth definitions that are

applicable to the regulations at 26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45

CFR 147.211 (paragraph (b) of the proposed regulations) and 26 CFR 54.9815-2715A3, 29 CFR

2590.715-2715A3, 45 CFR 147.212 (paragraph (c) of the proposed regulations). The

Departments have revised the proposed definitions of some terms and included new defined

terms in order to clarify the final requirements of 26 CFR 54.9815-2715A2, 29 CFR 2590.715-

2715A2, and 45 CFR 147.211, and 26 CFR 54.9815-2715A3, 29 CFR 2590.715-2715A3, and 45

CFR 147.212. Comments on the definitions in the proposed rule focused on concerns regarding

consistency of definitions across related government programs, the general need for increased

clarity in relation to some proposed definitions, and the need for resolution of perceived

CMS-9915-F 75

ambiguities in the proposed definitions. In response to these comments, the Departments are not

finalizing certain proposed definitions that are already defined in existing, pertinent regulations.

The Departments are finalizing revised versions of other proposed definitions to clarify their

meaning, as well as the policies and requirements adopted in the final rules.

Commenters recommended aligning definitions in the proposed regulations with those in

other existing regulations to avoid conflicts. In light of these recommendations, the Departments

are not finalizing the proposed definition of “participant” under 26 CFR 54.9815-2715A1, 29

CFR 2590.715-2715A1, or part 147.210 because the term is already defined in the Departments’

regulations at 26 CFR 54.9801-2, 29 CFR 2590.701-2, and 45 CFR 144.103. Likewise, the

Departments are not finalizing the proposed definition of “beneficiary” under proposed 45 CFR

145.210 and 29 CFR 2590.715-2715A1, because the term is already defined under HHS

regulation at 45 CFR 144.103 and in statute at ERISA section 3(8). The Departments, however,

are finalizing the definition of “beneficiary” proposed under 26 CFR 54.9815-2715A(a) (now at

26 CFR 54.9815-2715A1), because the term is not otherwise defined in Treasury Regulations or

the Code. Finally, the Departments are not finalizing the proposed definition for “qualified

health plan” at 45 CFR 145.210 since the term is not used in the regulation text.

Some commenters requested clarification of the terms “participants” and “beneficiaries”

because the proposed rules’ definitions of these terms included individuals who may become

eligible for a plan or coverage, and as the proposed rules envisioned personalized feedback to

“participants” and “enrollees” it would be impossible to provide such information to an

individual not currently enrolled in a plan or coverage. The Departments agree. However,

instead of modifying existing, applicable definitions for “participants” and “beneficiaries,” the

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final rules, at 26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211, and

this preamble below clarify to whom these disclosures are required.

One commenter recommended the Departments define the term “in-network provider” in

the final rules to clearly exclude device suppliers and manufacturers that, the commenter

suggested, have not traditionally been considered in-network providers and whose price

information is of limited value to consumers. The Departments do not agree that device

suppliers and manufacturers should be excluded. Based on the numerous public comments from

individuals who support broad price transparency for all covered items and services, the

Departments are of the view that pricing information for all covered items and services should be

available, including pricing for durable medical equipment (DME) or other medical devices that

are supplied to a participant, beneficiary, or enrollee by a provider under a contract with a plan or

issuer. To clarify, the final rules define in-network provider to mean any provider of items and

services with which the plan or issuer, or a third-party for a plan or issuer, has a contract setting

forth the terms under which a covered item or service may be provided to a participant,

beneficiary, or enrollee. The Departments broadened this definition to clarify that even where a

provider and a plan or issuer have a limited rate agreement of some kind, or a rate agreement

covering DME, those providers should be considered in-network providers for purposes of the

final rules. Additionally, if a plan or issuer enters into a contract or has such payment

arrangements, then the pricing information for the specific covered items or services subject to

that contract or payment arrangement are required to be disclosed as part of the internet self-

service tool and machine-readable files.

The proposed regulations included a definition for “negotiated rate” to mean the amount

a group health plan or health insurance issuer, or a third party on behalf of a plan or issuer, has

CMS-9915-F 77

contractually agreed to pay an in-network provider for covered items and services, pursuant to

the terms of an agreement between the provider and the plan or issuer, or a third-party on behalf

of a plan or issuer. Consistent with the proposed and final definitions of “items and services,”

plans and issuers are required to disclose “negotiated rates” for encounters, procedures, medical

tests, supplies, prescription drugs, durable medical equipment, and fees (including facility fees)

to participants, beneficiaries, and enrollees through the internet-based self-service tool (and in

paper form) as well as to the public through a machine-readable file. One commenter requested

the Departments clarify the meaning of “negotiated rate” for prescription drugs, noting that they

assumed the Departments expected plans and issuers to provide the drug price negotiated by a

PBM on behalf of the plan. Another commenter asserted that the “negotiated rate” of

prescription drugs for disclosure should be the price patients will see at the point-of-sale,

meaning the undiscounted price of the drug, plus dispensing fees. Conversely, another

commenter stated that dispensing fees are not paid by enrollees or used in determining cost-

sharing liability. Other commenters suggested that the Departments grant plans and issuers

flexibility in determining the appropriate rate for disclosure, as plans and issuers use a variety of

different benchmarks, such as the Average Wholesale Price (AWP), or Wholesale Acquisition

Cost (WAC) which may be considered as the “negotiated rate” for the purpose of determining

cost-sharing liability under the plan or coverage.

In the final rules, the Departments have revised the definition of “negotiated rate” to mean

the amount a plan or issuer has contractually agreed to pay for a covered item or service, whether

directly or indirectly through a third party administrator (TPA) or PBM, to an in-network

provider, including an in-network pharmacy or other prescription drug dispenser, for covered

items or services. The final rules adopt the proposed definition with two key modifications.

CMS-9915-F 78

First, the term “third party” from the proposed definition is expanded in the final rules to

explicitly refer to “third-party administrator or pharmacy benefit manager.” Second, the final

definition of “negotiated rate” specifically notes that the term in-network provider includes an in-

network pharmacy or other prescription drug dispenser. The purpose of these modifications is to

confirm the commenter’s inference that in the case of prescription drugs, the plan or issuer

should include the price negotiated for that plan or issuer by a PBM. Furthermore, the

“negotiated rate” in the final rules is intended to be broad enough to account for different plan

designs and benchmarks for determining negotiated rates.

The final rules also add definitions for the following terms that were not included in the

proposed regulations: “billed charge,” “copayment assistance,” “derived amount,” “historic net

price,” “national drug code,” and “underlying fee schedule.” The addition of these definitions is

discussed later in this preamble.

One commenter noted that the Departments have proposed definitions for “accumulated

amounts,” “cost-sharing liability,” and “cost-sharing information” that are unique to the

proposed rules and, in some cases, differ from definitions of similar terms used in other related

regulations. In particular, this commenter recommended that all definitions should explicitly

recognize that cost sharing can be paid by or on behalf of an enrollee, participant, or beneficiary,

since that is how cost sharing is defined by HHS regulation. The commenter also requested that

the Departments clarify the proposed definition of “accumulated amounts” and suggested

revising the definition to state clearly that accumulated amounts are the “amount of financial

responsibility a participant, beneficiary, or enrollee has incurred, whether satisfied by or on

behalf of the participant, beneficiary, or enrollee.…”

CMS-9915-F 79

The Departments recognize that cost sharing may be paid by a third-party on behalf of an

enrollee, participant, or beneficiary. However, the Departments are of the view that some plans

and issuers do not count cost-sharing liability payments made by a third-party towards a

participant’s, beneficiary’s, or enrollee’s accumulated amounts, and modifying the definitions as

suggested by the commenter could cause confusion in the context of the final rules.

The Departments have added disclosure requirements that are discussed in detail elsewhere

in this preamble to address this concern. The definitions being finalized also include non-

substantive editorial changes from the proposed regulations for readability to the following

terms; “accumulated amounts,” “billing code,” “bundled payment arrangement,” “cost-sharing

liability,” “cost-sharing information,” “covered items or services,” “item or services,” and “out-

of-network allowed amount.”

The definitions identified as new or substantively modified in this section, as well as those

that are being finalized as proposed, are discussed further in relation to the requirements of 26

CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211 and 26 CFR

54.9815-2715A3, 29 CFR 2590.715-2715A3, and 45 CFR part 147.212 throughout this

preamble.

B. Requirements for Disclosing Cost-Sharing Information to Participants, Beneficiaries, and

Enrollees

The final rules are intended to enable participants, beneficiaries, and enrollees to obtain

an estimate of their potential cost-sharing liability for covered items and services they might

receive from a particular health care provider, consistent with the requirements of section 2715A

of the PHS Act and section 1311(e)(3)(C) of PPACA. Accordingly, the Departments proposed

in paragraph (b) of the proposed regulations to require group health plans and health insurance

CMS-9915-F 80

issuers to disclose certain information relevant to a determination of a consumer’s out-of-pocket

costs for a particular health care item or service in accordance with specific method and format

requirements, upon the request of a participant, beneficiary, or enrollee.

A majority of commenters supported the Departments’ proposal and urged the

Departments to finalize this section of the proposed rules. Many commenters were supportive of

being able to know their costs before receiving care in order to make informed shopping

decisions. Some commenters agreed that consumers should have access to cost information in

advance of receiving care, but suggested modifications to the proposed requirements. The final

rules adopt the requirement that plans and issuers disclose certain cost-sharing information for a

particular health care item or service, generally as set forth in the proposed rules, but with certain

modifications and clarifications explained later in this section of this preamble.

1. Information Required to be Disclosed to Participants, Beneficiaries, or Enrollees

Based on significant research and review of public comments, the Departments

concluded that requiring group health plans and health insurance issuers to disclose to

participants, beneficiaries, or enrollees cost-sharing information in the manner most familiar to

them is the best means to empower individuals to understand their potential cost-sharing liability

for covered items and services furnished by particular providers. The Departments, therefore,

modeled the proposed price transparency requirements on existing notice requirements.

Specifically, section 2719 of the PHS Act (incorporated into the Code by section 9815 of

the Code and into ERISA by section 715 of ERISA) requires non-grandfathered plans and issuers

offering non-grandfathered coverage in the individual or group markets to provide a notice of

adverse benefit determination (typically satisfied by the EOB) to participants, beneficiaries, or

enrollees after health care items or services are furnished and claims for benefits are adjudicated.

CMS-9915-F 81

EOBs typically include the amount billed by a provider for items and services, negotiated rates

or underlying fee schedules with in-network providers or allowed amounts for out-of-network

providers, the amount the plan paid to the provider, and the individual's obligation for

deductibles, copayments, coinsurance, and any other balance under the provider's bill.

Consumers are accustomed to seeing cost-sharing information as it is presented in an EOB. The

proposed rules were intended to similarly require plans and issuers to provide the specific price

and benefit information on which an individual's cost-sharing liability is based. Based on

comments, the Departments are of the view that participants, beneficiaries, and enrollees would

also benefit from understanding the price of items and services, even in circumstances when their

cost-sharing liability is not based upon a negotiated rate or underlying fee schedule rate. Given

this primary goal of overall price transparency, the Departments are requiring disclosure of the

negotiated rate, even if it is not the amount used as the basis for cost-sharing liability.

The proposed rules set forth seven content elements that a plan or issuer must disclose,

upon request, to a participant, beneficiary, or enrollee for a covered item or service: estimated

cost-sharing liability, accumulated amounts, negotiated rates, out-of-network allowed amounts, a

list of items and services subject to bundled payment arrangements, a notice of prerequisites, if

applicable, and a disclosure notice. These seven content elements generally reflect the same

information that is included in an EOB after health care services are provided. The Departments

determined that each of the seven content elements, as well as two additional content elements,

are necessary and appropriate to implement the mandates of section 2715A of the PHS Act and

section 1311(e)(3)(C) of PPACA by permitting individuals to learn the amount of their cost-

sharing liability and understand the price for specific items or services under a plan or coverage

from a particular provider. The final rules adopt the requirement that plans and issuers must

CMS-9915-F 82

satisfy these elements through disclosure of actual data relevant to an individual’s cost-sharing

liability that is accurate at the time the request is made. The Departments acknowledge that

plans and issuers may not have processed all of an individual’s outstanding claims when the

individual requests the information; therefore, plans and issuers would not be required to account

for outstanding claims that have not yet been fully processed. As set forth in 26 CFR 54.9815-

2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211 this cost-sharing information must be

disclosed upon request in two ways: (1) through a self-service tool that meets certain standards

and is available on an internet website, and (2) in paper form, if requested by the participant,

beneficiary, or enrollee.

Furthermore, under the final rules, the cost-sharing information must be disclosed to the

participant, beneficiary, or enrollee in plain language. The final rules define “plain language” to

mean written and presented in a manner calculated to be understood by the average participant,

beneficiary, or enrollee. Determining whether this standard has been satisfied requires an

exercise of considered judgment and discretion, taking into account such factors as the level of

comprehension and education of typical participants, beneficiaries, or enrollees in the plan or

coverage and the complexity of the terms of the plan or coverage. Accounting for these factors

would likely require limiting or eliminating the use of technical jargon and long, complex

sentences, so that the information provided will not have the effect of misleading, misinforming,

or failing to inform participants, beneficiaries, or enrollees.

Several commenters agreed that the information found in an EOB is a good basis for

informing individuals of their cost-sharing liability and will effectively further coverage

transparency efforts. One commenter stated that information found in an advance EOB is neither

a trade secret, nor proprietary, as it is routinely disclosed following care. Other commenters

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expressed concern about this concept of an advance EOB, stating that most plans and issuers do

not have access to all the information necessary to provide beneficiaries with an upfront

adjudication of the beneficiary’s claim, and that the vast majority of data provided via online

tools now rely on estimated costs drawn from publicly available sources rather than personal

information and circumstances.

Many commenters expressed concerns that the elements and methods of disclosure

proposed by the Departments are overly prescriptive, hindering health plan innovation and

requiring potentially significant reworking of existing transparency tools, as well as requiring

massive IT and resource investments by all commercial plans and issuers to develop, build or

modify, test, and implement tools that meet the new standards. Several commenters

recommended providing plans and issuers with flexibility to build upon current systems.

Another commenter urged the Departments to evaluate the individualized tools currently

available, and that if requirements for cost-estimator tools are adopted, they should give carriers

and TPAs maximum flexibility in designing their tools. One commenter felt a better approach

would be to educate consumers about the online tools that are currently available and assist

employers to encourage their use. Several commenters opposed the requirement to provide the

tool and suggested the Departments remove this requirement from the final rules altogether.

These commenters stated that price estimator tools should not be required, citing studies showing

low tool utilization by consumers and plan participants, beneficiaries, or enrollees. These

commenters stated that the administration should instead focus on educating consumers about the

online tools that are currently available and assisting employers and plans in encouraging their

use.

CMS-9915-F 84

The Departments are of the view that modeling the pricing disclosures on the elements

provided within an EOB is both reasonable and appropriate. The Departments acknowledge the

potential burden of updating existing tools to comply with the final rules, but the Departments

think that the potential burden is outweighed by the importance of all enrollees, beneficiaries,

and participants having access to self-service tools that provide a baseline of accurate pricing

elements. The Departments also acknowledge that, historically, there has been low utilization of

existing tools; however, the Departments are of the view that by creating minimum uniform

standards, consumers will have access to more reliable, personalized estimates and will be more

likely to use the tools.

As described earlier in this preamble, through independent examination and engagement

with stakeholders, the Departments are of the view that existing tools vary widely in usability

and reliability due to the lack of minimum standards.

106

The Departments received thousands of

supportive comments from individuals eager for access to transparent pricing information,

indicating that the current tools available are inadequate in practice. Furthermore, as discussed

in great detail throughout this preamble, as consumers increasingly become financially

responsible for a greater proportion of the cost of their care (through deductible and coinsurance

requirements, for example) they have a vested interest in comparing prices of potential providers

and such items as prescription drugs. As such, it is likely in the best interest of plans, issuers,

106

“Are healthcare’s cost estimate tools making matters worse for patients?” Becker’s Hospital CFO Report,

November 2015. Available at: https://www.beckershospitalreview.com/finance/are-healthcare-s-cost-estimate-

tools-making-matters-worse-for-patients.html. Citing Gordon, E. “Patients Want to Price-Shop For Care, But

Online Tools Unreliable.” NPR. November 30, 2015, Available at

https://www.npr.org/sections/health-

shots/2015/11/30/453087857/patients-want-to-price-shop-for-care-but-online-tools-unreliable. (“Some estimators

reflect a combined range of possible costs, while others are based off historical pricing or claims data from various

sources. Many online estimate tools are restricted in the types of procedures they include…”).

CMS-9915-F 85

and providers to promote and educate their consumers on the benefits of these shopping tools,

and the Departments encourage them to do so. The Departments do not agree with the

commenter who stated that educating consumers regarding existing tools and encouraging their

use would be a better approach than requiring the self-service tool as proposed. While the

Departments agree that educating consumers on existing self-service tools is important, it does

not replace the benefits of making reliable self-service tools available to most participants,

beneficiaries, and enrollees in private market plans and coverages. The Departments are of the

view that minimum consistent requirements for all plans and issuers may lead to an increase in

health literacy and drive consumerism as participants, beneficiaries, and enrollees become more

familiar with how plans and issuers calculate cost-sharing liability. Furthermore, the final rules

adopt a phased implementation approach to these requirements as a mechanism to help mitigate

the associated implementation burdens.

Some commenters requested that the Departments confirm that the intent of the proposed

rules is that only participants and beneficiaries enrolled in the plan would have access to the tool,

noting that the proposed regulations used the ERISA definitions of “participant” and

“beneficiary,” which include individuals who may become eligible for the plan. Many

commenters encouraged the Departments to also require that plans and issuers make cost-sharing

information easily accessible to authorized representatives—which may include health care

providers—so that they can better respond to patient inquiries. These commenters suggested that

patients reasonably turn to providers for this information when contemplating or scheduling

health care services, but providers often face barriers in accessing the necessary details from

issuers to provide a timely, accurate estimate. Commenters suggested that plans and issuers

should be required to give providers access to their patients’ specific benefit information via a

CMS-9915-F 86

secure website, subject to patient consent. One commenter recommended that the tool be made

applicable for the public while they are in the shopping and plan selection phase, not just after

someone is enrolled in a plan. This commenter suggested that true cost transparency would not

be possible if this information was not made available in advance.

The final rules clarify that disclosures of cost-sharing information are only required to

individuals who are enrolled in the plan or coverage; no disclosures are required to be made to a

“participant” or “beneficiary” solely because they might become eligible for the plan in the

future. This is reflected by a revision to the proposed language being finalized at 26 CFR

54.9815-2715A2(b), 29 CFR 2590.715-2715A2(b), and 45 CFR 147.211(b) to refer to plans and

issuers providing cost-sharing information to a participant, beneficiary, or enrollee who is

enrolled in a plan or coverage. The Departments understand the value in provider access to cost-

sharing information required under the final rules. However, this rulemaking focuses on

implementing the statutory obligation for plans to make this information available to

participants, beneficiaries, and enrollees. A participant, beneficiary, or enrollee may choose to

share information regarding their personal cost-sharing liability with a provider for the purposes

of making health care decisions. The final rules also require that this information must be

provided to a participant’s, beneficiary’s, or enrollee’s authorized representative. Under other

applicable regulations, participants, beneficiaries, or enrollees may appoint a health care provider

as their authorized representative.

107

29 CFR 2560.503-1(b)(4); see also 26 CFR 54.9815-2719(b)(2)(i), 29 CFR 2590.715-2719(b)(2)(ii), and 45 CFR

147.136(b)(2)(ii).

CMS-9915-F 87

Regarding whether other types of information should be required to be disclosed in the

self-service tool, several commenters expressed concern that information regarding cost without

accompanying provider quality information could have a detrimental effect on overall health care

cost and delivery of value-based care. One commenter stated that shifting care to a lower-cost

provider could have unintended consequences of higher costs associated with unnecessary or

improper care. Commenters recommended that a quality metric be included and that quality

information be allowed to be included alongside price.

As discussed in the background section of this preamble and later in this preamble, the

Departments acknowledge that quality information could be a valuable addition to a self-service

tool. However, the Departments did not propose to require disclosure of quality information.

Rather, the Departments sought comments regarding quality information in the proposed rules

and plan to take those comments into consideration for future action. The Departments

encourage plans and issuers to further innovate around the baseline standards outlined above and

include quality information and other metrics not required by the final rules that would assist in

consumer decision-making.

Several commenters suggested that plans and issuers should be required to disclose

information not directly related to cost sharing. One commenter urged the Departments to

include an additional requirement in the final rules for plans and issuers to provide consumers

with information they need to fully understand their cost-sharing obligations for emergency

services at the time they obtain their coverage, and recommended plans and issuers also update

this information on an annual basis or when major changes occur that would impact their access

to, and overall cost of, emergency care, such as changes to their provider. Another commenter

recommended that when consumers enter a search for a primary service or treatment, that they

CMS-9915-F 88

also be provided with an “alert” that additional services, such as anesthesia, pathology, or

laboratory tests, likely will be involved and will entail additional costs, which should also be

disclosed. Another commenter requested that the Departments add the “type of plan” (for

example, ERISA-covered group health plan, a QHP, a Medicare Advantage plan, a Medicaid

MCO plan, an individual health plan, or a plan that is grandfathered from PPACA requirements)

and in what state the plan is providing coverage as disclosure content elements that health plans

would be required to post on the proposed internet-based self-service tool, so that the

information is readily available.

The Departments recognize the benefit of providing information for emergency services

at the time consumers obtain their coverage. The Departments are of the view, however, that

existing rules governing summaries of benefits and coverage are designed to provide such

information to consumers at the time they obtain coverage. As such, the Departments are not

inclined to duplicate existing requirements in the final rules. The Departments also acknowledge

that alerting consumers to additional services associated with a service or treatment for which

they searched could be beneficial. For this reason, the final rules provide plans and issuers

flexibility to give disclaimers that can address the likelihood that services in addition to the one

for which a consumer searched will be necessary. The final rules also require that plans and

issuers outline individual services when a consumer requests an estimate for a service that, per

the agreement between a payer and a provider, will be provided and billed as a bundle. Plans

and issuers are also free to provide such information in any way they so choose, including

through an alert. The Departments are also of the view that participants, beneficiaries, and

enrollees are generally aware of the type of plan they are enrolled in or can reasonably access

CMS-9915-F 89

this information by contacting their plan or issuer and therefore decline to require this

information as part of the final rules.

Scope of Items and Services

Many commenters stated that the requirement to disclose the price of all covered items

and services was overly broad and overly burdensome, and instead suggested the Departments

limit disclosure to a core set of “shoppable services” that are commonly searched for in existing

cost-estimator tools. Many commenters referenced the recently finalized definition of a

shoppable service that was included in the Hospital Price Transparency final rule as “a service

that can be scheduled by a health care consumer in advance.”

108

Two commenters recommended

no more than 300 shoppable items and services, while another suggested a limit of 200. As a

way to reduce the cost burden, one commenter suggested that the requirements under the rules be

limited to services that are priced above a certain threshold and provided $5,000 as an example.

One commenter said the Departments should permit health plans and issuers to tailor their tools

to best meet their enrollees’ and providers’ demonstrated needs and priorities, including selection

of the items and services for which estimates are most useful and meaningful for participants,

beneficiaries, and enrollees. Another commenter recommended that the cost-sharing

requirement be limited to items and services where the estimated out-of-pocket price is

frequently the same as the final price. Another recommended the tool not require data on those

items/services with volatile prices or low volume.

One commenter, representing many plans and issuers, provided a list of 421 items and

services that they recommended including under this disclosure requirement. The recommended

108

84 FR 65524 (Nov. 27, 2019) (codified at 45 CFR 180.20).

CMS-9915-F 90

list of 421 items and services are a result of an analysis the commenter performed which

compared member feedback, claims frequency, operational feasibility, and state mandates and

regulations, as well as variability of cost and search frequency. All 421 items and services were

included by, at the minimum, a subset of issuers, indicating confidence that the covered items

and services were shoppable. This commenter also noted that their survey of existing tools

found a median of 526 services available to consumers enrolled in commercial coverage.

A few commenters recommended that the Departments limit the list of items and services

to only major medical services. One commenter recommended the Departments not include cost

sharing for DME. Several commenters suggested that a Technical Expert Panel (TEP) was

needed to review data and input from stakeholders, advise on research the Departments should

undertake, and determine which items and services and functional requirements would be

suitable to include in the future.

Many individual commenters expressed their desire for dental, vision, and other excepted

benefits to be included under the requirements of the final rules or in the near future. Further, a

majority of individual commenters encouraged the Departments to require the inclusion of all

items and services, stating that consumers have a right to know this information for all items and

services in advance. Several commenters recommended that the rules be implemented in a more

gradual phased-in timeline, by requiring the tool to cover a narrower data set of the most

common shoppable services first and then broadened to eventually include all items and services.

Another commenter stated that to the extent that the services include non-medical estimates like

pharmacy and dental costs, those costs could likely only be included by allowing third parties

that fulfill those benefits to provide separate transparency tools that integrate with a plan’s tool.

CMS-9915-F 91

The Departments agree with commenters who stated that consumers should be given

price estimates in advance, and the Departments understand that what is considered useful and

meaningful pricing information is likely to be unique to an individual’s circumstances. For these

reasons, and the rationale for this rulemaking described throughout this preamble, the

Departments decline to accept suggestions related to limiting the number or types of items and

services included under this requirement. However, the Departments acknowledge the potential

burden of incorporating all items and services into a self-service tool immediately and are

therefore finalizing a phased-in implementation timeline. Under the final rules, plans and issuers

are required to provide estimates for the 500 items and services identified in Table 1 for plan

years (in the individual market, for policy years) beginning on or after January 1, 2023.

However, plans and issuers will be required to disclose pricing information with respect to all

items and services for plan years (in the individual market, for policy years) beginning on or

after January 1, 2024. Given that pricing estimates for all items and services will ultimately be

required, the Departments do not find it necessary to convene a TEP to determine which items

and services and functional requirements would be suitable to include in the future.

Further, in finalizing the provision that plans and issuers disclose cost-sharing liability

information for all covered items and services, the Departments are clarifying that cost-sharing

information must also be provided for covered prescription drugs and DME. As discussed later

in this preamble, a plan or issuer will be considered compliant with this requirement if it offers

its participants, beneficiaries, or enrollees access to the pricing information that is required under

26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211, through a third-

party tool, such as a PBM tool. As discussed elsewhere in this preamble, the Departments clarify

that excepted benefits, such as limited-scope dental benefits offered under a separate policy,

CMS-9915-F 92

certificate, or contract of insurance that are not an integral part of a group health plan or health

insurance coverage, are not subject to the requirements established under the final rules.

In developing the list of 500 items and services that are required to be included in the

self-service tool during the first year of implementation, the Departments considered the

recommendations made by the commenters to include shoppable items and services that are

commonly used in existing tools. As mentioned above, in a survey of existing price transparency

tools currently in use, one commenter found that the median number of items and services in

existing tools is 526. Table 1 lists 500 items and services that will be required to be included in

the first phase of implementation of the internet-based self-service tool. The Departments will

publish a copy of this list on a publicly available website. The majority of these items and

services (416) are based on the recommendation of several stakeholders. The Departments have

determined not to include five of the recommended codes because they have since been retired.

The Departments augmented the list with 84 additional services. These 84 services reflect some

of the most frequently found services in External Data Gathering Environment (EDGE)

109

data,

which are representative of services commonly provided in the individual and small group (or

merged) markets. The Departments also examined the aggregate claims costs associated with

these services nationally and concluded that these services could have significant cost variability,

ranging from the 25

percentile to the 75

percentile of costs, depending on service.

109

CMS began collecting enrollee-level data from issuers’ EDGE servers beginning with the 2016 benefit year. See

the HHS Notice of Benefit and Payment Parameters for 2018; Final Rule, 81 FR 94058, 94101-94103 (Dec. 22,

2016). The enrollee-level EDGE data collected by CMS includes an enrollment file, a medical claims file, a

pharmacy claims file, and a supplemental diagnosis file for risk adjustment-covered plans in the states where HHS

operates the risk adjustment program. CMS does not collect enrollee-identifiable elements to safeguard enrollee

privacy and issuers’ proprietary information. See, for example, 45 CFR 153.720.

CMS-9915-F 93

Table 1: 500 Items and Services List

Code

Description

Plain Language Description

J0702

BETAMETHASONE ACET&SOD

PHOSP

Injection to treat reaction to a drug

J1745

INFLIXIMAB NOT BIOSIMIL

10MG

A biologic medication

G0102

Prostate cancer screening; digital

rectal examination

G0103

Prostate cancer screening; prostate

specific antigen test (psa)

G2061

Qualified non physician healthcare

professional online assessment; 5-10

minutes

Qualified non physician healthcare

professional online assessment, for

an established patient, for up to

seven days, cumulative time during

the 7 days; 5-10 minutes

G2062

Qualified non physician healthcare

professional online assessment

service; 11-20 minutes

Qualified non physician healthcare

professional online assessment

service, for an established patient,

for up to seven days, cumulative

time during the 7 days; 11-20

minutes

G2063

Qualified non physician qualified

healthcare professional assessment

service; 21+ minutes

Qualified non physician qualified

healthcare professional assessment

service, for an established patient,

for up to seven days, cumulative

time during the 7 days; 21 or more

minutes

G0206

Diagnostic mammography, including

computer-aided detection (cad) when

performed; unilateral

G0204

Diagnostic mammography, including

computer-aided detection (cad) when

performed; bilateral

G0121

Colon ca scrn; not hi risk ind

Colorectal cancer screening;

colonoscopy on individual not

meeting criteria for high risk

G0105

Colorectal ca scrn; hi risk ind

Colorectal cancer screening;

colonoscopy on individual at high

risk

S0285

Cnslt before screen colonosc

Colonoscopy consultation

performed prior to a screening

colonoscopy procedure

G0289

Arthro, loose body + chondro

Arthroscopy, knee, surgical, for

removal of loose body, foreign

CMS-9915-F 94

Code

Description

Plain Language Description

body, debridement/shaving of

articular cartilage (chondroplasty)

at the time of other surgical knee

arthroscopy in a different

compartment of the same knee

G0120

Colon ca scrn; barium enema

Colorectal cancer screening;

alternative to g0105, screening

colonoscopy, barium enema

460

SPINAL FUSION (POSTERIOR)

Spinal fusion except cervical

470

KNEE REPLACEMENT

Major joint replacement or

reattachment of lower extremity

473

SPINAL FUSION (ANTERIOR)

Cervical spinal fusion

743

HYSTERECTOMY

Uterine and adnexa procedures for

non-malignancy

1960

Anesthesia for vaginal delivery

1961

Anesthesia for cesarean delivery

1967

Anesthesia for labor during planned

vaginal delivery

1968

Anesthesia for cesarean delivery

following labor

10005

FNA W IMAGE

Fine needle aspiration biopsy,

including ultrasound guidance; first

lesion

10021

FNA W/O IMAGE

Fine Needle Aspiration Biopsy

without imaging

10040

ACNE SURGERY

Incision and Drainage Procedures

on the Skin, Subcutaneous and

Accessory Structures

10060

DRAINAGE OF SKIN ABSCESS

Incision and drainage of abscess;

simple or single and complex or

multiple

10140

DRAINAGE OF

HEMATOMA/FLUID

Incision and drainage of

hematoma, seroma or fluid

collection

10160

PUNCTURE DRAINAGE OF

LESION

Puncture aspiration of abscess,

hematoma, bulla, or cyst

11000

DEBRIDE INFECTED SKIN

Removal of infected skin

11056

TRIM SKIN LESIONS 2 TO 4

Paring or cutting of benign

hyperkeratotic lesion

11102

BIOPSY SKIN LESION

Tangential biopsy of skin (for

example, shave, scoop, saucerize,

curette); single lesion

11103

BIOPSY SKIN ADD-ON

Tangential biopsy of skin (for

example, shave, scoop, saucerize,

CMS-9915-F 95

Code

Description

Plain Language Description

curette); each separate/additional

lesion

11200

REMOVAL OF SKIN TAGS <W/15

Removal of skin tags, multiple

fibrocutaneous tags, any area

11401

EXC TR-EXT B9+MARG 0.6-1 CM

Under Excision-Benign Lesions

Procedures on the Skin 0.6-1 CM

11422

EXC H-F-NK-SP B9+MARG 1.1-2

Under Excision-Benign Lesions

Procedures on the Skin 1.1-2 CM

11602

EXC TR-EXT MAL+MARG 1.1-2

Excision-Malignant Lesions

11721

DEBRIDE NAIL 6 OR MORE

Removal of 6 or more nails

11730

REMOVAL OF NAIL PLATE

Separation and removal of the

entire nail plate or a portion of nail

plate

11900

INJECT SKIN LESIONS </W 7

Injections to remove up to 7 lesions

on the skin

12001

RPR S/N/AX/GEN/TRNK 2.5CM/<

Simple repair of superficial

wounds of scalp, neck, axillae,

external genitalia, trunk and/or

extremities

12011

RPR F/E/E/N/L/M 2.5 CM/<

Simple repair of superficial

wounds of face, ears, eyelids, nose,

lips and/or mucous membranes

17000

DESTRUCT PREMALG LESION

Destruction of pre-cancerous lesion

17003

DESTRUCT PREMALG LES 2-14

Destruction of 2-14 pre-cancerous

lesions

17110

DESTRUCT B9 LESION 1-14

Destruction of 1-14 common or

plantar warts

17111

DESTRUCT LESION 15 OR MORE

Destruction of >15 common or

plantar warts

17250

CHEM CAUT OF GRANLTJ

TISSUE

Chemical destruction of pre-

cancerous lesions of the skin

17311

MOHS 1 STAGE H/N/HF/G

Micrographic technique, including

removal of all gross tumor, surgical

excision of tissue specimens,

mapping, color coding of

specimens, microscopic

examination of specimens

19120

REMOVAL OF BREAST LESION

20550

INJ TENDON

SHEATH/LIGAMENT

Injection of medication into a

tendon or ligament

20551

INJ TENDON ORIGIN/INSERTION

Injection of medication into the

tendon/ligament origin

CMS-9915-F 96

Code

Description

Plain Language Description

20553

INJECT TRIGGER POINTS 3/>

Injection of medication into an area

that triggers pain

20600

DRAIN/INJ JOINT/BURSA W/O US

Draining or injecting medication

into a small joint/bursa without

ultrasound

20605

DRAIN/INJ JOINT/BURSA W/O US

Draining or injecting medication

into a large joint/bursa without

ultrasound

20610

DRAIN/INJ JOINT/BURSA W/O US

Draining or injecting medication

into a major joint/bursa without

ultrasound

20612

ASPIRATE/INJ GANGLION CYST

Removal of fluid or injection of

medication into a ganglion cyst

27440

Revision of knee joint

Repair of knee joint

27441

Revision of knee joint

Repair of knee joint

27442

Revision of knee joint

Repair of knee joint

27443

Revision of knee joint

Repair of knee joint

27445

Revision of knee joint

Repair of knee joint with hinged

prosthesis

27446

Revision of knee joint

Repair of knee joint

28296

CORRECTION HALLUX VALGUS

Under Repair, Revision, and/or

Reconstruction Procedures on the

Foot and Toes

29826

Subacromial Decompression

Shaving of shoulder bone using an

endoscope

29848

WRIST ENDOSCOPY/SURGERY

Carpal tunnel release

29880

KNEE ARTHROSCOPY/SURGERY

Surgery to remove of all or part of

a torn meniscus in both medial and

lateral compartments

29881

KNEE ARTHROSCOPY/SURGERY

Surgery to remove of all or part of

a torn meniscus in one

compartment

29888

KNEE ARTHROSCOPY/SURGERY

ACL reconstruction

30520

REPAIR OF NASAL SEPTUM

Repair procedures of the nose

31231

NASAL ENDOSCOPY DX

Nasal endoscopy, diagnostic,

unilateral or bilateral

31237

NASAL/SINUS ENDOSCOPY

SURG

Surgical nasal/ sinus endoscopy

with biopsy, polypectomy or

debridement

31575

DIAGNOSTIC LARYNGOSCOPY

Flexible, fiberoptic diagnostic

laryngoscopy

36415

ROUTINE VENIPUNCTURE

Collection of venous blood by

venipuncture

36471

NJX SCLRSNT MLT INCMPTNT

Injections to remove spider veins

on the limbs or trunk

CMS-9915-F 97

Code

Description

Plain Language Description

36475

ENDOVENOUS RF 1ST VEIN

Ablation of incompetent vein

36478

ENDOVENOUS LASER 1ST VEIN

Laser removal of incompetent vein

42820

REMOVE TONSILS AND

ADENOIDS

Removal of tonsils and adenoid

glands patient younger than age

42826

REMOVAL OF TONSILS

Primary or secondary removal of

tonsils

42830

REMOVAL OF ADENOIDS

Primary removal of the adenoids

43235

EGD DIAGNOSTIC BRUSH WASH

Diagnostic examination of

esophagus, stomach, and/or upper

small bowel using an endoscope

43239

EGD BIOPSY SINGLE/MULTIPLE

Biopsy of the esophagus, stomach,

and/or upper small bowel using an

endoscope

43846

Gastric restrictive procedure, with

gastric bypass for morbid obesity;

with small intestine reconstruction to

limit absorption

Surgical procedure used for weight

loss resulting in a partial removal

of stomach

44388

Colonoscopy thru stoma spx

Diagnostic examination of large

bowel using an endoscope which is

inserted through abdominal

opening

44389

Colonoscopy with biopsy

Biopsies of large bowel using an

endoscope which is inserted

through abdominal opening

44394

Colonoscopy w/snare

Removal of large bowel polyps or

growths using an endoscope

45378

DIAGNOSTIC COLONOSCOPY

Diagnostic examination of large

bowel using an endoscope

45379

Colonoscopy w/fb removal

Removal of foreign bodies in large

bowel using an endoscope

45380

COLONOSCOPY AND BIOPSY

Biopsy of large bowel using an

endoscope

45381

Colonoscopy submucous njx

Injections of large bowel using an

endoscope

45382

Colonoscopy w/control bleed

Control of bleeding in large bowel

using an endoscope

45384

Colonoscopy w/lesion removal

Removal of polyps or growths in

large bowel using an endoscope

45385

COLONOSCOPY W/LESION

REMOVAL

Removal of polyps or growths of

large bowel using an endoscope

45386

Colonoscopy w/balloon dilat

Balloon dilation of large bowel

using an endoscope

45388

Colonoscopy w/ablation

Destruction of large bowel growths

using an endoscope

CMS-9915-F 98

Code

Description

Plain Language Description

45390

Colonoscopy w/resection

Removal of large bowel tissue

using an endoscope

45391

Colonoscopy w/endoscope us

Ultrasound examination of lower

large bowel using an endoscope

45392

Colonoscopy w/endoscopic fnb

Ultrasound guided needle

aspiration or biopsy of lower large

bowel using an endoscope

45398

Colonoscopy w/band ligation

Tying of large bowel using an

endoscope

47562

LAPAROSCOPIC

CHOLECYSTECTOMY

Removal of gallbladder using an

endoscope

47563

LAPARO

CHOLECYSTECTOMY/GRAPH

Gallbladder removal with use of an

x-ray exam of the bile ducts

49505

PRP I/HERN INIT REDUC >5 YR

Repair of groin hernia patient age 5

years or older

49585

RPR UMBIL HERN REDUC > 5 YR

Repair of umbilical hernia in

patients over 5 years old

49650

LAP ING HERNIA REPAIR INIT

Inguinal hernia repair done by

laparoscope

50590

FRAGMENTING OF KIDNEY

STONE

Surgical procedures on the kidney

to break up and remove kidney

stones

51741

ELECTRO-UROFLOWMETRY

FIRST

A diagnostic test used to measure

the flow of urine

51798

US URINE CAPACITY MEASURE

Ultrasound of bladder to measure

urine capacity

52000

CYSTOSCOPY

Procedure on the bladder

52310

CYSTOSCOPY AND TREATMENT

Removing an indwelling ureteral

stent by cystoscopy

52332

CYSTOSCOPY AND TREATMENT

Ureteral stents inserted internally

between the bladder and the kidney

and will remain within the patient

for a defined period of time

55250

EXCISION PROCEDURES ON

THE VAS DEFERENS

Removal of sperm duct(s)

55700

Prostate biopsy

Biopsy of prostate gland

55866

Surgical Procedures on the Prostate

Surgical removal of prostate and

surrounding lymph nodes using an

endoscope

57022

Incision and drainage of vaginal

blood accumulation following

delivery

57288

REPAIR BLADDER DEFECT

Replacement of sling to support the

bladder

CMS-9915-F 99

Code

Description

Plain Language Description

57454

BX/CURETT OF CERVIX

W/SCOPE

Biopsy of cervix or uterus

58100

EXCISION PROCEDURES ON

THE CORPUS UTERI

Biopsy of the lining of the uterus

58558

HYSTEROSCOPY BIOPSY

Surgical hysteroscopy with biopsy

58563

HYSTEROSCOPY ABLATION

Surgical procedure used to treat

premenopausal abnormal uterine

bleeding

58565

HYSTEROSCOPY

STERILIZATION

Laparoscopic/Hysteroscopic

Procedures on the uterus

58571

TLH W/T/O 250 G OR LESS

Laparoscopic hysterectomy

58661

LAPAROSCOPY REMOVE

ADNEXA

Removal of either benign or

malignant tissue from the uterus,

ovaries, fallopian tubes, or any of

the surrounding tissues using a

laparoscope

58662

LAPAROSCOPY EXCISE

LESIONS

Removal of lesions of the ovary,

pelvic viscera, or peritoneal surface

58671

LAPAROSCOPY TUBAL BLOCK

Laparoscopic tubal sterilization is

surgery to block the fallopian tubes

to prevent pregnancy

59000

AMNIOCENTESIS DIAGNOSTIC

Removal of amniotic fluid from

the uterus for diagnostic purposes

59025

FETAL NON-STRESS TEST

A common prenatal test used to

check on a baby's health.

59400

OBSTETRICAL CARE

Obstetrical pre- and postpartum

care and vaginal delivery

59409

Vaginal delivery

59410

Vaginal delivery with post-delivery

care

59414

Vaginal delivery of placenta

59425

Pre-delivery care 4-6 visits

59426

Pre-delivery care 7 or more visits

59510

CESAREAN DELIVERY

Cesarean delivery with pre- and

post-delivery care

59514

Cesarean delivery

59515

Cesarean delivery with post-delivery

care

59610

VBAC DELIVERY

Vaginal delivery after prior

cesarean delivery

59612

Vaginal delivery after prior cesarean

delivery

59614

Vaginal delivery after prior cesarean

delivery with post-delivery care

CMS-9915-F 100

Code

Description

Plain Language Description

62322

SPINAL INJECTION FOR PAIN

MANAGEMENT

Injection of substance into spinal

canal of lower back or sacrum

using imaging guidance

62323

Injection of substance into spinal

canal of lower back or sacrum using

imaging guidance

63030

LOW BACK DISK SURGERY

Surgical procedure to decompress a

herniated vertebra

64483

Transforaminal Epidural Injection

Injections of anesthetic and/or

steroid drug into lower or sacral

spine nerve root using imaging

guidance

64493

INJ PARAVERT F JNT L/S 1 LEV

Injection into lower back of nerve

block using imaging guidance

64721

CARPAL TUNNEL SURGERY

Release of the transverse carpal

ligament

66821

YAG capusulotomy surgery

Removal of recurring cataract in

lens capsule using laser

66984

CATARACT SURG W/IOL 1

STAGE

Removal of cataract with insertion

of lens

67028

INJECTION EYE DRUG

Injection of a pharmaceutical agent

into the eye

69210

REMOVE IMPACTED EAR WAX

Removal of ear wax from one or

both ears

69436

CREATE EARDRUM OPENING

Insertion of tubes into one or both

ears

70450

CT HEAD/BRAIN W/O DYE

CT scan head or brain without dye

70486

CT MAXILLOFACIAL W/O DYE

CT Scan of the face and jaw

without dye

70491

CT SOFT TISSUE NECK W/DYE

CT scan of neck with dye

70551

MRI BRAIN STEM W/O DYE

MRI of brain stem without dye

70553

MRI BRAIN STEM W/O & W/DYE

MRI scan of brain before and after

contrast

71045

CHEST X-RAY

Single view

71046

CHEST X-RAY

2 views, front and back

71047

CHEST X-RAY

3 views

71048

CHEST X-RAY

4 or more views

71101

X-RAY EXAM UNILAT

RIBS/CHEST

Radiologic examination of one side

of the chest/ribs

71250

CT THORAX W/O DYE

CT scan of the thorax without dye

71260

CT THORAX W/DYE

CT scan of the thorax with dye

71275

CT ANGIOGRAPHY CHEST

Diagnostic Radiology (Diagnostic

Imaging) Procedures of the Chest

CMS-9915-F 101

Code

Description

Plain Language Description

72040

X-RAY EXAM NECK SPINE 2-3

Radiologic examination of the

neck/spine, 2-3 views

72050

X-RAY EXAM NECK SPINE

4/5VWS

Radiologic examination of the

neck/spine, 4-5 views

72070

X-RAY EXAM THORAC SPINE

2VWS

Radiologic examination of the

middle spine, 2 views

72072

X-RAY EXAM THORAC SPINE

3VWS

Radiologic examination of the

middle spine, 3 views

72100

X-RAY EXAM L-S SPINE 2/3 VWS

X-ray of the lower spine 2-3 views

72110

X-RAY EXAM L-2 SPINE 4/>VWS

X-ray of lower and sacral spine,

minimum of 4 views

72131

CT LUMBAR SPINE W/O DYE

CT scan of lower spine without

dye

72141

MRI NECK SPINE W/O DYE

MRI of the neck or spine without

dye

72146

MRI CHEST SPINE W/O DYE

MRI of chest and spine without

dye

72148

MRI LUMBAR SPINE W/O DYE

MRI scan of lower spinal canal

72156

MRI NECK SPINE W/O & W/DYE

MRI of neck/spine with and

without dye

72157

MRI CHEST SPINE W/O & W/DYE

MRI of chest and spine with and

without dye

72158

MRI LUMBAR SPINE W/O &

W/DYE

MRI of lower back with and

without dye

72170

X-RAY EXAM OF PELVIS

Radiologic examination of the

pelvis

72192

CT PELVIS W/O DYE

CT of pelvis without dye

72193

CT PELVIS W/DYE

CT scan, pelvis, with contrast

72195

MRI PELVIS W/O DYE

MRI of pelvis without dye

72197

MRI PELVIS W/O & W/DYE

MRI of pelvis before and after dye

73000

X-RAY EXAM OF COLLAR BONE

Radiologic examination of the

collar bone

73030

X-RAY EXAM OF SHOULDER

Radiologic examination of the

shoulder

73070

X-RAY EXAM OF ELBOW

Radiologic examination, elbow; 2

views

73080

X-RAY EXAM OF ELBOW

Radiologic examination, elbow; 3

or more views

73090

X-RAY EXAM OF FOREARM

Radiologic examination of the

forearm

73100

X-RAY EXAM OF WRIST

3 or more views

73110

X-RAY EXAM OF WRIST

Up to 3 views

73120

X-RAY EXAM OF HAND

X-ray of the hand with 2 views

CMS-9915-F 102

Code

Description

Plain Language Description

73130

X-RAY EXAM OF HAND

X-ray of the hand with 3 or more

views

73140

X-RAY EXAM OF FINGER(S)

Radiologic examination of the

finger(s)

73221

MRI JOINT UPR EXTREM W/O

DYE

MRI of upper extremity without

dye

73560

X-RAY EXAM OF KNEE 1 OR 2

Radiologic examination of the knee

with 1 or 2 views

73562

X-RAY EXAM OF KNEE 3

Radiologic examination of the knee

with 3 views

73564

X-RAY EXAM KNEE 4 OR MORE

Radiologic examination of the knee

with 4 or more views

73565

X-RAY EXAM OF KNEES

Radiologic examination of both

knees

73590

X-RAY EXAM OF LOWER LEG

Radiologic examination of the

lower leg

73600

X-RAY EXAM OF ANKLE

Radiologic examination of the

ankle with 2 views

73610

X-RAY EXAM OF ANKLE

Radiologic examination of the

ankle with 3 views

73620

X-RAY EXAM OF FOOT

Radiologic examination, foot; 2

views

73630

X-RAY EXAM OF FOOT

Radiologic examination of the foot

with 3 or more views

73650

X-RAY EXAM OF HEEL

Radiologic examination of the heel

73660

X-RAY EXAM OF TOE(S)

Radiologic examination of the

toe(s)

73700

CT LOWER EXTREMITY W/O

DYE

CT scan of leg without dye

73718

MRI LOWER EXTREMITY W/O

DYE

MRI of leg without dye

73721

MRI JNT OF LWR EXTRE W/O

DYE

MRI of lower extremity joint

(knee/ankle) without dye

73722

MRI JOINT OF LWR EXTR

W/DYE

MRI of lower extremity joint

(knee/ankle) with dye

73723

MRI JOINT LWR EXTR

W/O&W/DYE

MRI of lower extremity joint

(knee/ankle) with and without dye

74022

X-RAY EXAM SERIES ABDOMEN

Serial radiologic examination of

the abdomen

74150

CT ABDOMEN W/O DYE

CT of abdomen without dye

74160

CT ABDOMEN W/DYE

CT of abdomen with dye

74170

CT ABDOMEN W/O & W/DYE

CT of abdomen with and without

dye

74176

CT ABD & PELVIS W/O

CONTRAST

CT of abdomen and pelvis without

dye

CMS-9915-F 103

Code

Description

Plain Language Description

74177

CT ABD & PELV W/CONTRAST

CT scan of abdomen and pelvis

with contrast

74178

CT ABD & PELV 1/> REGNS

Computed tomography, abdomen

and pelvis; without contrast

material in one or both body

regions, followed by contrast

material(s) and further sections in

one or both body regions

74181

MRI ABDOMEN W/O DYE

MRI of abdomen without dye

74183

MRI ABDOMEN W/O & W/DYE

MRI of abdomen without and with

dye

76000

CHEST X-RAY

Flouroscopy, or x-ray "movie" that

takes less than an hour

76001

CHEST X-RAY

Flouroscopy, or x-ray "movie" that

takes more than an hour

76512

OPHTH US B W/NON-QUANT A

Ultrasound of the eye

76514

ECHO EXAM OF EYE

THICKNESS

A diagnostic procedure that allows

a provider to see the organs and

other structures in the abdomen

76536

US EXAM OF HEAD AND NECK

Ultrasound of head and neck

76642

ULTRASOUND BREAST LIMITED

Limited ultrasound of the breast

76700

US EXAM ABDOM COMPLETE

Ultrasound of abdomen with all

areas scanned

76705

ECHO EXAM OF ABDOMEN

A diagnostic procedure that allows

a provider to see the organs and

other structures in the abdomen

76770

US EXAM ABDO BACK WALL

COMP

Ultrasound of back wall of the

abdomen with all areas viewed

76775

US EXAM ABDO BACK WALL

LIM

Ultrasound of back wall of the

abdomen with limited areas viewed

76801

OB US < 14 WKS SINGLE FETUS

Abdominal ultrasound of pregnant

uterus (less than 14 weeks) single

or first fetus

76805

OB US >/= 14 WKS SNGL FETUS

Abdominal ultrasound of pregnant

uterus (greater or equal to 14

weeks 0 days) single or first fetus

76811

OB US DETAILED SNGL FETUS

Ultrasound of single fetus

76813

OB US NUCHAL MEAS 1 GEST

Evaluation through measurement

of fetal nuchal translucency

76815

OB US LIMITED FETUS(S)

Ultrasound of fetus with limited

views

76817

TRANSVAGINAL US OBSTETRIC

Transvaginal ultrasound of uterus

76818

FETAL BIOPHYS PROFILE

W/NST

Fetal biophysical profile with non-

stress test

CMS-9915-F 104

Code

Description

Plain Language Description

76819

FETAL BIOPHYS PROFIL W/O

NST

Fetal biophysical profile without

non-stress test

76830

TRANSVAGINAL US NON-OB

Ultrasound of the pelvis through

vagina

76831

ECHO EXAM UTERUS

A diagnostic procedure that allows

a provider to see the uterus

76856

US EXAM PELVIC COMPLETE

Complete ultrasound of the pelvis

76857

US EXAM PELVIC LIMITED

Limited ultrasound of the pelvis

76870

US EXAM SCROTUM

Ultrasound of the scrotum

76872

US TRANSRECTAL

Transrectal ultrasound

76882

US LMTD JT/NONVASC XTR

STRUX

Diagnostic ultrasound of an

extremity excluding the bone,

joints or vessels

77047

MRI BOTH BREASTS

Magnetic resonance imaging,

breasts, without contrast material;

bilateral

77065

DX MAMMO INCL CAD UNI

Mammography of one breast

77066

DX MAMMO INCL CAD BI

Mammography of both breasts

77067

SCR MAMMO BI INCL CAD

Mammography of both breasts-2 or

more views

77080

BONE DENSITY STUDY OF

SPINE OR PELVIS

Scan to measure bone mineral

density (BMD) at the spine and

hip

77385

Ntsty modul rad tx dlvr smpl

Radiation therapy delivery

77386

Ntsty modul rad tx dlvr cplx

Radiation therapy delivery

77387

Guidance for radia tx dlvr

Guidance for localization of target

delivery of radiation treatment

delivery

77412

Radiation treatment delivery

78014

THYROID IMAGING W/BLOOD

FLOW

Scan using a radioactive

medication (radiopharmaceutical)

to take pictures or images of the

thyroid gland.

78306

BONE IMAGING WHOLE BODY

A procedure most commonly

ordered to detect areas of abnormal

bone growth due to fractures,

tumors, infection, or other

bone issues

78452

HT MUSCLE IMAGE SPECT

MULT

Image of the heart to assess

perfusion

78815

PET IMAGE W/CT SKULL-THIGH

Tumor imaging, positron emission

tomography (PET) with

concurrently acquired computed

tomography (CT) for attenuation

CMS-9915-F 105

Code

Description

Plain Language Description

correction and anatomical

localization

80048

METABOLIC PANEL TOTAL CA

Basic metabolic panel

80050

GENERAL HEALTH PANEL

General health panel

80051

Blood test panel for electrolytes

(sodium potassium, chloride, carbon

dioxide)

80053

COMPREHEN METABOLIC

PANEL

Blood test, comprehensive group of

blood chemicals

80055

OBSTETRIC PANEL

Obstetric blood test panel

80061

LIPID PANEL

Blood test, lipids (cholesterol and

triglycerides)

80069

RENAL FUNCTION PANEL

Kidney function panel test

80074

ACUTE HEPATITIS PANEL

Acute hepatitis panel

80076

HEPATIC FUNCTION PANEL

Liver function blood test panel

80081

Blood test panel for obstetrics (cbc,

differential wbc count, hepatitis b,

hiv, rubella, syphilis, antibody

screening, rbc, blood typing)

80197

ASSAY OF TACROLIMUS

Test is used to measure the amount

of the drug in the blood to

determine whether the

concentration has reached a

therapeutic level and is below the

toxic level

80307

Drug test prsmv chem anlyzr

Testing for presence of drug

81000

URINALYSIS NONAUTO

W/SCOPE

Manual urinalysis test with

examination using microscope

81001

URINALYSIS; MANUAL OR

AUTO WITH OR WITHOUT

MICROSCOPY

Manual urinalysis test with

examination with or without using

microscope

81002

URINALYSIS NONAUTO W/O

SCOPE

Manual urinalysis test with

examination without using

microscope

81003

URINALYSIS; MANUAL OR

AUTO WITH OR WITHOUT

MICROSCOPY

Automated urinalysis test

81025

URINE PREGNANCY TEST

Urine pregnancy test

82043

UR ALBUMIN QUANTITATIVE

Urine test to measure albumin

82044

UR ALBUMIN

SEMIQUANTITATIVE

Urine test to measure albumin-

semiquantitative

82248

BILIRUBIN DIRECT

Measurement of direct bilirubin

82306

VITAMIN D 25 HYDROXY

Blood test to monitor vitamin D

levels

82553

CREATINE MB FRACTION

Blood test to detect heart enzymes

CMS-9915-F 106

Code

Description

Plain Language Description

82570

ASSAY OF URINE CREATININE

Test to measure creatinine in the

urine

82607

VITAMIN B-12

Blood test to measure B-12

82627

DEHYDROEPIANDROSTERONE

Blood test to measure an enzyme in

the blood

82670

ASSAY OF ESTRADIOL

Blood test to measure a type of

estrogen in the blood

82728

ASSAY OF FERRITIN

Test to determine level of iron in

the blood

82784

ASSAY IGA/IGD/IGG/IGM EACH

Test to determine levels of

immunoglobulins in the blood

82803

BLOOD GASES ANY

COMBINATION

Test to measure arterial blood

gases

82947

ASSAY GLUCOSE BLOOD

QUANT

Quantitative measure of glucose

build up in the blood over time

82950

GLUCOSE TEST

Test of glucose level in the blood

82951

GLUCOSE TOLERANCE TEST

Test to predict likelihood of

gestational diabetes

83001

ASSAY OF GONADOTROPIN

(FSH)

Test of hormone in the blood

83002

ASSAY OF GONADOTROPIN (LH)

Test of hormone in the blood

83013

H PYLORI (C-13) BREATH

Test of breath for a stomach

bacterium

83036

GLYCOSYLATED HEMOGLOBIN

TEST

Blood test to measure average

blood glucose levels for past 2-3

months

83516

IMMUNOASSAY NONANTIBODY

Chemical test of the blood to

measure presence or concentration

of a substance in the blood

83540

ASSAY OF IRON

Blood test to measure the amount

of iron that is in transit in the body

83550

IRON BINDING TEST

Blood test that measures the

amount of iron carried in the blood

83655

ASSAY OF LEAD

Blood test to determine the

concentration of lead in the blood

83718

ASSAY OF LIPOPROTEIN

Blood test to measure the level of

lipoproteins in the blood

83880

ASSAY OF NATRIURETIC

PEPTIDE

Blood test used to diagnose heart

failure

84134

ASSAY OF PREALBUMIN

Blood test to measure level of

prealbumin

84153

ASSAY OF PSA TOTAL

PSA (prostate specific antigen)

84154

PSA (prostate specific antigen)

measurement

CMS-9915-F 107

Code

Description

Plain Language Description

84436

ASSAY OF TOTAL THYROXINE

Blood test to measure a type of

thyroid hormone

84439

ASSAY OF FREE THYROXINE

Blood test to evaluate thyroid

function

84443

ASSAY THYROID STIM

HORMONE

Blood test, thyroid stimulating

hormone (TSH)

84460

ALANINE AMINO (ALT) (SGPT)

Blood test to evaluate liver

function

84480

ASSAY TRIIODOTHYRONINE

(T3)

Blood test to evaluate thyroid

function

84484

ASSAY OF TROPONIN QUANT

Blood test to measure a certain

protein in the blood to determine

heart muscle damage

84703

CHORIONIC GONADOTROPIN

ASSAY

Blood test to assess for pregnancy

85007

BL SMEAR W/DIFF WBC COUNT

Blood test to assess for infection

85018

HEMOGLOBIN

Blood test to measure levels of

hemoglobin

85025

COMPLETE CBC W/AUTO DIFF

WBC

Complete blood cell count, with

differential white blood cells,

automated

85027

COMPLETE CBC AUTOMATED

Complete blood count, automated

85610

PROTHROMBIN TIME

Blood test, clotting time

85730

THROMBOPLASTIN TIME

PARTIAL

Coagulation assessment blood test

86039

ANTINUCLEAR ANTIBODIES

(ANA)

Blood test to determine

autoimmune disorders

86147

CARDIOLIPIN ANTIBODY EA IG

Blood test to determine cause of

inappropriate blood clot formation

86200

CCP ANTIBODY

Blood test to diagnose rheumatoid

arthritis

86300

IMMUNOASSAY TUMOR CA 15-3

Blood test to monitor breast cancer

86304

IMMUNOASSAY TUMOR CA 125

Blood test to monitor for cancer

86336

INHIBIN A

Blood test to monitor for cancer in

the ovaries or testis

86592

SYPHILIS TEST NON-TREP QUAL

Blood test to screen for syphilis

86644

CMV ANTIBODY

Blood test to monitor for

cytomegalovirus

86665

EPSTEIN-BARR CAPSID VCA

Blood test to diagnose

mononucleosis

86677

HELICOBACTER PYLORI

ANTIBODY

Blood test to if peptic ulcers are

caused by a certain bacterium

86703

HIV-1/HIV-2 1 RESULT ANTBDY

Blood test to diagnose HIV

CMS-9915-F 108

Code

Description

Plain Language Description

86704

HEP B CORE ANTIBODY TOTAL

Blood test indicating infection

with Hepatitis B

86708

HEPATITIS A ANTIBODY

Blood test indicating infection with

Hepatitis A

86762

RUBELLA ANTIBODY

Blood test to determine if

antibodies exist for rubella

86765

RUBEOLA ANTIBODY

Blood test to determine if

antibodies exist for measles

86780

TREPONEMA PALLIDUM

Blood test to determine existence

of certain bacterium that causes

syphilis

86803

HEPATITIS C AB TEST

Blood test to determine infection

with Hepatitis C

86850

RBC ANTIBODY SCREEN

Blood test to screen for antibodies

that could harm red blood cells

87040

BLOOD CULTURE FOR

BACTERIA

Blood test to screen for bacteria in

the blood

87046

STOOL CULTR AEROBIC BACT

Blood test to identify bacteria that

may be contributing to symptoms

in the gastrointestinal tract

87070

CULTURE OTHR SPECIMN

AEROBIC

Test of body fluid other than blood

to assess for bacteria

87077

CULTURE AEROBIC IDENTIFY

Test of a wound for type of

bacterial infection

87081

CULTURE SCREEN ONLY

Medical test to find an infection

87086

URINE CULTURE/COLONY

COUNT

Culture of the urine to determine

number of bacteria

87088

URINE BACTERIA CULTURE

Culture of the urine to determine

bacterial infection

87101

SKIN FUNGI CULTURE

A procedure used to determine if

fungi are present in an area of the

body

87186

MICROBE SUSCEPTIBLE MIC

A test used to determine which

medications work on bacteria for

fungi

87205

SMEAR GRAM STAIN

A lab test used to detect bacteria or

fungi in a sample taken from the

site of a suspected infection

87210

SMEAR WET MOUNT

SALINE/INK

A lab test to screen for evidence of

vaginal infection

87324

CLOSTRIDIUM AG IA

A test of the stool to diagnose

Clostridium difficile (C. diff)

infection

87389

HIV-1 AG W/HIV-1 & HIV-2 AB

Test for HIV

CMS-9915-F 109

Code

Description

Plain Language Description

87491

CHYLMD TRACH DNA AMP

PROBE

Test that detects Chlamydia

87510

GARDNER VAG DNA DIR PROBE

Blood test for vaginitis

87591

N.GONORRHOEAE DNA AMP

PROB

Blood test for an STD

87624

Hpv high-risk types

Detection test for human

papillomavirus (hpv)

87653

STREP B DNA AMP PROBE

Blood test for strep infection

87661

TRICHOMONAS VAGINALIS

AMPLIF

Blood test for an STD

87801

DETECT AGNT MULT DNA

AMPLI

Blood test to determine genetic

material of certain infectious

agents

87804

INFLUENZA ASSAY W/OPTIC

Flu test

87807

RSV ASSAY W/OPTIC

Test for RSV

87880

STREP A ASSAY W/OPTIC

Test for strep A

88112

CYTOPATH CELL ENHANCE

TECH

Urine test

88141

CYTOPATH C/V INTERPRET

Cervical cancer screening test with

interpretation

88142

CYTOPATH C/V THIN LAYER

PAP smear

88150

CYTOPATH C/V MANUAL

Cervical cancer screening test done

manually

88175

CYTOPATH C/V AUTO FLUID

REDO

PAP smear

88305

TISSUE EXAM BY

PATHOLOGIST

Test of tissues for diagnosis of

abnormalities

88312

SPECIAL STAINS GROUP 1

Blood test to assist with diagnosis

88313

SPECIAL STAINS GROUP 2

Blood test to assist with diagnosis

88342

IMMUNOHISTO ANTB 1ST

STAIN

Pathology test

90460

IM ADMIN 1ST/ONLY

COMPONENT

Immunization administration in

children <18

90471

IMMUNIZATION ADMIN

Immunization administration by a

medical assistant or nurse

90474

IMMUNE ADMIN ORAL/NASAL

ADDL

Immunization administered orally

or nasally

90632

HEPA VACCINE ADULT IM

Hepatitis A vaccination for adults

90633

HEPA VACC PED/ADOL 2 DOSE

Hepatitis A vaccination for

adolescents and children

90649

4VHPV VACCINE 3 DOSE IM

3-dose HPV vaccination

90656

IIV3 VACC NO PRSV 0.5 ML IM

Flu shot-high dose for 2019-2020

flu season given by injection

90658

IIV3 VACCINE SPLT 0.5 ML IM

Preservative free flu vaccine

CMS-9915-F 110

Code

Description

Plain Language Description

90672

LAIV4 VACCINE INTRANASAL

Nasal flu vaccine

90681

RV1 VACC 2 DOSE LIVE ORAL

Rotavirus vaccination

90686

IIV4 VACC NO PRSV 0.5 ML IM

Flu shot-high dose for 2019-2020

flu season given by injection for

people >65

90707

MMR VACCINE SC

Measles, mumps, and rubella

vaccine

90710

MMRV VACCINE SC

Measles, mumps, rubella, and

varicella vaccine

90715

TDAP VACCINE 7 YRS/> IM

Diphtheria, tetanus acellular, and

pertussis vaccine for adults

90716

VAR VACCINE LIVE SUBQ

Varicella vaccine

90732

PPSV23 VACC 2 YRS+ SUBQ/IM

pneumococcal vaccine

90734

MENACWYD/MENACWYCRM

VACC IM

meningococcal conjugate vaccine

90736

HZV VACCINE LIVE SUBQ

Shingles vaccine

90746

HEPB VACCINE 3 DOSE ADULT

Hepatitis B vaccine

90791

PSYCH DIAGNOSTIC

EVALUATION

A diagnostic tool employed by a

psychiatrist to diagnose problems

with memory, thought processes,

and behaviors

90792

PSYCH DIAG EVAL W/MED

SRVCS

A diagnostic tool employed by a

psychiatrist to determine if

medications are needed

90832

PSYTX W PT 30 MINUTES

Psychotherapy, 30 min

90833

PSYTX W PT W E/M 30 MIN

Psychotherapy, 30 minutes

with patient when

performed with an evaluation and

management service

90834

PSYTX W PT 45 MINUTES

Psychotherapy, 45 min

90836

PSYTX W PT W E/M 45 MIN

Psychotherapy, 45 minutes

with patient when

performed with an evaluation and

management service

90837

PSYTX W PT 60 MINUTES

Psychotherapy, 60 min

90838

Psychotherapy, 60 minutes

90839

Psychotherapy for crisis, first 60

minutes

90840

Psychotherapy for crisis

90846

Family psychotherapy, 50 minutes

Family psychotherapy, not

including patient, 50 min

90847

FAMILY PSYTX W/PT 50 MIN

Family psychotherapy, including

patient, 50 min

90853

GROUP PSYCHOTHERAPY

Group psychotherapy

CMS-9915-F 111

Code

Description

Plain Language Description

92002

EYE EXAM NEW PATIENT

Intermediate exam

92004

EYE EXAM NEW PATIENT

Complete exam

92012

EYE EXAM ESTABLISH PATIENT

Eye exam on an established

patient

92014

EYE EXAM&TX ESTAB PT

1/>VST

Eye exam and treatment for

established patient

92083

VISUAL FIELD

EXAMINATION(S)

An eye examination that can detect

dysfunction in central and

peripheral vision

92133

CMPTR OPHTH IMG OPTIC

NERVE

Optic nerve imaging

92507

SPEECH/HEARING THERAPY

Therapy for speech or hearing

92523

SPEECH SOUND LANG

COMPREHEN

Evaluation of speech sound

production with evaluation of

language comprehension

92552

PURE TONE AUDIOMETRY AIR

Type of hearing test

93000

ELECTROCARDIOGRAM

COMPLETE

Routine EKG using at least 12

leads including interpretation and

report

93015

CARDIOVASCULAR STRESS

TEST

Test to determine heart

abnormalities

93303

ECHO TRANSTHORACIC

Test to screen the heart for

abnormalities

93306

Tte w/doppler complete

Ultrasound examination of heart

including color-depicted blood

flow rate, direction, and valve

function

93307

TTE W/O DOPPLER COMPLETE

Echo without doppler study

93320

DOPPLER ECHO EXAM HEART

Echo with doppler

93350

STRESS TTE ONLY

Stress test with echocardiogram

93452

Cardiac Catheterization

Insertion of catheter into left heart

for diagnosis

93798

CARDIAC REHAB/MONITOR

Use of EKG to monitor cardiac

rehabilitation

93880

EXTRACRANIAL BILAT STUDY

Study of vessels on both sides of

the head and neck

93922

UPR/L XTREMITY ART 2 LEVELS

Limited bilateral noninvasive

physiologic studies of upper or

lower extremity arteries

93970

EXTREMITY STUDY

Complete bilateral study of the

extremities

93971

EXTREMITY STUDY

One sided or limited bilateral study

94010

BREATHING CAPACITY TEST

Test to determine how well oxygen

moves from the lungs to the blood

stream

CMS-9915-F 112

Code

Description

Plain Language Description

94060

EVALUATION OF WHEEZING

Test to determine if wheezing is

present

94375

RESPIRATORY FLOW VOLUME

LOOP

Graphical representation of

inspiration and expiration

94726

PULM FUNCT TST

PLETHYSMOGRAP

Measures how much air is in the

lungs after taking a deep breath

94727

PULM FUNCTION TEST BY GAS

Measure of lung function and gas

exchange

94729

CO/MEMBANE DIFFUSE

CAPACITY

Test to measure how well gases

diffuse across lung surfaces

95004

PERCUT ALLERGY SKIN TESTS

Allergy test

95115

IMMUNOTHERAPY ONE

INJECTION

Allergy shot-1 shot

95117

IMMUNOTHERAPY INJECTIONS

Multiple allergy shots

95810

POLYSOM 6/> YRS 4/> PARAM

Sleep monitoring of patient (6

years or older) in sleep lab

95811

POLYSOM 6/>YRS CPAP 4/>

PARM

Sleep monitoring of patient (6

years or older) in sleep lab using

CPAP

95860

MUSCLE TEST ONE LIMB

Test to measure electrical activity

of muscles or nerves in 1 limb

95861

MUSCLE TEST 2 LIMBS

Test to measure electrical activity

of muscles or nerves in 2 limb

95886

MUSC TEST DONE W/N TEST

COMP

Test to assess for nerve damage

96110

DEVELOPMENTAL SCREEN

W/SCORE

Childhood test to screen for

developmental disabilities

96365

THER/PROPH/DIAG IV INF INIT

Intravenous infusion, for

therapy, prophylaxis, or diagnosis-

initial infusion

96366

THER/PROPH/DIAG IV INF

ADDON

Intravenous infusion, for

therapy, prophylaxis, or diagnosis-

additional infusions

96374

THER/PROPH/DIAG INJ IV PUSH

Intravenous infusion, for

therapy, prophylaxis, or diagnosis-

IV push

96375

TX/PRO/DX INJ NEW DRUG

ADDON

Intravenous infusion, for

treatment, prophylaxis, or

diagnosis-new drug add on

96376

TX/PRO/DX INJ SAME DRUG

ADON

Intravenous infusion, for

treatment, prophylaxis, or

diagnosis-same drug add on

96415

CHEMO IV INFUSION ADDL HR

Chemotherapy infusion-each

additional hour

CMS-9915-F 113

Code

Description

Plain Language Description

96417

CHEMO IV INFUS EACH ADDL

SEQ

Chemotherapy infusion-additional

IV pushes of the same medication

97010

HOT OR COLD PACKS THERAPY

Use of external hot or cold packs

97012

MECHANICAL TRACTION

THERAPY

Form of decompression therapy of

the spine

97014

ELECTRIC STIMULATION

THERAPY

One time use unattended

97016

VASOPNEUMATIC DEVICE

THERAPY

Machines designed to pump cold

water into an inflatable wrap or

brace, compressing the enveloped

area of the body

97026

INFRARED THERAPY

Light-based method to treat pain

and inflammation

97032

ELECTRICAL STIMULATION

Repeated application to one or

more parts of the body

97033

ELECTRIC CURRENT THERAPY

Psychiatric treatment in which

seizures are electrically induced in

patients to provide relief from

mental disorders

97035

ULTRASOUND THERAPY

Use of sound waves to treat

medical problems, especially

musculoskeletal problems like

inflammation from injuries

97110

THERAPEUTIC EXERCISES

Therapeutic exercise to develop

strength, endurance, range of

motion, and flexibility, each 15

minutes

97112

NEUROMUSCULAR

REEDUCATION

A technique used by physical

therapists to restore normal body

movement patterns

97113

AQUATIC THERAPY/EXERCISES

Use of water for therapy/exercises

97116

GAIT TRAINING THERAPY

A type of physical therapy

97124

MASSAGE THERAPY

Use of massage

97140

MANUAL THERAPY 1/>

REGIONS

Manipulation of 1 or more regions

of the body

97530

THERAPEUTIC ACTIVITIES

Incorporates the use of multiple

parameters, such as balance,

strength, and range of motion, for a

functional activity

97535

SELF CARE MNGMENT

TRAINING

Occupational therapy

97597

RMVL DEVITAL TIS 20 CM/<

Debridement (for example, high

pressure waterjet with/without

suction, sharp selective

CMS-9915-F 114

Code

Description

Plain Language Description

debridement with scissors, scalpel,

and forceps)

97811

ACUPUNCT W/O STIMUL ADDL

15M

Acupuncture without stimulation

97813

ACUPUNCT W/STIMUL 15 MIN

Acupuncture with stimulation

98940

CHIROPRACT MANJ 1-2

REGIONS

Chiropractic manipulation in 1-2

regions

98941

CHIROPRACT MANJ 3-4

REGIONS

Chiropractic manipulation in 3-4

regions

98943

CHIROPRACT MANJ XTRSPINL

1/>

Chiropractic manipulation not of

the spine

98966

Hc pro phone call 5-10 min

Telephone assessment and

management service, 5-10 minutes

of medical discussion

98967

Hc pro phone call 11-20 min

Telephone assessment and

management service, 11-20

minutes of medical discussion

98968

Hc pro phone call 21-30 min

Telephone assessment and

management service, 21-30

minutes of medical discussion

98970

Qualified non physician health care

professional online digital assessment

and management est. patient 5-10

minutes

Qualified non physician health care

professional online digital

assessment and management, for

an established patient, for up to 7

days, cumulative time during the 7

days; 5-10 minutes

98971

Qualified non physician health care

professional online digital assessment

and management est. patient 11-20

minutes

Qualified non physician health

care professional online digital

assessment and management, for

an established patient, for up to 7

days, cumulative time during the 7

days; 11-20 minutes

98972

Qualified non physician health care

professional online digital assessment

and management for est. patients 21+

minutes

Qualified non physician health care

professional online digital

assessment and management, for

an established patient, for up to 7

days, cumulative time during the 7

days; 21 or more minutes

99051

MED SERV

EVE/WKEND/HOLIDAY

Medical service during off-hours

99173

VISUAL ACUITY SCREEN

Eye test

99201

OFFICE/OUTPATIENT VISIT

NEW

New patient office or other

outpatient visit, typically 10

minutes

CMS-9915-F 115

Code

Description

Plain Language Description

99202

OFFICE/OUTPATIENT VISIT

NEW

New patient office or other

outpatient visit, typically 20

minutes

99203

OFFICE/OUTPATIENT VISIT

NEW

New patient office or other

outpatient visit, typically 30 min

99204

OFFICE/OUTPATIENT VISIT

NEW

New patient office of other

outpatient visit, typically 45 min

99205

OFFICE/OUTPATIENT VISIT

NEW

New patient office of other

outpatient visit, typically 60 min

99211

OFFICE/OUTPATIENT VISIT EST

Outpatient visit of established

patient not requiring a physician

99212

OFFICE/OUTPATIENT VISIT EST

Outpatient visit of established

patient requiring a physician

99213

OFFICE/OUTPATIENT VISIT EST

Established patient office or other

outpatient visit, typically 15

minutes

99214

OFFICE/OUTPATIENT VISIT EST

Established patient office or other

outpatient visit, typically 25

minutes

99215

OFFICE/OUTPATIENT VISIT EST

Established patient office or other

outpatient, visit typically 40

minutes

99243

OFFICE CONSULTATION

Patient office consultation,

typically 40 min

99244

OFFICE CONSULTATION

Patient office consultation,

typically 60 min

99283

Emergency dept visit

Emergency department visit,

moderately severe problem

99284

Emergency dept visit

Emergency department visit,

problem of high severity

99285

Emergency dept visit

Emergency department visit,

problem with significant threat to

life or function

99381

INIT PM E/M NEW PAT INFANT

Initial visit for an infant

99382

INIT PM E/M NEW PAT 1-4 YRS

Initial visit for new patients 1-4

years old

99383

PREV VISIT NEW AGE 5-11

New preventative visit in new

patients 5-11 years old

99384

PREV VISIT NEW AGE 12-17

New preventative visit in new

patients 12-17 years old

99385

PREV VISIT NEW AGE 18-39

Initial new patient preventive

medicine evaluation (18–39 years)

99386

PREV VISIT NEW AGE 40-64

Initial new patient preventive

medicine evaluation (40–64 years)

CMS-9915-F 116

Code

Description

Plain Language Description

99387

INIT PM E/M NEW PAT 65+ YRS

Initial visit for new patients 65 and

older years old

99391

PER PM REEVAL EST PAT

INFANT

Periodic primary re-evaluation for

an established infant patient

99392

PREV VISIT EST AGE 1-4

Initial visit for new patients 1-4

years old

99393

PREV VISIT EST AGE 5-11

New preventative visit in new

patients 5-11 years old

99394

PREV VISIT EST AGE 12-17

New preventative visit in new

patients 12-17 years old

99395

PREV VISIT EST AGE 18-39

Established patient periodic

preventive medicine examination

age 18-39 years

99396

PREV VISIT EST AGE 40-64

Established patient periodic

preventive medicine examination

age 40-64 years

99397

PER PM REEVAL EST PAT 65+

Periodic primary re-evaluation for

an established patient 65 and older

99421

ONLINE DIGITAL EVALUATION

AND MANAGEMENT SERVICE;

5-10 MINUTES

Online digital evaluation and

management service, for an

established patient, for up to 7

days, cumulative time during the 7

days; 5-10 minutes

99422

Online digital evaluation and

management service; 11-20 minutes

Online digital evaluation and

management service, for an

established patient, for up to 7

days, cumulative time during the 7

days; 11-20 minutes

99441

Phone e/m phys/qhp 5-10 min

Physician telephone patient

service, 5-10 minutes of medical

discussion

99442

Phone e/m phys/qhp 11-20 min

Physician telephone patient

service, 11-20 minutes of medical

discussion

99443

Phone e/m phys/qhp 21-30 min

Physician telephone patient

service, 21-30 minutes of medical

discussion

As outlined above, below are the five codes that appear on the commenter list of recommended

items and services that are not being required for the initial list of 500 items and services.

CMS-9915-F 117

Commenter

Codes Not

Used

Reason for

Removal

10022

Code Retired

11100

Code Retired

11101

Code Retired

77059

Code Retired

A288

Code Retired

The Departments understand that plans and issuers may use different billing codes (for

example, MS-DRGs vs. APR DRGs). Therefore, in the first year of the implementation of the

self-service tool, when plans and issuers are required to provide cost estimates for the 500 items

and services identified by the Departments, plans and issuers are permitted to make appropriate

code substitutions as necessary to allow them to disclose cost-sharing information for the 500

items and services through the self-service tool. If necessary, the Departments will issue future

guidance regarding standards for code substitutions.

a. First Content Element: Estimated cost-sharing liability

The first content element that plans and issuers are required to disclose under the final

rules is an estimate of the cost-sharing liability for the furnishing of a covered item or service by

a particular provider or providers. The calculation of the cost-sharing liability estimate is

required to be computed based on the other relevant cost-sharing information that plans and

issuers are required to disclose, as described later in this section of this preamble.

The proposed rules defined “cost-sharing liability” as the amount a participant,

beneficiary, or enrollee is responsible for paying for a covered item or service under the terms of

the plan or coverage. The disclosure must include all applicable forms of cost sharing, including

deductibles, coinsurance requirements, and copayments. The term cost-sharing liability does not

include premiums, any applicable balance billing amounts charged by out-of-network providers,

or the cost of non-covered items or services. For QHPs offered through Exchanges, an estimate

CMS-9915-F 118

of cost-sharing liability for a requested covered item or service provided must reflect any cost-

sharing reductions the individual would receive under the coverage.

Many commenters supported the disclosure of cost-sharing liability for a particular item

or service. One stated that providing cost-sharing amounts to consumers in advance of receiving

a service would likely make it easier for providers to collect consumers’ cost-sharing amounts.

However, some commenters were concerned that information provided in advance of care would

not provide an accurate estimate of actual participant, beneficiary, or enrollee liability, which

would lead to consumer confusion and frustration. A few commenters requested that the tool

include additional information, such as all providers expected to be involved in providing an

item or service, and the price of items and services historically provided along with that

particular item or service by the provider. Some commenters urged the Departments to ensure

appropriate educational information is provided to patients to help them better understand and

navigate the information being displayed. Others recommended a federally funded and

coordinated outreach and education campaign to encourage the use of price transparency tools

and help patients understand the complexities of health care prices. One commenter urged the

Departments to clarify that, to the extent that the actual services provided are consistent with

those provided under the estimate, plans would not be permitted to hold an enrollee responsible

for more than what was provided under the estimate.

The Departments underscore that the estimates required by the final rules are not required

to reflect the actual or final cost of a particular item or service. Unforeseen factors during the

course of treatment (which may involve additional services or providers) can result in higher

actual cost-sharing liability following receipt of care than the estimate provided in advance.

Nonetheless, the Departments are finalizing the requirement that cost-sharing liability estimates

CMS-9915-F 119

be built upon accurate information, including the relevant cost-sharing information described in

26 CFR 54.9815-2715A2(b)(1)(ii)-(iv), 29 CFR 2590.715-2715A2(b)(1)(ii)-(iv), and 45 CFR

147.211(b)(1)(ii)-(iv). However, this requirement does not mean that the estimates must reflect

the amount ultimately charged to a participant, beneficiary, or enrollee. Instead, the estimate

should reflect the amount a participant, beneficiary, or enrollee would be expected to pay for the

covered item or service for which cost-sharing information is sought. Thus, the final rules do not

require the cost-sharing liability estimate to include costs for unanticipated items or services the

individual could incur due to the severity of his or her illness or injury, provider treatment

decisions, or other unforeseen events. Attendant notice requirements in 26 CFR 54.9815-

2715A2(b)(1)(vii), 29 CFR 2590.715-2715A2(b)(1)(vii), and 45 CFR 147.211(b)(1)(vii) also

require inclusion of a statement that actual charges for the participant’s, beneficiary’s, or

enrollee’s covered items and services may be different from those described in a cost-sharing

liability estimate, depending on the actual items and services received at the point of care.

Additionally, while the Departments acknowledge the value of not allowing group health

plans and health insurance issuers to impose higher cost sharing than estimated, to the extent that

the actual services provided were consistent with those provided under the estimate, the

Departments are of the view that it would not be prudent to hold plans and issuers liable to the

exact estimate that is provided through the tool, as cost-sharing obligations may ultimately vary

from the estimates provided in advance. Additionally, the Departments are concerned that such a

requirement could incentivize plans and issuers to provide high estimates, rather than the most

accurate estimates.

Commenters recommended the final rules provide plans and issuers with the flexibility to

apply a reasonable methodology for estimating reliable out-of-pocket costs for a specific network

CMS-9915-F 120

provider, and recommended that this methodology could include, but should not be limited to,

using current year negotiated rates, historical negotiated rates, historical claims, or a combination

of these data points. One commenter urged the Departments to remove the proposed

requirement that cost-sharing liability information be calculated based on negotiated rates,

stating that this is not the methodology used by most existing cost-estimate tools.

The Departments understand that plans and issuers with existing cost-estimate tools may

use advanced analytics in calculating cost-sharing liability estimates. However, the Departments

are of the view that the most accurate estimates of cost-sharing liability should be provided using

the actual rates and fees upon which liability is determined. It is the Departments’ understanding

that, while provider reimbursement may be based on negotiated rates, plans and issuers do not

always calculate a consumer’s liability using the negotiated rate as defined in paragraph (a) of

the proposed rules, such as in capitation arrangements where the provider is reimbursed

retrospectively. Rather, some plans and issuers may determine a participant’s, beneficiary’s, or

enrollee’s cost-sharing liability on a contractually agreed upon underlying fee schedule between

the provider and the plan or issuer.

Therefore, the final rules require that cost-sharing liability for a particular item or service

be calculated based on in-network rates, out-of-network allowed amounts, and individual-

specific accumulators, such as deductibles and out-of-pocket limits. However, the Departments

clarify that plans and issuers may incorporate additional metrics and analytics beyond this

minimum standard: for example, by using complex historical analytics to predict total costs of

items and services available through a bundled payment arrangement. The Departments will

assess how additional useful information can be provided to consumers in this area going

forward.

CMS-9915-F 121

Under the proposed rules, plans and issuers would be required to provide participants,

beneficiaries, and enrollees with cost-sharing information for either a discrete item or service or

for items or services for a treatment or procedure for which the plan uses a bundled payment

arrangement, according to how the plan or issuer structures payment for the item or service.

Several commenters pointed out that providing cost-sharing liability estimates for bundled

payment arrangements might introduce confusion as consumers may not realize that billing and

payment rates are different when items and services are rendered individually versus as part of a

bundled item or service. Commenters stated that ultimately, patients would very likely receive

inaccurate or misleading estimates in a significant proportion of self-service estimate requests.

Similarly, several commenters sought clarification regarding how plans and issuers that

incorporate innovative and cost-saving methods like reference-based pricing, value-based

insurance design, and direct primary care as part of their services and plan designs would comply

with the requirements of the proposed rules.

The Departments recognize the variability in pricing structures and plan designs for many

plans and issuers. The Departments understand that developers have demonstrated that formulas

for unique pricing models are already being incorporated into existing estimator tools. The

Departments further understand that while providing cost estimates in advance for a plan or

issuer that incorporates reference-based reimbursement may be complex, it is still feasible to

estimate such costs. For example, plans or issuers could develop a method for analyzing past

claims of specific providers to look for patterns in their payment rates from which to derive an

accurate predictive estimate in advance. In response to the Hospital Price Transparency final

rule, one hospital claims to have developed a tool that provides cost estimates with 95 percent to

CMS-9915-F 122

99 percent accuracy.

110

While some factors associated with the course of care are incorporated

after services are rendered, others, like gender or location, are known in advance. Therefore, the

Departments expect plans and issuers to provide a reasonable estimate using information the plan

or issuer knows about the participant, beneficiary, or enrollee or the average participant,

beneficiary, or enrollee.

The Departments again acknowledge that how a provider is reimbursed does not

necessarily indicate how a participant, beneficiary, or enrollee will be billed. Specifically, as

commenters explained, the bundled payment arrangement as defined in the proposed rules may

not reflect the cost-sharing liability for which the consumer is liable. For instance, if a provider

is reimbursed in a bundled payment arrangement for a surgical procedure that includes the

surgery and pre- and post-surgery office visits, but the enrollee is billed a copayment for each

office visit and coinsurance for the surgical procedure, the enrollee should be able to obtain the

separate copayment liabilities for each of the office visits and the surgical procedures, not one

bundled charge. However, under this example, if the individual is only responsible for one

copayment that includes all office visits and the surgical procedures, the plan or issuer could

provide the cost-sharing liability estimate for that bundled payment arrangement.

Therefore, the final rules clarify that plans and issuers should provide one overall cost-

sharing liability estimate for a bundled payment arrangement if that is the only cost sharing for

which the participant, beneficiary, or enrollee would be liable. However, if a plan or issuer

reimburses a provider under a bundled payment arrangement for all covered items and services

110

Meyer, H. “Hospitals roll out online price estimators as CMS presses for transparency.” Modern Healthcare.

June 23, 2018. Available at https://www.modernhealthcare.com/article/20180623/NEWS/180629994/hospitals-roll-

out-online-price-estimators-as-cms-presses-for-transparency.

CMS-9915-F 123

provided for a specific treatment or procedure, but cost sharing is imposed separately for each

unique item and service included in the bundled payment, plans and issuers should disclose the

cost-sharing liability for those distinct items and services to the participant, beneficiary, or

enrollee. The Departments also recognize that providing one estimate that includes all items and

services that are typically provided within an episode of care may be consumer-friendly in some

situations, even where the items and services are not subject to a bundled payment arrangement.

Therefore, the final rules clarify that while plans and issuers are not required to provide bundled

estimates where the provider is not reimbursed through a bundled payment arrangement, nothing

prohibits plans or issuers from providing bundled estimates in situations where such estimates

could be relevant to participants, beneficiaries, or enrollees, as long as the plan or issuer also

discloses information about the relevant items or services individually, as required by the final

rules.

Plans and issuers should take a similar approach for plan designs that incorporate

alternative payment structures such as direct primary care or other bundled or capitated payment

arrangements. The Departments understand that there are many unique plan designs and may

issue additional guidance to address specific questions from plans, issuers, and enforcement

entities regarding the requirements of the final rules.

The Departments appreciate comments requesting education and outreach to help ensure

that participants, beneficiaries, and enrollees know that these consumer tools exist and can

understand the information displayed. The Departments recognize that more than 94 percent of

CMS-9915-F 124

plans and issuers recently surveyed already have some variation of an internet self-service tool,

111

yet another study noted that only 12 percent of participants, beneficiaries, or enrollees currently

use the tools available to them,

112

which might suggest that there is an opportunity for improved

awareness and understanding of these tools. However, the Departments are also of the view that

plans and issuers have their own incentives to provide quality customer service and know what

types of outreach and messaging would be most helpful to their participants, beneficiaries, and

enrollees. Therefore, the Departments have decided not to institute specific outreach and

education requirements, but rather strongly encourage plans and issuers to develop educational

and outreach materials to promote awareness that self-service tools exist, where to find them on

the plan’s or issuer’s website, how to use the tool, what, if any, further innovations above the

baseline standards that differentiates their tool from competitors, and what additional information

may be available. In addition, the Departments are of the view that employers may want to

conduct outreach and education to encourage their employees to shop for lower-priced services

that may slow increases in employer-sponsored coverage premiums.

One commenter stated that the final rules should provide the flexibility for health plans to

display cost-sharing information either as dollars or using some proxy variable that either

conveys costs relative to other providers or the cost-effectiveness of the providers for a given

items or service relative to their peers. Another commenter recommended that cost estimates

include both an average price and a reasonable range of the possible prices that the treatment

111

Sharma A., Manning, R., and Mozenter, Z. “Estimating the Burden of the Proposed Transparency in Coverage

Rule.” Bates White Economic Consulting. January 27, 2020. Available at:

https://www.bateswhite.com/newsroom-insight-Transparency-in-Coverage-Rule.html.

112

See Mehrotra, A., Chernew, M., and Sinaiko, A. “Promises and Reality of Price Transparency.” April 5, 2018.

14 N. Eng. J. Med. 378. Available at: https://www.nejm.org/doi/full/10.1056/NEJMhpr1715229.

CMS-9915-F 125

could cost. Other commenters recommended the Departments allow cost estimates to be

provided as a range.

The Departments are of the view that cost-sharing averages and ranges would not provide

personalized and specific cost-sharing information and therefore the final rules adopt, as

proposed, the provision that estimated cost-sharing liability be reflected as a dollar amount.

However, the Departments understand that providing an estimated range could help consumers

understand how their costs may vary depending on the complexity of a procedure. In addition to

providing a cost-sharing estimate that is specific to the participant, beneficiary, or enrollee, plans

and issuers may also choose to provide low and high ranges of what the consumer may expect to

pay to reflect other needed services, complications, and other factors.

Several commenters expressed concerns about the ability of plans and issuers to provide

these cost-sharing estimates, noting that few, if any, currently provide this level of disclosure to

participants, beneficiaries, or enrollees before the incurrence of a claim. Commenters stated that

most major issuers have treatment cost estimators available, but these tools are rudimentary and

are not necessarily available for all plan designs. Commenters also stated that few regional

issuers currently make any cost-estimation data available and the vast majority of data provided

via online tools currently relies on estimated costs drawn from publicly available sources rather

than personal information and circumstances.

Another commenter stated that most self-insured group health plans do not have easy

access to all the data necessary to provide beneficiaries with what they described as upfront

adjudication of the beneficiary’s claim, like an EOB. One commenter expressed concern, stating

that plans could be subject to significant penalties for failure to comply and highlighted that self-

insured plans typically do not establish their own networks, but rather contract with an issuer,

CMS-9915-F 126

TPA or other entity for the use of their network. Another commenter stated that issuers,

preferred provider networks, and TPAs continue to maintain network pricing information as

confidential and proprietary, even with respect to their own plan clients. Some commenters

stated that while the preamble to the proposed rules suggests that plans could renegotiate their

contracts in order to gain access to this proprietary information, this ignores the realities of the

market. These commenters opined that, in the absence of clearer guidance applicable to issuers

and TPAs, plans and issuers will be burdened with trying to force disclosure of this information.

The Departments are of the view that the ability to access cost-sharing liability

information in advance of seeking care should not be limited by the participant’s, beneficiary’s,

or enrollee’s plan or issuer type. The Departments are aware of several issuers that provide

advance cost estimates that are based on an individual’s specific information, such as out-of-

pocket amount accumulators. The intent of the final rules is to make this information available

to a larger number of participants, beneficiaries, and enrollees, empowering them to shop for

care that best meets their needs.

Additionally, while the Departments recognize that some self-insured group health plans

(or TPAs acting on their behalf) may not currently have access to the information that would be

required to calculate a participant’s or beneficiary’s cost liability, the Departments do not foresee

any barriers that would prohibit the plan or TPA from obtaining this information. As discussed

in the preamble to the proposed rules, plans may have to amend existing contracts with issuers,

TPAs, or providers. Consistent with the discussion of legal authority elsewhere in this preamble,

even if a contract between a self-insured plan and a TPA contains a provision prohibiting the

public disclosure of its terms, it is the Departments’ understanding that such contracts typically

CMS-9915-F 127

include exceptions where a particular disclosure is required by federal law, and federal law

would control over contractual terms in any case.

In response to whether other types of information are necessary to provide an estimate of

cost-sharing liability prior to an individual’s receipt of items or services from a provider(s), one

commenter suggested—in order to enhance the usability and accuracy of these data—that CMS

and payers utilize the open-source episode grouper maintained by the not-for-profit Patient-

Centered Episode System (PACES) Center, to create a single industry standard for defining

clinical episodes of care using current medical record and payment systems and based on

consensus across multiple stakeholders including providers, payers, purchasers, and consumers.

While the Departments generally support standardization across the complex health care

ecosystem, there is no current required standardization of items and services provided for certain

common episodes of care. Because of the lack of this particular standard, requiring plans and

issuers to use PACES or similar services to determine costs will not accurately reflect what

different plans and issuers actually reimburse for different episodes of care.

The Departments acknowledge that section 2713 of the PHS Act requires non-

grandfathered group health plans and issuers offering non-grandfathered coverage in the

individual or group markets to provide coverage without the imposition of any cost-sharing

requirements for select preventive items and services. However, if the same items or services are

furnished for non-preventive purposes, the participant, beneficiary, or enrollee may be subject to

the cost-sharing terms of his or her plan. The Departments are of the view that if an item or

service will be furnished at no cost to the participant, beneficiary, or enrollee, the participant,

beneficiary, or enrollee should know this information. One commenter expressed a desire that

price transparency not serve as a disincentive for individuals seeking preventive and maintenance

CMS-9915-F 128

therapy services. The Departments are of the view that clearly indicating when items and

services have a $0 cost-sharing liability may have the opposite effect—it may actually encourage

consumers to seek preventive care. The Departments understand that determining whether an

item or service is preventive or not for an individual may be complex, and, indeed, may be

impossible prior to service. Therefore, to the extent an item or service is a recommended

preventive service under section 2713 of the PHS Act, and the plan or issuer cannot determine

whether the request is for preventive or non-preventive purposes, the plan or issuer must display

the non-preventive cost-sharing liability in the internet-based self-service tool, along with a

statement that the item or service may not be subject to cost sharing if it is billed as a preventive

service. For example, if an individual requests cost-sharing information for an in-network

colonoscopy, the plan should display the applicable cost-sharing information for a diagnostic

colonoscopy and a statement that the service may not be subject to cost sharing if it is billed as a

preventive service from an in-network provider. As an alternative, a plan or issuer may allow an

individual to request cost-sharing information for the specific preventive or non-preventive item

or service by including the appropriate terms such as “preventive,” “non-preventive,” or

“diagnostic” as a means to request the most accurate cost-sharing information.

b. Second Content Element: Accumulated amounts

The second content element is a participant’s, beneficiary’s, or enrollee’s accumulated

amounts. The proposed rules defined “accumulated amounts” as the amount of financial

responsibility that a participant, beneficiary, or enrollee has incurred at the time the request for

cost-sharing information is made, with respect to a deductible and/or an out-of-pocket limit. If

an individual is enrolled in other than self-only coverage, these accumulated amounts would

include the financial responsibility a participant, beneficiary, or enrollee has incurred toward

CMS-9915-F 129

meeting his or her individual deductible and/or out-of-pocket limit, as well as the amount of

financial responsibility that the individuals enrolled under the plan or coverage have incurred

toward meeting the other than self-only coverage deductible and/or out-of-pocket limit, as

applicable. The Departments interpret section 2707(b) of the PHS Act as requiring non-

grandfathered group health plans to comply with the maximum out-of-pocket limit promulgated

under section 1302(c)(1) of PPACA, including the HHS clarification that the self-only maximum

out-of-pocket limit applies to each individual, regardless of whether the individual is enrolled in

self-only coverage or in other than self-only coverage. Accordingly, the self-only maximum out-

of-pocket limit applies to an individual who is enrolled in family coverage or other coverage that

is not self-only coverage under a group health plan.

113

For this purpose, the Departments

proposed that accumulated amounts would include any expense that counts toward the deductible

or out-of-pocket limit (such as copayments and coinsurance), but would exclude expenses that

would not count toward a deductible or out-of-pocket limit (such as premium payments, out-of-

pocket expenses for out-of-network services, or amounts for items or services not covered under

a plan or coverage).

Furthermore, to the extent a plan or issuer imposes a cumulative treatment limitation on a

particular covered item or service (such as a limit on the number of items, days, units, visits, or

hours covered in a defined time period) independent of individual medical necessity

determinations, the accumulated amounts would also include the amount that has accrued toward

113

80 FR 10750, 10824-10825 (Feb. 27, 2015); see also FAQs About Affordable Care Act Implementation (Part

XXVII), Q1. Available at https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/ACA-FAQs-

Part-XXVII-MOOP-2706-FINAL.pdf and https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-

activities/resource-center/faqs/aca-part-xxvii.pdf.

CMS-9915-F 130

the limit on the item or service (such as the number of items, days, units, visits, or hours the

participant, beneficiary, or enrollee has used).

As discussed in the proposed rules, the Departments understand that independent of

cumulative treatment limitations, cost-sharing liability may vary by individual based on a

determination of medical necessity and that it may not be reasonable for a plan or issuer to

account for this variance as part of the accumulated amounts. Therefore, under the final rules,

plans and issuers are required to provide cost-sharing information with respect to an accumulated

amount for a cumulative treatment limitation that reflects the status of the individual’s progress

toward meeting the limitation, and this information does not include any individual

determination of medical necessity that may affect coverage for the item or service. For

example, if the terms of an individual’s plan or coverage limit coverage of physical therapy to 10

visits per plan or policy year, subject to a medical necessity determination, and at the time the

request for cost-sharing information is made the individual has had claims paid for three physical

therapy visits, the plan or coverage would make cost-sharing information disclosures based on

the fact that the individual could be covered for seven more physical therapy visits in that plan or

policy year, regardless of whether or not a determination of medical necessity for future visits

has been made at that time.

Several commenters supported the inclusion of the accumulated amounts as one of the

content elements. One commenter agreed with the proposed requirement that the accumulated

amounts include the financial responsibility incurred toward both an individual deductible and/or

out-of-pocket limit and toward the other than self-only coverage deductible and/or out-of-pocket

limit. One commenter recommended that plans be required to disclose to prospective enrollees

whether an enrollee’s accumulated amounts are reduced through a plan’s accumulator

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adjustment program because, the commenter noted, having this information prior to enrollment

in a plan is crucial because of the impact such programs have on participant, beneficiary, and

enrollee access, adherence, and outcomes.

The Departments agree that an essential part of providing accurate cost-sharing estimates

is disclosing individuals’ progress toward their accumulated amounts. However, the intent of the

self-service tool is to provide current participants, beneficiaries, and enrollees with information

about their plan or issuer, and, therefore, the Departments are not finalizing any provisions

related to disclosures to potential enrollees. The final rules adopt this provision as proposed.

One commenter recommended the Departments confirm amounts made available in

account-based arrangements that can or must be used toward cost-sharing expenses under a

separate plan need not be reflected in the accumulated amounts or cost-sharing estimate under

the tool. The commenter stated that there is an array of these types of arrangements of varying

types and structures and to incorporate them into the cost-sharing estimate could be

administratively challenging and would impose a significant burden.

The Departments clarify that the estimates do not include amounts made available

through separate account-based arrangements. In addition, the Departments encourage, but are

not requiring, plans and issuers to issue a disclaimer regarding such arrangements, as necessary.

Certain commenters stated that the proposed requirement to display accumulated amounts

toward a cumulative treatment limitation on a particular item or service would be difficult to

implement and requested elimination or delay of this requirement. Commenters expressed that

in some cases, this information may be tracked by third-party vendors and not integrated into

claims systems; for example, plans and issuers often contract with third parties that provide

medical benefits management for certain services (physical therapy, for example). Commenters

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stated that building the connectivity necessary to exchange information on accumulated amounts

in real time would take significant time. Other commenters recommended this requirement be

optional.

The Departments acknowledge that disclosure of accumulated amounts may present

challenges for plans and issuers. However, an accurate estimate of cost-sharing liability cannot

be achieved without taking into account a participant’s, beneficiary’s, or enrollee’s accumulated

amounts, including cumulative treatment limitations. Nonetheless, to give plans and issuers

additional time to prepare, the disclosure requirements related to cost-sharing liability estimates

in the final rules are not applicable until plan years (or in the individual market, policy years)

beginning on or after January 1, 2023, providing two years for implementation, which should

give plans and issuers sufficient time to ensure that they are able to comply.

One commenter urged the Departments to include a requirement for plans to provide the

cost for the beneficiary to purchase a non-covered prescription drug and to indicate whether and,

if so, to what extent, that cost will be applied against the deductible. The commenter stated that

knowing to what extent a non-covered drug expense will count towards meeting a deductible and

the annual limitation on cost sharing, if at all, especially with regard to specialty drugs, is critical

because there are significant coverage gaps.

While the Departments appreciate the suggestions related to non-covered prescription

drugs, this rulemaking is focused on covered items and services. The Departments are not

inclined to increase the burden imposed by the final rules by adding requirements to disclose

information regarding non-covered services, given that plans and issuers may not have access to

the costs of drugs they do not cover and include in their formulary. The Departments will take

this suggestion into consideration for future rulemaking.

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c. Third Content Element: In-network Rates

Negotiated Rates

In the proposed rules, the Departments proposed to require group health plans and health

insurance issuers to disclose the negotiated rate, reflected as a dollar amount, for an in-network

provider or providers for a requested covered item or service, to the extent necessary to

determine the participant’s, beneficiary’s, or enrollee’s cost-sharing liability. Many commenters

did not support the disclosure of negotiated rates, stating that publishing negotiated rates would

not meet the Departments’ purported goal of helping consumers understand costs and would

possibly make purchasing more confusing and difficult for consumers. Additionally, some

commenters expressed concerns that publication of negotiated rates would force plans and

issuers to violate non-disclosure contracts with providers. Conversely, many other commenters

did support the disclosure of negotiated rates and offered support for their disclosure to

participants, beneficiaries, and enrollees. These commenters stated that consumers should be

engaged and educated about health care spending, and as discussed in more detail below, several

commenters supported the disclosure of negotiated rates even when it is not relevant to a

consumer’s cost-sharing liability.

The Departments maintain that the disclosure of the negotiated rates is a key element of

overall price transparency. Participants, beneficiaries, and enrollees are often responsible for a

percentage of the negotiated rate through coinsurance or the entire negotiated rate if they have

not yet met their deductible. Consistent with discussions elsewhere in this preamble, the

Departments are of the view that such contracts typically include exceptions where a particular

disclosure is required by federal law.

CMS-9915-F 134

In the preamble to the proposed rules, the Departments acknowledged that some provider

contracts express negotiated rates as a formula (for example, 150 percent of the Medicare rate),

but disclosure of formulas is not likely to be helpful or understandable for many participants,

beneficiaries, and enrollees viewing this information. For this reason, the final rules require

plans and issuers to disclose the negotiated rates and underlying fee schedules that result from

using such a formula, as a dollar amount.

A few commenters recommended disclosing negotiated rate ranges or benchmarks to

help consumers compare prices among providers. One commenter stated it would be useful if

plans disclosed their range of in-network rates (or their average or median rate) for each service.

This commenter stated that, for certain services such as complex surgeries, for which fees may

be bundled and may vary widely depending on the severity of a participant’s, beneficiary’s or

enrollee’s condition, providing the range of in-network fees may be particularly appropriate.

This type of disclosure could alert participants, beneficiaries, and enrollees to consider, and

prompt them to consult providers about, the full range of potential expenses for their care.

Another commenter recommended that, regardless of the participant’s, beneficiary’s, or

enrollee’s out-of-pocket liability, the participant, beneficiary, or enrollee should always be

provided the full in-network amount, as well as a comparison of that amount to a benchmark

such as the Fair Price or median in-network price. This commenter stated that the in-network

price for a service can vary by as much as 200 to 1,000 percent, depending on the provider

selected. In order to achieve the goals of transparency, consumers need to know the full price of

a service prior to care so they are able to effectively compare providers’ prices.

In the Departments’ view, disclosure of formulas or ranges are not likely to be helpful or

understandable for many participants, beneficiaries, and enrollees viewing this information. The

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purpose of the internet-based self-service tool is to provide personalized costs based on the

participant’s, beneficiary’s, or enrollee’s specific plan or coverage, and ranges and formulas do

not achieve this goal. For this reason, the final rules retain the proposed requirement to disclose

the rate that results from using such a formula, which is required to be expressed as a dollar

amount.

Underlying Fee Schedule Rate

Given the unique nature of certain plan designs, in the proposed rules, the Departments

requested comment on whether there were certain reimbursement or payment models that should

be exempt from all or certain aspects of the proposed rules. A few commenters urged the

Departments to clarify how capitation arrangements and value-based reimbursement designs,

including bundled payment arrangements and reference-based pricing, would be regulated under

the proposed rules. Commenters stated that provider payment amounts are not knowable under

these types of arrangements until after care is provided and that they cannot be attributed to a

particular item or service provided to a particular participant, beneficiary, or enrollee. Other

commenters stated that participants, beneficiaries, and enrollees should have access to cost-

sharing liability data for items and services that might be rendered in the course of their care, but

that the Departments’ proposed approach downplayed the complexity of payer-provider contracts

in a way that could inadvertently lead to participants, beneficiaries, and enrollees receiving

misleading estimates of their cost-sharing liability. The commenter stated that only the

consumer's cost sharing and the fee-for-service component of reimbursement should be required

to be disclosed under these requirements. Another commenter stated that the vast majority of

bundled payment arrangements use a retrospective settlement, in which the payer and provider

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determine a final settlement after all care in the relevant episode has been delivered, suggesting

that a negotiated rate under these arrangements could not be provided in advance.

The Departments are of the view that, for transparency in coverage to be truly effective,

consumers should have access to all pricing information related to their care so they can make

meaningful decisions about their health care spending. Further, the Departments do not agree

that the disclosure of negotiated rates will be misleading to participants, beneficiaries, or

enrollees. Negotiated rates are already an element of an EOB that participants, beneficiaries, and

enrollees are accustomed to receiving after receiving health care items or services. As stated

elsewhere in this preamble, providing this information in advance equips a more cost-conscious

participant, beneficiary, and enrollee with the necessary information to make a more informed

decision about their health care. Furthermore, the Departments are of the view that it is in the

best interest of plans and issuers to indicate, when disclosing these rates, what each rate is and

how it is applicable to the participant’s, beneficiary’s, or enrollee’s plan or coverage.

To more fully understand the complexity of payer-provider contracts and, in an effort to

clarify how the proposed rules would apply to capitated, bundled, and other alternative

reimbursement designs, the Departments considered these public comments and conducted

additional research to understand different contracting models and the inputs that would be

necessary for determining a participant’s, beneficiary’s, or enrollee’s cost-sharing liability under

these models.

Under some capitation arrangements, payers reimburse a provider a set amount per

participant, beneficiary, or enrollee for a pre-defined amount of time, regardless of whether the

participant, beneficiary, or enrollee uses the provider’s services. Capitation payments are

generally guided by actuarial principles and may be determined by different factors, such as a

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participant’s, beneficiary’s, or enrollee’s age and gender. For instance, under some capitated

models, plans and issuers pay a provider or a collective panel of providers a per-member-per-

month (PMPM) capitation amount, which is the negotiated rate. It is the Departments’

understanding that under certain capitated and bundled payment arrangements, providers’

payments may be reconciled retrospectively to account for utilization, value adjustments, or

other weighting factors that can affect the final payment to a provider. The Departments

understand that capitation arrangements also may include at least one underlying fee schedule

rate upon which a participant’s, beneficiary’s, or enrollee’s cost-sharing liability is determined.

As the Departments acknowledged earlier in this preamble, negotiated rates, as defined in

the final rules, do not always affect a participant’s, beneficiary’s, or enrollee’s cost-sharing

liability. To account for alternative reimbursement arrangements such as capitated and bundled

payment arrangements, the Departments are renaming the third content element as “in-network

rates,” comprised of the following elements, as applicable to the plan’s or issuer’s payment

model: negotiated rate and underlying fee schedule rate, reflected as dollar amounts. Plans and

issuers must disclose the underlying fee schedule rate used to determine participant, beneficiary,

or enrollee cost-sharing liability only where that rate is different from the negotiated rate. As

discussed earlier in this preamble, the final rules require that the cost-sharing liability estimate

for a requested covered item or service be calculated using the current underlying fee schedule

rate if the plan or issuer uses such a fee schedule. The Departments are of the view that

disclosing underlying fee schedule rates will provide the most relevant data on which cost

sharing is based, if cost sharing is not based on the negotiated rate, as originally proposed.

Disclosing the Negotiated Rate and Underlying Fee Schedule Rate

CMS-9915-F 138

In the proposed rules, the Departments acknowledged that if the negotiated rate does not

impact an individual’s cost-sharing liability under a plan or coverage for a covered item or

service (for example, if the copayment for the item or service is a flat dollar amount or zero

dollars and the individual has met a deductible, or a deductible does not apply to that particular

item or service), disclosure of the negotiated rate may be unnecessary to calculate cost-sharing

liability for that item or service. Therefore, the Departments proposed that disclosure of a

negotiated rate would not be required if it is not relevant for calculating an individual’s cost-

sharing liability for a particular item or service. The Departments sought comment on whether

there are any reasons disclosure of negotiated rates should nonetheless be required under these

circumstances.

Many commenters agreed that negotiated rates should only be disclosed to the extent they

are used for determining cost-sharing liability. Commenters further expressed that only

information meaningful to consumers’ cost-sharing liability should be required to be disclosed.

One commenter stated that this interpretation should be extended to payments tied to value, such

as “shared savings,” bonuses, and other performance-based reimbursements.

Conversely, as stated earlier, many commenters supported the disclosure of negotiated

rates in all circumstances. One commenter stated that disclosing the amount of the negotiated

rate is extremely valuable regardless of whether the disclosure of this information impacts a

participant’s cost-sharing liability, because it will illuminate the costs of these particular items

and services—reflecting the benefit consumers receive from their enrollment in the plan or

coverage, as well as helping them to be conscious of the costs incurred by the plan overall. This

commenter pointed out that if the plan or issuer has different negotiated in-network rates with

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different providers furnishing the same item or service, participants, beneficiaries, and enrollees

will have the opportunity to compare the different rates among the different providers.

Another commenter suggested a number of benefits that could come from the disclosure

of negotiated rates through the cost-sharing tool, even in cases in which that information is not

relevant to the specific cost-sharing inquiry. The commenter pointed out that even if the

participant’s, beneficiary’s, or enrollee’s cost is not affected, the plan’s or issuer’s cost could be

significantly affected and that allowing participants, beneficiaries, and enrollees awareness and

visibility of negotiated rates could provide consumers with a greater understanding of health care

costs and enable participants, beneficiaries, and enrollees to seek out lower cost providers. The

commenter further stated that although participants, beneficiaries, and enrollees will use the tool

to look up estimated cost-sharing for specific items and services, often they will also expect to

seek services from the same provider repeatedly (for example, for ongoing treatment and follow-

up care).

The Departments agree with those commenters who favored requiring disclosure of

negotiated rates even when the negotiated rate is not relevant to determining cost sharing,

because it may promote awareness and understanding of health care prices and promotes

transparency in coverage. Accordingly, the phrase “to the extent relevant to the participant's or

beneficiary's cost-sharing liability” that appeared in paragraph (b)(1) of the proposed regulations

has been removed from the final rules. The final rules modify the third content element to

require that the negotiated rate always be disclosed with cost-sharing liability estimates, even if it

is not used to determine cost sharing, and that the underlying fee schedule rate also be disclosed,

to the extent that it is different from the negotiated rate, as applicable to the plan’s payment

model.

CMS-9915-F 140

With regard to plans and issuers using an alternative reimbursement model, such as a

capitated or bundled payment arrangement that does not have negotiated rates or an underlying

fee schedule, one commenter stated that issuers do not always have access to the negotiated rates

or internal payment methodologies utilized by capitated medical groups or other providers and

would not be able to reliably provide cost transparency based on a negotiated rate at the service

level. In contrast, another commenter stated there is no justification for excluding plans that

reimburse their providers based on capitation from the internet-based self-service tool

requirements as this would result in an incomplete data set, and these plans already assign values

to services to administer benefits with deductibles and coinsurance, as well as for risk adjustment

and internal reporting purposes. Another commenter stated that the Departments should include

Accountable Care Organizations (ACOs) and other capitated arrangements within the ambit of

the final rules and should require transparency and full disclosure of financial incentive

arrangements that underlie capitated arrangements under a specific plan or contract, not just a

consumer’s anticipated liability. This commenter stated that any exemptions may actually be

incentives for plans and issuers to move toward opaque pricing models.

The Departments acknowledge that it is possible that some plans and issuers using

alternative reimbursement models may not have negotiated rates or underlying fee schedule rates

to disclose in the internet-based self-service tool. However, the numbers of plans and issuers

without negotiated rates or underlying fee schedule rates is limited and the Departments are of

the view that an exemption for such arrangements is not necessary. Additionally, the

Departments are of the view that providing an exemption for such arrangements will result in

incomplete data sets. As stated in the final rules, the in-network rate must be disclosed, as

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applicable to the plan’s or issuer’s payment model. If the plan or issuer does not have negotiated

rates or underlying fee schedule rates, the third content element does not apply.

Prescription Drugs

The final rules adopt the requirement that group health plans and health insurance issuers

disclose to participants, beneficiaries, or enrollees an estimate of cost-sharing liability for each

item or service, including prescription drugs. As discussed in the preamble to the proposed rules,

this would allow participants, beneficiaries, and enrollees to request cost-sharing information for

a specific billing code (as described later in this preamble) associated with a prescription drug or

by descriptive terms (such as the name of the prescription drug), which would permit

participants, beneficiaries, and enrollees to learn the estimated cost of a prescription drug

obtained directly through a provider, such as a pharmacy or mail order service. In addition to

allowing participants, beneficiaries, and enrollees to obtain cost-sharing information by using a

billing code or descriptive term, the proposed rules would also have permitted participants,

beneficiaries, and enrollees to learn the cost of a set of items or services that include a

prescription drug or drugs that is subject to a bundled payment arrangement for a treatment or

procedure. In the proposed rules, the Departments acknowledged that outside of a bundled

payment arrangement, plans and issuers often base cost-sharing liability for prescription drugs on

the undiscounted list price, such as the AWP or WAC, which frequently differs from the price

the plan or issuer has negotiated for the prescription drug.

114

In these instances, providing the

participant, beneficiary, or enrollee with a rate that has been negotiated between the issuer or

114

“Follow the Dollar.” PhRMA. November 30, 2017. Available at: https://www.phrma.org/report/follow-the-

dollar-report.

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plan and its PBM could be misleading, as this rate would reflect rebates and other discounts, and

could be lower than what the individual would pay—particularly if the participant, beneficiary,

or enrollee has not met his or her deductible.

The Departments sought comment as to whether a rate other than the negotiated rate,

such as the undiscounted price, should be required to be disclosed for prescription drugs, and

whether and how to account for any and all rebates, discounts, and dispensing fees to ensure

participants, beneficiaries, and enrollees have access to meaningful cost-sharing liability

estimates for prescription drugs.

Several commenters supported disclosure of rebates, discounts, and other price

concessions for drugs. One commenter referred to drug price concessions as one of the “most

confounding black boxes of health care” and stated that data suggests these concessions are

actually increasing out-of-pocket costs for participants, beneficiaries, and enrollees. This

commenter urged the Departments to require plans and issuers to disclose the list price, the

negotiated rate, a single dollar value reflecting the total amount of price concessions, and the

price used to calculate the participant’s, beneficiary’s, and enrollee’s coinsurance along with, if

different from the negotiated rate, an explanation as to why the price is different from the

negotiated rate. Another commenter opined that participants, beneficiaries, and enrollees have

the right to know a drug’s undiscounted price, discounted or negotiated price, and the total sum

of all price concessions for that drug, including fees, rebates, and discounts. This commenter

stated that providing a beneficiary with these three data points strikes the appropriate balance

between improving transparency without misleading or overwhelming the participant,

beneficiary, or enrollee.

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Many commenters suggested that plans and issuers be required to disclose when the

participant’s, beneficiary’s, or enrollee’s cost-sharing requirement exceeds the price paid by the

plan or issuer. One commenter stated that in cases where plans pass through some or all rebates

and other price concessions to participants, beneficiaries, and enrollees, the prices disclosed to

participants, beneficiaries, and enrollees should be the price net of those rebates and concessions.

The commenter emphasized the importance of plans and issuers also disclosing to participants,

beneficiaries, and enrollees when manufacturer rebates and discounts are not passed through to

them at the point-of-sale or factored into cost-sharing. One commenter noted that negotiated

prices for prescriptions or cash price alternatives may sometimes appear less expensive, but that

such alternative rates (for example, cash price options) may increase overall costs if such rates

offset the ability to reach a plan’s deductible or out-of-pocket maximum thresholds. Therefore,

this commenter requested that the Departments provide clarity as to whether plans and issuers

would be responsible for notifying participants, beneficiaries, and enrollees of such

considerations and/or making such calculations. Similarly, two commenters urged the

Departments to require disclosure of the negotiated rate for drugs in all situations, even where

the beneficiary owes a fixed-amount copayment, and cited reports of cases when, for inexpensive

generics, the beneficiary’s fixed-amount copay actually exceeded the negotiated rate.

Three commenters recommended that the Departments provide plans the flexibility to

display the most meaningful price to an enrollee for drugs. One commenter stated that if the

participant, beneficiary, or enrollee’s cost sharing is based upon a specified benchmark, the plan

should be allowed to specify the benchmark used in the tool’s documentation. This commenter

suggested that requiring plans to conform to a single standard is not possible, and in effect may

be unhelpful to consumers, given the multitude of contracts (and different contract terms) that

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each plan’s PBM may have with pharmacies. Another commenter stated providing this

flexibility will allow for issuer innovation in developing cost-estimator functionality that

provides real-time, accurate, and useful prescription drug estimates to participants, beneficiaries,

or enrollees.

One commenter recommended the Departments consider using “net price” rather than the

“negotiated rate” for estimating cost-sharing liability for prescription drugs. The commenter

explained that direct and indirect remuneration (DIR) fees under Medicare Part D and similar

PBM practices in the private market were originally designed to capture rebates and other

mechanisms not included at the point-of-sale. However, the commenter stated that DIR fees and

other retroactive fees utilized by PBMs are now being used beyond their original purpose to

retroactively adjust pharmacies’ payment months after the sale, sometimes below the price paid

by the pharmacy.

Some commenters stated that the Departments should not require display of negotiated

drug prices, rebates, or other discounts or fees. Two commenters expressed that, rather than

increasing transparency or providing actionable or meaningful information to participants,

beneficiaries, or enrollees, estimated rebate information would simply confound and frustrate

participants, beneficiaries, or enrollees, given its lack of direct relevance to the amount the

participant, beneficiary, or enrollee is required to pay for the drug at a pharmacy. Another

commenter stated that disclosing highly confidential dispensing fees would benefit only those

parties being paid dispensing fees, by giving them a window into the dispensing fees paid to their

competitors, and advised that the Departments should avoid requiring any disclosure of drug

prices, rebates, discounts, or fees that would undermine plans’ and issuers’ ability to negotiate

lower drug costs.

CMS-9915-F 145

The Departments also solicited comment as to whether there are scenarios in which

including drug pricing information in cost estimates would be problematic. One commenter

recommended that the final rules require disclosure of an estimate of the cost-sharing liability

associated with a drug only when there is an out-of-pocket cost to the participant, beneficiary, or

enrollee that is directly attributable to the drug. Another recommended that when the price of a

drug is not the basis of the enrollee’s cost-sharing liability, plans should be given the option to

publish the benchmark price or omit a price altogether, displaying only the enrollee’s cost-

sharing liability.

The Departments also sought comment on whether the relationships between plans or

issuers and PBMs allow plans and issuers to disclose rate information for drugs, or if contracts

between plans and issuers and PBMs would need to be amended to allow plans and issuers to

provide a sufficient level of transparency. If those contracts would need to be amended, the

Departments sought comment on the time that would be needed to make those changes. While

some commenters stated that the rates negotiated between PBMs and pharmacies are considered

confidential, other commenters stated that existing contracts would not prevent PBMs or issuers

from disclosing the required information. One commenter stated that it is common that contracts

be modified in response to changes in a statute or regulation, and that federal public policy

imperatives override existing contractual provisions. This commenter stated the public interest

in complete disclosure to reduce costs for consumers unquestionably outweighs any

confidentiality provisions in current contracts that might otherwise protect disclosure of relevant

information to the federal government.

The Departments agree that participants, beneficiaries, and enrollees, as well as health

care payers such as employers, should have access to meaningful pricing information related to

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drug pricing in order to meaningfully evaluate plan and issuer offerings and gain transparency

into potential out-of-pocket costs.

The Departments also acknowledge that contract terms may need to be amended based on

the final rules. The Departments agree that disclosure of rebates, discounts, and other price

concessions would further the goals of price transparency, but also acknowledge other

commenters’ concerns that disclosing all these elements might cause consumer confusion. The

Departments also acknowledge that there could be value in using “net price” rather than

“negotiated rate” and in disclosing when a participant’s, beneficiary’s, or enrollee’s cost-sharing

liability exceeds the price paid by the plan or issuer. As described by commenters, there are

numerous pricing inputs throughout the drug supply chain that affect the final price for the

consumer—making complete transparency on drug pricing more complex than that of other

items and services. The Departments aim to strike a balance between illuminating some of the

factors that drive drug costs and not overwhelming consumers with information that is not

directly relevant to their cost-sharing liability. To that end, the final rules require plans and

issuers to disclose in element (i), an individual’s out-of-pocket cost liability for prescription

drugs, and in element (iii), the negotiated rate of the drug. As discussed elsewhere in this

preamble, the Departments recognize that the negotiated rate might be different for branded and

generic drugs. For instance, the negotiated rate might be the WAC for branded drugs and the

Maximum Allowed Cost (MAC) for generic drugs. The Departments also acknowledge that this

price might be established differently for different plans and issuers. The Departments anticipate

this disclosure generally will not necessitate the disclosure of information on discounts, rebates,

or price concessions for a drug.

CMS-9915-F 147

The Departments recognize there may be circumstances in which a drug carries no cost-

sharing liability for a participant, beneficiary, or enrollee. If there is no cost sharing associated

with a prescription drug, under the final rules, the tool should reflect a cost-sharing value of $0

for clarity, but the negotiated rate must be displayed.

The proposed rules sought comment on the possibility of requiring access to the APIs

used by pharmacies in accessing drug prices. One commenter stated that drug prices frequently

differ from period to period over the course of the year, as well as across pharmacy locations

even within the same national pharmacy chain. The commenter recommended that the

Departments consider requiring PBMs to provide payers, group plans, and third parties with

access to the same price APIs accessed by pharmacies, stating that, with access to an open API,

the plan or third party could request the estimated price for the same prescription at multiple

retail pharmacies and receive real-time retail pricing based upon the participant’s, beneficiary’s,

or enrollee’s plan. The Departments recognize the value in requiring cost-sharing information be

made available through an API and will use the comments received to inform future rulemaking.

Commenters requested that the Departments confirm that issuers may provide a link to

prescription drug cost tools offered through PBMs or vendors to satisfy the requirement to

provide pricing information for prescription drugs. One commenter also urged the Departments

to prohibit the internet-based, self-service tool from being used by prescribers’ e-prescribing and

electronic medical record systems or by plans to steer patients to pharmacies other than a

patient’s pharmacy of choice, such as those owned wholly or partially by health plans or PBMs.

The Departments agree that plans and issuers who provide participants’, beneficiaries’, or

enrollees’ cost-sharing liability estimates and negotiated rates through a standalone tool provided

by a PBM or third-party vendor satisfy the requirements under the final rules. The Departments

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also clarify that if the PBM or other third-party vendor fails to provide full or timely information,

then the plan or issuer, not the PBM or third-party vendor, violates these transparency disclosure

requirements. Regarding a prohibition on steering patients to certain pharmacies by plans or

prescribers, the Departments are not finalizing any prohibitions at this time and will monitor the

implementation of these disclosure requirements.

d. Fourth Content Element: Out-of-network allowed amount

The fourth content element is the out-of-network allowed amount for the requested

covered item or service. In the proposed rules, the Departments proposed to define “out-of-

network allowed amount” to mean the maximum amount a group health plan or health insurance

issuer would pay for a covered item or service furnished by an out-of-network provider. Under

the proposed rules, plans and issuers would be required to disclose an estimate of cost-sharing

liability for a participant, beneficiary, or enrollee. Therefore, the Departments proposed that,

when disclosing an estimate of cost-sharing liability for a covered item or service from an out-of-

network provider, a plan or issuer would disclose the out-of-network allowed amount and any

cost-sharing liability the participant, beneficiary, or enrollee would be responsible for paying.

For example, if a plan has established an out-of-network allowed amount of $100 for an item or

service from a particular out-of-network provider and the participant, beneficiary, or enrollee is

responsible for paying 30 percent of the out-of-network allowed amount ($30), the plan would

disclose both the allowed amount ($100) and the individual’s cost-sharing liability ($30),

indicating that the individual is responsible for 30 percent of the out-of-network allowed amount.

Under the proposed rules, this element would only be relevant when a participant, beneficiary, or

enrollee requests cost-sharing information for a covered item or service furnished by an out-of-

network provider.

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In the proposed rules, the Departments explained that the definition of cost-sharing

liability does not include amounts charged by out-of-network providers that exceed the out-of-

network allowed amount, which participants, beneficiaries, or enrollees must pay (sometimes

referred to as balance bills). Therefore, it may be difficult for participants, beneficiaries, or

enrollees to determine their likely out-of-pocket costs for covered items and services furnished

by an out-of-network provider. The Departments also explained that the statutory language of

section 1311(e)(3)(A)(vii) of PPACA and section 2715A of the PHS Act indicates that Congress

intended that participants, beneficiaries, enrollees, and other members of the public have access

to accurate and timely information regarding cost sharing and payments with respect to any out-

of-network coverage. In the Departments’ view, requiring plans and issuers to disclose out-of-

network allowed amounts and a participant’s, beneficiary’s, or enrollee’s cost-sharing obligation

for covered items and services is necessary and appropriate to fulfill this statutory mandate, and

would give individuals information necessary to estimate their out-of-pocket costs, assuming

they request additional information from an out-of-network provider about how much the

provider would charge for a particular item or service.

One commenter encouraged the Departments to eliminate the proposed "maximum

amount" standard and to instead incorporate usual, customary, and reasonable (UCR) amounts as

the required plan disclosure for out-of-network cost estimates under any final rulemaking. The

commenter stated that the "maximum amount" a plan may be willing to pay a given provider for

a service is not necessarily predetermined. This commenter stated that while some out-of-

network providers and plans may participate in super-regional or national "discount"

arrangements through third parties, in many cases payments to out-of-network providers are

individually negotiated. Further, while a plan might generally start with payment that is

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consistent with UCR calculations (with every intention of paying no more than this amount),

other circumstances may result in negotiated increases to that reimbursement. As such,

prospectively reporting an accurate "maximum amount" is impossible in some cases.

Additionally, this commenter stated that because many out-of-network reimbursements, and in

particular high-cost claims, are individually negotiated, initial disclosure of a plan's true

maximum reimbursement, insofar as this can be calculated or even estimated in advance, would

materially reduce a plan’s bargaining power by notifying non-contracted providers in advance of

the amount they are likely to secure from a plan if they assert all available leverage in a

negotiation. To the extent participant, beneficiary, or enrollee cost-sharing liability is ultimately

derived from out-of-network payment amounts, this requirement is likely to increase out-of-

pocket costs for consumers when seeking care from out-of-network providers.

Conversely, one commenter stated that while larger, for-profit, national health plans can

afford to utilize the UCR, smaller, regional health plans are at a market disadvantage if they are

compelled to base allowed amounts on the UCR, rather than negotiating on a case-by-case basis

in a constrained market. As a result, some health plans will struggle to determine and provide

information about maximum out-of-network allowed amounts—a range of possible “allowed

amounts” may be the most information some health plans have available.

The Departments agree with commenters that the UCR may be a more accurate estimate

of the amount a plan or issuer will pay an out-of-network provider for covered items or services,

if the plan relies on UCR to determine out-of-network rates. However, the Departments

acknowledge that basing allowed amounts on the UCR may disadvantage smaller plans. The

Departments also acknowledge that a plan or issuer may be able to provide a participant,

enrollee, or beneficiary with a more accurate estimate of an out-of-network allowed amount by

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using calculations based on historical claims data, because the plan or issuer does not have a pre-

determined negotiated rate with out-of-network providers. The Departments acknowledge the

concern that plans may lose bargaining power by disclosing out-of-network allowed amount to

consumers; however, the Departments are of the view that the out-of-network allowed amount is

a critical element of price transparency and its disclosure is essential to enabling consumers to

estimate their out-of-network costs in advance. To this end, the Departments are modifying this

provision to require plans and issuers to disclose the out-of-network allowed amount or any other

calculation that provides a more accurate estimate of the amount a plan will pay for the requested

covered item or service, such as a UCR. Allowing plans and issuers to provide an amount other

than the out-of-network allowed amount could better serve consumers with a more accurate

estimate of what a plan or issuer may reimburse an out-of-network provider. The Departments

clarify that if a plan or issuer chooses to use another metric that provides a reasonably accurate

estimate of what a plan or issuer will pay for a covered item or service from an out-of-network

provider, the plan or issuer must still provide a participant, beneficiary, or enrollee with

information regarding any cost sharing the participant, beneficiary, or enrollee would be

responsible for paying.

Some commenters recommended the Departments not require plans and issuers to

provide allowed amount and cost-sharing information for covered services furnished by an out-

of-network provider. One commenter stated it is not possible for issuers to include allowed

amounts for out-of-network providers because, without a provider contract, issuers do not have

the necessary information, including provider names, National Provider Identifier (NPI), address,

specialty, or other demographic information to include these providers in a price transparency

tool. One commenter stated that providing real-time disclosures of allowed amounts could be

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challenging to the extent that plans and issuers determine the allowed amount for certain out-of-

network items and services based on a percentage of billed charges, as billed charges are

unknown by the plan or issuer prior to a claim for health care services.

The Departments acknowledge the challenges plans and issuers may face disclosing this

element, but the Departments are of the view that information regarding out-of-network coverage

is essential to the goal of price transparency. With regard to plans and issuers lacking the

necessary information for providers with whom they do not contract, the Departments are of the

view that plans and issuers should know what they are willing to pay for certain items and

services, irrespective of provider. The final rules provide flexibility for plans and issuers to

provide an estimate of what the plan will pay by allowing plans and issuers to disclose either the

out-of-network allowed amount or another amount that would provide a reasonably accurate

estimate of what a plan would reimburse an out-of-network provider for a covered item or

service. Given that some plans and issuers determine the allowed amount for certain out-of-

network items and services based on a percentage of billed charges, the final rules provide that a

percentage can be disclosed instead of a dollar amount, if plans and issuers reimburse out-of-

network providers a percentage of the billed charges for a covered item or service.

One commenter sought clarification that the tool is meant to provide cost-sharing

information for out-of-network providers and not just the allowed amounts.

As discussed earlier in this preamble under the first content element, under the final rules,

the plan or issuer is required to disclose both the out-of-network allowed amount, as described

earlier in this preamble, and any cost-sharing liability, based on that allowed amount, that the

participant, beneficiary, or enrollee would be responsible for paying.

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One commenter stated that the Departments should not require Health Maintenance

Organizations’ (HMOs’) out-of-pocket calculators to provide out-of-network data. The

commenter noted that the proposed rules limited the tool to covered services, and HMOs

generally do not cover benefits provided by out-of-network and, therefore, should not be

required to estimate out-of-network costs.

The Departments understand that some plans and issuers may not provide any

reimbursement to an out-of-network provider for an otherwise covered item or service.

Nonetheless, it is the Departments’ understanding that some HMOs reimburse an out-of-network

provider for covered items and services in certain circumstances and, therefore, the Departments

expect HMOs to provide cost-sharing information with regard to out-of-network coverage. The

Departments recognize that in many cases, an HMO’s maximum allowed amount for an out-of-

network service will be $0. However, the Departments are of the view that it is important for a

participant, enrollee, or beneficiary to understand what the plan or issuer will or will not pay for

out-of-network costs. Therefore, if the plan or issuer, including an HMO, does not provide any

reimbursement for an item or service provided by an out of network provider, the Departments

expect the plan or issuer to disclose $0 as the allowed amount.

e. Fifth Content Element: Items and services content list

The fifth content element is a list of those covered items and services for which cost-

sharing information is being disclosed for items or services subject to a bundled payment

arrangement. The Departments proposed that this requirement would apply only when a

participant, beneficiary, or enrollee requests cost-sharing information for an item or service that

is subject to a bundled payment arrangement that includes multiple items or services. The

Departments proposed that, in cases in which an individual requests a cost-sharing liability

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estimate for a covered item or service that is subject to a bundled payment arrangement, plans

and issuers would be required to disclose a list of each covered item and service included in the

bundled payment arrangement and the individual’s cost-sharing liability for those covered items

and services as a bundle, but not a cost-sharing liability estimate separately associated with each

covered item or service included in the bundle.

While some commenters supported the inclusion of cost-sharing information for bundled

payment arrangements, others did not support requiring the disclosure of bundled payment

arrangements and the items and services included in the arrangement. These commenters stated

disclosure of this information would likely be unhelpful to the participant, beneficiary, or

enrollee and might cause confusion. One commenter encouraged the Departments to clarify that

disclosure for diagnostic imaging procedures in particular should be presented to consumers in a

method that is inclusive of the combined professional and technical rates, or the globally billed

rate.

The Departments are of the view that understanding which items and services are

included in a bundled payment arrangement will provide helpful information for participants,

beneficiaries, and enrollees, so that they understand what items and services are accounted for in

calculating their cost-sharing liability. The Departments are of the view that this list is unlikely

to cause confusion. Instead, it will reduce confusion by clearly identifying what individual items

and services would be covered under their estimated cost-sharing liability. If the plan or issuer

reimburses a procedure, such as imaging, at a global rate that includes both professional and

technical charges, then that global rate is a rate for a bundled payment arrangement for which the

applicable content elements must be disclosed, just as for all other items and services. The final

rules adopt the provision that plans and issuers provide a list of items or services for items and

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services subject to bundled payment arrangements for which a cost-sharing liability estimate is

being disclosed, with non-substantive edits for improved readability.

f. Sixth Content Element: Notice of prerequisites to coverage

The sixth content element is a notification, whenever applicable, informing the individual

that a specific covered item or service for which the individual requests cost-sharing information

may be subject to a prerequisite for coverage. The proposed rules defined the term prerequisite

to mean certain requirements relating to medical management techniques for covered items and

services that must be satisfied before a plan or issuer will cover the item or service. Specifically,

the proposed rules provided that prerequisites include such techniques as concurrent review,

prior authorization, and step-therapy or fail-first protocols. In the proposed rules, the

Departments intended for the definition of prerequisite to capture medical management

techniques that apply to an item or service that require action by the participant, beneficiary, or

enrollee before the group health plan or health insurance issuer will cover the item or service.

Accordingly, the proposed definition of prerequisite did not include medical necessity

determinations generally, or other forms of medical management techniques that do not require

action by the participant, beneficiary, or enrollee. While the prerequisites enumerated in the

proposed rules were provided as an illustrative list, the Departments solicited comment on

whether there are any additional medical management techniques that should be explicitly

included as prerequisites in the final rules.

Several commenters supported the inclusion of this element. One commenter stated that

helping patients understand any coverage prerequisites prior to care, such as prior authorization,

may help to eliminate some of the confusion and unnecessary administrative burden following

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care. Another stated that requiring a plan to disclose prerequisites in an easily understandable

format may help patients complete required protocols and thus would improve adherence.

A few commenters recommended additional disclosures or offered suggestions to

strengthen these requirements. One commenter encouraged the Departments to include clinical

coverage policies for services that are more specific than general medical necessity criteria. For

example, some plans and issuers utilize coverage policies that require specific diagnoses or

documented symptoms before an item or service may be covered. The commenter explained that

while these policies may not technically require an action by the beneficiary, they are important

in determining whether the specific item or service is covered. Another commenter

recommended that plans and issuers clearly disclose every utilization control that stands between

the participant, beneficiary, or enrollee and a prescription, suggesting that this type of disclosure

would help patients meet utilization control standards. Another commenter urged the

Departments to strengthen this requirement by requiring plans and issuers to provide a

description of the actual required prerequisites. The commenter stated that the proposed

regulation requires only notification of the existence of a prerequisite, but not any detail about

what the prerequisite is and how it can be satisfied. Two commenters encouraged the

Departments to standardize this type of notification language to ensure that all consumers receive

a consistent message regarding the provision of health care services.

One commenter requested that the Departments provide that the prerequisites listed in

proposed rules (that is, concurrent review, prior authorization, step-therapy, and fail-first

protocols) are an exclusive list. Another commenter stated that prerequisite notification should

be limited to simple notifications that prerequisites apply to a service, and communication of

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specific prerequisites should not be required until a Fast Healthcare Interoperability Resources

(FHIR) standard for transmission of this information is established and operationalized.

As discussed in the proposed rules, the Departments intended for the definition of

prerequisite to capture medical management techniques that apply to an item or service that

require action by the participant, beneficiary, or enrollee before the plan or issuer will cover the

item or service. The Departments consider plan or policy provisions that require a diagnosis or

documented symptoms before a service or item would be covered to be medical necessity

determination requirements that do not require action on behalf of the participant, beneficiary, or

enrollee. Therefore, the Departments did not include such terms in the proposed prerequisite

requirement. The Departments are finalizing regulation text to reflect that concurrent review,

prior authorization, and step-therapy or fail-first protocols are the exhaustive list of prerequisites

about which plans and issuers would need to provide notice. Furthermore, while the

Departments acknowledge that providing a complete description of prerequisites might be

helpful to consumers, the Departments are not of the view that requiring plans or issuers to

provide such descriptions is necessary. The Departments determined that requiring a complete

description of the prerequisite would create unnecessary complexity and impose significant

burdens on plans and issuers regarding information that is already available in plan documents.

Additionally, while the Departments recognize the importance of FHIR in the push towards

greater interoperability, it is not necessary to delay finalizing these rules until the FHIR standards

are finalized as the final rules do not require any APIs to be built nor exposed for public

consumption. The final rules adopt this content element requirement, with the modifications

discussed in this section.

g. Seventh Content Element: Disclosure notice

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The seventh and final content element proposed is a notice that communicates certain

information in plain language, including several specific disclosures. First, the Departments

proposed that this notice would include a statement that out-of-network providers may bill

participants, beneficiaries, or enrollees for the difference between providers’ billed charges and

the sum of the amount collected from the group health plan or health insurance issuer and the

amount collected from the participant, beneficiary, or enrollee in the form of cost-sharing (the

difference often referred to as balance billing) and that these estimates do not account for those

potential additional amounts. In the proposed rules, the Departments acknowledged that there

are numerous state laws that address balance-billing practices such that the notice described in

the proposed content element regarding balance bills may be misleading or inaccurate for

beneficiaries, participants, or enrollees enrolled in a plan or coverage in certain states. The

Departments requested comment on whether any modifications to this content element would be

appropriate to allow plans and issuers to accurately advise participants, beneficiaries, or enrollees

of their potential exposure to or protection from any balance bills.

Second, the Departments proposed that the notice be required to convey that actual

charges for the participant’s, beneficiary’s, or enrollee’s covered items and services may be

different from those described in a cost-sharing liability estimate, depending on the actual items

and services received at the point of care.

Third, the Departments proposed that the notice be required to include a statement that

the estimated cost-sharing liability for a covered item or service is not a guarantee that coverage

will be provided for those items and services.

Finally, the Departments proposed that plans and issuers be permitted to include any

additional information, including other disclaimers that the plan or issuer determines appropriate,

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so long as the additional information does not conflict with the information they are required to

provide. For example, plans and issuers would have been permitted to include additional

language so long as the language could not reasonably be read to disclaim the plan’s or issuer’s

responsibility for providing a participant, beneficiary, or enrollee with accurate cost-sharing

information, or plans and issuers could choose to provide a disclaimer that informs consumers

who are seeking estimates of cost-sharing liability for out-of-network allowed amounts that they

may have to obtain a price estimate from the out-of-network provider in order to fully understand

their out-of-pocket cost liability. Plans and issuers would also have been permitted to provide a

disclaimer indicating how long the price estimate will be valid, based on the last date of the

contract term for the negotiated rate or rates (if multiple providers with different contract terms

are involved). The Departments are of the view that this type of disclaimer could provide

participants, beneficiaries, and enrollees with a better understanding of how their cost estimate

may change over time. The Departments sought comment on whether a specific disclaimer

indicating the expiration of the cost estimate should be required. Furthermore, the Departments

explained in the proposed rules that plans and issuers may also include disclaimer information

regarding prescription drug cost estimates and whether rebates, discounts, and dispensing fees

may impact the actual cost to the participant, beneficiary, or enrollee.

The Departments developed model language that plans and issuers could use, but would

not be required to use, to satisfy the disclosure notice requirements described above. This model

language was proposed contemporaneously with, but separate from, the proposed rules.

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The

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“Transparency in Coverage. Model Notice.” United States Department of Labor. Available at:

https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-

advisers/transparency-in-coverage-draft-model-disclosure.pdf.

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Departments sought comment on the proposed model language and any additional information

that stakeholders believed should be included in the model notice or any information that should

be omitted from the model notice.

The proposed rules clarified that this disclosure notice would be in addition to the

information that QHP issuers are currently required to publish on their websites pursuant to 45

CFR 156.220(a)(7) regarding cost-sharing and payments with respect to out-of-network

coverage. In addition, some portions of this disclosure may overlap with network adequacy

disclosure standards under 45 CFR 156.230(e). That section requires QHP issuers to count the

cost-sharing paid by an enrollee for an out-of-network essential health benefit (EHB) provided

by an out-of-network ancillary provider in an in-network setting toward the enrollee’s out-of-

pocket limit or provide a notice to the enrollee that additional costs may be incurred for an EHB,

including balance billing charges, if applicable.

The Departments requested comment on the proposed notice disclaimers and whether any

additional disclaimers would be necessary or beneficial to participants, beneficiaries, and

enrollees in learning about their potential cost-sharing liability for covered items and services.

For example, the Departments inquired whether the Departments should require a notice that

explains that the cost-sharing information provided may not account for claims a participant,

beneficiary, or enrollee has submitted that the plan or issuer has not yet processed. The

Departments also considered whether to require plans and issuers to provide a participant,

beneficiary, or enrollee information regarding non-covered items or services for which the

individual requests cost-sharing information. For example, there could be a requirement that a

plan or issuer provide a statement, as applicable, indicating that the item or service for which the

participants, beneficiaries, and enrollees has requested cost-sharing information is not a covered

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benefit under the terms of the plan or coverage, and expenses charged for that item or service

will not be reimbursed by the plan or coverage.

Several commenters agreed with the proposed disclosure notice requirements.

Specifically, many commenters supported the disclosure that estimates may not reflect the

amount ultimately charged to the participant, beneficiary, or enrollee. One commenter

recommended the disclosure include examples of circumstances under which a participant’s,

beneficiary’s, or enrollee’s actual cost-sharing liability may differ from the estimate provided by

their plan or issuer (for example, comorbidities or unanticipated complications). The commenter

stated that a more comprehensive explanation of how participant, beneficiary, or enrollee

characteristics might affect charges for covered items and services would help them better

understand their potential exposure to higher cost-sharing amounts. One commenter suggested

that the notice include stronger wording to educate the plan participant about the strong

likelihood of a surprise amount due that differs greatly from the estimate. One commenter

recommended that the notice include information that DIR Fees charged to pharmacies inflate

participants’, beneficiaries’, and enrollees’ cost sharing and that plans and issuers may claw back

that inflated cost sharing from the pharmacy.

One commenter recommended that plans and issuers be required to disclose additional

information to help participants, beneficiaries, and enrollees understand the appropriate point of

contact for questions and complaints. This commenter recommended that the final rules require

issuers to provide participants, beneficiaries, and enrollees with contact information for their

state departments of insurance when covered by insurance that is primarily state-regulated. For

group health plans that are not fully insured, the commenter recommended that the plan provide

contact information for the appropriate federal regulator.

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One commenter requested flexibility with disclaimer language regarding a notice

provided in paper form to reflect that the estimate may not be reflective of services received or

claims processing, or to direct the participant, beneficiary, or enrollee to call their plan or issuer

or use the internet for more up-to-date information. Similarly, one commenter recommended

that a timestamp be required for notices provided in paper form to account for potential price

changes. Several commenters supported requiring plans and issuers to add to the notice a date

on which the estimate will expire, while other commenters did not.

One commenter expressed concern regarding the statement in the preamble to the

proposed rules that the required disclosure notice regarding balance-billing information “may be

misleading or inaccurate for beneficiaries, participants, or enrollees enrolled in a plan or

coverage in certain states,” given the multi-state nature of most employer-sponsored plans.

Another commenter stated that state regulators should be able to direct issuers to include

information in the disclosure that accurately describes the state’s balance billing laws, and that

any notice provided to consumers in advance of receiving services should have information as to

whether the participant, beneficiary, or enrollee is likely to be protected from liability under state

or federal balance billing laws. The commenter further stated that some states already have state

laws related to disclosure of costs to consumers and the final rules should be clear that this

requirement does not preempt these state requirements. Two commenters urged the Departments

to make clear that participants, beneficiaries, and enrollees are not protected from out-of-network

provider and facility balance billing, except where balance billing would be barred by state law.

The final rules are not intended to preempt state laws regarding balance billing. In the

final rules, the Departments have modified this requirement to clarify that the balance billing

statement is only required if balance billing is permitted under state law. Plans and issuers have

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flexibility to use the model notice language or create their own notices with greater specificity

regarding their state’s laws.

One commenter expressed concern that allowing plans to include a statement that the

estimated cost-sharing liability is not a guarantee of coverage negates the intent of the proposed

rules, given that consumers who receive a notice from their health plan regarding estimated out-

of-pocket costs would naturally assume coverage of those services.

The Departments acknowledge this concern; however, there are many reasons estimated

cost-sharing information may not be accurate when items and services are ultimately furnished.

For example, it is possible for coverage to end (for example, due to non-payment of premiums)

between the time an estimate is provided and an item or service is furnished. Additionally, an

estimate may show the cost for an item or service as a treatment for a certain condition, but the

item or service may not be covered for the condition that is ultimately diagnosed at the point of

care. Therefore, the final rules adopt the provision as proposed.

Several commenters recommended that the Departments issue guidelines as to what is

considered “plain language.” The commenters recommended that the Departments provide

examples of typical disclosure language compared to its “plain language” equivalent. They

further recommended that these examples be tested through various focus groups to ensure

consumer comprehension.

The final rules define “plain language” to mean language written and presented in a

manner calculated to be understood by the average participant, beneficiary, or enrollee.

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Determining whether this standard has been satisfied requires taking into account such factors as

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29 CFR 2520.102-2(a).

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the level of comprehension and education of typical participants, beneficiaries, or enrollees in the

plan or coverage and the complexity of the terms of the plan. Accounting for these factors would

require limiting the use of technical jargon and long, complex sentences, so that the information

provided will not have the effect of misleading, misinforming, or failing to inform participants,

beneficiaries, or enrollees. The Departments are of the view that the final rules and this

preamble provide sufficient detail regarding the meaning of plain language.

Some commenters recommended that plans and issuers should disclose whether they

count copayment assistance and other third-party payments in the calculation of the beneficiary’s

deductible and out-of-pocket maximum. The commenter noted that as more plans implement

copay accumulators that do not count these payments, issuers should be required to disclose

these policies to their beneficiaries.

The Departments are of the view that knowing whether these payments apply to

accumulators is germane to price transparency and should be required in the final rules. To that

end, the final rules adopt a fifth notice content requirement (codified at 26 CFR 54.9815-

2715A2(b)(1)(vii)(D), 29 CFR 2590.715-2715A2(b)(1)(vii)(D), and 45 CFR

147.211(b)(1)(vii)(D)) that plans and issuers must provide a statement disclosing whether

copayment assistance and other third-party payments are included in the calculation of the

participant’s, beneficiary’s, or enrollee’s deductible and out-of-pocket maximum.

As discussed under the first content element, some items or services may not be subject

to cost sharing if they are furnished as preventive items or services, while the same item or

service could be subject to cost sharing if it is furnished for non-preventive purposes or provided

by an out-of-network provider. Therefore, the final rules adopt an additional notice requirement

(codified at 26 CFR 54.9815-2715A2(b)(1)(vii)(E), 29 CFR 2590.715-2715A2(b)(1)(vii)(E), and

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45 CFR147.211(b)(1)(vii)(E)) stating that, for an item or service that is a recommended

preventive service under section 2713 of the PHS Act where the plan or issuer cannot determine

whether the request is for a preventive or non-preventive item or service, the plan or issuer must

provide a statement that the item or service may not be subject to cost-sharing if it is billed as a

preventive service.

One commenter recommended information be included to help participants, beneficiaries,

and enrollees understand the appropriate point of contact for questions and complaints. This

commenter recommended issuers provide consumers with contact information for the

appropriate regulator—either the State Department of Insurance or the appropriate Federal

office.

The Departments appreciate this recommendation, but are declining to finalize this

additional requirement because the Departments are of the view that plans and issuers already

have avenues in place to address participants’, beneficiaries’, and enrollees’ complaints.

Several commenters recommended that additional notice disclaimers be provided. One

commenter suggested that the final rules require a statement that cost-sharing liability estimates

may differ from actual costs, depending on changes after claims are processed. Another

commenter recommended that the Departments develop model disclaimers stating that quoted

amounts for drugs may be time-limited and subject to manufacturer pricing practices. Another

commenter recommended the addition of consumer disclaimers indicating that “services subject

to the cost estimate may be provided and billed by providers associated with multiple payer

contracts which will result in multiple EOBs.” Another commenter recommended the

Departments permit plans to require participants, beneficiaries, and enrollees to review and

acknowledge a disclaimer prior to viewing or searching for any pricing information, which

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would help ensure that consumers understand that what they are receiving may not be an

accurate estimate of their total out-of-pocket costs. Another commenter recommended that the

presentation of the out-of-network information make clear that the issuer is unable to provide an

estimate for the full cost of the service. The commenter suggested that this disclosure should be

presented on the same screen as the maximum allowed amount and the participant, beneficiary,

or enrollee’s cost liability because it may be unclear that the maximum allowed amount is not the

total cost of care. Another commenter requested that the Departments add a requirement that

plans or issuers provide participants, beneficiaries, or enrollees with meaningful and simple

explanations regarding emergency care, including informing them of the prudent layperson

standard.

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Another commenter that recommended plans and issuers be required to provide

explanatory information about the operation of their plans, including glossaries of relevant terms

and explanations of insurance plan features and health care services, including in-network and

out-of-network costs, limited plan designs, deductibles, telehealth, and additional features in

consumer-friendly language.

The Departments decline to adopt these commenters’ suggestions for additional notice

disclaimers. The Departments are of the view that adopting these additional requirements would

add to the burden imposed on plans and issuers without creating corresponding benefits for

participants, beneficiaries, or enrollees that would outweigh the burden, and would be

unhelpfully prescriptive regarding the information plans and issuers are required to convey to

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42 CFR 438.114.

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these individuals. Existing plan and issuer resources for this information, such as the uniform

glossary required under the Summary of Benefits and Coverage (SBC) final regulation

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provide

consumer-friendly language definitions of insurance terms. Additionally, in response to

comment, the Departments are providing flexibility to plans and issuers to design their internet-

based tools and disclosures so that they meet the needs of their participants, beneficiaries, and

enrollees. However, the Departments encourage plans and issuers to provide additional

information at their discretion, if appropriate. The final rules adopt these provisions as proposed,

with one correction of a typographical error (“bill” rather than “billed”) in 26 CFR 54.9815-

2715A2(b)(1)(vii)(A), 29 CFR 2590.715-2715A2(b)(1)(vii)(A), and 45 CFR

147.211(b)(1)(vii)(A) and a clarification that this statement element is only required if balance

billing is permitted under state law, with paragraph (b)(1)(vii)(D) re-designated as paragraph

(b)(1)(vii)(F), and with new paragraphs (b)(1)(vii)(D) and (E) added, as described earlier in this

section of this preamble.

2. Required Methods for Disclosing Information to Participants, Beneficiaries, or Enrollees

Section 1311(e)(3)(C) of PPACA requires that cost-sharing information be made

available through an internet website and other means for individuals without access to the

internet. Therefore, in the proposed rules, the Departments proposed to require that group health

plans and health insurance issuers disclose to participants, beneficiaries, or enrollees the cost-

sharing information described earlier in this preamble in two ways: (1) through a self-service tool

that meets certain standards and is available on an internet website, and (2) in paper form.

a. First Delivery Method: Internet-based self-service tool

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80 FR 34292 (Jun. 16, 2015).

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Under the proposed rules, plans and issuers would be required to make available a self-

service tool on an internet website for their participants, beneficiaries, or enrollees to use,

without a subscription or other fee, to search for cost-sharing information for covered items and

services. The tool would be required to allow users to search for cost-sharing information for a

covered item or service provided by a specific in-network provider, or by all in-network

providers. The tool also would be required to allow users to search for the out-of-network

allowed amount for a covered item or service provided by out-of-network providers. The tool

would be required to provide users real-time responses that are based on cost-sharing

information that is accurate at the time of the request.

Many commenters supported the Departments’ proposal to require plans and issuers to

make available personalized out-of-pocket cost information for all covered health care items and

services through an internet-based self-service tool and urged the Departments to finalize this

section of the regulation as proposed. Some commenters recommended the Departments identify

a core set of functional requirements that must be included in all price transparency tools.

Commenters suggested that these functional requirements should ensure all people enrolled in

commercial products have access to the same baseline functionality, while providing enough

flexibility for issuers to develop, and iterate on, innovative existing internet-based self-service

tools. Examples of functional requirements include providing tailored information to

participants, beneficiaries, or enrollees on their benefit summary (plan coverage, copayments,

deductibles); being able to browse by service category (for example, medical specialty,

procedures, drugs, imaging, labs) or diagnosis; or being able to select from an A-Z list of popular

searches or episodes of care. One commenter recommended the following functional

requirements: (1) provide individuals with their personal health plan details, a digital ID card,

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deductible and copay information, the ability to download and view claims, and information on

provider network status and quality performance; (2) display cost and quality information in

clear, user-friendly language to facilitate and inform health care decisions; (3) allow consumers

to compare facilities and clinicians based on curated cost estimates, common quality measures,

value metrics, and patient ratings; (4) offer personalized out-of-pocket cost estimates for

episodes of care, services, and prescriptions, calculated using their specific health plan design

before they receive care; (5) comply with all state and federal health care data privacy and

security laws, including the Health Insurance Portability and Accountability Act (HIPAA)

privacy and security rules and the Health Information Trust (HITRUST) Common Security

Framework.

The Departments agree that the self-service tool requirements should ensure all people

enrolled in group health plans and health insurance coverage have access to the same baseline

functionality, while providing enough flexibility for plans and issuers to develop and iterate on

innovative internet-based self-service tools. It is the Departments’ intent that the required

elements be broad enough to avoid being overly prescriptive for plans and issuers. The

Departments agree that certain additional content elements could be beneficial to participants,

beneficiaries, and enrollees, including general benefit summary information and quality metrics.

However, the primary initial goal of the self-service tool is to provide personalized out-of-pocket

cost estimates for episodes of care, services, and prescriptions, and to provide transparency

around the pricing elements that determine out-of-pocket costs. Therefore, the Departments are

not inclined to require additional elements unrelated to this primary goal at this time. The

Departments note that the intent of the final rules is to provide a minimum standard for the

disclosure of pricing information to lay a foundation for transparency in coverage and the

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Departments may consider additional disclosure requirements to build upon the final rules in the

future. To that end, the Departments are finalizing the required content elements for the self-

service tool as described earlier in this preamble to the final rules. The final rules include a

change regarding the search function related to out-of-network allowed amounts. Specifically,

that element is modified to include the other metrics that a plan or issuer is permitted to use in

place of out-of-network allowed amounts, as discussed earlier in this preamble in connection

with the fourth content element that must be disclosed to participants, beneficiaries, and

enrollees. Additionally, the Departments encourage plans and issuers to add additional elements

to their tools according to the needs of the populations they serve.

In order for plans and issuers to provide accurate cost-sharing information, the

Departments noted that the participant, beneficiary, or enrollee will have to input certain data

elements into the tool. Therefore, under the proposed rules, plans and issuers would be required

to make available a tool that allows users to search for cost-sharing information: (1) by billing

code (for example, Current Procedural Terminology (CPT) Code 87804) or, (2) by a descriptive

term (for example, “rapid flu test”), at the option of the user. The tool also would be required to

allow users to input the name of a specific in-network provider in conjunction with a billing code

or descriptive term, to produce cost-sharing information, and a cost-sharing liability estimate for

a covered item or service provided by that in-network provider. Regarding a request for cost-

sharing information for all in-network providers, under the proposed rules, if a plan or issuer

utilizes a multi-tiered network, the tool would be required to produce the relevant cost-sharing

information for the covered item or service for individual providers within each tier. In the

proposed rules, the Departments explained that to the extent that cost-sharing information for a

covered item or service under a plan or coverage varies based on factors other than the provider,

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the tool would also be required to allow users to input sufficient information for the plan or

issuer to disclose meaningful cost-sharing information. For example, if the cost-sharing liability

estimate for a prescription drug depends on the quantity and dosage of the drug, the tool would

be required to allow the user to input a quantity and dosage for the drug for which he or she is

seeking cost-sharing information. Similarly, to the extent that the cost-sharing liability estimate

varies based on the facility at which an in-network provider furnishes a service (for example, at

an outpatient facility versus in a hospital setting), the tool would be required to either permit a

user to select a facility, or display in the results cost-sharing liability information for every in-

network facility at which the in-network provider furnishes the specified item or service.

It remains the Departments’ understanding that a plan or issuer may require certain

information, in addition to the identification of a covered item or service, before it can provide an

out-of-network allowed amount for a covered item or service, and that plans and issuers may

have different ways of establishing an allowed amount for covered items or services from an out-

of-network provider (such as by zip code or state). Therefore, under the final rules, plans and

issuers are required to allow users to search for the out-of-network allowed amount or other

metric as discussed in the fourth content element, for a covered item or service provided by out-

of-network providers, by inputting a billing code or descriptive term and the information that is

necessary for the plan or issuer to produce the out-of-network allowed amount (such as the zip

code for the location of the out-of-network provider).

To the extent a user’s search returns multiple results, the tool would be required to have

functionalities that would allow users to refine and reorder results (also referred to as sort and

filter functionalities) by geographic proximity of providers and the amount of estimated cost-

sharing liability. The Departments solicited comment on whether the tool should be required to

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have additional refining and reordering functionality, including whether it would be helpful or

feasible to refine and reorder by provider subspecialty (such as providers who specialize in

pediatric psychiatry), or by the quality rating of the provider, if the plan or issuer has available

data on provider quality.

Some commenters stated that it is unrealistic to expect consumers to know and

understand CPT/Diagnosis Related Group (DRG)/International Classification of Disease-10

(ICD-10) codes and supported the inclusion of descriptive terms. One commenter stated that

search capability by standard medical terms will be crucial, and that, to be successful, this type

of search system will need to be broad and user-friendly, accommodating an extensive range of

consumer inputs and terms. Another commenter recommended the tool also contain a layperson-

friendly descriptor of the service to improve understanding. Other commenters lauded the

requirement that issuers must use plain language when disclosing price information, which

would ensure that patients can understand their expected costs without expert knowledge of

insurance language and practices. Some commenters recommended that the Departments follow

industry standards and use the CMS-approved National Correct Coding Initiative (CCI) for

consumer searches, as well as for any information relating to standards for services that fall into

bundled payment arrangements.

One commenter expressed concern that the conversion of thousands of CPT codes into

plain English by thousands of health plans, carriers, and TPAs is inefficient, and will result in

inconsistencies across the country. For example, there are multiple CPT codes for procedures in

a hospital that differ in price depending upon severity, which is often unknown when a procedure

is first recommended.

CMS-9915-F 173

The Departments agree that it is essential for tools to support descriptive terms because

consumers may not be familiar with specific procedure codes. The Departments acknowledge

the challenge of converting CPT code descriptions to plain language but are of the view that the

benefit to consumers outweighs the burden to plans and issuers. The Departments also

acknowledge the potential value in requiring the use of CCI standards but are of the view that

their use should be voluntary, not required, in order to avoid placing additional burdens on plans

and issuers in the absence of clear benefits to consumers. As noted earlier in this preamble, the

intent of the final rules is to provide foundational requirements and to allow plans and issuers

maximum flexibility to build upon existing tools while providing consumers with reliable cost

estimates. The Departments also highlight that the phased implementation of the final rules

affords plans and issuers additional time to address administrative challenges. Accordingly, the

final rules adopt this provision as proposed.

One commenter sought clarification that the tool is not required to support searches with

multiple parameters at the same time (for example, by provider name and medical code at once).

Another commenter suggested that the Departments allow that, as one permissible method, the

tool may provide for geographic proximity based on a zip code entered by the participant,

beneficiary, or enrollee to enable the consumer to choose whether to search based on the

proximity to home or work or some other location.

The self-service tool must allow users to search for cost-sharing information for a covered

item or service by inputting the name of a specific in-network provider in conjunction with a

billing code or descriptive term, as well as other relevant factors like location of service, facility

name, or dosage. For covered items and services provided by out-of-network providers, the tool

should provide the out-of-network allowed amount, percentage of billed charges, or other rate

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that provides a reasonably accurate estimate of the amount a plan or issuer will pay by allowing

consumers to input a billing code, descriptive code, or other relevant factor, such as location. In

addition, the final rules adopt the requirement that the tool must allow the user to refine and

reorder search results based on geographic proximity of in-network providers. The final rules

require refining and reordering search results only for in-network providers, as the Departments

are of the view that doing so for out-of-network providers would be too burdensome at this stage.

The Departments expect that in order for beneficiaries, participants, and enrollees to search for

out-of-network providers, they would have to input, at minimum, the billing code or name of an

item or service and the geographical location of the provider. In addition, in order to align with

revisions to the fourth content element allowing flexibility to provide another rate instead of the

out-of-network allowed amount, the final rules have been revised to reflect that participants,

beneficiaries, and enrollees can search for the out-of-network allowed amount, the percentage of

billed charges, or other rate that provides a reasonably accurate estimate of the amount a plan or

issuer will pay for a covered item or service provided by out-of-network providers. This “other

rate” is also included in paragraph (b)(2)(i)(B)(2) of the final regulations for consistency.

Regarding refining and reordering features, one commenter suggested that the tools

include an ability to display only in-network providers and an ability to filter or sort by provider

quality if a quality metric is made available. Three commenters requested that requirements not

limit plans to developing provider and service filters that only account for price and geographic

proximity: they suggested that the tools should also have functionality filters based on sub-

specialty and a measure of value. Another commenter requested that any additional functionality

relating to refining and reordering search results be optional for plans and issuers at this time.

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One commenter stated that, to enhance the accuracy of the tool and better account for

fluctuations in cost-sharing amounts, the Departments should require that it be configured to

allow users to self-select health characteristics (for example, chronic conditions, body mass

index) in order to further personalize its outputs for consumers. The commenter recommended

that payers be given flexibility to dictate the specific health characteristics to be included in their

tools based on their participant, beneficiary, and enrollee populations, the types of products that

they offer, and other elements that might cause cost-sharing estimates to fluctuate.

The Departments agree that plans and issuers should have flexibility to design tools that

can maximize consumer utility and acknowledge that the suggested additions to search

functionality could be beneficial to consumers. However, the Departments decline to require the

adoption of these suggestions to preserve plans and issuers’ discretion regarding the most

effective way to provide search results and to avoid being overly burdensome or prescriptive.

The Departments intend that plans and issuers create user-friendly internet-based self-

service tools, but the proposed rules did not include a definition for “user-friendly” because there

are a variety of ways a tool can be designed to be user-friendly. The Departments wish to

preserve plan and issuer flexibility to create tools that are best for their participants,

beneficiaries, or enrollees, including by soliciting user feedback and consumer testing in the

development of their tools. However, it is the Departments’ view that a user-friendly tool would

mean a tool that allows intended users to search for the cost-sharing information outlined in the

final regulations efficiently and effectively, without unnecessary steps or effort. The

Departments are of the view that plans and issuers can look to federal plain language guidelines,

ERISA requirements for a Summary Plan Description’s method of presentation at 29 CFR

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2520.102-2(a), and general industry standards for guidance when designing and developing their

internet-based self-service tools.

119

The Departments also received comments on whether the self-service tool should be

made available through an internet website, through a mobile application, or both. The proposed

rules provided that the self-service tool be made available on an internet website to be consistent

with section 1311(e)(3)(C) of PPACA, which provides that “at a minimum,” cost-sharing

information be made available through an “internet website.” However, the Departments sought

feedback on whether this term should be interpreted to include other comparable methods of

accessing internet-based content. The statute was enacted in 2010, when the primary mode of

accessing internet-based content was through a personal computer. Since that time, ownership of

mobile devices with internet access and use of internet-based mobile applications has become

much more common. The Departments acknowledged that there may be technical differences

between a website and other methods of viewing internet-based content, such as mobile

applications. However, as stated in the proposed rules, the Departments also understand that

technology evolves over time, and it is the Departments’ view that Congress did not intend to

limit the ability to access information via alternative methods of viewing internet-based content

that may be available now or in the future.

The Departments acknowledged that mobile applications may provide benefits beyond

those of traditional websites. Due to the portability of mobile devices, a self-service tool that is

made available through a mobile application might provide participants, beneficiaries, enrollees,

119 “

Federal plain language guidelines.” United States General Services Administration. Available at:

https://www.plainlanguage.gov/guidelines/.

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and their health care providers greater opportunities to use the tool together at the point of care to

evaluate treatment options based on price. The Departments further acknowledged that mobile

applications, as a general matter, may offer greater privacy and security protections than an

internet website, accessed either from a mobile device or a computer.

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Accordingly, the

Departments sought comment on whether the final rules should permit the proposed disclosure

requirements to be satisfied with a self-service tool that is made available through a website or

comparable means of accessing the internet, such as a mobile application, or whether multiple

means, such as websites and mobile applications, should be required. The Departments also

sought comment on the relative resources required for building an internet website versus an

internet-based mobile application.

Some commenters recommended that the Departments finalize the proposed rules with

the self-service tool requirement satisfied by being made available through a website or

comparable means of accessing the internet. Others believed that plans and issuers should be

free to determine whether to offer a mobile app, an internet website, or both. One commenter

stated the resources necessary for building and supporting a mobile application are significantly

greater than building a website and did not support a proposal to require multiple applications,

while other commenters supported a mobile application to enable patients to make cost-effective

decisions in the doctor’s office. Another commenter recommended both a mobile application

120

Kassner, M. “Apps vs. mobile websites: Which option offers users more privacy?” Tech Republic. September

30, 2016. Available at https://www.techrepublic.com/article/apps-vs-mobile-websites-which-option-offers-users-

more-privacy/; see also Colburn, K. “Is using a banking app safer for managing your account online?” AZcentral.

September 17, 2018. Available at https://www.azcentral.com/story/money/business/tech/2018/09/17/online-

banking-app-safety-security-smartphone-tech-tips/1212736002/; see also Ogata, M., et al. “Vetting the Security of

Mobile Applications.” National Institute of Standards and Technology, United States Department of Commerce.

April 2019. Available at: https://doi.org/10.6028/NIST.SP.800-163r1.

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and an internet-based platform with fully responsive internet-based design. Two commenters

recommended that the requirements not preclude a plan, issuer, or TPA from developing other

means of electronic delivery beyond internet disclosure.

The Departments have considered these comments and are of the view that requiring an

internet website, as opposed to a comparable means of accessing the internet, such as a mobile

application or both, ensures access to a broader set of consumers while limiting the burden on

plans and issuers to produce both an internet site and a mobile application. Internet websites can

be accessed on mobile devices and people without access to the internet or mobile devices can

access tools through resources where internet access may be available, such as a local library.

Conversely, if the tool were available only through a mobile device, people without a capable

mobile device would not have access to the tool. The final rules, therefore, adopt the

requirement that the self-service tool be provided via internet website; however, the Departments

encourage plans and issuers to also provide a mobile application version in addition to an

internet website.

b. Second Delivery Method: Paper form

Paragraph (e)(3)(C) of section 1311 of PPACA specifies that at a minimum, cost-sharing

information be made available to an individual through an internet website and such other means

for individuals without access to the internet. Therefore, the proposed rules included a proposal

that group health plans and health insurance issuers would have to furnish, at the request of the

participant, beneficiary, or enrollee, without a fee, all of the information required to be disclosed

under paragraph (b)(1) of the proposed regulations, as outlined earlier in this preamble, in paper

form. Further, the proposed rules included a proposal that a plan or issuer would be required to

provide the information in accordance with the requirements under paragraph (b)(2)(i) of the

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proposed regulations and as described earlier in this preamble. That is, the plan or issuer would

be required to allow an individual to request cost-sharing information for a discrete covered item

or service by billing code or descriptive term, according to the participant’s, beneficiary’s, or

enrollee’s request. Further, the plan or issuer would be required to provide cost-sharing

information for a covered item or service in connection with an in-network provider or providers,

or an out-of-network allowed amount for a covered item or service provided by an out-of-

network provider, according to the participant’s, beneficiary’s, or enrollee’s request, permitting

the individual to specify the information necessary for the plan or issuer to provide meaningful

cost-sharing liability information (such as dosage for a prescription drug or zip code for an out-

of-network allowed amount). To the extent the information the individual requests returns more

than one result, the individual would also be permitted to request that the plan or issuer refine

and reorder the information disclosed by geographic proximity and the amount of the cost-

sharing liability estimates.

The Departments proposed that this information would be required to be mailed to a

participant, beneficiary, or enrollee via the U.S. Postal Service or other delivery system no later

than 2 business days after a participant’s, beneficiary’s, or enrollee’s request is received.

Two commenters supported the Departments’ proposal to allow individuals the ability to

access their information through electronic means or via paper form, given that many Americans

lack access to high-speed internet services. Some commenters opposed the requirement to

deliver the cost-sharing information to participants in paper form due to administrative burden,

while others recommend limiting the requirements. Several recommended the timeframe to

respond be expanded, including a range of 5 days to 10 days. One commenter requested that the

compliance time for producing paper copies of personalized information be consistent with

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current federal requirements for furnishing paper copies of the SBC, Summary Plan Description,

or Consolidated Omnibus Budget Reconciliation Act (COBRA) notices. Other commenters

expressed concern about volume, given that a participant, beneficiary, or enrollee could request

cost estimates for all in-network providers of a given service, which could be tens of thousands

of providers, resulting in thousands of pages of results. Some recommended a reasonable limit

to the volume of information that would be provided in response to any single request for a

covered item or service—for, example, no more than 20 or 25 providers per request.

Several commenters recommended that the Departments reconsider mandating paper

responses “without a fee.” While these commenters did not support charging participants,

beneficiaries, or enrollees for access to cost-sharing information in general, they asserted that it

is unreasonable to expect health plans to provide what could easily be boxes worth of

information in response to multiple requests per enrollee.

Nothing in the proposed rules would have prohibited a plan or issuer from providing

participants, beneficiaries, or enrollees with the option to request disclosure of the information

required under paragraph (b)(1) of the proposed regulations through other methods (such as, over

the phone, through face-to-face encounters, by facsimile, or by email). The Departments

requested comment on these proposed disclosure methods, including whether additional methods

of providing information should be required, rather than permitted. The Departments were

particularly interested in feedback on whether plans and issuers should be required to provide the

information over the phone, or by email, at the request of a participant, beneficiary, or enrollee.

Several commenters requested alternatives to the paper disclosure, particularly a phone

option. One commenter recommended the final rules require that plans or issuers set up a

designated toll-free number that participants, beneficiaries, or enrollees can call to receive

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pricing information, in addition to offering that as an option on their main consumer information

phone line. Two commenters urged the Departments to consider making the second form of

disclosure one of the plan or issuer’s choice (that is, paper or phone service). Conversely, one

commenter stated that the volume and complexity of information that a given request could

produce would preclude providing this information over the phone or in-person. Another

commenter recommended the alternative format to include telephone, in-person, or fax. One

commenter recommended emailing digital versions of the paper requests to a participant’s,

beneficiary’s, or enrollee’s inbox at the participant’s, beneficiary’s, or enrollee’s request, and

another requested that if results were emailed, the same information should not also need to be

provided via paper form.

The Departments acknowledge commenters’ concerns that the volume of paper requests

could be unwieldy. To that end, the final rules adopt the requirement that cost-sharing

information be provided in paper form, but a plan or issuer may limit any results for a paper

request to 20 providers per request, as suggested by some commenters. The Departments are of

the view that the commenters’ suggestion of limiting paper request to 20 providers per request is

a reasonable approach to balancing the burdens on plans and issuers with the benefits of

providing consumers with enough information to be able to compare cost and provider options.

The final rules provide an additional flexibility that, to the extent participants, beneficiaries, or

enrollees request disclosure by another means (for example, by phone or e-mail), plans and

issuers may provide the disclosure through the means requested by the participant, beneficiary,

or enrollee, provided the participant, beneficiary, or enrollee agrees that disclosure through such

means is sufficient to satisfy the request and the request is fulfilled at least as rapidly as required

for the paper method. The Departments further acknowledge that requiring plans and issuers to

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set up a designated toll-free number for pricing information could be beneficial to participants,

beneficiaries, and enrollees, but are not requiring this step given the Departments’ view that its

burden outweighs its benefit in light of the other available disclosure methods, including the

flexibility to provide this information via the preferred disclosure method of the participant,

beneficiary, or enrollee.

3. Special Rule to Prevent Unnecessary Duplication

a. Insured Group Health Plans

The proposed rules included a special rule to streamline the provision of the required

disclosures and to avoid unnecessary duplication of the disclosures with respect to group health

insurance coverage. The Departments are finalizing this special rule, which provides that, to the

extent coverage under a plan consists of fully-insured group health insurance coverage, the plan

satisfies the requirements of the final rules if the plan requires the issuer offering the coverage to

provide the information pursuant to a written agreement between the plan and issuer. For

example, if a plan and an issuer enter into a written agreement under which the issuer agrees to

provide the information required under the final rules, and the issuer fails to provide full or

timely information, then the issuer, but not the plan, has violated the transparency disclosure

requirements.

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Many commenters requested that the Departments extend the special rule to self-insured

group health plans that are administered by an administrative service organization or other TPA.

121

Under section 4980D(d)(1) of the Code, the excise tax for group health plans failing to satisfy the final rules is

not imposed on a small employer (generally fewer than 50 employees) which provides health insurance coverage

solely through a contract with an issuer on any failure which is solely because of the health insurance coverage

offered by the issuer.

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These commenters stated that self-insured plan sponsors that contract in good faith with their

TPAs to comply with the reporting requirements should be held harmless with respect to

compliance obligations and liability under this regulation because in many instances a provider

network is merely rented from a TPA, necessary information may not be held by the plan itself,

and because liability could be contractually assigned to the TPA.

Section 2715A of the PHS Act provides the authority for the Departments to require this

information from plans and issuers, but not TPAs. Therefore, it is ultimately the responsibility of

the plan or issuer to provide the information required by the final rules. Nonetheless, the

Departments note that nothing in the final rules prevents a self-insured plan from contracting

with another party to provide the required disclosure, including, to the extent permitted under

other federal or state law, entering into an agreement for the other party to indemnify the plan in

the event the other party fails to make the full or timely disclosure required by the final rules.

However, the plan must monitor the other party to ensure that the entity is providing the required

disclosure. Moreover, the Departments are of the view that the special rules providing certain

safe harbors for actions taken in good faith as further described later in this preamble provide

adequate protections for self-insured plans. The final rules also include the addition of the

phrase “insured group health plans” to clarify that this special rule applies to insured group plans.

b. Other contractual arrangements

The Departments also received requests for clarification about the responsibility of

employer plan sponsors that offer benefits under a level-funded arrangement. In general, under a

level-funded arrangement, a plan sponsor self-insures expected claims and purchases stop-loss

insurance for claims that exceed a specified threshold. Group health plans that are offered

through a level-funded arrangement are subject to the final rules. Just like self-insured plans that

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are not level-funded, nothing in the final rules prevents a level-funded plan from contracting with

another party to provide the required disclosures, but the level-funded plan remains liable for

compliance with the final rules, and must monitor the other party to ensure that the entity is

providing the required disclosure.

In several of the comments that addressed the special rule to prevent unnecessary

duplication, commenters requested that the Departments permit plans and issuers to fulfill

pricing disclosure requirements for prescription drugs through a third-party tool, such as a PBM

tool. The Departments agree that this approach is permissible under the final rules. The

Departments recognize that self-insured plans may rely on written agreements with other parties,

such as PBMs, to obtain the necessary data to comply with the disclosure requirements. A plan

or health insurance issuer may satisfy the requirements for prescription drug items and services

under paragraph (b) by entering into a written agreement under which another party (such as a

PBM or other third-party) provides the information required by paragraph (b) related to

prescription drugs in compliance with this section. Nonetheless, if a plan or issuer chooses to

enter into such an agreement and the party with which it contracts fails to provide the

information in compliance with the final rules, the plan or issuer may be held responsible for

violating the transparency disclosure requirements of the final rules for the same reasons

explained above in connection with self-insured plans entering into agreements with TPAs.

c. Application to account-based arrangements

Another commenter sought clarification about the responsibility of employer plan

sponsors that offer the following types of coverage to employees: (1) individual coverage health

reimbursement arrangements (HRAs); (2) qualified small employer HRAs (QSEHRAs); and (3)

flexible spending arrangements (FSAs) that are not fully integrated with group major medical

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coverage, stating that these types of plans were not explicitly addressed in the exemptions and

the anti-duplication provisions outlined in the proposed rules.

The final rules do not apply to account-based group health plans, such as HRAs,

including individual coverage HRAs, or health FSAs. QSEHRAs are not group health plans and

are, thus, not subject to the requirements of section 2715A of the PHS Act.

122

Therefore, these

types of arrangements are not required to comply with the final rules.

4. Privacy, Security, and Accessibility

The requirements for group health plans and health insurance issuers to provide cost-

sharing liability estimates and related cost-sharing information will operate in tandem with

existing state and federal laws governing the privacy, security, and accessibility of the

information that will be disclosed under these disclosure requirements. For example, the

Departments are aware that the content to be disclosed by plans and issuers may be subject to the

privacy, security, and breach notification rules under HIPAA or similar state laws. Nothing in

the final rules is intended to alter or otherwise affect plans’, issuers’, and other entities’ data

privacy and security responsibilities under the HIPAA rules or other applicable state or federal

laws.

The Departments also expect that plans and issuers will follow applicable state and

federal laws regarding persons who may or must be allowed to access and receive the

information that is required to be disclosed under the final rules. The final rules refer to such

persons as “authorized representatives” and do not establish any new class of persons or entities

who are authorized to access the information specified by the final rules.

122

Section 9831(d)(1) of the Code; section 733(a)(1) of ERISA; and section 2791(a)(1) of the PHS Act.

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One commenter expressed concerns about potential privacy violations related to

implementation and compliance with the proposed measure. This commenter stated that all

entities need to be made aware of their existing privacy and data-security responsibilities and that

states and federal regulators need to be diligent about compliance and enforcement. This

commenter further stated it is important to note that employers, TPAs, and carriers may incur

increased costs related to complying with the proposed rules regarding potential data breaches,

increased liability, and cyber-coverage costs that could impact plan premiums.

The Departments agree that it is important that entities subject to the final rules be aware

of their privacy and data-security responsibilities. Accordingly, the Departments are finalizing,

as proposed, a provision that reminds plans and issuers of their duty to comply with requirements

under other applicable state or federal laws, including requirements governing the accessibility,

privacy, or security of information, or those governing the ability of properly authorized

representatives to access participant, beneficiary, or enrollee information held by plans and

issuers.

The Departments further appreciate the concern that employers, TPAs, and issuers may

incur cybersecurity costs related to providing an online tool that provides some access to

participant, beneficiary, and enrollee protected health information (PHI). However, given the

Departments’ understanding that as many as 94.4 percent of surveyed plans and issuers already

maintain and operate an internet-based self-service tool,

123

the Departments anticipate any

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additional costs associated with cybersecurity will not be substantial.

124

The Departments have

otherwise evaluated the burden of operating an internet-based self-service tool in section VI,

later in this preamble.

One commenter expressed concern that certain requests for cost-sharing information

could include items and services that may reveal particularly sensitive health information (for

example, information related to substance abuse, mental health, or HIV). This commenter

recommended the Departments provide carve-outs so that plans and issuers are not required to

disclose such information through unsecured methods of communication (for example, email or

phone). Alternatively, they recommended that the Departments provide more clarity or

examples of when plans and issuers are not required to disclose certain information to comply

with HIPAA and other federal and state privacy laws.

The Departments remind stakeholders that current privacy and security requirements

applicable under HIPAA rules and other applicable federal requirements continue to apply under

these rules. As noted earlier in this section of the preamble, the final rules are not intended to

alter or otherwise affect plans’, issuers’, or other entities’ responsibilities under HIPAA or other

applicable federal privacy laws. Furthermore, to the extent that state laws are more stringent

regarding the disclosure of information subject to the final rules, plans and issuers are required to

comply with the relevant state laws. The Departments acknowledge that there have been several

recent security breaches affecting plans, issuers, and third-party vendors that may have

compromised the PII and PHI of participants, beneficiaries, and enrollees. As acknowledged

124

Sharma A., Manning, R., and Mozenter, Z. “Estimating the Burden of the Proposed Transparency in Coverage

Rule.” Bates White Economic Consulting. January 27, 2020. Available at:

https://www.bateswhite.com/newsroom-insight-Transparency-in-Coverage-Rule.html.

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elsewhere in this preamble, privacy and security are important to the Departments and, while

outside the scope of this rule, these are issues the Departments will continue to monitor. In light

of existing risks and new risks that may arise as a result of increased innovation in the health care

space, the Departments encourage plans and issuers to continue to educate their participants,

beneficiaries, and enrollees about these risks and about ways to minimize or prevent unintended

usage or sharing of their health data and encourage consumers to pay close attention to any new

internet-based tools or applications they may choose to use.

C. Requirements for Public Disclosure of In-Network Rates, Historical Allowed Amount

Data, and Prescription Drug Pricing Information for Covered Items and Services from In- and

Out-of-Network Providers

As explained earlier in this preamble and in the proposed rules, the Departments

proposed to exercise specific authority under section 1311(e)(3)(A)(vii) and (ix) of PPACA (as

applied to group health plans and health insurance issuers in the individual and group markets

through section 2715A of the PHS Act), which requires plans and issuers to publicly disclose

information on cost-sharing and payments with respect to any out-of-network coverage and any

other information the Secretary of HHS determines to be appropriate to enhance transparency in

health coverage. Consistent with this authority, the Departments proposed for plans and issuers

to make public negotiated rates with in-network providers and data outlining the different

amounts a plan or issuer has paid for covered items or services, including prescription drugs,

furnished by out-of-network providers. The Departments proposed to require plans and issuers

to make this information available in machine-readable files that would include information

regarding negotiated rates with in-network providers, allowed amounts for all covered items or

services furnished by particular out-of-network providers, and other relevant information in

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accordance with specific method and format requirements. The Departments proposed to require

plans and issuers to update this information on a monthly basis to ensure it remains accurate.

The Departments are finalizing these policies and requirements with modifications to clarify the

proposed requirements and underlying policies, and to respond to commenter suggestions and

concerns.

The preamble to the proposed rules outlined several reasons why the public disclosure of

negotiated rates and historical out-of-network allowed amounts is both appropriate and necessary

for transparency in coverage. First, the Departments asserted that the public availability of

negotiated rates and historical out-of-network allowed amounts would empower the nation’s 26.1

million uninsured consumers to make more informed health care decisions.

125

Uninsured

consumers generally must pay a provider’s full charges for health care items and services.

Though negotiated rates will not apply to the uninsured, it will offer a baseline when negotiating

with providers. Pricing information is critical to their ability to evaluate their service options and

control their health care spending. Uninsured consumers could also use publicly available

pricing information to find which providers offer the lowest price, depending on the consumer’s

personal needs and priorities. The Departments noted in the preamble to the proposed rules that

provider lists of standard charges often do not reflect the true cost of particular items and

125

Income, Poverty and Health Insurance Coverage in the United States: 2019.” United States Census Bureau.

September 15, 2020. Available at: https://www.census.gov/newsroom/press-releases/2020/income-poverty.html.

CMS-9915-F 190

services.

126

Again, although a provider’s negotiated rates with plans and issuers do not

necessarily reflect the prices providers charge to uninsured patients, uninsured consumers could

use this information to gain an understanding of the payment amounts a particular provider

accepts for a service. Uninsured patients or participants, beneficiaries, or enrollees seeking care

from an out-of-network provider also may use this data to negotiate a price prior to receiving an

item or service or negotiate down a bill after receiving a service.

127

Second, the Departments stated in the proposed rules that information regarding

negotiated rates and historical out-of-network allowed amounts is critical for any consumer,

insured, or uninsured, who wishes to evaluate available options for group or individual market

coverage. Specifically, negotiated rate information for different plans or coverage and their

in-network providers is key to consumers’ ability to effectively shop for coverage that best meets

their needs at prices they can afford, whether the consumer wishes to purchase new coverage or

change existing coverage. Publicly-available negotiated rate data will assist all consumers in

choosing the coverage that best meets their needs in terms of deductible requirements,

coinsurance requirements, and out-of-pocket limits—all factors frequently determined by plan’s

or issuer’s in-network rates, including negotiated rates, or out-of-network allowed amounts. This

information, added to plan premium information and benefit design (for example coinsurance

126

Arora, V., Moriates, C., and Shah, N. “The Challenge of Understanding Health Care Costs and Charges.” 17

AMA J. E

THICS 1046 (2015). Available at: https://journalofethics.ama-assn.org/article/challenge-understanding-

health-care-costs-and-charges/2015-11.

127

“How to Research Health Care Prices.” Wall Street Journal. Dec. 4, 2009. Available at:

https://guides.wsj.com/health/health-costs/how-to-research-health-care-prices/ (“Researching health-care pricing

online can also help after you’ve already had a medical procedure, if you want to dispute a bill, negotiate it down, or

figure out if you’ve been overcharged.”).

CMS-9915-F 191

percentages), will give consumers an understanding of how affordable a particular coverage

option will be.

In the preamble to the proposed rules, the Departments noted that publicly available

historical allowed amount data for covered items and services provided by out-of-network

providers would enable consumers who require specialized services to find the best coverage for

their circumstances. For instance, plans and issuers often place limitations on benefits for

specialized services, which causes many specialists to reject insurance; this can make it difficult,

if not impossible, for consumers in need of certain services to find in-network providers in their

area who are accepting new patients or who have sufficient availability or expertise to meet their

needs. The Departments understand, for example, that many speech therapists and pathologists

do not accept insurance because of the limitations plans and issuers place on coverage for their

services, such as annual visit limits on speech therapy services. Accordingly, consumers who

have a need for such specialized services may base their coverage choices primarily, if not

solely, on a plan’s or issuer’s out-of-network benefits. Historical data outlining different

amounts paid to out-of-network providers will enable consumers who rely on out-of-network

providers to ascertain potential out-of-network benefits among different plans and issuers.

Third, the Departments stated in the preamble to the proposed rules that public disclosure

of pricing information is necessary to enable consumers to use and understand price transparency

data in a manner that will increase competition, potentially reduce disparities in health care

prices, and potentially lower health care costs. One of the recognized impediments to increased

competition for health care items and services is the widespread lack of knowledge many

consumers have regarding health care pricing. In the preamble to the proposed rules, the

Departments noted that many consumers do not fully comprehend the basics of health coverage,

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much less the more complex facets of the health care system that can affect an individual’s out-

of-pocket cost for items and services, including: its specialized billing codes and payment

processes; the various specialized terms used in plan and coverage contracts and related

documents (such as copayment and coinsurance); and the various billing and payment structures

plans and issuers use to compensate providers and assign cost-sharing liability to individuals (for

example, bundled payment arrangements).

128

Pricing information is necessary to spur innovation

that will help educate consumers on how to get the most value out of their plan or coverage.

Making the required pricing information public could facilitate and incentivize the design,

development, and offering of internet-based self-service tools and support services that are

necessary to address the general inability of consumers to use or otherwise understand the

available health care pricing information.

In developing the proposed rules, the Departments considered that, due to the complexity

of the health care system and the data that drives plan and issuer payments for health care items

and services, such raw data is likely to be difficult for the average consumer to understand and

effectively use. As a result, the Departments determined that proposing to make public

negotiated rates with in-network providers and historical payment data outlining out-of-network

128

Satter, M. “Survey: Most workers don’t understand health insurance.” BenefitsPRO. September 30, 2016.

Available at: https://www.benefitspro.com/2016/09/30/survey-most-workers-dont-understand-health-

insuran/?slreturn=20190803010341 (a UnitedHealthcare Consumer Sentiment Survey found that even though 32

percent of respondents were using websites and mobile apps to comparison shop for health care, only 7 percent had

a full understanding of all four basic insurance concepts: plan premium, deductible, coinsurance, and out-of-pocket

maximum; although 60 percent of respondents were able to successfully define plan premium and deductible,

respondents were not as successful in defining out-of-pocket maximum (36 percent) and coinsurance (32 percent)).

CMS-9915-F 193

allowed amounts would be appropriate because it would encourage innovation that could

ultimately help consumers understand and effectively use price transparency information.

The Departments stated that the proposed requirement to make pricing information

publicly available could allow health care software application developers and other innovators

to compile, consolidate, and present this information to consumers in a manner that allows

consumers to consider price as a factor when making meaningful comparisons between different

coverage options and providers.

129

For instance, third-party developers could develop mobile

applications that operate as look-up tools and permit comparison of prices for specific services

across plans. The tools could also allow consumers to access their medical records or other

information about their health care utilization and create estimates based upon patient-specific

information. Ultimately, the Departments are of the view that improved access and usability of

this information has the potential to increase health insurance literacy, consumerism, and

competition, resulting in more reasonable costs for health care items and services.

Fourth, in the proposed rules the Departments noted that, along with consumers, sponsors

of self-insured and fully-insured group health plans are also disadvantaged by the lack of price

transparency.

130

Absent action taken such as through the final rules, health care cost trends are

129

The Departments recognize that implementation of the API discussed in section III, Request for Information,

could go even further toward the goal of empowering application developers and other innovators to support price

transparency in the health care market.

130

Whaley, C., et al. “Nationwide Evaluation of Health Care Prices Paid by Private Health Plans: Findings from

Round 3 of an Employer-Led Transparency Initiative.” RAND Corporation. 2020. Available at:

https://www.rand.org/pubs/research_reports/RR4394.html.

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expected to continue to outpace inflation, with employer-sponsored large group plans’ annual per

employee costs expected to increase between 5.5 to 9.0 percent over the next decade.

131

Without

information related to what other plans or issuers are actually paying for particular items and

services, employer plans currently lack the pricing information necessary to shop or effectively

negotiate for the best coverage for their participants and beneficiaries. In the proposed rules, the

Departments stated that public availability of pricing information is appropriate to empower

plans to make meaningful comparisons between offers from issuers and evaluate the prices

offered by providers who wish to be included in their pool of in-network providers. The

Departments noted that the pricing information would also assist employer plans that contract

with TPAs or issuers to provide a network of physicians. That information would provide

valuable data an employer plan could use to assess the reasonableness of network access prices

offered by TPAs and issuers by evaluating the specific price providers in a TPA’s or issuer’s

network are accepting for their services.

Armed with transparency data, employers could also use their leverage to negotiate for

lower prices for their participants and beneficiaries and, potentially, if enough employers take

action, it could help lower health care prices.

132

For instance, employers could employ network

131

Congressional Budget Office, “The Budget and Economic Outlook: 2019 to 2029.” Congress of the United

States Congressional Budget Office. January 2019. Available at: https://www.cbo.gov/system/files/2019-03/54918-

Outlook-3.pdf; see also “Medical cost trend: Behind the numbers 2020.” PwC Health Research Institute. June

2019. Available at: https://heatinformatics.com/sites/default/files/images-videosFileContent/pwc-hri-behind-the-

numbers-2020.pdf.

132

Whaley, C., et al. “Nationwide Evaluation of Health Care Prices Paid by Private Health Plans: Findings from

Round 3 of an Employer-Led Transparency Initiative.” RAND Corporation. 2020. Available at:

https://www.rand.org/pubs/research_reports/RR4394.html.

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and benefit design tools to move participants and beneficiaries toward lower-priced providers

and shift from less favorable provider contracting models (such as a discounted-charge contact,

which can be vulnerable to list-price inflation) to more favorable, alternative value-based

contracting models (such as reference-based pricing and bundled payment arrangements).

133

stated elsewhere in this preamble, based on 2019 Census data, there are 183 million Americans

enrolled in employer-sponsored health coverage through a household member’s employer at

some point during the year.

134

Based on estimates of the United States population in 2019, this

would mean that more than 56 percent of the nation’s insured population has employer-

sponsored coverage. Therefore, the ability of employer plans to effectively negotiate pricing for

coverage and services could be a boon to competition in the health care market.

Fifth, the Departments stated in the proposed rules that public disclosure of price

transparency information is also appropriate because it could assist health care regulators in

carrying out their duties to oversee issuers in their states, as well as in designing and maintaining

sustainable health care programs. Regulators may be able to independently access, aggregate,

and analyze the data to support oversight of plans and issuers. For example, because the

machine-readable files must be updated regularly, regulators could use the pricing information to

identify trends in rates of items and services over time or identify potentially collusive practices

or substantial price variations within a geographic area that may be in need of additional

monitoring or future regulatory action. It may also become possible for regulators to use the

pricing information related to items and services to assist in better understanding and monitoring

133

Id.

134

“Income, Poverty and Health Insurance Coverage in the United States: 2019.” United States Census Bureau.

September 15, 2020. Available at: https://www.census.gov/newsroom/press-releases/2020/income-poverty.html.

CMS-9915-F 196

premium rate fluctuations and increases in their respective markets; further allowing them to

assess whether the trend rates issuers use in their rate filings are reasonable in order to assess

whether proposed rates should be approved. Because the in-network applicable rate data will be

reasonably current, regulators may be able to address potential concerns more quickly than at

present.

Local, state, and federal agencies responsible for implementing health care programs that

rely on issuers to provide access to care would be privy to actual pricing information that could

inform their price negotiations with issuers. Insights gained from research using the pricing

information could support regulators in their oversight of plans and issuers and could also help

identify new ideas for market reforms to enhance the performance and efficiency of health

insurance markets.

The public availability of health care pricing information offers researchers the ability to

better understand the impact of specific plan, issuer, and provider characteristics on negotiated

rates and out-of-network payments, evaluate and supplement existing models and predictions,

and formulate new policies and regulatory improvements to improve competition and lower

health care spending. Researchers have already utilized localized and state-wide data to review

trends in issuer market share, issuer location, and covered services and their corollary effects on

consumer pricing and experience in the market.

135

They have also examined these similar effects

on consumers by provider market shares, structures, and offered similar data. Expanding the

135

See Brown, Z. Y. “Equilibrium Effects of Health Care Price Information.” The Review of Economics and

Statistics. Volume. 101. No. 4. September 30, 2019. Available at:

https://www.mitpressjournals.org/doi/full/10.1162/rest_a_00765; see also Wu, S. et al “Price Transparency For

MRIs Increased Use Of Less Costly Providers And Triggered Provider Competition.” Health Affairs. August 2014.

Available at: https://www.healthaffairs.org/doi/10.1377/hlthaff.2014.0168.

CMS-9915-F 197

availability of this data could allow for the expansion and validation of these and other models

and hypotheses. With larger and more complete datasets, researchers could refine their policy

and regulatory suggestions regarding payment and delivery models, including those that are most

likely to mitigate upwards pricing pressure from issuer, provider, consumer, and geographic

factors. The release of this data could also supplement ongoing efforts to help control health

care costs.

The Departments acknowledge that these stakeholders, notably researchers, may have

access to some pricing data through existing sources, such as the Health Care Cost Institute

(HCCI) and databases established through state health care price transparency efforts. However,

it is the Departments’ understanding that these health care pricing datasets are often costly to

purchase, only contain older, historical data, and generally only include de-identified plan data

for a limited number of plans and issuers who voluntarily participate in the data collection.

136

By contrast, the pricing information required through the final rules would generally be

current data for all plans and issuers and will be available to the public free of charge. This data,

where it is related to in-network coverage, can also be tied back to specific plans and issuers and

the geographic regions in which they provide plans or coverage. With access to the pricing data

required through the final rules, researchers may be able to design new studies that develop novel

136

For example, HCCI is expected to release their “2.0” dataset in December 2020. The “2.0” dataset includes over

one billion commercial claims and 60 million covered lives per year from Aetna, Humana, Kaiser Permanente, and

the Blue Cross Blue Shield (BCBS) companies from 2012 through 2018. The data is nearly three years old and will

cost $45,000 annually on a per-project basis and does not include other “standard add-ons,” such as data mergers.

Institutional membership prices will be customized for each organization. Taken from “Power Up Your Analytics

on the Privately Insured.” Health Care Cost Institute. Available at:

https://healthcostinstitute.org/images/pdfs/Health_Care_Cost_Institute_-_Power_Up_Your_Analytics.pdf

. In

addition to the HCCI dataset, BCBS companies also sell their data through their analytics and consulting platform,

Blue Health Intelligence, with 20.3 billion claims from 203 unique member organizations. The access price is not

listed on their website. More information is available at: https://www.bluehealthintelligence.com/.

CMS-9915-F 198

insights into the health insurance markets. Stakeholders, including employers, may be able to

gain insights, inform oversight efforts, negotiate improved terms for items and services, or make

improvements to insurance products, such as plans and issuers moving toward value-based plan

designs or broadening or narrowing networks based on customer shopping habits. The pricing

information could also support market innovation and improvements by plans and issuers. For

example, researchers and industry experts could use pricing information to establish baseline

data to assist in identifying, designing, and testing new or existing health care delivery and

coverage models.

While all of these stakeholders stand to benefit from access to the pricing information

required through the final rules, the Departments continue to be of the view that the ultimate

beneficiaries of access to pricing information are consumers. Indeed, public access to health care

pricing information could lead to more targeted oversight, better regulations, market reforms to

ensure healthy competition, improved benefit designs, and more consumer-friendly price

negotiations.

The Departments expressed the view that effective downward pressure on health care

pricing cannot be fully achieved without public disclosure of pricing information. Standard

economic theory holds that markets work best when there is price competition.

137

When

consumers shop for services and items based on price, providers and suppliers typically compete

to lower prices and improve quality.

138

Based on this understanding of standard economic

137

“FTC Fact Sheet: How Competition Works.” United States, Federal Trade Commission. Available at:

https://www.consumer.ftc.gov/sites/default/files/games/off-site/youarehere/pages/pdf/FTC-Competition_How-

Comp-Works.pdf.

138

Kessler, D., and McClellan, M. “Is Hospital Competition Socially Wasteful?” 115 Q. J. of Econ. 577. May 2,

2000. Available at: https://www.nber.org/papers/w7266.

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principles and past experience, the Departments are persuaded that innovators and other entities

in the health care market will be incentivized to innovate in the price transparency and health

care consumerism space once access to pricing information that allows for meaningful evaluation

of different options for delivering health care items or services, coverage options, and provider

options becomes available.

1. Information Required to be Disclosed to the Public.

The Departments are finalizing requirements, under 26 CFR 54.9815-2715A3(b), 29

CFR 2590.715-2715A3(b), and 45 CFR 147.212(b), for plans and issuers to make public

applicable rates, including negotiated rates, with in-network providers; data outlining the

different billed charges and allowed amounts a plan or issuer has paid for covered items or

services, including prescription drugs, furnished by out-of-network providers; and negotiated

rates and historical net prices for prescription drugs furnished by in-network providers.

139

The

Departments are of the view that public availability of in-network applicable rates, including

negotiated rates, billed charges and historical out-of-network allowed amounts, and in-network

negotiated rates and historical net prices for prescription drugs is appropriate and necessary to

provide comprehensive effective transparency in coverage, which may, in turn, empower

consumers to make informed decisions about their health care, spur competition in health care

markets, and slow or potentially reverse the rising cost of health care items and services.

139

As discussed in section II.B of this preamble, the Departments are also finalizing requirements under 26 CFR

54.9815-2715A2(b)(1)(iii) – (iv), 29 CFR 2590.715-2715A2(b)(1)(iii) – (iv), and 45 CFR 147.211(b)(1)(iii) – (iv)

that plans and issuers include negotiated rates and out-of-network allowed amounts within the internet-based self-

service tool.

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The vast majority of the commenters agreed with the Departments’ objectives of price

transparency under the proposed rule. Many commenters offered general support (in whole or in

part) of the proposed requirements for public disclosure of in-network negotiated rates and out-

of-network allowed amounts. One commenter supported the public disclosure of out-of-network

allowed amounts but expressed concerns about disclosure of in-network negotiated rates.

Disclosure of Pricing Information Generally

Some commenters who offered support stated that the requirements will help create

more efficient and value-based health care systems by, for example, encouraging plans and

issuers to adopt innovative benefit designs that push patients toward lower-cost care. Another

commenter who offered support stated that requiring plans and issuers to share publicly the

negotiated rates for in-network providers and allowed amounts for out-of-network providers has

the potential to increase competition among issuers. One commenter stated that public

disclosure of negotiated rates is needed to address the provider consolidation that is driving up

health care costs and leading to more favorable reimbursements to large hospitals with

bargaining power. Another commenter recommended the Departments reject arguments against

transparency that payment data should be protected as proprietary, and adopt a presumption in

favor of transparency.

The Departments received comments from state and local government regulators who

were supportive of the rules generally and provided suggestions for improving the proposals.

Regulators recognized that greater transparency holds promise in improving pricing of health

care items and services in ways that improve consumer comprehension and policymakers’ ability

to manage the health care system. One local government commenter supported the goal of price

transparency, but voiced concern that the proposed rules might unintentionally drive up the cost

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of health care. Individual consumers who submitted comments offered general support and

emphasized the importance of obtaining pricing information in advance of receiving health care

for their personal health care decision-making. Some individual commenters noted that

consumers seek the price of a product or service in every other sector prior to making a spending

decision and should be able to do so when purchasing health care. Other individual commenters

stated their support for policies that will help consumers choose whether to seek care from an in-

network or out-of-network provider.

Many other commenters, comprised largely of health insurance issuers and health care

providers, offered support for the objective of price transparency, but did not support the

requirements for public disclosure of in-network provider rates and out-of-network allowed

amounts, expressing particular concerns about the in-network provider rate disclosure

requirements

Commenters stated that, as proposed, the disclosure of payer-specific negotiated rates

could distort the markets, creating an unbalanced focus on costs at the expense of other factors

influencing market dynamics, such as quality, efficiency, and effectiveness. Some commenters

stated that negotiated rates reflect factors other than price such as experience, previous

volumes/market power, anticipated growth, strategic initiatives, and select concessions.

The Departments do not agree that publication of negotiated rates for items and services

will have negative distortive effects on health care markets. Rather, the Departments are of the

view that the final rules will help to counteract the recognized price distortions that result from

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the unavailability of pricing information to health care consumers.

140

As discussed elsewhere in

this preamble, the current unavailability of pricing information for health care items and services

prohibits the health care markets from achieving a meaningful level of competition based on

price because it ensures that health care consumers typically are not able to include price in their

health care purchasing decisions. The Departments are of the view that making pricing

information available could begin to ameliorate price distortions in health care by encouraging

consumer decision-making that takes cost into account.

Another commenter stated that the release of negotiated rates would inappropriately

result in the steering of consumers to particular providers based on contractual prices. The

commenter stated that informed decision-making is not solely based on price, but is multi-

factorial, involving looking at a provider’s clinical expertise, ability to coordinate care, quality,

effectiveness of utilization management, and guidance from a referring physician. The

Departments agree that informed decision-making is not solely based upon price. The final rules

are only one part of the solution to address issues contributing to the lack of competition in the

health care market and resulting increases in health care costs. While the Departments address

the problem of price transparency through this rulemaking, other government and industry

stakeholders are working to address other issues highlighted by commenters, such as the

availability of reliable quality data.

140

Under ideal market conditions, consumers have sufficient information to make good choices. When consumers

do not have information on price, standard market forces cannot operate, and prices for health care are distorted

resulting in price discrimination (charging consumers different prices for the same product) and other problems that

currently plague the health care markets. See generally Mwachofi, Ari, and Assaf F. Al-Assaf. “Health care market

deviations from the ideal market.” Sultan Qaboos University Medical Journal vol. 11, 3 (2011): 328-37. Available

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3210041/.

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The Departments, in shaping the proposed and final rules, considered that there is quality

data available to individual consumers and other consumers of health care like employers and

government programs. Various government and industry stakeholders sponsor programs that

aim to provide reliable health care quality information to health care purchasers. For instance,

HHS engages in continual efforts to develop quality measures that are meaningful and accurately

reflect hospital quality. CMS’s Hospital Inpatient Quality Reporting Program collects quality

data from certain hospitals with the goal of driving quality improvement through measurement

and transparency.

141

CMS publicly displays this quality data to help consumers make more

informed decisions about their health care.

142

HHS’s Agency for Healthcare Research and

Quality (AHRQ) publishes comparative information on health plans that include reports

sponsored by federal and state agencies, private organizations, and purchasing coalitions.

143

The

Departments appreciate comments received through the RFI in the proposed rule and are also

evaluating future actions to help ensure quality information is more readily available.

The Departments are also of the view that it is worth noting that private sector entities

have been working to provide useful quality information to consumers.

144

For example, the

141

See CMS Hospital inpatient Quality Reporting Program Webpage at https://www.cms.gov/Medicare/Quality-

Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/HospitalRHQDAPU, last accessed Sep. 21, 2020.

142

CMS Hospital Compare Website at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-

Instruments/HospitalQualityInits/HospitalRHQDAPU, last accessed Sept. 21, 2020.

143

AHRQ Comparative Reports on Health Plans, https://www.ahrq.gov/talkingquality/resources/comparative-

reports/health-plans.html, last accessed Sept. 21, 2020.

144

See, for example, Ranard, B. L., Werner, R. M., Antanavicius, T., Schwartz, H. A., Smith, R. J., Meisel, Z. F.,

Asch, D. A., Ungar, L. H., & Merchant, R. M. (2016). “Yelp Reviews Of Hospital Care Can Supplement And

Inform Traditional Surveys Of The Patient Experience Of Care. Health Affairs” (Project Hope), 35(4), 697–705.

Available at: https://doi.org/10.1377/hlthaff.2015.1030 (“Online consumer-review platforms such as Yelp can

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National Quality Forum (NQF) is a private standard-setting organization focused on the

evaluation and endorsement of standardized performance measurements that makes available on

its website all NQF work products, reports, and quality measures.

145

As another example, the

Joint Commission is a not-for-profit organization that develops and applies standards that focus

on patient safety and quality of care.

146

Finally, the National Committee for Quality Assurance

(NCQA) measures and accredits health plans as well as the quality of medical providers and

practices. For example, more than 191 million people are enrolled in health plans that report

quality results using NCQA’s Healthcare Effectiveness Data and Information Set (HEDIS),

147

which includes more than 90 measures across six “domains of care,” including effectiveness of

care, access/availability of care, and experience of care.

148

Once pricing data is available through the final rules, existing quality data can be

considered with pricing data to produce a more complete and accurate picture of total value. The

same third-party developers who will have access to the information published pursuant to these

final rules could develop platforms capable of presenting available quality data alongside pricing

information. The Departments, therefore, anticipate that making health care prices transparent

may spur consumers to seek and consider available quality and price information to determine

supplement information provided by more traditional patient experience surveys and contribute to our understanding

and assessment of hospital quality.”).

145

See the National Quality Forum Website, http://www.qualityforum.org/how_we_do_it.aspx, last accessed Oct. 8,

2020.

146

See The Joint Commission Website, https://www.jointcommission.org/about-us/facts-about-the-joint-

commission/joint-commission-faqs/, last accessed Oct. 8, 2020.

147

See NCQA Website, https://www.ncqa.org/hedis/, last accessed Oct. 8, 2020.

148

Id.

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whether a particular item or service is worth a higher or lower price. There is evidence from

retail sector studies showing that consumers want high-quality, low-priced goods and will seek

the lower price among products of the same quality.

149

Given the high cost of health care, the

Departments are of the view that the same trend toward seeking lower prices will more likely

than not hold true in the health care market when prices become transparent.

150

The Departments received many comments stating that publishing negotiated rates is

unlikely to meet the Departments’ goal of helping consumers understand their health coverage

and reasonably predict their out-of-pocket costs. Many of these commenters stated that

negotiated rates information would not provide consumers with meaningful, actionable pricing

information, and could possibly make purchasing decisions more confusing and difficult for

consumers. One commenter noted that the public disclosure of negotiated rate information could

distract from relevant participant, beneficiary, or enrollee-specific cost-sharing information such

as accumulated amounts. One commenter stated that confusing and unhelpful pricing

information would erode consumer trust and present long-term challenges for the health care

system.

149

Shirai, M. “Impact of ‘High Quality, Low Price’ Appeal on Consumer Evaluations.” Journal of Promotion

Management. December 2015. Available at

https://www.tandfonline.com/doi/full/10.1080/10496491.2015.1088922

150

Recent research evaluating the impact of New Hampshire’s price transparency efforts shows that providing

insured patients with information about prices can have an impact on the out-of-pocket costs consumers pay for

medical imaging procedures, not only by helping users of New Hampshire’s website choose lower cost options, but

also by leading to lower prices that benefited all patients, including consumers in New Hampshire that did not use

the website. See Brown, Z. Y. “Equilibrium Effects of Health Care Price Information.” The Review of Economics

and Statistics. Volume. 101. No. 4. Available at: https://www.mitpressjournals.org/doi/full/10.1162/rest_a_00765;

see also Brown, Z. Y. “An Empirical Model of Price Transparency and Markups in Health Care.” August 2019.

Available at: http://www-personal.umich.edu/~zachb/zbrown_empirical_model_price_transparency.pdf

CMS-9915-F 206

The Departments disagree that public knowledge of the price of health care items and

services will increase individual consumers’ confusion regarding health coverage or distract

them from other information relevant to their out-of-pocket costs, such as the status of their

accumulated amounts and note that commenters who raised this point cited no empirical or

anecdotal evidence supporting these concerns. On the contrary, as explained throughout this

preamble, the Departments are of the view that standard economic theory, experience from

several states, and evidence from other markets demonstrate that increased transparency leads to

better-informed purchasing decisions, generally lower prices, and quality improvements.

Moreover, the Departments expect that third-party developers will compete to make pricing

information available to the public in formats that are user-friendly, so disclosure of detailed

pricing information is unlikely to lead to significant consumer confusion.

As noted earlier in this preamble, the Departments expect the public disclosure of pricing

information related to health care items and services to help both uninsured and insured

individuals in their health care and health coverage purchasing decisions. Furthermore, research

suggests that having access to pricing information can increase consumers overall satisfaction

and provide opportunities for education and engagement on health care pricing.

151

For instance,

when the Children’s Hospital of Philadelphia incorporated a Patient Cost Estimate Department,

they found that cost estimates resulted in “fewer billing-related complaints, decreased revenue

151

Revere, F. L., et al. “A consumer-based evaluation of Healthcare Price and Quality Transparency.” Journal of

Health Care Finance. Summer 2016. Available at:

http://www.healthfinancejournal.com/index.php/johcf/article/download/72/74.

CMS-9915-F 207

losses, and increased overall patient satisfaction.”

152

A targeted study in the American Surgeon

journal found five out of six medical centers that adopted price transparency reported increases

in patient satisfaction and patient engagement after price transparency.

153

One commenter stated that public disclosure of pricing information through the machine-

readable files is unlikely to benefit uninsured consumers, in particular, as it will be difficult for

them to make the necessary comparisons or negotiate with providers as providers are not

incentivized to negotiate with uninsured consumers. Another commenter stated that the

machine-readable files would not be very helpful for current beneficiaries, participants, or

enrollees, but acknowledged they could benefit uninsured individuals and enrollees considering

alternative coverage.

By contrast, other commenters, including many individual commenters, stated that access

to negotiated rate information would empower both insured and uninsured consumers by helping

to correct the lack of consumer choice and information and help support efforts by other market

actors. In particular, one commenter stated that consumers would likely use the pricing

information, especially if their cost-sharing liability is in the form of coinsurance that is tied to

the negotiated rates. One commenter stated that release of information on negotiated rates would

help consumers by spurring innovation by third-party application developers to create tools to

help consumers and payers, especially self-insured group health plans. Finally, one commenter

did not support the requirements for public disclosure of in-network provider rates but did

152

Otero, H., et al. “The Cost-Estimation Department: A Step Toward Cost Transparency in Radiation.” Journal of

the American College of Radiology. Vol 16. Issue 2. February 2019. Available at:

https://doi.org/10.1016/j.jacr.2018.07.033.

153

Mehta, A., et al. “The Impact of Price Transparency for Surgical Services.” The American Surgeon. April

2018. Available at: https://pubmed.ncbi.nlm.nih.gov/29712614/.

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acknowledge that public disclosure of de-identified aggregated data for both in-network and out-

of-network providers could empower consumer decision-making.

The Departments agree that transparency would help provide more consumer information

and support consumer choice for both insured and uninsured consumers. The Departments

continue to be of the view that market actors, including IT developers, researchers, industry

experts, and plans and issuers would be incentivized to innovate in the price transparency and

health care consumerism space once access to the pricing information required to be disclosed

through the final rules becomes available. In the proposed rule, the Departments emphasized

that individual consumers need easy to use tools and resources to help them better understand

their current health care coverage, health coverage they consider purchasing, and their out-of-

pocket exposure under those plans. Health care stakeholders and other industry participants,

including web and mobile application developers, are already attempting to meet this need,

despite the incomplete pricing information available to them. Given actionable data that can

improve such tools and resources, industry actors will likely be incentivized to design

innovations to deliver the help and information consumers need to make informed health care

decisions based, at least in part, on the important factor of price. The final rules will support

current and future efforts to help guide consumers to the lowest cost items and services that meet

their specific needs and qualifications. To spur this innovation, the pricing information must

allow for meaningful evaluation of different options for delivering health care items or services,

coverage options, and provider options. One of the main avenues through which the

Departments assumed this innovation would materialize is through IT developers who could be

incentivized to design and make available internet-based tools and mobile applications that could

guide consumers in accessing available price information; as well as researchers who would have

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the ability to analyze health care pricing at local and national levels and provide the public with

their findings. Industry experts and plans and issuers would also have the ability to use pricing

information to develop innovative plan benefit designs that could result increased competition

and cost savings. Based on comments received from interested IT developers and other

innovators, the Departments continue to believe many innovators are interested in utilizing this

pricing information, once available, to spur innovation in the health care space, as intended. The

Departments expect internet-based tools and mobile applications will increase the likelihood that

both insured and uninsured consumers will be able to use the information to make informed

health care purchasing decisions. And, as stated by a commenter, the information required to be

made public through the proposed rules would help reduce wasteful spending because it would

support efforts by employers, state regulators, and other purchases of health care to evaluate

prices and identify unwarranted spending variation. Therefore, the Departments did not intend

or expect that behavioral changes emanating from public disclosure of this information will be

limited to consumers but will benefit a variety of stakeholders.

The goals the Departments seek to achieve through these requirements for public

disclosure are not mutually exclusive. The Departments expressed a desire to bring about an

outcome where innovators, including researchers, would enter or expand in the health care

purchasing space to develop tools, applications, and public information that would support

consumer decision-making. Thus, the Departments disagree with commenters who argued that

public disclosure of negotiated rates would not support consumer decision-making.

The Departments disagree with commenters who suggested that pricing information

presented through the public disclosures would be confusing and misleading to consumers and

could erode consumer trust and present long-term challenges for the health care system. Based

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on the review of the over 25,000 comments received on the proposed rules, the vast majority of

which were submitted by individuals, consumer trust in the health care system is already quite

low, due in substantial part to the opacity of health care pricing.

154

In one study of a nationally

representative sample, researchers found that participants often believed that providers and

issuers set prices that do not reflect either the quality or the cost of goods and services,

contributing to the study’s conclusion that most Americans do not perceive the price and quality

of health care to be associated. Study participants described prices as both too high and

irrational, noting that prices varied within their regions for unknown reasons.

155

The

Departments’ transparency efforts are meant to increase transparency of health care pricing

information. The Departments do not agree that this information would further frustrate

consumers compared to the status quo, even if it is difficult to navigate for the average consumer

without the use of internet-based tools or applications.

One commenter stated that disclosure of negotiated rates could harm the ability of health

issuers to reward high performing providers with higher reimbursements. Additionally, some

commenters noted that focus on price could particularly harm small health plans and TPAs who

may have been able to negotiate discounted rates by offering health plans in a limited service

area.

The Departments understand that requiring release of this pricing information may

impact commercial arrangements and result in certain one-time and ongoing administrative costs,

154

See, for example, Phillips, K. A., Schleifer, D., and Hagelskamp, C. “Most Americans Do Not Believe That

There Is An Association Between Health Care Prices And Quality Of Care.” Health Affairs. 2016. Available at

https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2015.1334

155

Id.

CMS-9915-F 211

which could disproportionately affect small group plans, TPAs, and issuers offering coverage in

the small group market. However, the Departments view making this information available to

consumers and the public as beneficial to the public’s long-term interests in facilitating a

consumer-oriented, information-driven, and more competitive market. In addition, as discussed

below, the Departments are establishing several special rules for streamlining the provision of

public disclosures required through the final rules. These special rules will help mitigate the

concerns of small group plans and issuers by allowing them to leverage a contractual relationship

through an issuer or clearinghouse to satisfy the public disclosure requirements of the final rules.

Several commenters submitted feedback on how disclosures in the proposed rules could

affect contractual arrangements. One commenter expressed the view that the requirement to

release negotiated rates threatens contracts negotiated between two private entities. Several

commenters submitted comments related to gag clauses or non-disclosure agreements contained

in provider contracts as well as other contract terms that are often included in contracts between

providers and payers (such as anti-steering and anti-tiering provisions) that may limit the ability

of third parties to use the data. Gag clauses, which also may be referred to as non-disclosure

agreements, are terms that are often included in provider-payer contracts, which prohibit one or

both parties from making public the negotiated rates therein.

156

Anti-steering and anti-tiering

provisions are terms that may be included in provider-payer contracts (usually between issuers

156

“Provider Contracts.” The Source on Healthcare & Price Competition, UC Hastings College of Law. Available

at: https://sourceonhealthcare.org/provider-contracts/.

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and hospital systems), which prohibit the plan or issuer from directing participants, beneficiaries,

or enrollees toward higher-quality or lower-cost providers, and require that all providers

associated with the contracting provider (for example, for a hospital system this could include

hospitals, other affiliated facilities, and physicians) to be placed in the most favorable tier of

providers.

157

One commenter stated that if the Departments do not fully address the implications of

non-disclosure agreements in provider and payer contracts, legal complications could arise from

payers attempting to meet the requirements to disclose negotiated rates and violating these

agreements in the process. Another commenter strongly supported revisions to the proposed

rules to address the barriers associated with gag clauses. To address this issue, another

commenter recommended the Departments provide that the final rules supersede any provider

contract gag clause to the extent the final rules conflict with current or future contractual

language.

The Departments understand that this requirement may require alterations to some

existing contracts. For example, payers and providers may need to remove contract terms that

conflict with the requirement to disclose negotiated rates such as gag clauses or non-disclosure

agreements.

158

It is not uncommon for new or modified regulatory requirements or new statutory

provisions to alter private contractual arrangements such as those between a health insurance

157

Id.

158

The Departments note that gag clauses that would prohibit a pharmacy from informing a participant, beneficiary,

or enrollee of any differential between that individual’s out-of-pocket cost under the coverage option offered by his

or her plan or issuer regarding acquisition of the drug and the amount that individual would pay without using any

health plan or health coverage are already prohibited. See Sec. 2729 of the PHS Act.

CMS-9915-F 213

payer and health care provider. Because changes in law or statute that may need to be reflected

in payer-provider contracts is not uncommon, the Departments expect that providers and payers

have processes in place address to these requirements of the final rules. Often, the possibility

that that new or modified regulatory requirements or new statutory provisions could alter such

contracts is contemplated by the contracts themselves; for example, drafters may include contract

language that indicates terms may be altered by changes in law or regulation. Such language

would obviate the need for updates outsides of the regular contracting schedule.

As a general matter, the onus for ensuring a contract provision does not violate applicable

law rests with the parties to the contract. Nothing in the final rules prevents providers and payers

from implementing contract revisions to ensure terms are not in conflict with the requirements of

the final rules. Because the Departments are of the view that prescription or prohibition of

specific contract terms or language in payer-provider contracting is not necessary, the

Departments leave it to plans, issuers, and providers to avoid contract terms that would prohibit

or frustrate either party’s compliance with the final rules.

Many commenters who did not support the requirements for public disclosure of in-

network provider rates and out-of-network allowed amounts requested that the Departments

withdraw the proposed rules or otherwise work with stakeholders to develop policy solutions that

meet consumer needs with less burden and guard against potential unintended consequences.

Some commenters suggested the Departments collect more data about the potential impacts of

public disclosure of negotiated rates to ensure the policy is modified, if needed, to protect against

the risk of unintended consequences, noted earlier. One commenter suggested the Departments

pilot the requirement for public disclosure of negotiated rates. Another commenter

recommended the Departments pilot the release of negotiated rates in a state where there are a

CMS-9915-F 214

few small carriers to gain a clearer understanding of potential consequences of the public

disclosure requirements. Another commenter recommended the Departments pilot full price

transparency in several markets and conduct longitudinal studies on the impacts.

Some commenters suggested the Departments refocus transparency efforts to already

existing solutions or different initiatives. Some commenters recommended that the final rules

require plans and issuers to send claims data to the HCCI to ensure that health care cost data

reaches the public domain through researchers without disclosing confidential information or

distorting the market. A few commenters suggested the Departments leverage existing data

sources such as all-payer claims databases to promote transparency goals. One commenter stated

the Administration should support congressional and states’ efforts to pursue and expand upon

transparency efforts, including through all-payer claims databases.

The Departments appreciate both private and public transparency efforts already

underway. In the development of the proposed and final rules, the Departments sought feedback

from industry and other stakeholders. While the Departments agree that expanding data sent to

HCCI will help researchers gain a better understanding of market dynamics, the Departments are

of the view that health care pricing data should be coupled with plan and issuer information. If

the information were to be decoupled, as through HCCI or in an all-payer claims database, it

would not provide the degree of transparency in prices needed to effectuate the objectives the

Departments seek to achieve through the final rules. For example, pricing data, decoupled from

plan and issuer data, would not provide actionable information to consumers that seek to

evaluate health coverage options, as they would not be able to connect pricing to specific plans.

The Departments view the disclosure requirements set forth in the final rules as

complementary to and supportive of state-level efforts. States act as incubators for transparency

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efforts. Nothing in the final rules precludes states from continuing to establish and run state-

level transparency efforts. Indeed, the Departments intend for state regulators to be able to use

the disclosures required to be made public through the machine-readable files to support their

oversight of health insurance markets, including supporting their own state-level transparency

efforts such as all-payer claims databases. However, the Departments are also aware that there

are limits to the pricing information that states can obtain through state-level transparency

efforts. For instance, states are not able to obtain pricing information from self-insured group

health plans; the final rules will help states obtain this information.

The Departments further maintain that the final rules are significantly more likely to

achieve positive results for consumers and health care markets than they are likely to result in the

potential negative consequences outlined by certain commenters. The Departments are of the

view that traditional market forces that affect prices in any market, including competition

between providers; the threat of new market entrants that offer quality, lower cost services; and

the increased bargaining power of consumers will be supported by the final rules. The

Departments also are of the view that providers who choose to arbitrarily or unreasonably

increase their prices based on publicly-available negotiated rate data are more likely to damage

their own competitive positions and reputation than they are to cause widespread health care cost

increases in their particular markets. For these reasons, the Departments remain confident that

the final rules’ requirements for disclosure of negotiated rate information will benefit health care

consumers by giving them information necessary to effectively shop for and choose the health

care coverage and providers that fit their needs and budgets. As consumers make more informed

choices, based on available price data, market forces will have a chance to operate and

potentially correct the current course of unsustainable increases in health care costs.

CMS-9915-F 216

In light of the Departments’ commitment to health care price transparency and the

importance of addressing the distortive effects of the absence of pricing information, the

Departments are not convinced there is a need to change the policies in the final rules to mitigate

the risk of unintended consequences or violations of law such as price fixing and collusion

among providers. As discussed elsewhere in this preamble, research, academic literature, and

the experience of various state efforts have provided support for the Departments’ conclusion

that the public availability of in-network rate information is substantially more likely than not to

lead to more informed health care choices, increased competition, and lower prices.

The Departments note that price transparency is not a novel concept, even in health care

pricing. Several states, including New Hampshire and Maine, have implemented state-level

price transparency efforts. While the Departments acknowledge that these state efforts differ in

material ways from the disclosure requirements of the final rules, the same underlying principle

of price transparency that undergirds state efforts also undergirds the final rules. These state

efforts provide evidence that transparency at a more localized geographic level does not result in

the extreme unintended consequences postulated by some commenters. The Departments

acknowledge that other national health policy initiatives are sometimes tested through pilots;

however, the Departments are of the view that such an approach is not necessary for price

transparency, in part, because there is already evidence through state initiatives that price

transparency is achievable.

The proposed and final rules reflect the Departments’ conclusion that an expansive

implementation of these requirements will be the most effective manner in which to reasonably

ensure that the impact will be spread across all markets, rather than isolated to particular

geographic areas, markets, or groups of consumers. The goal of the final rules is to expand

CMS-9915-F 217

access to price transparency information among the public, which will not be realized without an

expansive implementation. The Departments are concerned that if pricing information for group

health plans and insurance in the individual and group markets is not made available to the

public or is made public in a piecemeal fashion, there will be little incentive for health care

researchers, third-party application developers, or other industry actors to invest scarce resources

into a tool that will only offer regional or otherwise limited pricing data. Other stakeholders,

such as researchers and regulators, would also find incomplete pricing information less useful to

their efforts to better understand, better oversee, and develop innovations in the health care

markets. Finally, the Departments are concerned that limiting the implementation of this rule, by

scope or by geographic market area, will limit the impact for the millions of consumers (both

individuals and employers) who are expected to benefit from the public disclosures required

through the final rules. Consumers located in a geographic market where data would not be

made available under a more limited requirement would not experience any benefit from the

availability of actionable pricing information in other markets. Even those consumers located in

geographic markets where pricing information would be made available under a more limited

requirement would likely experience more limited benefits than with a market-wide requirement

to release pricing information because these consumers would likely not have access to tools

developed by third-party application developers. These consumers would also be less likely to

experience downstream benefits from contributions expected from other stakeholders, such as

researchers and regulators.

In addition to establishing a preference for establishing market-wide rules, in the

preamble to the proposed rules, the Departments explained the importance of timely action to

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increase transparency.

159

The Departments observed that continuously rising health care costs

and increases in out-of-pocket liability, without transparent, meaningful information about health

care pricing, have left consumers poorly equipped to make cost-conscious decisions when

purchasing health care items and services. In addition, consumers across all markets should

come to expect and receive the same access to standardized pricing information and estimates.

This broader applicability also has the greatest potential to reform health care markets. The

Departments recognized the need for a faster and nimbler approach to addressing the pressing

issue of rising health care prices. For these reasons, the Departments are of the view that a pilot

approach in a specific geographic area or an otherwise phased-in approach for the requirement to

publicly disclose negotiated rates through the machine-readable files would not be sufficient to

meet the requirement for transparency in coverage.

Because the Departments have determined a need for an expansive implementation of

transparency in coverage requirements, and for the reasons discussed at length in response to

public comments, the final rules adopt the requirement to publicly disclose negotiated rates for

all group health plans and individual and group market issuers, regardless of geographic market.

Scope of Pricing Information to be Made Publicly Available

Several commenters explicitly supported public disclosure of negotiated rates and out-of-

network allowed amounts for all items and services. However, other commenters recommended

the Departments limit the items and services to only the most common items and services or a

narrow set of shoppable services in order to make the machine-readable files more meaningful to

consumers. Another commenter did not support the negotiated rate disclosure proposals, but

159

84 FR 65464, 65465 (Nov. 27, 2019).

CMS-9915-F 219

acknowledged that disclosure of rates for a subset of shoppable services would be manageable,

could allow issuers to account for innovative payment arrangements, and could be used to gather

empirical evidence on the impact of transparency on the health care markets.

The Departments understand that requiring plans and issuers to include all items and

services in the machine-readable files could produce large data sets that could be cumbersome

and may be costlier to maintain than a more limited file of shoppable services. However, the

Departments are of the view that release of this information for all items and services, as

proposed, is crucial for advancing the key objectives of the final rules to spur innovation,

increase competition, and empower consumer activities in the health insurance markets. The

Departments are of the view that limiting the data in the machine-readable files would undermine

efforts to achieve these objectives. In particular, the Departments are concerned that if the

requirement were to be modified to apply to only a shoppable subset of items and services, then

third-party application developers may not be as interested in innovating in this area.

Furthermore, the Departments are of the view that efficiencies will be gained after initial

development of these files. Although the initial implementation burden for some plans and

issuers may be sizeable, future releases of data could be automated, greatly reducing the burden

in subsequent years.

One commenter stated the type of data being required to be disclosed is prohibited from

disclosure by CMS for laboratory services under section 1834A of the SSA, which requires CMS

to keep confidential payer rates reported by applicable laboratories. The commenter stated

section 1834A of the SSA should also apply to disclosure of similar information by health plans.

Section 1834A of the SSA is applicable to reporting of private sector payment rates for

the limited purpose of establishing Medicare reimbursement rates for laboratory services.

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Section 1834A protects the confidentiality of information disclosed to HHS by a laboratory and

prohibits the Secretary of HHS or a Medicare contractor from disclosing the information in a

manner that identifies the particular payer or laboratory, identifies the prices charged, or

identifies the payments made to any such laboratory notwithstanding any other provision of law.

The confidentiality protections of the data required to be disclosed to HHS under section 1834A

protects laboratories and payers from re-disclosure by HHS and Medicare contracts. These

protections are not applicable to the public disclosures required under the final rules. First, the

final rules require plans and issuers to publicly disclose in-network providers’ negotiated rates

and out-of-network providers’ allowed amounts for all covered items and services. These

disclosures must be made through machine-readable files posted in a public location on a plan or

issuer’s website. HHS or contractors of HHS will have no active role in publicizing the

information required to be public through the final rules. Second, the confidentiality

requirements in section 1834A are applicable “notwithstanding any other provision of law.” The

public disclosure requirements in the final rules are being finalized through an exercise of

specific authority under section 1311(e)(3)(A)(vii) and (ix) of PPACA (as applied to plans and

issuers in the individual and group markets through section 2715A of the PHS Act). Even if the

public disclosures were to be subject to section 1834A of the SSA, the confidentiality provision

of section 1834A would not be applicable because the public disclosure requirements established

under the final rules are required by an exercise of authority under a separate provision of law.

For these reasons, and because laboratory services fall within the scope of all covered items and

services, the final rules clarify that disclosure by plans and issuers of pricing information for

laboratory services is required under the final rules.

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As discussed earlier in this preamble, the Departments are modifying the proposed

requirements relating to inclusion of all items and services in the internet-based self-service tool.

For the internet-based self-service tool, 26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2,

and 45 CFR 147.211 adopt a phased-in approach under which plans and issuers are required to

include only include a subset of items and services during the initial year of implementation.

However, plans and issuers will still eventually be required to include all covered items and

services in their internet-based self-service tools in order to meet the requirements of the final

rules. The Departments are of the view that a similar phased-in approach for the machine-

readable files is not necessary and would not support the achievement of the goals of the final

rules.

For these reasons, the final rules adopt, as proposed, the requirement to include all

covered items and services, including prescription drugs, in the public disclosures required to be

made through the machine-readable files.

One commenter made the point that in order to provide meaningful transparency to

consumers, as well as to address the issues of inconsistent pricing among hospitals in particular,

the Departments should require public disclosure of data related to pricing in addition to the

negotiated rate. The commenter stated the data elements should include the following: number

of procedures performed by the provider in the reported period, number of bed days, total billed

charges in the reporting period, total amount received/paid for services in the reporting period,

mean billed charged amount, mean accepted amount, median billed charged amount, mean

accepted amount, median billed charged amount, median accepted payment, minimum billed

charged amount, maximum billed charged amount, minimum accepted payment, and maximum

accepted payment.

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A goal of the final rules is to provide transparency for all covered health care items and

services. To this end, the final rules’ public disclosures are tailored to require only certain

critical pricing information that the Departments view as most likely to achieve this goal, while

minimizing the burdens for plans and issuers of producing and maintaining the information.

Requiring additional data elements, such as those listed by the commenter, would introduce an

increased level of complexity to the machine-readable files and increase the burden of making

the public disclosures.

Additionally, the Departments are of the view that it would be unnecessarily burdensome

to isolate hospital pricing information for additional disclosure when hospitals already have

separate price transparency disclosure obligations. As discussed elsewhere in this preamble, the

Hospital Price Transparency final rule requires hospitals to make public their standard charges

for items or services they provide.

160

The Hospital Price Transparency final rule requires

disclosure of five types of standard charges:

• the gross charge (the charge for an individual item or service that is reflected on a

hospital’s chargemaster absent any discounts);

• the discounted cash price (the charge that applies to an individual who pays cash, or

cash equivalent, for a hospital item or service);

• the payer-specific negotiated charge (the charge that a hospital has negotiated with a

third-party payer for an item or service);

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84 FR 65524 (Nov. 27, 2019).

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• the de-identified minimum negotiated charge (the lowest charge that a hospital has

negotiated with all third-party payers for an item or service); and

• the de-identified maximum negotiated charge (the highest charge that a hospital has

negotiated with all third-party payers for an item or service).

The Departments are of the view that the public disclosure requirements for hospitals

under the Hospital Price Transparency final rule, in combination with the public disclosure

requirements of the final rules, will address the concern raised by one commenter regarding

inconsistent pricing among hospitals. The disclosure required for hospitals under the Hospital

Price Transparency final rule will help provide local and more specific pricing information

through the availability of information on five types of standard charges, but the information will

only be made publicly available for the items and services that hospitals provide. The final rules

supplement this information by providing information related to negotiated rates or derived

amounts and allowed amounts for all covered items and services. Thus, the final rules will

provide a window into pricing for all items and services, while the Hospital Price Transparency

final rule requires disclosure of more specific pricing information for the items and services

provided by hospitals. Finally, the final rules also supplement the Hospital Price Transparency

final rule because the final rules make the information for all contracted network hospitals

available from one plan or issuer in a single, centralized file. Therefore, the final rules permit

consumers—especially when using third-party web-based tools—to more readily compare

hospital rates within and across plans and issuers.

Several commenters expressed concerns about participant, beneficiary, and enrollee

privacy related to the proposed disclosures of negotiated rates and allowed amounts. Some

commenters expressed concerns about how third-party developers or other downstream entities

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would use and protect participant, beneficiary, and enrollee data. They noted that even though

the Departments’ disclosure requirements do not include PHI, patients could be enticed to share

personal data with third-party developers and other secondary entities who could potentially use

the information to re-identify consumers. Some commenters stated that parties not subject to

HIPAA could seek to commercialize consumers’ information. One commenter suggested the

Departments look to HCCI as an example of how de-identified data can advance the goals of

transparency, which could mitigate concerns about proprietary information while maintaining

meaningful, granular information that illuminates price variation in the health care system.

One commenter stated that the Departments should consider the proposed rules in the

context of other HHS rules related to the interoperability of data and delay the implementation of

all such rules until HHS develops consumer privacy and protection requirements for third-party

applications developed by non-HIPAA-covered entities. Another commenter recommended that,

if the rules are finalized without additional privacy protections, the Departments should conduct

an educational campaign to inform consumers of the consequences of providing information to

third-party application developers. A commenter also expressed national security concerns

regarding the machine-readable files, noting that the health status of Americans is a valuable

commodity for foreign intelligence services.

The Departments acknowledge commenters’ concerns about third-party application

developers and other entities gaining access to personally identifiable information (PII) and PHI

through consumer use of online applications. The Departments further acknowledge comments

that consumers may not always fully understand how their information, including sensitive

medical information, will be used or stored by such third parties. However, the Departments also

acknowledge that consumers have a right to access, use, and share their own health information,

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both generally and under HIPAA. The Departments are also of the view that there is ample

evidence that consumers require help to understand their health coverage, their out-of-pocket

costs for health care items and services, and how their health care choices affect the overall costs

of their health coverage and health care items and services.

161

The final rules will allow access to

data, supplementary resources, and other assistance consumers need to make informed choices

by fostering innovation and offering access to tools that consumers may use to make informed

health care choices.

The Departments likewise considered evidence of significant consumer reliance on the

internet for all kinds of information, but especially for health information. In a study conducted

by the Pew Internet & American Life Project and published in July 2003, researchers found that

80 percent of internet users, or about 93 million Americans, have searched for a health-related

topic online, a 62 percent increase since 2001.

162

Popular search topics included health insurance

(25 percent); a particular doctor or hospital (21 percent); and alternative treatments (28

percent).

163

By 2013, the number of Americans searching for health information online had

nearly doubled from 2003, to about 182 million people.

164

A 2018 study found a significant

161

Arora, V., Moriates, C., and Shah, N. “The Challenge of Understanding Health Care Costs and Charges.” The

American Medical Association Journal of Ethics. November 2015. Available at: https://journalofethics.ama-

assn.org/article/challenge-understanding-health-care-costs-and-charges/2015-11.

162

“Health Searches and email Have Become More Commonplace, But There is Room for Improvement in Searches

and overall internet access.” Internet Health Resources. Pew Research Center. July 16, 2003. Available at:

https://www.pewresearch.org/internet/2003/07/16/internet-health-resources/.

163

Id.

164

Fox, S., and Duggan, M. “Health Online 2013.” Pew Research Center. January 15, 2013. Available at:

https://www.pewresearch.org/internet/2013/01/15/health-online-2013/.

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correlation between the use of online resources to obtain health information and the decisions

consumers take concerning health care services.

165

The Departments are of the view that many American consumers have some experience

with dealing with the disclosure of sensitive health information on the internet

166

and that

consumer reliance on the internet for health care information will only increase despite inherent

privacy risks. The Departments considered that websites and internet applications that collect

consumer information provide information through privacy policies and terms of service that are

available to users of how their information may be used and shared. Federal laws and

enforcement mechanisms are in place to help protect consumers from unfair and deceptive

practices, including deceptive data collection and the sale of data collected without adequate

consumer notice.

167

Given existing measures to protect consumer privacy on the internet, the

Departments are of the view that common internet privacy risks should not operate to deprive

165

Chen, Y. et al. “Health Information Obtained From the Internet and Changes in Medical Decision Making:

Questionnaire Development and Cross-Sectional Survey.” Journal of Medical Internet Research. Volume 20. No.

2. February 2017. Available at: https://www.jmir.org/2018/2/e47/pdf.

166

Zhu, P., Shen, J., and Xu, M. “Patients’ Willingness to Share Information in Online Patient Communities”

Questionnaire Study.” Journal of Medical Internet Research. Volume 22. No. 4. April 2020. Available at:

https://pubmed.ncbi.nlm.nih.gov/32234698/.

167

“Privacy & Data Security Update: 2019.” United States Federal Trade Commission. Available online at:

https://www.ftc.gov/system/files/documents/reports/privacy-data-security-update-2019/2019-privacy-data-security-

report-508.pdf; see also “Privacy and Security Enforcement.” United States Federal Trade Commission. Available

at: https://www.ftc.gov/news-events/media-resources/protecting-consumer-privacy/privacy-security-enforcement

(“the FTC can and does take law enforcement action to make sure that companies live up to [the] promises”

regarding how consumer information will be safeguarded); see also Complaint in United States v. Facebook, Case

No. 19-cv-2184, U.S. District Court for the District of Columbia. Available at:

https://www.ftc.gov/system/files/documents/cases/182_3109_facebook_complaint_filed_7-24-19.pdf (FTC

complaint leading to a historic $5 billion fine for, among other things, deceptive practices in violation of section 5(a)

of the FTC Act where the social media company failed to effectively disclose that consumer information would also

be used for advertising). The referenced fine can be found at:

https://www.ftc.gov/news-events/press-

releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions, last accessed Sep. 11, 2020

(press release announcing fine).

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consumers of the information, tools, and support they need to make informed choices related to

health care coverage, providers, items, and services.

Even though the Departments are not persuaded that privacy risks common to the use of

internet applications outweigh the benefits of the disclosures under these the final rules or the

general need for price transparency, ensuring the privacy and security of consumer PII and PHI

is a top priority for the Departments. The Departments will work with plans and issuers to

provide information they can use to educate participants, beneficiaries, and enrollees about

sharing their health information with third party applications. This will include information on

about the roles of federal agencies such as the Office for Civil Rights (OCR), the FTC, and ONC,

which already focus on ensuring that consumer privacy rights and interests are appropriately

protected. The Departments will encourage plans and issuers to share this information with their

participants, beneficiaries, and enrollees who might elect to share health information with third-

party applications.

In finalizing the rules, the Departments considered the large number of consumers who

have decided to share personal information because they have determined that the benefits

offered by an internet website or mobile application outweigh potential risks to their privacy.

The Departments are of the view that consumers will be able to make similar determinations

with regard to applications that make use of data to be disclosed through the machine-readable

files required by the final rules.

As discussed earlier in the preamble to the final rules, the Departments also are not

persuaded by the argument that the disclosures required under the final rules, or disclosures

consumers may make to applications that leverage the data required, could introduce national

security concerns. First, the information the Departments are requiring to be disclosed through

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the machine-readable files does not include PHI or PII. Additionally, as discussed in more detail

later in this preamble, in an effort to ensure that the disclosures balance price transparency with

the need to protect privacy, the Departments have modified the proposed rules to increase the

minimum disclosure threshold from 10 to 20 unique payment amounts, where any historical

payment amounts connected to less than 20 claims for payment would be omitted from the

machine-readable file containing out-of-network allowed amounts and historical billed charges

(the Allowed Amount File). The increase will further limit the possibility that individual

participants, beneficiaries, and enrollees may be identified through historical allowed amount

data. Second, the information a consumer could share with applications incorporating data

required to be disclosed through the final rules is not significantly different from data consumers

already actively share through similar applications. Therefore, the Departments are not

convinced there are unique national security concerns flowing from the disclosures required by

the final rules.

One commenter was concerned about allowing third parties to use plan and issuer

information to provide cost and pricing information to consumers without those third parties

being obligated to provide accurate and relevant information to consumers. The accuracy of

third-party internet-based tools and applications will be important to achieving the goals of

transparency in coverage. However, the cost and pricing information included in third-party

internet-based tools, and tools developed by other secondary entities, would only be as accurate

as the public disclosures made by plans and issuers. Therefore, the Departments are of the view

that it is in the best interest of plans and issuers to ensure data accuracy through a robust quality

assurance process if they have concerns about the accuracy of cost and pricing information being

provided to consumers through third-party internet-based tools. Furthermore, nothing in the final

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rules prohibits plans and issuers from including comprehensive data dictionaries and other

supplementary documentation along with the machine-readable files. Plans and issuers are also

free to provide plan-specific disclaimers or clarifications regarding the information they are

required to produce. Finally, the Departments expect that consumers, plans, issuers, and other

health care stakeholders will monitor third-party internet-based tools for accuracy and will and

report concerns to the developer, the public, and appropriate state and federal agencies, including

the Departments, for evaluation and potential action.

The Departments further expect that market forces will act to weed out applications that

do not provide reliable information. Consumers who use a third-party application or other online

tools for health care decision support and later conclude that the tool misled or misinformed

them will, at minimum, cease use of the tool. Such consumers are also likely to rate the

application poorly or leave unfavorable reviews, reducing the likelihood that other consumers

who see the rating or review will rely on the tool. Over time, consumers and other stakeholders

may collectively identify the most accurate and highest quality tools, while reducing use of less

accurate, unreliable tools. The Departments also expect that third-party tools will inform users

of limitations on the accuracy of their information and will present relevant disclaimers

informing consumers that any estimates of out-of-pocket liability are not guarantees regarding

consumer liability for services. Tool users also will have the opportunity to evaluate and could

attempt to confirm any cost estimates provided by online tools by contacting the plan, issuer, or

health care provider they ultimately choose based on information provided by the tool. Such

measures will address the risk that consumers will be led to unreasonably rely on any cost

estimate provided by a third-party tool to their financial detriment.

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The Departments are of the view that it is in plans’, issuers’, and developers’ best

interests to provide accurate information. However, the Departments will monitor the accuracy

of the information provided through third-party developers and secondary entities and will take

information obtained through this monitoring into account for future regulatory action or

guidance, as appropriate.

One commenter recommended that any information made available to the public should

provide an explanation of why the cost of care is variable among hospitals. The commenter

further suggested the explanation reference unique challenges faced by essential hospitals that

care for a larger proportion of vulnerable patients.

Being mindful of the goal to provide sufficient technical flexibility in the formatting of

the machine-readable files, the Departments decline to require plans and issuers to include

specific supplementary information beyond reporting the data specified for the machine-readable

file formats. As noted above, nothing in the final rules prevents a plan or issuer from providing

supplementary materials, including footnotes, disclaimers, data dictionaries, and other

explanatory language, as accompaniments with the machine-readable files. The Departments are

of the view that any additional context around the machine-readable files that can be provided

through supplementary materials are likely to be a benefit to consumers and others who seek to

understand and use the data contained in the machine-readable files. The Departments

recommend plans and issuers work closely with providers, consumers, developers, community

leaders, and other stakeholders to ensure that all perspectives are taken into account when

developing materials supplemental to the machine-readable files. While declining to require

plans and issuers to include a specific explanation for why the cost of care could vary among

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hospitals, the Departments acknowledge that this information is an example of appropriate

explanatory language that could accompany the machine-readable files.

The final rules adopt, with modifications, the requirements that plans and issuers publicly

disclose applicable in-network rates (including negotiated rates, derived amounts, and underlying

fee schedule rates), out-of-network allowed amounts for covered items and services, including

prescription drugs, through machine-readable files. The final rules also adopt the requirement

that plans and issuers publicly disclose in-network historical net prices for covered prescription

drugs through a machine-readable file. In recognition of the unique pricing attributes of

prescription drugs, the final rules require the reporting of information on prescription drugs that

would have been included in the In-network Rate File (referred to as the Negotiated Rate File in

the proposed rules) in a separate machine-readable file, as described later in this preamble. The

Departments continue to be of the view that the release of this information is appropriate and

necessary to empower consumers to make informed decisions about their health care, spur

competition in health care markets, and to slow or potentially reverse the rising cost of health

care items and services.

The Departments stated the intention in the proposed rules to make available non-

substantive technical implementation guidance through the collaborative GitHub platform (an

online hosting platform for development and source code management that permits version

control), which will facilitate further technical assistance in addressing how unique plan designs

can comply with the requirements of the final rules, as needed. The Departments received

comments that supported the Departments’ development of specific technical standards for the

files to which plans and issuers must adhere. One commenter recommended the Departments

provide guidance to plan sponsors who are able to provide some, but not all, of the file data

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elements. Another commenter stated that the proposed rules do not make clear how to report

items and services provided through capitated and bundled payment arrangements in the files;

noting that this information is necessary for consumers to measure provider value. One

commenter supported the Departments’ statement that it would provide technical implementation

guidance for the files but requested a robust public comment solicitation far in advance of the

applicability date for the rules.

The Departments are of the view that providing specific technical direction in separate

technical implementation guidance, rather than in the final rules, will better enable the

Departments to update the file technical requirements to keep pace with and respond to

technological developments. The Departments note that the technical implementation guidance

is intended to facilitate a collaborative effort between the Departments and plans and issuers in

order for plans and issuers to meet the public disclosure requirements of the final rules, while

providing flexibility to account for unique IT systems, and issuer and plan attributes. To the

extent a plan’s or issuer’s unique attributes (such as use of an alternative contracting model) are

not addressed sufficiently through the technical implementation guidance, the Departments

intend to provide targeted technical assistance to help ensure all plans and issuers are able to

meet the public disclosure requirements under the final rules. Therefore, the Departments are

developing technical implementation guidance for plans and issuers, which will be available on

GitHub, to assist them in developing the machine-readable files.

In the proposed rules, the Departments indicated that minimum requirements for

standardized data elements would be necessary to ensure users would have access to accurate

and useful pricing information. Without such baseline requirements, the negotiated rate and

allowed amount data for out-of-network services made available by each group health plan and

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health insurance issuer could vary dramatically. This would further create a disincentive to

health care innovators developing tools and resources to enable consumers to accurately and

meaningfully use, understand, and compare pricing information for covered items and services

across providers, plans, and issuers. Accordingly, under the proposed rules, a plan or issuer

would be required to publish two machine-readable files. The first file would include

information regarding rates negotiated with in-network providers. The second file would include

historical data showing allowed amounts for covered items and services furnished by out-of-

network providers. The preamble to the proposed rules referred to these files as the Negotiated

Rate File and the Allowed Amount File, respectively. For the final rules, the file referred to as

the Negotiated Rate File in the proposed rules has been renamed the In-network Rate File to

reflect modifications made in the final rules to ensure the file accommodates plans and issuers

operating under payment models other than the fee-for-service (FFS) model. The final rules

adopt the requirement to produce both the In-network Rate File and Allowed Amount File with

the modifications discussed elsewhere in this preamble. As previously discussed, the final rules

also adopt the requirement to produce an additional file, referred to in this preamble as the

Prescription Drug File through which plans and issuers are required to publicly disclose

negotiated rates and historical net prices connected to prescription drugs.

As noted, the final rules modify the In-network Rate File requirements to clarify the

expectations for reporting negotiated rates (or comparable derived amounts, which are explained

in detail later in this section) for plans and issuers using alternative reimbursement models. The

final rules also clarify that plans and issuers must include an underlying fee schedule rate when

one is used to determine cost-sharing liability, where that amount differs from the negotiated rate

(or comparable derived amount) used to determine provider reimbursement.

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The final rules modify the Allowed Amount File to clarify that it must also include

information related to billed charges in addition to allowed amounts. The final rules also finalize

additional requirements for the In-network Rate File, Allowed Amount File, and Prescription

Drug File to require plans and issuers to include a Place of Service Code and a provider tax

identification number (TIN) in addition to the provider NPI. These modifications are discussed

in more detail later in this section of this preamble.

Specific Content Elements

In the proposed rule, the Departments indicated that the Negotiated Rate File and the

Allowed Amount File would be required to include content elements discussed in this section of

this preamble. In the final rules, these content elements continue to apply to the In-network Rate

File and the Allowed Amount File, as well as to the Prescription Drug File, except where

otherwise indicated.

a. First Content Element: Name and Identifier for Each Coverage Option

The first content element that plans and issuers will be required to include in the machine-

readable files is the name and identifier for each coverage option offered by a group health plan

or health insurance issuer. For the identifier, the Departments proposed that plans and issuers

use their Employer Identification Number (EIN) or Health Insurance Oversight System (HIOS)

IDs, as applicable. The Departments sought comment on whether EINs and HIOS IDs are the

appropriate identifiers for this purpose. The Departments also sought comment on whether there

are other plan or issuer identifiers that should be considered and adopted.

The Departments did not receive any comments on this content element, and the final rules

adopt this provision with modifications to ensure clarity of the expectations for reporting. As

reflected in the updated regulatory text, the Departments are clarifying whether an EIN or HIOS

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ID is applicable for this element. Plans and issuers must include their HIOS ID at the 14-digit

product level unless the plan or issuer does not have a HIOS ID at the plan or product level, in

which case the plan or issuer must use the HIOS ID at the 5-digit issuer level. If a plan or issuer

does not have a HIOS ID, it must use its EIN.

b. Second Content Element: Billing Codes

The second content element that plans and issuers will be required to include in the

machine-readable files is any billing code consistent with the definition of billing code provided

in the final rules, including:

• a CPT code,

• a Healthcare Common Procedure Coding System (HCPCS) code,

• a DRG,

• a National Drug Code (NDC) (The final rules define the NDC code as a unique 10-

digit or 11-digit 3-segment number assigned by the Food and Drug Administration (FDA), which

provides a universal product identifier for drugs in the United States),

168

• another common payer identifier used by a plan or issuer, such as a hospital revenue

code, as applicable, and a plain language description for each billing code.

The Departments proposed to require that plans and issuers associate each negotiated rate

or out-of-network allowed amount with a CPT, HCPCS code, DRG, NDC, or other common

168

In the preamble to the HIPAA regulations, HHS stated that it was adopting a uniform 11-digit format to conform

with customary practice used in computer systems (65 FR 50314, 50329). (Aug. 17, 2000). The HIPAA 11-digit

NDC format is standardized such that the labeler code is always 5 digits, the product code is always 4 digits, and the

package code always 2 digits. To convert a 10-digit NDC to an 11-digit HIPAA standard NDC, a leading zero is

added to the appropriate segment to create the 11-digit configuration as defined above. See 83 FR 38666 (Aug. 7,

2018).

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payer identifier, as applicable, because plans, issuers, and providers uniformly understand these

codes and commonly use them for billing and paying claims (including for both individual items

and services and items and services provided under a bundled payment arrangement). The

Departments also proposed that plans and issuers must include plain language descriptions for

each billing code. In the case of items and services that are associated with common billing

codes (such as the HCPCS codes), the Departments specified that the plan or issuer could use the

codes’ associated short text description.

In order to ensure that the machine-readable files provide meaningful information to

consumers, as well as other stakeholders, the final rules adopt this content element as proposed,

with the following modifications. For clarity, the regulation text is amended to remove language

that merely restated the definition for the term “billing code” for each machine-readable file.

169

This modification has been made purely to streamline the regulatory language, and it does not

substantively alter the requirement to include a billing code, except as otherwise noted in this

preamble. Additionally, along with separating prescription drugs into a separate machine-

readable file, the final rules include a modification that clarifies that, in the case of prescription

drugs, plans and issuers may only use the NDC as the billing code type because, as discussed

later in this preamble, the accuracy of pricing information for prescription drugs requires precise

and specific product information, including package size and manufacturer, which can only be

achieved through the use of the NDC billing code. However, the Departments recognize that

prescription drug products may be included in the In-network Rate File to the extent a plan or

169

Specifically, the Departments have removed the following language from billing code requirements for the

machine-readable files: “…or other code used by the group health plan or health insurance issuer to identify covered

items or services for purposes of claims adjudication and payment.”

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issuer uses an alternative payment arrangement, such as a bundled payment arrangement that

includes prescription drugs. Therefore the final rules clarify that the In-network Rate file must

include the required information under paragraph (b)(1)(i) of the final rules for all covered items

and services, except for prescription drugs that are subject to a fee-for-service reimbursement

arrangement, which would be reported in the prescription drug machine-readable file pursuant to

paragraph (b)(1)(iii) of the final rules.

The final rules require plans and issuers to include in the machine-readable files a billing

code or other code used to identify covered items or services for purposes of claims adjudication,

payment, and cost-sharing liability when making public the disclosure required under 26 CFR

54.9815-2715A3, 29 CFR 2590.715-2715A3, and 45 CFR 147.212. The final rules adopt the

requirement that plans and issuers associate each amount required to be reported with a CPT,

HCPCS, DRG, NDC, or other common payer code identifier, as applicable, because plans,

issuers, and providers uniformly understand these codes and commonly use them for billing and

paying claims (including for both individual items and services and for bundled payment

arrangement). As provided by the definition of billing code in the final rules, the Departments

intend to provide flexibility to plans and issuers to make the data available through the codes that

they use for billing services. While the final rules do not require plans and issuers to use a

specific billing code (for example, CPT codes) for making public the disclosures required

through the final rules, definition of billing code states that it is the code used by the plan or

issuer “for purposes of billing, adjudicating, and paying claims for a covered item or service.”

Therefore, where a plan or issuer uses a CPT code to identify a covered item or service for

purposes of billing, adjudicating, and paying claims for that covered item or service, then they

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would need to use the CPT code in order to make public the disclosure required through the final

rules for that item or service.

One commenter recommended that the negotiated rates should be clearly stated in plain

language that should be easy to understand rather than provided by billing codes through the

machine-readable files. As an alternative, the Departments received some comments stating that

the Departments should require hospitals and health insurance issuers to disclose all negotiated

reimbursements by International Classification of Disease (ICD) code.

The preamble to the proposed rules identified several common billing codes, noting that

the list provided was not exhaustive. Further, the Departments did not explicitly prohibit

including ICD-10 codes on the file. The Departments note that nothing in the final rules would

constrain plans or issuers from including ICD codes in the machine-readable files when these

codes are used by the plan or issuer in a manner that meets the definition of a billing code in the

final rules. In other words, where the plan or issuer uses an ICD code to identify health care

items or services for the purpose of billing, adjudicating, and paying claims for a covered item or

service, the plan or issuer may use the ICD code in the machine-readable files. As discussed

earlier in this preamble, the Departments intend to issue technical implementation guidance; this

guidance will include sample file schemas for the machine-readable files. To facilitate

identification of the billing code type, there will be an indicator in the file schemas that will

allow plans and issuers to specify the particular type of billing code entered for each data entry in

the machine-readable files.

The Departments are aware that some covered items and services may not have a

corresponding HCPCS, ICD, DRG, NDC or CPT code. The Departments clarify that plans and

issuers are still required to include these covered items and services in their machine-readable

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files regardless of whether all corresponding data elements are available. When a covered item

or service does not have a corresponding HCPCS, ICD, DRG, or CPT code associated with an

item or service, a plan or issuer is permitted to choose its own indicator or other method to

communicate to the public that there is no corresponding code. In the alternative, a plan or

issuer is permitted to use the code to be defined by the Departments in technical implementation

guidance issued along with the final rules that indicates that an item or service is not defined.

At this time, the Departments have concluded that the common data requirements

adopted by the final rules, which include a requirement to include a plain language description

for each billing code, provides consumers with sufficient information to meaningfully inform

health care purchasing decisions.

Regarding information about prescription drug pricing, a commenter also suggested that,

in lieu of NDC or HCPCS codes, a useful unit for reporting for drugs would be the RxNorm

concept unique identifier (RxCUI).

170

The commenter suggested use of RxCUIs because it

would minimize burden by reducing the list of entries (3,000 to 4,000 RxCUIs down from

100,000 active NDCs) and because existing prescription drug machine-readable file requirement

for Medicare Part D (Part D) and QHPs use RxCUIs.

The Departments appreciate the commenter’s alternative suggestion for including

prescription drug information in the machine-readable files. The Departments considered

requiring prescription drug pricing information through an alternative identifier. The

Departments understand that an RxCUI could minimize the burden on plans and issuers by

170

The Departments note that the comments used the term “Rx Common Unit Identifier” to identify the full phrase

for the RxCUI. The Departments assume that this is a misnomer and that the commenter was referring to RxNorm

concept unique identifier, which is the generally accepted term for the acronym RxCUI.

CMS-9915-F 240

reducing the number of codes required to be included in the Prescription Drug File. RxCUI is a

drug naming system that is produced by the National Library of Medicine (NLM), and RxCUIs

are unique identifiers, which can represent multiple NDCs for similar drug products with the

same brand name, active ingredient, strength and dose form (for example, multiple package sizes

and/or manufacturers can be represented by a single RxCUI). The NDC, in contrast, is a unique

10-digit or 11-digit 3-segment number, which provides a universal product identifier for drugs in

the United States. The three segments of the NDC identify: the labeler (any firm that

manufactures the drug); the product (specific strength, dosage form, and formulation of a drug);

and the commercial package size and types. As noted above, multiple NDCs can be

encompassed by one RxCUI, which is why there are many fewer RxCUI codes than NDCs.

However, the accuracy of pricing information requires precise and specific product information,

including package size and manufacturer. The Departments are concerned that permitting drug

pricing information disclosures to be made through RxCUIs would potentially lead to inaccurate

or misleading information being provided to the consumer. If drug pricing information is

provided in the machine-readable files in the form of RxCUIs, then plans and issuers may not be

able to provide the manufacturer negotiated rate, especially for those RxCUIs that include NDCs

from several manufacturers.

Some commenters noted that, because RxCUI is used by the Part D program and in the

QHP program, the Departments should also require RxCUI in the machine-readable file for

consistency across programs. While the Departments acknowledge that RxCUI is used in some

contexts in both the Part D and QHP programs, namely formulary development, these programs

do not exclusively use RxCUI. Indeed, both the Part D and QHP programs use NDC in addition

to RxCUI, and NDCs are more generally used when information is required to be submitted to

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CMS for payment programs. For example, the Part D program receives the NDC on claims

submitted by Part D plan sponsors through Prescription Drug Events (PDEs) and issuers in the

individual and small group market include NDCs on claims data submitted to issuers’ EDGE

servers for HHS risk adjustment purposes. In short, other programs cited by commenters

actually use NDCs for prescription drugs data submissions, particularly for payment that is

similar to the pricing data required by the final rules. The Departments therefore conclude that

requiring use of NDCs for the prescriptions drug pricing information included in the machine-

readable files is consistent with the practices CMS follows in other programs. Therefore, as

stated earlier, the Departments are requiring that the only allowable billing code for prescription

drugs in the machine-readable files is the NDC. The Departments determined that the NDC

should be the required billing code for the reasons stated above and because the NDC is a

standard billing code required for prescription drug transactions.

c. Third Content Element: In-Network Applicable Amounts (Negotiated Rates, Amounts in

Underlying Fee Schedules, and Derived Amounts); Out-of-Network Allowed Amounts; or

Negotiated Rates and Historical Net Prices for Prescription Drugs

The third-content element in the machine-readable files depends on the type of file: in-

network amounts for the In-network Rate File, allowed amounts and historical billed charges for

the Allowed Amount File, or negotiated rates and historical net prices for the Prescription Drug

File.

All Machine-Readable Files

The proposed rules specified that the specific pricing information within each file would

have to be associated with a provider identifier, specifically the provider’s NPI. Some

commenters suggested additional data elements to support accurately identifying the provider

CMS-9915-F 242

through the machine-readable files. One commenter recommended that the Departments include

the Place of Service Code in the machine-readable files. The commenter explained that this data

element would clarify prices when provider entities associated with the same NPI have multiple

sites of service. Place of Service Codes are CMS-maintained two-digit codes that are placed on

professional claims, including Medicare, Medicaid, and private insurance, to indicate the setting

in which a service was provided.

171

The Place of Service code set is required for use in the

implementation guide adopted as the national standard for electronic transmission of professional

health care claims under HIPAA.

172

The Departments have considered this comment and agree that, in addition to NPI,

including a Place of Service Code is important where a provider could be using the same NPI for

multiple places of service. For instance, the same procedure from the same provider NPI

received at an ambulatory surgery center (Place of Service Code 24) could have a significantly

different price if received at an on-campus outpatient hospital (Place of Service Code 22). The

Departments are of the view that being able to identify the place of service would be beneficial

to consumers seeking to rely on the machine-readable files or third-party applications developed

using the information publicly disclosed through the machine-readable files, in order to make

health care purchasing decisions. The Departments are also of the view that this data element

will help provide valuable insights regarding market dynamics for researchers, employers,

regulators, and other files users. Because the Place of Service Code is information that must be

171

“Place of Service Code Set.” Centers for Medicare & Medicaid Services. Available at:

https://www.cms.gov/Medicare/Coding/place-of-service-codes/Place_of_Service_Code_Set.

172

“Place of Service Codes.” Centers for Medicare & Medicaid Services. Available at:

https://www.cms.gov/Medicare/Coding/place-of-service-codes.

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included on a professional medical claim, the Departments do not foresee any issue with plans

and issuers including this data element in the machine-readable files in addition to the NPI. For

these reasons, the Departments are finalizing a requirement to include the Place of Service Code

in all three machine-readable files.

In addition to the NPI and the Place of Service Code, the Departments have also become

aware, through independent research, that a provider’s TIN can be relevant to communication of

accurate negotiated rates and allowed amounts information. It is the Departments’ understanding

that negotiated rates for items and services are based on the unique combination of a provider

(NPI), service or item location (Place of Service code), and the TIN under which the provider is

furnishing the item or service. If the TIN is not required in the file, the Departments are

concerned that plans and issuers could report multiple negotiated rates for the same NPI for the

same item or service without context to identify the underlying source of the difference. For

example, if a provider NPI has a relationship with two different entities that have negotiated rates

and bills under both of these entities, the same item or service for that provider NPI could appear

in the report with two different negotiated rates. Without the TIN, consumers of the file would

not be able to discern the reason for the difference in the two distinct negotiated rates. With the

TIN, consumers of the file could see that the provider is billing for the same services under two

separate entities. Therefore, if this unique combination of NPI, Place of Service Code, and TIN

is not required, the pricing information represented in the machine-readable files might not

present a complete and accurate picture of the market or provide consumers with reliable data

upon which to base health care purchasing decisions. The Departments are of the view that this

information is crucial to ensure that consumers are ultimately receiving location-specific pricing

information upon which they can rely to help make informed health care purchasing decisions.

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In order for the machine-readable files to provide meaningful and actionable information, the

final rules adopt a modification to all three machine-readable files, to require plans and issuers to

provide the provider TIN in the file in addition to provider NPI and the Place of Service Code.

The Departments have updated the technical implementation guidance and schemas for

all three machine-readable files, so that location-specific pricing information can be provided in

the machine-readable files. This guidance will also provide more details on how the Place of

Service Code, TIN, and NPI should be reported in order to represent the information for which

public disclosure is required through the machine-readable files. The Departments are aware that

this modification to the machine-readable files will increase the complexity and size of the

machine-readable files and have considered this additional burden in the Information Collection

Requests (ICR) section of the of the final rules. The benefits of including the Place of Service

Code and TIN outweigh the costs, as the Departments are of the view that location-specific

pricing information is critical to the meaningfulness of these files for the public.

Another commenter noted that using NPIs to identify providers would make it difficult

for consumers to use the machine-readable files because consumers do not usually have NPI

information. The commenter stated that it would also be useful for consumers using the In-

network Rate Files (including the uninsured and those shopping for alternative coverage) to have

access to public information that lists the providers who participate in local plan and issuer

networks.

The Departments agree that including provider names in the machine-readable files in

addition to NPIs would help consumers and other stakeholders review and use the machine-

readable files. However, the Departments have some concerns about requiring inclusion of

provider names in the files. From a technical perspective, the Departments are concerned that

CMS-9915-F 245

inclusion of provider names, which do not have a consistent character length and can be quite

long, will increase the size of the machine-readable files and, therefore, increase the burden of

the files for plans and issuers. Additionally, provider names may include non-alphanumeric or

other non-standard character encoding types that could interfere with the coding of the machine-

readable files and cause defects. The Departments are concerned that the additional quality

assurance procedures that plans and issuers would need to implement in order to address these

issues could add even more burden with limited benefit.

In addition, because the Departments expect the greatest benefits of these machine-

readable files will be through the innovative tools developed by third parties, the Departments

are of the view that the lack of availability of provider names in the machine-readable files is not

a significant concern. The Departments anticipate that third-party internet-based developers and

other secondary entities will be able to link the NPIs in the machine-readable files to publicly

available provider information. The Departments note that there are several internet-based NPI

lookup tools available online, including CMS’s National Plan & Provider Enumeration System

(NPPES) NPI registry.

173

Nothing in the final rules prevents a plan or issuer from linking to an

NPI lookup tool or providing more information for consumers and other stakeholders on its

website through supplementary materials supporting the machine-readable files.

For these reasons, the final rules do not require plans and issuers to include provider

names in addition to NPI, TINs, and Place of Service Codes in the three machine-readable files.

In-Network Rate File

173

CMS’s NPPES registry is available online at the following website address: https://npiregistry.cms.hhs.gov/.

CMS-9915-F 246

The Departments finalize with modifications the proposed requirement that group health

plans and health insurance issuers publish as the third content element negotiated rates in a

machine-readable file for all covered items and services—except that the Negotiated Rate File in

the proposed rules has been re-named the In-network Rate File. With the exception of

information relevant to prescription drug products that are included as part of an alternative

payment arrangement (such as a bundled payment arrangement), the In-network Rate File will

exclude information relevant to prescription drugs, as that information will be provided in the

third machine-readable file. Based on comments and technical expertise within the agencies, the

Departments have made modifications to clarify the expectations for reporting negotiated rates

(or comparable derived amounts as explained elsewhere in this section) for plans and issuers

using alternative reimbursement models for health care items and services. These modifications

also clarify that plans and issuers must include an underlying fee schedule rate when one is used

to determine cost-sharing liability, where that amount differs from the negotiated rate (or

comparable derived amount) used to determine provider reimbursement. The Departments also

finalize this change to reflect other modifications to the proposed rules meant to ensure the

required In-network Rate File accommodates plans and issuers operating under payment models

other than a standard fee-for-service (FFS) model.

In the proposed rules, the third content element was negotiated rates under a plan or

coverage regarding each covered item or service, including prescription drugs furnished by in-

network providers. To the extent a plan or issuer reimburses providers for an item or service

based on a formula or reference based-pricing (such as a percentage of a Medicare

reimbursement rate), the proposed rules would have required the plan or issuer to provide the

calculated dollar amount of the negotiated rate for each provider.

CMS-9915-F 247

In the proposed rules, the Departments expressed the understanding that some plans and

issuers do not vary negotiated rates across in-network providers. For instance, some plans and

issuers have a negotiated rate that applies to every provider in a certain network tier. In such a

case, the Departments proposed to require the plan or issuer to provide the negotiated rate for a

covered item or service separately for every provider that participates in that tier of the network.

If the plan or issuer reimburses for certain items and services (for example, maternity care and

childbirth) through a bundled payment arrangement, the Departments proposed to require the

plan or issuer to identify the bundle of items and services by the relevant billing code.

The Departments also proposed to require plans and issuers to include the last date of the

contract term for each provider-specific negotiated rate that applies to each item or service

(including rates for both individual and bundled items and services).

Several commenters suggested modifications to the requirement for public disclosure of

negotiated rates, which they claimed would help mitigate the risk of unintended consequences,

such as anticompetitive practices and increased health care prices. Commenters suggested that

the final rules require plans and issuers to disclose the median rate or lowest negotiated rate

instead of negotiated rates. Other commenters also expressed the opinion that information

presented as summary or aggregated data would be more helpful for consumers. One of these

comments noted that this could be achieved through plans identifying a range of in-network rates

for common services.

The Departments considered modifying the requirement to require plans and issuers to

report the median negotiated rate, the lowest negotiated rate, or some other aggregated

negotiated rate. The Departments noted in the proposed rules that consumers, researchers, and

regulators gaining access to pricing information, including information on the variation in prices,

CMS-9915-F 248

could place downward pressure on health care prices and reduce overall health care spending,

which is one of the goals of the final rules. The Departments are concerned that using an

aggregated or otherwise summarized rate would not sufficiently address issues of pricing

variation and could undermine other goals of price transparency efforts. A median or

summarized rate would not be as reliable for insured or uninsured consumers to use when

making health care purchasing decisions as it is individual prices upon which these consumers

must rely to make health care purchasing decisions. Under standard economic theory, it is

individual prices, and consumers’ responses to those prices, that drive market forces. If the

public disclosures do not include specific individual prices for in-network items and services,

consumers may not have actionable information upon which to rely to make specific decisions.

174

A median or summarized rate would not address the issue of price variation or dispersion, as it

would mask the variation in a given geographic area.

175

Additionally, a median or summarized

rate could mask the differences between plans and coverages in a manner incompatible with

drawing comparisons between coverage options. Therefore, the Departments are of the view that

release of alternative data points, such as aggregated negotiated rates, or other summarized forms

of negotiated rates, would not sufficiently advance the price transparency efforts and could

undermine the intended impacts of the In-network Rate File.

Commenters suggested the Departments limit the requirement for public disclosure of

negotiated rate information in a way that protects plans and issuers from reverse engineering

specific rates. For example, a commenter suggested the Departments limit the disclosure to

174

Stigler, G. “The Economics of Information.” The Journal of Political Economy. Volume 69. Issue 3. June

1961. Available at https://home.uchicago.edu/~vlima/courses/econ200/spring01/stigler.pdf.

175

Id.

CMS-9915-F 249

plans and employer plan sponsors, while another commenter suggested that the final rules

require plans and issuers to provide limited information to the public, such as statistical ranges,

or rates distributions and require the provision of more detailed information to other

stakeholders.

The Departments considered limiting these disclosures by stakeholder type such that the

disclosure of the most detailed information to the widespread public would be more limited. The

Departments' determined that these limitations would conflict with the statute, which requires

public disclosure, and the goals of the final rules. The Departments’ goal is to empower

consumers through the disclosure of actionable pricing information through the In-network Rate

Files, as translated into consumer-friendly tools by third-party application developers.

Some commenters expressed the view that public disclosure of rates by plans and issuers

with alternative reimbursement models should be required and suggested the Departments work

with stakeholders to establish requirements that are consistent with innovative payment models.

One commenter stated that the Departments should not exclude from the negotiated file

requirements plans with reimbursement arrangements different from FFS arrangements, such as

plans with reimbursements based on a capitated amount or a value-based agreement. Some

commenters noted that the release of negotiated rates places emphasis on FFS provider

contracting and may hinder innovation in alternative payment contracting models, such as value-

based contracting.

The Departments received some comments on how the Departments could require plans

and issuers to report capitated and bundled payment arrangements through the In-network Rate

File. One commenter noted that plans with a capitated arrangement should be able to assign a

price to items and services based on an internal methodology. The commenter observed that

CMS-9915-F 250

plans with capitated payment arrangements must assign prices for purposes of submission of

claims in support of the HHS risk adjustment program under 45 CFR 153.710(c). Some

commenters, however, argued that implementing some aspects of the proposed rules would not

be feasible, such as listing prices for quality-adjusted and risk-adjusted contracts, which can only

be calculated after the fact.

By contrast, other commenters did not support a requirement for plans and issuers with

alternative reimbursement arrangements to make public the disclosures required through the In-

network Rate File. Commenters stated that releasing negotiated rate information for bundled or

capitation arrangements would be a significant operational burden and could lead to inaccuracies

and misinformed consumers. For example, several commenters noted that the entire suite of

services that a consumer might need to look up for an episode of care is not known to patients or

providers prior to the receipt of care. Another commenter noted that the information could be

misleading to consumers because prices may not include the services provided by all providers

that are involved in a patient's hospital care such as surgeons and anesthesiologists.

The Departments agree that plans and issuers that use alternative reimbursement

arrangements should still be subject to requirements to disclose rates through the In-network

Rate File. Nowhere in the proposed rules did the Departments indicate that only plans and

issuers that reimburse on a standard FFS model would be required to make public the disclosure

of negotiated rates. As evidenced by the discussion of reporting of bundled payment

arrangements and plans and issuers using alternative reimbursement models such as formula-

based or reference-based pricing in the proposed rules, the Departments intended the disclosures

required through the final rules to apply to all plans and issuers, regardless of reimbursement

model. The Departments clarify that plans and issuers that reimburse providers on a basis that is

CMS-9915-F 251

different from a standard FFS model would still be required to make public the disclosures of in-

network negotiated rates, out-of-network allowed amounts and prices for prescription drugs as

required by the final rules.

Later in this preamble, the Departments have summarized the general reporting

expectations for several alternative reimbursement models, including bundled payment

arrangements and capitation arrangements (including sole capitation arrangements and partial

capitation arrangements), reference-based pricing without a defined network, reference-based

pricing with a defined network, and value-based purchasing. This summary is not meant to be

exhaustive, as the Departments are aware that other alternative reimbursement or contracting

models exist. However, before clarifying how these payment arrangements would work under

the final rules, the Departments note modifications to the requirements for the pricing

information that must be publicly disclosed through the In-network Rate File.

Some commenters stated that the proposed rules did not acknowledge that negotiated

rates alone provide an inaccurate or incomplete picture of health care item and service pricing.

In response, the Departments conducted additional research to understand how the final rules

could require the appropriate level of detail in the In-network Rate File and provide a more

complete and transparent picture of prices of health care items and services. In response to

comments, and as a result of this additional research, the Departments are modifying the

language describing the requirement for the pricing information that must be publicly disclosed

through the file. Specifically, the Departments are clarifying that the In-network Rate File

should include all applicable rates, even where not referred to as negotiated rates. As described

in the final rules, this could include negotiated rates, an underlying fee schedule rate or, derived

amounts, as applicable. These modifications are intended to clarify disclosure requirements for

CMS-9915-F 252

plans and issuers that use alternative reimbursement arrangements and to ensure that the rates

upon which consumer cost-sharing liability is determined as well as negotiated rates are publicly

disclosed through the In-network Rate File. The Departments are of the view that this approach

is consistent with the goals of transparency as outlined in the proposed rules because it ensures

that the In-network Rate File will be both meaningful for consumers and requires transparency in

price disclosures that will promote increased competition in health care markets. Without this

clarification, the In-network Rate File could have potentially excluded rates that are used to

determine cost-sharing liability, which is essential information upon which consumers would

need to rely to make health care purchasing decisions. Further, retaining as proposed the

requirement to include the negotiated rates that plans and issuers use to determine provider

reimbursement is crucial to price transparency efforts, which will help foster competition and

lower prices. Public disclosure of negotiated rates and derived amounts will also support

research and regulatory oversight. For example, this information will help researchers evaluate

alternative payment models in relation to the traditional FFS payment model, which could help

spur more innovation in health care markets. State regulators will also be able to gain further

insight into the various payment models, which would support general oversight of plans and

issuers using different payment models, and could support market reform efforts.

One commenter noted that plans and issuers that use capitated reimbursement

arrangements may assign prices to items and services as a normal course of business. Thus, they

should be able to disclose those prices as part of the In-network Rate File. The Departments

agree. The final rules require a plan or issuer that does not have a negotiated rate to disclose a

“derived amount,” which is defined as the price that a plan or issuer assigns an item or service

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for the purpose of internal accounting, reconciliation with providers, or for the purpose of

submitting data in accordance with the requirements of 45 CFR 153.710(c).

45 CFR 153.710(c) sets forth a process through which capitated plans that do not

generate individual enrollee claims in the normal course of business must submit data for the

purpose of the HHS-operated risk adjustment program.

176

As stated in the preamble to the HHS

Notice of Benefit and Payment Parameters for 2014 final rule, many capitated plans currently

use some form of encounter data pricing methodology to derive claims’ prices, often by imputing

an amount based upon the Medicare fee-for-service equivalent price or the usual, customary, and

reasonable equivalent that would have been paid for the service in the applicable state market

risk pool.

177

For the purposes of 45 CFR 153.710(c), an issuer offering a capitated plan is

required to use its principal internal methodology for pricing those encounters for purposes of

submitting risk adjustment data, such as the methodology in use for other State or Federal

programs (for example, a methodology used for the Medicare Advantage market).

178

If an issuer,

including an issuer of a capitated risk adjustment covered plan, has no such methodology, or has

an incomplete methodology, it must supplement the methodology in a manner that yields derived

claims that are reasonable in light of the specific market that the plan is serving. Given these

requirements under 45 CFR 153.710(c), the Departments are of the view that most issuers

offering capitated plans that do not process claims on an individual basis, and therefore do not

have negotiated rates, will have a derived amount.

176

HHS has operated the risk adjustment program for the individual and small group markets under section 1343 of

PPACA on behalf of all states and the District of Columbia since the 2017 benefit year.

177

78 FR 15410, 15499-15500 (Mar. 11, 2013).

178

Id., see also 78 FR 15410, 15470-71 (Mar. 11, 2013).

CMS-9915-F 254

The Departments acknowledge that 45 CFR 153.710(c)does not apply to group health

plans or all health insurance issuers subject to these rules and so they may not calculate derived

amounts for this purpose. The final rules do not require plans or issuers to develop a new

methodology for providing derived amounts if the plan or issuer does not have an existing

methodology used in the normal course of business. Therefore, the final rules require plans and

issuers that do not have a negotiated rate to provide a derived amount, to the extent these

amounts are already calculated in the normal course of business. Where a plan or issuer does not

have a derived amount calculated in the normal course of business, they are not required to

provide a derived amount.

The Departments also note that under the final rules, where a plan or issuer includes in

the In-network Rate File a comparable derived amount in lieu of the negotiated rate (for

example, under a capitation arrangement where a specific negotiated rate is not available for a

particular item or service), they will be required to add a notation to the machine-readable files

indicating that the rate is subject to an alternative payment arrangement. The Departments are

also aware that some plan and issuer contracting models use a mixture of approaches and note

that plans and issuers should follow the general guidelines (to be provided by the Departments in

the technical implementation guidance) based on how a particular covered item or service is

reimbursed where a mixture of approaches is used in the same plan or coverage.

The final rules clarify that, where plans and issuers use negotiated rates or a comparable

derived amount and an underlying fee schedule rate as defined in the final rules, they are

required to report both the negotiated rate or comparable derived amount and the underlying fee

schedule rate used for that item or service. Therefore, the Departments are also modifying the

In-network Rate File to require public disclosure of an underlying fee schedule rate, when

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applicable. The Departments are aware that under some reimbursement models, one set of

negotiated rates is used for provider reimbursement (or comparable derived amounts are used for

internal accounting purposes) and another set of rates, referred to in the final rules as an

underlying fee schedule rate, is used for determining consumer cost-sharing liability. The

Departments view the modification to the In-network Rate File to require public disclosure of an

underlying fee schedule rate important to ensuring the public disclosures required through the

rules include transparency in the prices used by all plans and issuers in making determinations of

consumer cost-sharing liability. The final rules define the underlying fee schedule rates as the

rate for an item or service that a plan or issuer uses to determine a participant’s, beneficiary’s, or

enrollee’s cost-sharing liability from a particular provider or providers, when that rate is different

from the negotiated rate. For instance, under certain capitation payments which reimburse a

provider a PMPM rate, the PMPM rate would be the negotiated rate. However, the plan or issuer

would also have assigned a price for an item or service from that provider for the purpose

determining cost-sharing liability; that amount is the underlying fee schedule rate. Therefore, in

this example, in the In-network Rate File, the plan or issuer would be required to report the

negotiated rate, which in this case is the PMPM rate, and the underlying fee schedule rate used to

determine cost-sharing liability.

In the final rules, plans and issuers are required to disclose only those rates that are

applicable to their particular reimbursement arrangement model. If a plan or issuer only uses one

rate for determining both provider reimbursement and consumer cost-sharing liability, then only

that rate would be applicable to the plan or issuer, and therefore required to be disclosed through

the In-network Rate File. Where a plan or issuer uses an alternative reimbursement arrangement

and does not have a negotiated rate, as defined in the final rules, the plan or issuer would be

CMS-9915-F 256

required to publicly disclose through the In-network Rate File the derived amount, to the extent

the plan or issuer generates such an amount in the normal course of business. If a plan or issuer

has a negotiated rate or a derived amount but does not also use that applicable rate to make

determinations of consumer cost-sharing liability, then the plan or issuer would be required to

publicly disclose both the negotiated rate or derived amount and the underlying fee schedule rate

used to determine consumer cost-sharing liability.

The Departments note that, while a scenario where a plan or issuer uses both negotiated

rates or a comparable derived amount and an underlying fee schedule rate in their operations is

more likely to occur under an alternative reimbursement model, it is possible to have both a

negotiated rate and an underlying fee schedule rate in an FFS reimbursement arrangement. Such

a scenario is possible where a plan that uses a traditional negotiated rate to reimburse a provider

for a particular covered item or service and bases participant, beneficiary, or enrollee cost-

sharing liability upon a different rate for the same item or service.

Under bundled payment arrangements, plans and issuers may reimburse a provider for

multiple services and items under a single billing code. Under these arrangements, plans and

issuers should provide a negotiated rate (or comparable derived amount) for that single billing

code and list the items and services, including prescription drugs, that are included in that

bundle. If a negotiated rate (or comparable derived amount) exists for each item and service,

including prescription drugs, within the bundle, the plan or issuer should include the negotiated

rate for the total bundle and also include in the In-network Rate File the respective negotiated

rates (or comparable derived amount) for all covered items or services included in the bundle.

It is the Departments’ understanding that, if the bundled payment arrangement exists to

the exclusion of any reimbursement arrangement for the underlying services and items, payers

CMS-9915-F 257

and providers often continue to track, for purposes of informing renegotiation of the bundle,

reimbursement at the level of the individual item or service using a derived amount. For the In-

network Rate File, plans and issuers with this type of model are required to disclose the

negotiated rate for the total bundle and the derived amounts for individual items or services in

the bundled payment arrangement. If a derived amount for these purposes does not exist, then

plans and issuers would not be required to report a derived amount. Where a plan or issuer uses

a derived amount or reasonable estimate in lieu of the negotiated rate, they will be required to

add a notation to the machine-readable files indicating that the rate is subject to an alternative

payment arrangement.

The Departments acknowledge that there are many different types of capitation models.

As stated in the example earlier, for capitation arrangements that reimburse a provider a

capitated amount, such as a PMPM, or a similar direct primary care arrangement, the plan or

issuer would report the negotiated rate, which in this case is the PMPM amount, and the

underlying fee schedule, as applicable. Under certain other capitation models, the provider’s

capitation amount may be weighted dependent upon certain characteristics of the participant,

beneficiary, or enrollee, such as age, gender, or co-morbidities. Plans and issuers with this type

of capitation arrangement should provide the base negotiated rate, which is the negotiated rate

before adjustments have been made for certain participant, beneficiary, or enrollee

characteristics. Plans and issuers using capitation arrangements should notate any entry that

represents a capitated amount and list all items and services, including prescription drugs that are

covered under a particular capitation amount in the In-network Rate File.

In some cases, a sole capitation arrangement exists, such as staff model HMOs under

which services are provided by in-network salaried providers and there are neither negotiated

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rates nor an underlying fee schedule rate. In this case, plans and issuers are required to include a

derived amount in the In-network Rate File. If an applicable rate (a negotiated rate, derived

amount, or underlying fee schedule rate) does not exist for an item or service, then plans and

issuers are not be required to report pricing information for that particular item or service.

The Departments are aware that some plans and issuers use a partial capitation model

where the plan or issuer reimburses providers under a variable FFS amount in addition to a flat

capitation amount. The Departments expect plans and issuers using a partial capitation model to

make public the FFS negotiated rate as well as the capitation amount. Plan and issuers must also

add a notation to the file indicating that a capitation arrangement (or a partially capitated

arrangement) exists. For specific items and services where plans and issuers using this model do

not have an FFS negotiated rate in addition to a capitation amount (that is, for items and services

where they do follow a full capitation model), plans and issuers are required to follow the

reporting requirements described for sole capitation arrangements.

Reference-based pricing without a defined network is an arrangement where payers

reimburse providers based on a percentage (usually 120 percent to 200 percent) of the Medicare

rate, but do not have contractual agreements with providers. The Departments expect there will

be no In-network Rate File for this type of arrangement because the plan or issuer does not have

in-network providers as defined in the final rules.

By contrast, under a reference-based pricing model with a defined network, payers have

contractual agreements to reimburse providers based on a percentage of a different rate that is

known or determinable by the parties (usually 120 percent to 200 percent of the Medicare rate),

which is subject to change based upon adjustments that can be specific to the participant,

beneficiary, or enrollee, such as age, gender, and severity of illness. To represent this type of

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arrangement, and other provider reimbursement models that are based upon participant,

beneficiary, or enrollee-specific adjustments, the final rules clarify that plans and issuers are

required to include for each item or service in the In-network Rate File, the base negotiated rate

that applies before adjusting for participant, beneficiary, or enrollee -specific characteristics.

The negotiated rate in the referenced-based pricing model must be represented as a dollar value

that is the result of the calculation of the referenced amount and the applicable reference-based

percentage. For example, a plan calculates provider reimbursement using a reference-based

pricing model that sets reimbursement to Provider X at 120 percent of the Medicare rate for

covered Item A. The reference-based percentage used to determine the base negotiated rate

would be 120 percent. In the general course of business, the plan determines the Medicare rate

for Item A using participant, beneficiary, or enrollee-specific characteristics, but, because there is

no specific participant, beneficiary, or enrollee for purposes of populating the In-network Rate

File, the plan or issuer must report the base negotiated rate that would apply prior to application

of any participant, beneficiary, or enrollee-specific characteristics. In this example, the Medicare

rate for Item A is $150, before applying adjusters for participant, beneficiary, or enrollee-specific

characteristics. Therefore, the plan would report a negotiated rate for Item A when received

from Provider X of $180 ($150 multiplied by 120 percent) and must include this rate in the In-

network Rate File.

Finally, under a reimbursement arrangement that adjusts payments or reconciles provider

payments after providing care, such as in many value-based purchasing models, the plan or

issuer must also provide the base negotiated rate for the specific provider in the In-network File.

For instance, in a value-based purchasing model, payers may adjust negotiated rates for a

particular provider if the provider meets certain contractual goals, which may be related to

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quality, volume, and efficiency of care. The Departments clarify that quality or value dependent

weighting factors or adjusters are not required to be included in the negotiated rate made public

under the final rules.

As noted earlier in this preamble, nothing in the final rules prevents a plan or issuer from

providing supplementary materials, including footnotes, disclaimers, data dictionaries, and other

explanatory language, as accompaniments with the machine-readable files. For example, a plan

or issuer may choose to provide clarifying information related to how the negotiated rate, if

reported as a base negotiated rate, may change depending on quality or value-dependent

weighting factors, or participant, beneficiary, or enrollee-specific factors such as the severity of

illness, age, or gender. Because base rates unadjusted for participant, beneficiary, or enrollee-

specific factors are required to be reported for reference-based pricing arrangements, the

Departments note that it is a best practice to include a disclaimer noting that the rate could

change subject to participant, beneficiary, or enrollee-specific characteristics.

Some commenters noted that simply listing the negotiated rates without context regarding

overall cost would not help consumers make informed decisions. The commenter further noted

that consumer decision-making could be harmed if relying on negotiated rate information

without context regarding provider billing practices. Other commenters stated that non-

negotiated billed charges would be useful as an additional category of pricing information for the

public, especially for the uninsured and those seeking out-of-network care. Another commenter

agreed that information on provider-billed charges is important for transparency, but this

commenter suggested that providers, not issuers, would be the appropriate source of this

information.

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As discussed later in this preamble, the Departments are of the view that inclusion of

billed charges in the In-network Rate File is unnecessary to achieve the goals of the final rules

because in-network providers are not permitted to balance bill participants, beneficiaries, or

enrollees as in-network providers have agreed to accept the negotiated rate as payment in full

(less any participant, beneficiary, or enrollee cost-sharing liability) for the item or service.

However, inclusion of billed charges in the Allowed Amount File will provide meaningful

information when coupled with allowed amount information because it will allow consumers to

estimate their potential balance billing liability when receiving items and services furnished by

out-of-network providers if balance billing is allowed in their state. Therefore, inclusion of

billed charges in the In-network Rate File would not provide additional value for consumers.

Moreover, the Departments are of the view that inclusion of the billed charge could be

more misleading in the In-network Rate File because the billed charge is very rarely what the

consumer or the payer ends up paying for a particular claim and may not have a clear

relationship with the negotiated rate or underlying fee schedule. While the Departments agree

that inclusion of billed charges in the In-network Rate File would provide another data point for

developers in developing the tools, adding billed charges would also increase both the size and

complexity of the In-network Rate File. Because it appears that inclusion of this data element

could obscure other pricing information and would not increase transparency of actual prices

paid by participants, beneficiaries, enrollees, or payers, the Departments decline to add a billed

charge data element requirement to the In-network Rate File at this time.

As discussed earlier in this preamble, the final rules finalize a requirement for plans and

issuers to associate the pricing information disclosed on each of the three machine-readable files

with three data elements that identify the provider and the location where the service was

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provided: NPI, TIN, and Place of Service Code. For the In-network Rate File, the Departments

proposed that the negotiated rate should be the rate that applies to each item or service that is

associated with the last date of contract term for each provider NPI. The final rules modify this

requirement to clarify that the applicable rates publicly disclosed in the In-network Rate File

should be the rates that apply to each item or service that is associated with the last date of the

contract term or the contract expiration date for each provider as identified by NPI, TIN, and

Place of Service Code.

Allowed Amount File

For the Allowed Amount File, the third content element is historical out-of-network

allowed amounts for covered items and services. The proposed rules would require plans and

issuers to include in the Allowed Amount File each unique out-of-network allowed amount in

connection with covered items or services furnished by a particular out-of-network provider

during the 90-day time period that begins 180 days prior to the publication date of the Allowed

Amount File. As with the In-network Rate File, where a plan or issuer reimburses providers for

an item or service based on a formula or reference based-pricing (such as a percentage of a

Medicare reimbursement rate), the plan or issuer would be required to provide the calculated

dollar amount of the allowed amount for each provider. Allowed amounts would have to be

associated with the provider’s NPI, TIN, and Place of Service code.

The Departments designed this reporting requirement to elicit payment data that reflects

recent out-of-network allowed amounts in connection with claims for out-of-network covered

services. The Departments assumed these amounts would provide payment data that is useful to

consumers because it is reflective of the most recent reimbursements. Specifically, the

Departments proposed to require reporting based on dates of service within 180 days of the

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Allowed Amount File publication date to ensure that data is composed of recent claims (rather

than older claims from multiple time periods) and to avoid the reporting of payments from

inconsistent periods of time. The Departments took the view that payment data from defined

periods of time would enable users to make meaningful comparisons across plans and coverage

options.

When disclosing an out-of-network allowed amount under this requirement, the

Departments proposed to require a plan or issuer to disclose the actual amount the plan or issuer

paid to the out-of-network provider, plus the participant’s, beneficiary’s, or enrollee’s share of

the cost. For instance, if the out-of-network allowed amount for a covered service was $100, and

the plan or issuer paid 80 percent of the out-of-network allowed amount ($80) per the terms of

the plan or coverage, so that the participant, beneficiary, or enrollee was responsible for paying

twenty percent of the out-of-network allowed amount ($20), the plan or issuer would report an

out-of-network allowed amount of $100. This unique payment amount would be associated with

the particular covered item or service (identified by billing code) and the particular out-of-

network provider who furnished the item or service (identified by NPI, TIN, and Place of Service

Code).

The Departments clarify that, in contrast to the In-network Rate File, no special

considerations for reporting alternative payment arrangements are necessary for the Allowed

Amount File because plans and issuers are required to disclose actual amounts paid in the

Allowed Amount File and can therefore account for retrospective reconciliations and weighting

factors that require special considerations. For the Allowed Amounts File, the Departments

expect plans and issuers that reimburse in-network providers using alternative payment

methodologies to adhere to the standard requirement of providing allowed amounts on historical

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claims paid to out-of-network providers for each covered item or service during the applicable

reference period. Plans and issuers generally do not reimburse out-of-network providers, with

whom they do not maintain a contractual relationship, under an alternative payment arrangement.

However, to the extent a plan or issuer uses an alternative payment arrangement to reimburse

out-of-network providers, the plan or issuer would still be required to report the allowed amount

paid to the out-of-network provider. The Departments will address, through the technical

implementation guidance, how a plan or issuer will be able to represent data in the Allowed

Amount File, as necessary. The Departments anticipate that plans and issuers that reimburse

providers using reference-based pricing without a network will have larger than average Allowed

Amount Files, as all of the payments would be made to out-of-network providers and would

therefore be subject to this requirement.

Some commenters supported disclosure of the “historical” payments made by plans and

issuers to out-of-network providers. One commenter acknowledged that bulk de-identified data

that informs a consumer of historical out-of-network allowed amounts may be relevant to

consumer decision-making regarding a particular provider or procedure. One commenter

pointed out that if the Departments failed to adopt this requirement in tandem with the In-

network Rate File requirement, providers could withdraw from networks to avoid transparency

requirements.

By contrast, other comments were less supportive of the Allowed Amount File proposal.

Several commenters stated that publishing historical out-of-network allowed amounts would not

meet the Departments’ purported goal of helping consumers understand costs and would possibly

lead to consumer confusion. Commenters expressed concern that the Allowed Amount File

could result in consumers receiving misleading information, which would lead to negative

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financial consequences for consumers because the file would not provide all information about

potential out-of-network costs, such as those that could be incurred through balance billing, if

allowed in their state. One commenter stated that inclusion of billed charges would allow the

development of open source charge schedules. One commenter pointed out that the information

in the machine-readable files would not address scenarios where a participant, beneficiary, or

enrollee receives out-of-network care in an in-network facility. Still other commenters expressed

concerns about the reliability of the data as historical allowed amounts with out-of-network

providers may not provide an accurate portrait of future cost information because issuers do not

have contracts with out-of-network providers. Similarly, another commenter stated that health

plans should not be responsible for publishing rates for providers with whom they do not

maintain a relationship.

One commenter recommended the Departments withdraw the proposal, making the

argument that small health plans are unlikely to have a sufficient number of claims billed for any

one procedure from a particular provider to make the file meaningful. In lieu of requiring the

Allowed Amount File, another commenter suggested the Departments instead place the onus on

out-of-network providers or suppliers to provide consumers with information about the costs of

their services.

The Departments continue to be of the view that release of this information is appropriate

and necessary to empower consumers to make informed decisions about their health care, spur

competition in health care markets, and to slow or potentially reverse the rising cost of health

care items and services. As noted earlier in this preamble and in the preamble to the proposed

rules, limiting access to data to a subset of consumers would not promote the transparency goals

of PPACA and the final rules, and would reduce the potential for the final rules to drive down

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health care costs by increasing competition. If the Departments were to eliminate the Allowed

Amount File requirement or reduce its scope, it would significantly reduce the benefits of the

final rules for uninsured consumers and insured consumers evaluating out-of-network treatment

options.

The information in the Allowed Amount File, especially as filtered through innovative

platforms and tools, will help consumers make more informed decisions regarding changes to

their health coverage (for example, the purchase of new coverage or switching to a new plan).

Furthermore, this information may help insured consumers make more informed health care

decisions when seeking out-of-network treatment; and may help uninsured consumers make

health care decisions and potentially allow them to negotiate more effectively with providers.

Finally, the creation of Allowed Amount Files may help researchers and regulators monitor plan

benefit design and help spur innovation.

While there is some potential for some consumers to be confused by the information in

the Allowed Amount Files, the Departments do not agree that the files will provide misleading

information to consumers. The Departments expect most consumers to access this information

through tools created by third-party application developers and other stakeholders, which will be

able to provide additional context for the average consumer.

The Departments proposed to require plans and issuers to report out-of-network allowed

amounts for services furnished at least 90 days in the past to help ensure the availability of

reasonable volumes of out-of-network allowed amount data in the Allowed Amount File. The

Departments expressed the view that a 90-day lag between the end of a reporting period and the

publication of required out-of-network allowed amount data will allow plans and issuers

sufficient time to adjudicate and pay claims from out-of-network providers for the relevant

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reporting period. Claims processing times may vary between plans and issuers, and external

factors may increase processing timelines. For example, the Departments noted in the proposed

rules that many out-of-network providers do not send claims directly to plans and issuers but

instead require participant, beneficiary, or enrollee to file out-of-network claims. This could

mean that an out-of-network claim may not reach a plan or issuer for 6 to 12 months after a

service is rendered. Such delays could negatively affect the volume of out-of-network allowed

amount data and the ultimate usefulness of this data. For this reason, the Departments sought

comment regarding whether requiring plans and issuers to report out-of-network allowed

amounts for items and services furnished at least 90 days in the past is sufficient to ensure the

proposed disclosures will yield sufficient volumes of historical data to be useful to consumers

who wish to shop for services based on price. The Departments requested comment on whether

there should be more time between the end of the reporting period and publication of the data,

such as 120 days, 180 days, or longer, which would increase the likelihood that out-of-network

claims from the relevant reporting period have been adjudicated and paid by the time of

publication.

The Departments did not receive comments directly in response to this comment

solicitation and are finalizing the Allowed Amount File historical lookback period as proposed.

The final rules, therefore, adopt a requirement for the Allowed Amount Files to include data for

the 90-day period beginning 180 days before the file publication date. For example, a file

published on June 30, 2021, should include data for a 90-day period beginning on January 1,

2021. The Departments will monitor the implementation of this requirement for the Allowed

Amount Files and may revisit the lookback period if the 90-day reporting period beginning 180

days before file publication fails to yield sufficient out-of-network data on allowed amounts.

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The Departments specifically sought comment on whether the required disclosures of

historical out-of-network allowed amounts would provide useful information that can assist

consumers in locating services at an affordable cost, or whether there could be additional

information that would be both useful to anticipated users and practical for plans and issuers to

disclose for this purpose. For instance, the Departments stated in the preamble to the proposed

rules that the Departments considered requiring plans and issuers to disclose amounts out-of-

network providers have charged participants, beneficiaries, and enrollees for covered services in

the Allowed Amount File. The Departments noted they understood that such charged amounts

would be included in any claim for out-of-network benefits and could be helpful to consumers

shopping for services based on price. The Departments sought comment on this data element.

As summarized earlier in this preamble regarding the In-network Rate File, some

commenters who supported the inclusion of non-negotiated billed charges in the In-network Rate

File also supported inclusion of billed charges in the Allowed Amount File. These commenters

noted that billed charge information would be especially useful for the uninsured or those

seeking out-of-network care. Another commenter agreed that information on provider-billed

charges is important for transparency, but this commenter stated that providers, not issuers,

would be the appropriate source for this information.

Regarding these comments, the Departments agree that that a billed charges data element

is important to ensure that the public disclosures required through the out-of-network Allowed

Amount File are as useful to consumers as possible, including in the scenario where an insured

consumer receives items or services from an out-of-network provider. Although the

Departments are aware that the amount an out-of-network provider will ultimately balance bill

(if allowed in their state) a consumer for an item or service does not always equal the difference

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between the billed charge and the allowed amount, the Departments are of the view that this

information would aid consumers in understanding their potential out-of-pocket liability. In the

jurisdictions that do not prohibit or limit balance billing, information on billed charges could aide

consumers in their health care decision-making as it is possible that consumers may choose to

receive or forgo a particular item or service from a particular provider based on the additional

out-of-pocket liability they could be expected to pay through a balance billing charge from a

provider.

Consumers may be able to shop for a particular out-of-network provider based on total

cost of an item or service. For example, in a state that allows providers to balance bill, a

consumer has a coinsurance of 40 percent for Service X when Service X is furnished by an out-

of-network provider. Out of network Provider A’s billed charge for Service X is $200, and the

consumer’s plan allows an amount of $100 to be paid to the provider. Therefore, the consumer

is responsible for a coinsurance amount of $40 ($100 allowed amount multiplied by the

consumer’s 40 percent coinsurance) and the consumer may be balance billed an additional $100

($200 billed charge minus the $100 allowed amount). In comparison, out-of-network Provider

B’s billed charge for Service X is $120 and the consumer’s plan allows the same amount of $100

to be paid to the provider. If the consumer receives Service X from Provider B, they will be

responsible for the same coinsurance amount of $40 ($100 allowed amount multiplied by the

consumer’s 40 percent coinsurance). However, if the consumer receives Service X from

Provider B, the consumer may only be balance billed $20 ($120 billed charge minus $100

allowed amount), which would be an $80 savings to the consumer compared with receiving the

Service X from Provider A. Note that this example assumes that both Provider A and Provider B

will balance bill consumers, which is not always true even in states that allow balance billing.

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Consumers should also contact providers to inquire whether they will balance bill before making

health care purchasing decisions using this information. Therefore, with information on both

allowed amounts and billed charges, the consumer may choose to receive Service X from

Provider B because their total out-of-pocket costs will likely be lower.

The Departments note that it is possible that plans and issuers will populate the Allowed

Amount File with multiple billed charges for the same item or service furnished by the same out-

of-network provider. If this is the case, the billed charge in the Allowed Amount File will

present an expected range and give consumers access to a reasonably accurate estimate of how

much they can expect to be balance billed by an out-of-network provider, but the billed charge

cannot provide to the consumer the exact amount they can expect to be balance billed when

receiving items and services furnished by the out-of-network provider.

For these reasons, the Departments are of the view that inclusion of the billed charges in

the Allowed Amounts File will help provide a more complete picture of the full amount a

provider could receive for a particular item or service, either from plans and issuers or directly

from a participant, beneficiary, or enrollee. Furthermore, the Departments are of the view that

requiring this information is consistent with the goal of providing consumers an understanding of

their potential out-of-pocket liability in advance, similar to an EOB provided in advance, as

billed charges are included on a participant’s, beneficiary’s, or enrollee’s EOB and are often the

first data available for understanding a participants, beneficiary’s, or enrollee’s out-of-pocket

liability.

The Departments are aware that plans and issuers have information regarding providers’

billed charges, even if they do not necessarily have information regarding specific balance billing

amounts. The Departments are therefore of the view that the inclusion of billed charges in the

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Allowed Amount File will not substantially increase the burdens of the final rules. Nonetheless,

the Departments are aware that adding billed charges will also increase both the size and

complexity of the Allowed Amounts File. The Departments do not intend to increase the burden

of developing and maintaining these files unless the inclusion of the additional data element is

essential for providing meaningful pricing information to consumers. Because it is the

Departments’ view that this data element will increase transparency of actual prices paid by

participants, beneficiaries, enrollees, and payers, the Departments are finalizing the Allowed

Amounts File with the modification to add billed charges as an additional data point required to

be disclosed through the file.

The final rules define billed charges as total charges for an item or service billed to a plan

or issuer by a provider. Plans and issuers are required to publicly disclose billed charges

associated with each unique allowed amount that would be required under the final rules. The

final rules further clarify that plans and issuers must report each unique combination of allowed

amounts and billed charges for each out-of-network provider, and their associated Place of

Service Code, provider NPI, and provider TIN. For example, an out-of-network provider (under

a single NPI, TIN, and Place of Service Code) submits 25 claims (or any other number of claims

to meet the 20 unique claim threshold requirement discussed in more detail later in this

preamble) to a plan or issuer for the service Y. The 25 claims have three

179

different billed

charges ($100, $150 and $200) and two different allowed amounts ($50 and $150) for item Y.

179

The Departments note that it is possible for a provider to have different allowed amounts for the same item or

service covered by the same out-of-network provider because the plan or issuer does not have a contractual

relationship with that out-of-network provider, by definition. For similar reasons, it is also possible for the billed

charged submitted by the same out-of-network provider to for the same item or service to be variable.

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The plan or issuer should have one entry that represents each unique combination of billed

charges and allowed amounts submitted by the out-of-network provider. Therefore, in this

example, the Departments would expect the plan or issuer to represent in the Allowed Amounts

File no fewer than three unique entries, and no more than six unique entries for item Y from this

out-of-network provider. For example:

• Entry A has a billed charge of $100 and an associated allowed amount of $50;

• Entry B has a billed charge of $150 and an associated allowed amount of $50;

• Entry C has a billed charge of $200 and an associated allowed amount of $50;

• Entry D has a billed charge of $100 and an associated allowed amount of $150;

• Entry E has a billed charge of $150 and an associate allowed amount of $150;

• Entry F has a billed charge of $200 and an associated allowed amount of $150.

The Departments do not expect to see 25 different entries, unless they represented 25 distinct

combinations of billed charges and associated allowed amounts from the out-out network

provider for Item Y.

In the Allowed Amount File, the file structure is envisioned as a parent/child data

relationship, where certain data elements are included under or belong to other data elements, as

a child to a parent. In the Allowed Amount File, the billed charge data element would serve as a

child to the parent allowed amount element. Therefore, under each unique allowed amount for a

particular item or service from a particular provider, the amount of each provider-billed charge is

listed as a unique dollar amount.

One commenter requested the Departments clarify what is meant by “allowed amounts

for covered items or services furnished by particular out-of-network providers,” questioning

whether through inclusion of the word “particular” the Departments intended to reference

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specialized out-of-network providers upon which plans and issuers might place coverage

limitations. The Departments clarify that inclusion of the word “particular” as a modifier of

“out-of-network providers” was not intended to be a reference to specialized out-of-network

providers upon which plans and issuers might place coverage limitations. Rather, use of the

word “particular” indicates that Allowed Amount Files must include the historical allowed

amounts for covered items and services furnished to each out-of-network provider to whom such

payments were made during the reference period. The Departments clarify that under the final

rules, and as contemplated in the proposed rules, plans and issuers are expected to include

historical allowed amounts for every covered item or service furnished by each out-of-network

provider so long as the unique claims threshold for the out-of-network provider is met.

The Departments further clarify that plans and issuers are only required to include in the

Allowed Amount File those covered items and services furnished by an out-of-network provider

for which the plan or issuer has adjudicated claims and determined it will pay an allowed

amount. If the plan or issuer has not adjudicated claims and determined it will pay an allowed

amount for items or services furnished by an out-of-network provider, the plan or issuer is not

required to include those allowed amounts or billed charges in the Allowed Amount File.

In response to the comment that the information in the files would not address the

scenario where a participant, beneficiary, or enrollee receives out-of-network care in an in-

network facility, the Departments clarify that the expectation is that this information would be

captured in the Allowed Amounts File. If a participant, beneficiary, or enrollee receives out-of-

network care, even if the facility is in the participant’s, beneficiary’s, or enrollee’s network, the

provider will generate a claim and send a billed charge to the payer that will establish an allowed

amount for the claim; the Departments expect this allowed amount to appear in the Allowed

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Amounts File in this scenario. As noted elsewhere in this preamble, the Departments will

provide technical implementation guidance (as well as individualized technical assistance, as

needed) to ensure that plans and issuers are able to make public the disclosures required through

the final rules.

The Departments do not agree with the commenter who asserted that, because some small

health plans will not have a sufficient number of any one procedure from a particular provider to

make the file meaningful, the Allowed Amount File requirement should be withdrawn. The

relevant commenter did not provide a number of claims that it believed would make the file

meaningful. In contrast, the Departments are of the view that the files will be meaningful to the

public regarding all covered items and services from a particular provider regardless of the

specific numbers of claims at issue, even if a particular provider bills relatively few claims to a

particular plan or issuer. As discussed elsewhere in this preamble, for privacy and security

reasons, the Departments are requiring disclosure for all covered items and services from a

particular provider that meets the unique claims threshold established by the final rules. If a

small health plan does not have sufficient claims for a covered item or service to meet the unique

claims threshold for a particular provider, then that health plan is not permitted to publicly

disclose information for that particular item or service paid to the particular provider. The

Departments are of the view that most health plans and issuers will meet the unique claims

threshold for a large proportion of items, services, and providers to make the files sufficiently

meaningful to justify this requirement.

In the preamble to the proposed rules, the Departments noted that providing this

information could raise health privacy concerns. The Departments are committed to protecting

PHI and other sensitive information. To address these privacy concerns, as discussed in this

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preamble, the Departments proposed that plans and issuers would not be required to provide out-

of-network allowed amount data in relation to a particular provider and a particular item or

service when compliance would require a plan or issuer to report out-of-network allowed

amounts to a particular provider in connection with fewer than 10 different claims for payment.

The Departments also noted that disclosure of such information would not be required if

compliance would violate applicable health information privacy laws. In addition to proposing

this exemption, the Departments proposed to require plans and issuers to include only unique

out-of-network allowed amounts to mask the total episodes of care for a particular provider and

item or service. In the proposed rules, the Departments expressed the view that these mitigation

strategies, in addition to flexibilities proposed to allow the aggregation of reported data (as

described later in this preamble), were sufficient to protect patients from identification based on

information in the Allowed Amount File. The Departments solicited comment on whether

additional privacy protections would be required.

The Departments specifically requested comment on whether a higher minimum claims

threshold, such as a threshold of 20 claims, would better mitigate privacy concerns and minimize

complexity in complying with federal or state privacy laws without compromising the integrity

of the compiled information. The Departments also sought comment on additional approaches

that could decrease the potential for aggregated health information that would be disclosed under

the proposed rules to be identified, especially with respect to smaller group health plans.

In response, some commenters expressed concerns about maintaining HIPAA protections

on the Allowed Amount File due to the small number of claims associated with specific services

for out-of-network providers. Several commenters stated the threshold of 10 unique claims to

require public disclosure of unique historical allowed amounts would be too low to protect

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consumers’ PHI. One commenter requested that the Departments clarify how they arrived at the

10 claims threshold. Some commenters recommended different minimum thresholds. Some

commenters recommended a minimum threshold of 50 claims. On the other hand, other

commenters did not support increasing the threshold, noting that the files do not contain

identifiable data and so would not pose a risk. One commenter stated that the files should be

released including the lowest number of claims necessary to achieve the goal of protecting

participant, beneficiary, and enrollee privacy and recommended keeping the proposed threshold

of 10 claims. Another commenter requested that the Departments not make the threshold any

higher, and even consider lowering the cutoff to five claims, to maintain access to price

transparency data for rural Americans.

Based upon comments received the final rules adopt a 20 unique claim threshold. The

Departments are of the view that the 20 unique claim threshold balances the concerns expressed

by commenters who suggested the Departments increase the threshold to 50 claims with the

concerns of commenters who expressed the opinion that the proposed 10 claim threshold (or an

even lower threshold) would be sufficient to ensure the files include a meaningful amount of

data. The Departments are of the view that 20 unique claims are sufficient to balance the privacy

concerns against the needs for transparency through the Allowed Amounts File. This 20 unique

claim threshold is more stringent than CMS' cell size suppression policy, which requires cells

containing values of 1 through 10 to be suppressed in CMS data sets.

180

Increasing the unique

claim threshold from 10 to 20 claims will not significantly reduce the amount of data that are

180

The CMS Cell Size Suppression Policy is outlined on the CMS website at the following location:

https://www.cms.gov/Research-Statistics-Data-and-Systems/Files-for-Order/Data-Disclosures-Data-

Agreements/DUA_-_NewLDS.

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required to be made public through the Allowed Amount File. However, if the Departments

were to increase the unique claim threshold to 50 claims, as suggested by some commenters, the

Departments are concerned that this could significantly reduce the amount of data that are

required to be made public through the Allowed Amount File, which could undermine the goal

of price transparency.

The Departments are of the view that increasing the unique claim threshold from 10 to 20

claims will better balance the policy goal of maximum transparency with the need to protect

participants, beneficiaries, and enrollees from the possibility of being re-identified through the

data included in the Allowed Amount File. In addition to this strategy, the Departments expect

that the flexibility discussed later in this preamble under the special rule to permit aggregation of

reported data will help protect participants, beneficiaries, and enrollees from identification based

on information in the Allowed Amount File. Finally, the Departments reiterate that the

disclosure of the information is not required if disclosure would violate applicable health

information privacy laws. The Departments note that this exception does not mean that these

disclosures are not required where a law that would otherwise prohibit the disclosure permits

disclosure if required by law.

Prescription Drug File

The Departments finalize negotiated rates for prescription drugs as the third content

element in the Prescription Drug File. The Departments received several comments related to

whether negotiated rates for prescription drugs should be disclosed through the machine-readable

files, and if so, which price or prices related to prescription drugs should be required to be

included. Many commenters provided general support for the public release of negotiated rates

for prescription drugs. One commenter asserted that releasing negotiated rates for prescription

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drugs would result in lower costs for health plans and consumers, which could lead to a

reduction in manufacturer discounts of upwards of three percent.

Several commenters did not support disclosure of negotiated rates for prescription drug

prices through the machine-readable files. Commenters recommended that the In-network Rate

File should not include prescription drugs for several reasons. These reasons include: the

complexity of prescription drug pricing (prices are determined by a formula that is determined at

the point-of-sale and can change on a daily basis; the information would not be relevant to

consumer decision-making; and the existence of established drug pricing tools that provide

support for consumer decision-making. Some commenters stated that the unique nature of

prescription drug pricing would make the release of negotiated rates difficult and further noted

that the rates negotiated between PBMs and pharmacies are considered confidential. Another

commenter stated that the Departments should only require disclosure of prescription drug prices

when the information disclosed is directly related to the cost a plan participant, beneficiary, or

enrollee would need to pay out of pocket so as not to undermine group health plans’ and health

insurance issuers’ ability to negotiate lower drug costs. Some commenters claimed that plans

and issuers have no control over prescription drug costs and may not be able to provide this

information. Instead, commenters asserted that information related to prescription drug costs

should come from PBMs or prescription drug manufacturers.

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In 2018, retail prescription drug spending represented approximately nine percent ($335

billion) of overall health spending.

181

In 2017 large group health plans and issuers accounted for

the largest share of prescription drug spending amongst other payers, despite generally having a

younger and healthier population than public payers.

182

The Departments maintain that plans and

issuers have an essential role,

183

and vested interest in controlling prescription drug spending.

Moreover, as prescription spending continues to rise,

184

so does the trend of prescription

rebates.

185

According to surveyed health plan and PBM personnel, PBMs passed through 78

percent of manufacturer rebates to health plans in 2012 and 91 percent in 2016.

186

And while

some plans and issuers may use these rebates to dampen premium increases,

187

there remains an

unclear prescription drug supply chain that masks the true costs of prescription drugs. The

Departments are of the view that it would not advance the goals of the final rules to exclude a

181

“National Health Expenditures 2018 Highlights.” Centers for Medicare & Medicaid Services. Available at:

https://www.cms.gov/files/document/highlights.pdf.

182

Cubanski, J., and Rae, M. “How Does Prescription Drug Spending and Use Compare Across Large Employer

Plans, Medicare Part D, and Medicaid?” Kaiser Family Foundation. May 20, 2019. Available at:

https://www.kff.org/medicare/issue-brief/how-does-prescription-drug-spending-and-use-compare-across-large-

employer-plans-medicare-part-d-and-medicaid/.

183

“How are prescription drug prices determined?” American Medical Association. April 9, 2019. Available at:

https://www.ama-assn.org/delivering-care/public-health/how-are-prescription-drug-prices-determined.

184

“National Health Expenditure Projections 2019-28.” Office of the Actuary. Centers for Medicare & Medicaid

Services. March 24, 2020. Available at: https://www.cms.gov/files/document/national-health-expenditure-

projections-2019-28.pdf.

185

According to the Academy of Managed Care Pharmacy, a prescription drug rebate is a monetary amount returned

to a payer from a prescription drug manufacturer based on pharmaceutical use by a covered person or purchases by a

provider. “AMCP Guide to Pharmaceutical Payment Methods, 2013 Update.” Available at:

https://www.amcp.org/sites/default/files/2019-03/Full-Pharmaceutical-Guide-%283.0%29.pdf

; see also “The

Prescription Drug Landscape, Explore.” PEW Charitable Trusts. March 8, 2019. Available at:

https://www.pewtrusts.org/en/research-and-analysis/reports/2019/03/08/the-prescription-drug-landscape-explored.

186

Id.

187

Id.

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category of items and services that comprises such a significant proportion of health care

spending.

The Departments agree that prescription drug pricing is complex but are of the view that

complexity is not a valid reason for inaction. There are many different players in the

prescription drug supply chain that may have some control over costs, including plans and

issuers, manufacturers, wholesalers, pharmacies, and PBMs.

188

As commenters stated, it is often

the case that PBMs negotiate the price of a prescription drug for a plan or issuer based on a

contract the plan or issuer maintains with the PBM; however, it is ultimately the plan or issuer

who is responsible for deciding how the costs of prescription drugs are passed along to a

participant, beneficiary, or enrollee. The Departments, therefore, are of the view that plans and

issuers are aware of the negotiated rate for a prescription drug for which their participants,

beneficiaries, or enrollees may have cost-sharing liability, or can be informed of this negotiated

rate by their contracted PBM.

The Departments do not agree that prescription drug pricing information, such as

negotiated rates, will confuse consumers. As discussed elsewhere in this preamble, the

Departments recognize that the information included in the machine-readable files may not be

easy for an average consumer to navigate and expect that third-party developers will use this

188

“How are prescription drug costs really determined?” Biotechnology Innovation Organization. Available at:

https://www.drugcostfacts.org/prescription-drug-costs.

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information to make tools available that make this information more useful for the average

consumer.

The Departments agree with commenters who acknowledged the existence of many tools

that provide prescription drug prices. However, the Departments are of the view that existing

prescription drug pricing tools are insufficient as they lack competitive pricing information

across all PBMs, and health plans and issuers.

189

Once prescription drug pricing is made more

fully available, health care providers will have greater opportunity to factor pricing information

into their prescribing decisions. Many health care providers benefit financially when they can

reduce costs and improve their patients’ medication adherence.

190

This benefit to providers can

also have a significant impact on overall health care spending.

For these reasons, and those discussed more fully below, the Departments are finalizing,

with modifications from the proposed rules, requirements to disclose pricing information for

prescription drugs through a machine-readable file. However, reflecting the unique attributes of

prescription drug pricing, the final rules respond to comments by adopting requirements that are

more detailed than what was included in the proposed rules, including the inclusion of a third

machine-readable file for prescription drug pricing information.

The final rules require plans and issuers to produce a third machine-readable file for

reporting prescription drug pricing information, the Prescription Drug File, whereas the proposed

rules would have required plans and issuers to include negotiated rates for covered prescription

189

Galewitz, P. “Doctors Slow To Adopt Tech Tools That Might Save Patients Money On Drugs.” NPR. July 5,

2019. Available at: https://www.npr.org/sections/health-shots/2019/07/05/738283044/doctors-slow-to-adopt-tech-

tools-that-might-save-patients-money-on-drugs.

190

Id.

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drugs in the In-network Rate File. The Departments have made this change to ensure that

prescription drug pricing information is produced in a manner that is most useful to the public.

As noted earlier in this preamble, there are upwards of 100,000 NDCs for prescription drugs.

Divorcing negotiated rates for prescription drugs from negotiated rates for other items and

services allows the pricing information for medical items and services to be discernible from

pricing information for prescription drugs. Further, a PBM may administer pharmacy benefits

for a plan or issuer in addition to any other services it may provide to a plan or issuer. Therefore,

keeping prescription drugs pricing data separate from pricing data for other items and services is

generally better aligned with plan and issuer operations and will reduce the burden associated

with combining data from different sources. As discussed in the Information Collection

Requests (ICR) section of this preamble, the Departments estimate that the Prescription Drugs

File requirement will not add significantly to the development and maintenance costs of the

machine-readable files because the cost and burdens related to prescription drugs will largely be

transferred from the In-network Rate File to the Prescription Drug File. Additionally, the

Departments anticipate that removal of prescription drugs from the In-network Rate Files will

significantly reduce the size of those files, which could reduce the costs associated with

maintenance and storage of each individual file. The Departments are of the view that removing

prescription drugs from the In-network Rate File and requiring this information to be included in

a separate Prescription Drug File is consistent with the Departments’ goal of separating

fundamentally different types of data into distinct files. Because, as many commenters observed,

prescription drug prices are unique, the Departments are of the view that this information would

be more appropriately represented through a third machine-readable file. Furthermore, the

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updated machine-readable file structure will support consumers, researchers, and third-party

developers in reviewing, ingesting, aggregating, and analyzing the data.

The Disclosure of Prescription Drugs Pricing Information

Under the proposed rules, group health plans and health insurance issuers would be

required to publicly disclose negotiated rates in the In-network Rate file. The Departments

defined negotiated rates in the proposed rule as the amount a group health plan or health

insurance issuer, or a third party on behalf of a group health plan or health insurance issuer, has

contractually agreed to pay an in-network provider for covered items and services, pursuant to

the terms of an agreement between the provider and the group health plan or health insurance

issuer, or a third party on behalf of a group health plan or health insurance issuer. As discussed

in the Definitions section of this preamble, the final rules adopt this definition as proposed, with

modifications to provide additional clarity.

In the preamble to the proposed rules, the Departments acknowledged that cost-sharing

liability for prescription drugs is often based on an amount other than the negotiated rate, such as

manufacturer list prices or undiscounted list prices such as AWP or WAC. The Departments

further acknowledged that, because of the application of rebates and other discounts, the

inclusion of just the negotiated rate for prescription drugs could mislead consumers because the

rate paid by the plan could ultimately be lower than the price paid by the consumer at the point-

of-sale, as it is the Departments’ understanding that these rebates and other discounts typically

are not passed on to the consumers at the point of sale. The Departments expressed the concern

that including only the negotiated rate for prescription drugs used to determine cost-sharing

liability could perpetuate the lack of transparency surrounding prescription drug pricing. To this

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end, the Departments solicited comment on which pricing information related to prescription

drugs should be disclosed.

191

Despite the Departments’ concerns regarding negotiated rates for prescription drugs

outlined in the preamble to the proposed rules, commenters responded that negotiated rates, in

addition to other information, are an important data point necessary to achieving useful

transparency into coverage and out-of-pocket costs for prescription drugs. Several commenters

recommended that the machine-readable file include both the negotiated price and the

undiscounted “list” price, upon which coinsurance and deductibles are often based, in order to

promote competition. Other commenters suggested that plans and issuers should disclose to

enrollees when they do not pass through manufacturer rebates and discounts at the point-of-sale

or factor these amounts into enrollee cost sharing. Another commenter recommended the

Departments consider requiring a “net price” for prescription drugs rather than the negotiated

rates. This commenter stated that, it is vital that this “negotiated rate” also include the “net

price” (which accounts for all price concessions, including direct and indirect remuneration fees

(DIR) and/or similar policies/terminology, such as “true up” practices under employer-sponsored

191

The Departments note that this discussion in the preamble to the proposed rules occurred in the context of the

third content element (negotiated rates) for the internet-based self-service tool. However, as negotiated rates were a

proposed content element for the machine-readable files, the Departments are of the view that the comments

received regarding negotiated rates in the context of the internet-based self-service tool are equally applicable to the

prescription drug disclosures plans and issuers are being required to make through the machine-readable files. The

definition of “negotiated rate” for prescription drugs applies to both the internet-based self-service tool and machine-

readable file provisions. Regarding the machine-readable files, the Departments proposed that plans and issuers be

required to include in-network negotiated rates and out-of-network allowed amounts for all covered items and

services. In the Departments’ view, the use of the same term regarding both requirements underscores the relevance

of these comments to all disclosure requirements applicable to items and services, including those applicable to

prescription drugs. Furthermore, several commenters did not clearly separate their comments regarding the internet-

based self-service tool and the machine-readable files and provided broad comments that applied to all relevant

sections of the proposed rules.

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and private plans to accurately estimate participant, beneficiary, and enrollee cost-sharing

liability for prescription drugs). One commenter noted that if the public disclosure did not

include information related to rebates, the file could be misleading and could lead to a continuing

overemphasis on prescription drug list prices without recognition of the role played by rebates.

Another commenter recommended that the Departments allow plans and issuers to report

the most appropriate available price type based on the plan’s benefit design. This commenter

suggested that plans should also be required to identify the price reported, such as AWP or WAC

or the contracted pharmacy reimbursement amount (for example, the Part D negotiated price).

The Departments have closely reviewed the comments to determine the prescription drug

pricing information plans and issuers should provide in the Prescription Drug File in order to

achieve the goals of transparency. Based on this review, the final rules are adopting as content

element three for the Prescription Drug File a requirement for plans and issuers to publicly

disclose two amounts for prescription drugs in the Prescription Drug File: the negotiated rate and

the historical net price.

Prescription Drug Negotiated Rate Disclosure

As evidenced by the comments and the Departments’ independent research, there is wide

variability in how negotiated rates are assigned for prescription drugs. For instance, some

commenters noted that negotiated rates for prescription drugs include rebates, price concessions,

and other “true-ups, while others likened the negotiated rates to the undiscounted list price used

for determining cost-sharing liability. Therefore, plans and issuers may use varying types of

prices when reimbursing providers for prescription drugs. For example, it is the Departments’

understanding that for generic prescription drugs, the Maximum Allowable Cost (MAC)—an

amount the plan or issuer uses as the maximum amount they will pay for a particular prescription

CMS-9915-F 286

drug product—may be the amount that plans and issuers use to pay providers for a prescription

drug. Plans and issuers may reimburse providers for other prescription drugs using a UCR

amount or an amount based on the undiscounted list price, such as AWP or WAC. It is the

Departments’ understanding that contracts negotiated between plans and issuers (or their

contracted PBM) and providers generally do not include specific negotiated rates for prescription

drugs, but instead include formulas that determine the type of price that will be used to reimburse

providers for a particular prescription drug product. The negotiated rate may differ by drug or

class of drug in the contract as the lesser of several types of prices based on one of the

benchmarks described above—that is, WAC, AWP, MAC, or UCR. Because prices for

prescription drugs can fluctuate on a daily basis, the price that is used to reimburse the provider

can also fluctuate based on application of the contract terms.

In addition to better appreciating the wide variability in how negotiated rates are

assigned, the Departments also now understand based on comments and independent research,

that, contrary to the Departments’ understanding as explained in the preamble to the proposed

rule, no matter what benchmark or formula is used to determine the negotiated rate, the

negotiated rate is frequently also the rate upon which cost-sharing liability is based for

prescription drugs.

Based on the circumstances described above, the Departments therefore agree with

commenters that a certain amount of flexibility is required for plans and issuers as it relates to

the benchmarks and inputs required for the disclosure of negotiated rates for prescription drugs.

To allow for flexibility, as proposed, the final rules do not assign a benchmark or necessary

inputs to the definition of negotiated rates. The final rules include a broad definition for

negotiated rates to mean the amount a group health plan or health insurance issuer has

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contractually agreed to pay an in-network provider, including an in-network pharmacy or other

prescription drug dispenser, for covered items and services, whether directly or indirectly,

including through a TPA or PBM.

As noted above, the negotiated rate can be one of several different rates and can fluctuate

on a daily basis depending on the terms of the contract between plans or issuers (or the PBM for

the plan or issuer) and the provider, which includes pharmacies and other prescription drug

dispensers. Therefore, the Departments clarify that, where a plan or issuer uses a formula as

described above to determine the rate that will be used to reimburse providers for a prescription

drug, the negotiated rate that should be included in the Prescription Drug File should be the rate

that would be used by the plan or issuer to reimburse providers on the date that the file is

extracted.

Notably, the final rules do not finalize a requirement to include the manufacturer list

price, as contemplated in the proposed rules. The manufacturer list price is a manufacturer-

specified metric for drug prices that is commonly used by both federal and commercial health

care programs as a benchmark for negotiated rates. The manufacturer list price in this context is

often the WAC, which is defined in statute as,

[T]he manufacturer’s list price for the drug or biological to wholesalers or

direct purchasers in the United States, not including prompt pay or other discounts,

rebates or reductions in price, for the most recent month for which the information

is available, as reported in wholesale price guides or other publications of pricing

data with respect to a drug or biological.

192

42 U.S.C. 1395w-3a(c)(6).

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Like negotiated rates, the list price does not include discounts, dispensing fees, rebates, or other

retrospective pricing adjustments. The manufacturer list price is not plan- or issuer-specific. If

the Departments were to require plans and issuers to include the manufacturer list price in the

Prescription Drug File, the information included in the files would be the same or similar across

all plans and issuers. Further, manufacturer list price information is already aggregated,

available through several companies, and could be incorporated into third party applications to

be made accessible to consumers. WAC prices for drugs and biologics are collected and

published by several companies, including First Databank and Medi-Span. Additionally, CMS

publishes a monthly National Average Drug Acquisition Cost (NADAC), which provides a

national benchmark for the prescription drug prices paid by retail pharmacies.

193

Because

information on manufacturer list prices would be largely redundant across plans and issuers, and

because this information is publicly available through other existing resources, the Departments

concluded this information would be of limited value for the public.

The Departments do not intend to increase the burden of developing and maintaining the

machine-readable files unless the inclusion of the additional data element is essential to provide

meaningful, transparent pricing information to the public. Inclusion of the manufacturer list

price would not significantly advance transparency as this information is already available

publicly, and it would increase the burden of developing the Prescription Drug File. The

Departments expect that third-party developers will access and incorporate publicly available

193

“National Average Drug Acquisition Cost.” Centers for Medicare & Medicaid Services. September 15, 2020.

Available at: https://data.medicaid.gov/Drug-Pricing-and-Payment/NADAC-National-Average-Drug-Acquisition-

Cost-/a4y5-998d.

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databases, such as those including manufacturer list pricing information, where that information

is relevant to providing meaningful information to consumers.

The Departments are of the view that it is important for transparency for negotiated rates

to be included in the Prescription Drug File. Consumers, both insured and uninsured, can use

this information to better understand the cost of prescription drugs and to advocate for less

expensive alternatives. The Departments are also of the view that making the negotiated rate

public in a manner that is highly visible to consumers, researchers, innovators and regulators

could potentially place pressure on manufacturers to lower their list prices, which could, in turn,

lower negotiated rates upon which consumer cost-sharing liability is based.

Nonetheless, as stated in this preamble and in the preamble to the proposed rules,

requiring disclosure of only the negotiated rate for prescription drugs could perpetuate the lack of

transparency surrounding prescription drug pricing. As commenters noted, the negotiated rate is

not generally tied to the amount a plan or issuer will ultimately pay for the prescription drug or

prescription drug service due to the use of post-point-of-sale rebates, discounts, and other price

concessions that reduce the price that plans and issuers pay for prescription drugs. To address

this issue and to introduce greater transparency surrounding prescription drug pricing, in

response to comments, the Departments are also finalizing a requirement that plans and issuers

must publicly disclose historical net prices, as discussed in detail below.

Prescription Drug Historical Net Price Disclosure

For purposes of the final rules, historical net price means the retrospective average

amount a plan or issuer paid for a prescription drug, inclusive of any reasonably allocated

rebates, discounts, chargebacks, fees, and any additional price concessions received by the plan

or issuer with respect to the prescription drug. Net price is the price for a prescription drug after

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discounts are deducted, and is paid at different points in the prescription drug distribution chain

(for example, the plan or issuer to the pharmacy, the pharmacy to a wholesaler, and the

wholesaler to the manufacturer).

194

For the purposes of the final rules, the Departments are

concerned with the price ultimately paid by a plan or issuer to a drug manufacturer.

195

Essentially, rebates, discounts, chargebacks, fees, and other additional price concessions are

adjustments made after the point-of-sale that affect the total price paid by the plan or issuer (or

through a contract with the PBM) to the manufacturer for a prescription drug product. As a

general matter, a price concession is a discount or rebate available to a purchaser of a product or

service, wherein the discount or rebate is conditioned upon the purchaser complying with the

contractual terms of the rebate or discount offer.

196

More specifically, a rebate is an amount that

the prescription drug manufacturer returns to a payer based on utilization by consumers enrolled

through a plan or issuer or based on purchases by a provider.

197

A chargeback is a type of

discount process through a prescription drug wholesaler where manufactures reimburse

wholesalers who offer drugs to purchasers at discounted prices, and the discount negotiation

occurs between the manufacturer and the purchaser.

198

Finally, fees include any payment

adjustments, incentives, or other discounts that are not included in the negotiated price for a drug

194

“AMCP Guide to Pharmaceutical Payment Methods, 2013 Update” Academy of Managed Care Pharmacy.

2013. Available at: https://www.amcp.org/sites/default/files/2019-03/Full-Pharmaceutical-Guide-%283.0%29.pdf.

195

The Departments note that each plan or issuer (or the PBM acting under contract with the plan or issuer) may

utilize a different combination of price concessions.

196

“AMCP Guide to Pharmaceutical Payment Methods, 2013 Update. Academy of Managed Care Pharmacy. 2013.

Available at: https://www.amcp.org/sites/default/files/2019-03/Full-Pharmaceutical-Guide-%283.0%29.pdf.

197

Id.

198

Id.

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(for example, prompt pay discounts, pharmacy network fees, performance-based fees, and

incentive fees).

199

The Departments note that manufacturers also may offer additional price

concessions to certain providers or directly to consumers in the form of coupons. The final rules

only require disclosure of reasonably allocated rebates, discounts, chargebacks, fees, and any

additional price concessions received by the plan or issuer (or the PBM under contract with the

plan or issuer).

As noted earlier, several commenters commented on the nature of the prescription drug

pricing information that should be captured to achieve the goals of price transparency. Some

commenters noted the net price would be important to price transparency efforts because it

would put consumers on notice when the net price is less than their cost-sharing amount and it

would capture the actual prices of prescription drugs after the application of price concessions,

which would provide transparency regarding actual prescription drug costs. The Departments

agree with these commenters that disclosure of information about the net price for prescription

drugs (and therefore rebates and other price concessions that are included in the net price) is

necessary to achieve the goals of the final rules.

Therefore, the final rules adopt a requirement to make public a historical net price, as

defined by the final rules. Furthermore, rather than require disclosure of the actual net price, the

final rules establish and adopt a definition of historical net price that balances the need for

transparency against concerns expressed by other commenters that release of net prices could

affect issuers and PBMs’ ability to negotiate drug prices, including rebates and other price

199

“Final Medicare Part D DIR Reporting Requirements for 2017.” Centers for Medicare & Medicaid Services.

Available at: https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-and-

Systems/HPMS/HPMS-Memos-Archive-Weekly-Items/SysHPMS-Memo-2018-May-30th.

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concessions. Specifically, the final rules define historical net price as the retrospective average

amount a plan or issuer paid an in-network provider, including any in-network pharmacy or other

prescription drug dispenser, for a prescription drug, inclusive of any reasonably allocated

rebates, discounts, chargebacks, fees, and any additional price concessions received by the plan

or issuer with respect to the prescription drug or prescription drug service. The Departments

note that for the purposes of the final rules, the definition of historical net price only includes

those price concessions received by the plan or issuer (or under the contract between the PBM

and the plan or issuer). Because of timing delays related to application of rebates, discounts,

chargebacks, fees, and other price concessions, plans and issuers are required to provide

historical or retrospective data, rather than prospective or current pricing data regarding the net

price of prescription drugs. In the case prescription drug net prices, historical data will provide

valuable information for stakeholders, as the actual prices plans and issuers ultimately pay for

prescription drugs cannot be known until after the application of time-delayed rebates, discounts,

chargebacks, fees, and other price concessions. As discussed later in this section, plans and

issuers will be required to include historical net prices for a 90-day period beginning 180 days

before the date a particular Prescription Drug File is published. The final rules also require the

historical net price, as defined earlier in this section, to be disclosed through the Prescription

Drug File.

As discussed earlier in this preamble, the Departments are aware that an estimated

allocation of rebates, discounts, chargebacks, fees, and any other additional price concessions

may be necessary to represent the historical net price. Product-specific and non-product specific

rebates, discounts, chargebacks, fees, and other price concessions must be allocated by dollar

value if the total amount of the price concession is known to the plan or issuer at the time of file

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publication. It is the Departments’ understanding that most discounts, such as those related to

market sharing and rebates based on volume, are calculated within time periods as short as one to

three months. Therefore, the Departments expect the total amounts for these types of discounts,

rebates, and other price concessions will be known at the time of file publication. Where the

total amount of a price concession is known at the time of file publication, plans and issuers must

allocate the price concession by the total dollar amount.

The Departments also understand that some product-specific and non-product specific

price concessions are based upon outcomes- or value-based payment arrangements that calculate

rebates over a longer period of time—usually six months to more than three years. Because

these price concessions will not be known at the time of file publication, the Departments are

requiring plans and issuers to estimate the historical net price using a reasonable allocation and

good faith estimate of the total concession amount. Therefore, if the total amount of the price

concession is not known to the plan or issuer at the time of file publication, then rebates,

discounts, chargebacks, fees, and other price concessions should be reasonably allocated using

an estimate of the average price concessions based on the rebates, discounts, chargebacks, fees,

and other price concessions received over a time period prior to the current reporting period and

of equal duration to the current reporting period.

Rebates may reflect discounts negotiated with drug manufacturers that lower drug prices

for the plan or issuer. Rebates may not directly benefit participants, beneficiaries, or enrollees,

however, as the decision of whether and how to share savings from rebates is at the discretion of

the plan or issuer. Nonetheless, there is evidence that rebates are positively correlated with

increased manufacturer list prices for prescription drugs, which is typically the basis for a

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consumer’s cost-sharing liability.

200

A recent analysis found that, on average, from 2015 to

2018, a $1 increase in rebates was associated with a $1.17 increase in manufacturer list prices.

201

Therefore, due to the positive correlation between rebates and manufacturer list prices, a policy

that results in a reduction to rebates may result in a reduction in the manufacturer list price (and

also overall prescription drug prices). A policy that requires plans and issuers to make public

historical net prices could expose the extent of rebates and other price concessions, and this

transparency in historical net price could cause a reduction in the use of rebates and other price

concessions, and, therefore, a reduction in the manufacturer list price.

202

The resulting reductions

in manufacturer list price could lead to lowered out-of-pocket costs for both uninsured

consumers who must pay the manufacturer list price and insured consumers with deductibles and

coinsurance. Because negotiated rates for prescription drugs are largely based upon the

manufacturer list price, the reduction in the manufacturer list price will likely be reflected in the

negotiated rate. Further, because negotiated rates are used to determine cost-sharing liability for

prescription drugs, a reduction in such rates will likely result in lower consumer costs through a

reduction to deductibles and coinsurance.

The Departments are of the view that requiring both the negotiated rate and the historical

net price, as defined by the final rules, will produce sufficient transparency regarding

prescription drug pricing information to support consumer health care purchasing decisions and

provide other stakeholders insight into actual prescription drug pricing. Inclusion of both the

200

Sood, N., et al. “The Association Between Drug Rebates and List Prices.” USC Schaeffer Center for Health

Policy and Economics. February 11, 2020. Available at: https://healthpolicy.usc.edu/research/the-association-

between-drug-rebates-and-list-prices/.

201

Id.

202

Id.

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negotiated rate and historical net price addresses the Departments’ concern, expressed in the

preamble to the proposed rules, that merely requiring disclosure of the rate that is used to

determine an individual’s cost-sharing liability (that is, as clarified in the final rules, the

negotiated rate) could perpetuate the lack of transparency in prescription drug pricing.

Additionally, in the preamble to the proposed rules, the Departments specifically solicited

comment on whether and how the public disclosure requirements should account for rebates,

discounts, and dispensing fees to ensure individuals have access to meaningful cost-sharing

liability estimates for prescription drugs.

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Upon review of the comments, the Departments are

of the view that public disclosure of the historical net price, which takes into account rebates,

discounts, dispensing fees, and other price concessions, in addition to the negotiated rate, upon

which cost sharing is based, provides the appropriate combination of pricing information to

achieve the goals of transparency and ensure that individuals have access to meaningful

prescription drug pricing information. First, the negotiated rate will help support consumer

health care purchasing decisions. Second, the historical net price will support the public in

gaining enhanced knowledge of actual drug prices. Enhanced knowledge of actual drug

historical net prices could also support consumer health care purchasing decisions, as consumers

could use the information to determine whether their out-of-pocket costs are commensurate with

the rebates, discounts, and other price concessions received by their plan or issuer. The historical

net price will also make consumers and other stakeholders aware of situations where cost-sharing

liability for a prescription drug exceeds the amount their plan or issuer ultimately paid for the

prescription drug. In these situations, participants, beneficiaries, and enrollees will be able to

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84 FR 65464, 65472 (Nov. 27, 2019).

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make an informed decision regarding whether to utilize their plan or coverage when purchasing

the prescription drug. Furthermore, plans and issuers could be incentivized to pass through a

larger or more significant share of the rebates and other discounts that they receive from drug

manufacturers if those discounts are effectively disclosed via historical net price information.

The Departments acknowledge that there are potential adverse consequences of requiring

plans and issuers to make public rebates and other price concessions, directly or indirectly,

through the historical net price. For instance, stakeholders such as PBMs and prescription drug

manufacturers could attempt to find ways to obscure rebates and other price concessions such

that they would not be required to be publicly disclosed under the final rules. However, the

Departments are of the view that such attempts would likely be discouraged by the nature of the

disclosures themselves and would otherwise be unsuccessful if attempted. A benefit of requiring

the widespread public disclosure of pricing information for prescription drugs is that the

transparency data itself can be used to identify where plans and issuers (or third parties acting on

their behalf) may be attempting to circumnavigate disclosure requirements. Researchers and

other entities who aggregate and analyze the data will be able to compare pricing data across

plans and issuers. This can help identify plans and issuers whose data is an outlier and identify

them for further scrutiny by regulators. The current lack of transparency in prescription drug

pricing does not allow this type of oversight and monitoring. While it is possible that

stakeholders will act in ways that conflict with the intent of the public disclosures, it is also very

likely that transparency itself will help state and local regulators to identify these anti-

competitive practices. Indeed, it is possible that the public disclosures could help to uncover

other unknown anti-competitive business practices that exist today. For these reasons, the

Departments are of the view that the benefits of public disclosure of prescription drug pricing

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information outweigh the potential risk that certain stakeholders may seek to take advantage of

the disclosure requirements in ways that would increase prescription drug costs.

A commenter observed that if the Departments were to include the net price, it would be

important to clarify that that the information is not necessarily predictive of future transactions

because information about rebates is not known with certainty before a drug is dispensed. The

Departments recognize that prospective net prices for prescription drugs could be complicated to

estimate accurately due to the nature of prescription drug pricing. Nonetheless, the Departments

are of the view that the historical net price will be a sufficiently accurate guide for potential

prescription drug prices and will fulfill the objectives of the final rules.

The final rules adopt a requirement to include in the Prescription Drug File the historical

net price over a 90-day reporting period for each NDC for dates of service within 180 days of the

Prescription Drug File publication date. This approach will ensure that data is composed of the

historical net price for relatively recent claims (rather than older claims from multiple time

periods) and will avoid the conflation of payments from different periods of time. The

Departments are of the view that historical net prices from defined periods of time will enable

users to make meaningful comparisons across plans and coverages. Additionally, the

Departments chose this reporting reference period to be consistent with the period proposed and

being finalized through the final rules for reporting of allowed amounts through the Allowed

Amounts File. The Departments are of the view that consistency across machine-readable file

requirements, where applicable, will reduce potential confusion among file users as well as

reduce burdens for plans and issuers. The Departments are of the view that the 180-day

lookback period (which is expected to capture many of the market-share and volume rebates and

other price concessions) and requirement to make a reasonable allocation will balance the need

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to be transparent in current prices with the delayed timing of the application of certain rebates

and other price concessions.

To reasonably allocate any particular non-product specific or product-specific rebate,

discount, chargeback, fee, or other additional price concession by dollar value of the drug where

the totals amount is fully known at the time of file publication, plans and issuers should divide

the rebate or discount amount by the total dollar value of drugs on which the rebate is calculated,

and then apply that percentage to all applicable drugs. For example, if a rebate amount of

$20,000 is received during the 3-month file reference period in connection with $100,000 in

sales on two drugs during the same period, the rebate is allocated as a 20 percent discount to the

prices of those two drugs. Sales for Drug A totaled $60,000 and sales for Drug B totaled

$40,000. A rebate of $12,000 ($60,000 multiple by 20 percent) is allocated to Drug A, resulting

in a historical net price populated in the Prescription Drug File of $48,000. Similarly, a rebate of

$8,000 is allocated to Drug B, resulting in a historical net price populated in the Prescription

drug file of $32,000. The Departments are aware that this allocation methodology will not

always perfectly allocate the rebate amounts because of the complexities of rebate calculation, or

because of timing issues. However, the Departments are of the view that this simplified

approach balances the goal of providing actionable drug pricing information to the public while

limiting the burdens on plans and issuers in producing the information.

To reasonably allocate any particular non-product specific or product-specific rebate,

discount, chargeback, fee, or other additional price concession where the total amounts are not

fully known at the time of file publication, plans and issuers must make a good faith, reasonable

estimate of the price concession using an historical adjustment amount. To make this estimate,

plans and issuers shall determine the average value of price concessions for the relevant product

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over a time period prior to the current reporting period and of equal duration to the current

reporting period and use that amount to apply an estimated adjustment amount in the current

reporting period. For example, Plan X has $100,000 in total sales for 20,000 units—averaging

$5 per unit—of Drug A during the current reporting period, which is January 1, 2020, through

March 31, 2020. However, Plan X will not know the total amount of product-specific rebate to

expect for sales of Drug A for at least another six months. To address this timing issue, Plan X

can apply a reasonable estimate to allocate an adjustment to the current reporting period. For

instance, Plan X can look back to the total rebates received for the product during a comparable

time period. In this example, Plan X reviews its historical data and determines the rebates

received for Drug A, from the period between January 1, 2019, and March 31, 2019, totaled

$10,000 for sales of 30,000 units totaling $160,000. The average price per unit was $5.33 and

the average discount per unit was $0.33 resulting in an average final net price of $5 for Drug A.

Plan X then applies this historical rebate percentage to the current reporting period for Drug A.

Plan X subtracts $6,250 ($100,000 total sales for the current reporting period multiplied by the

estimated 6.25 percent historical rebate percentage) from the $100,000 total sales for a total net

price of $93,750 and an average net price for Drug A, rounded to the nearest hundredth, of $4.69.

Plan X reports in the Prescription Drug File an average historical net price for Drug A of $4.69

for the current reporting period.

In the discussion of the Allowed Amounts File in the preamble to the proposed rules, the

Departments noted that providing the Allowed Amounts information could raise health privacy

concerns. The Departments are of the view that similar concerns could be raised regarding the

historical net price information in the Prescription Drug File. For example, there may be

instances—such as in a small group plan or with respect to an NDC for a rare chronic

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condition—where, through deduction, disclosure of historical net price information may enable

users to identify the participant, beneficiary, or enrollee who received a particular prescription

drug because a very small number of claims are used to derive the historical net price of a

particular NDC at a particular pharmacy or other prescription drug dispenser. Additionally, as

noted in relation to the Allowed Amount File, there may also be instances when the historical net

price public disclosure requirement would be inconsistent with federal or state laws governing

health information that are more stringent than HIPAA regarding the use, disclosure, and

security of health data that was produced pursuant to a legal requirement, such that plans and

issuers would be required to further de-identify data. For example, some of the claims for

payment used to derive the historical net price could relate to services provided for substance use

disorders, which could implicate disclosure limitations under 42 CFR part 2 governing the

confidentiality of patient records related to treating a substance use disorder. The Departments

are committed to protecting PHI. To address privacy concerns, the final rules adopt an approach

consistent with the out-of-network Allowed Amount File. The final rules do not require plans

and issuers to provide historical net price data in relation to a particular pharmacy or other

prescription drug dispenser and a particular NDC when compliance would require a plan or

issuer to report an historical net price for a particular pharmacy or other prescription drug

dispenser calculated with fewer than 20 different claims for payment. Furthermore, the

Departments note that disclosure of historical net prices will not be required if compliance would

violate applicable health information privacy laws. The Departments are of the view that these

mitigation strategies, in addition to the historical net price being an average of amounts paid to a

particular provider for a particular NDC during the reference period, are sufficient to protect

patients from identification based on information in the Prescription Drug File. The Departments

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note that the low volume exemption applies only to the requirement to include the historical net

price and does not affect the requirement to include the negotiated rates in the Prescription Drug

File.

Regarding prescription drugs, the Departments received a comment that requested

discounts under section 340B of the PHS Act be included in the applicable machine-readable

file, noting that providing this information is important to ensure consumers can access those

savings. However, this commenter acknowledged that health plans often do not have access to

information about when a section 340B discount is paid and so recommended the Departments

develop and implement a process to help health plans identify this information.

Discounts under the section 340B Drug Pricing Program are only available to eligible

providers (known as covered entities as outlined in section 340B of the PHS Act) and regulations

under section 340B of the PHS Act are outside of the scope of the final rules.

2. Required Method and Format for Disclosing Information to the Public

As explained in section II.C.1.c of this preamble, the final rules adopt the requirement

that plans and issuers produce the In-network Rate File, the Allowed Amount File, and the

Prescription Drug File. The Departments are finalizing a requirement that the In-network Rates,

Allowed Amounts, and Prescription Drug Files must be disclosed as machine-readable files. The

final rules define “machine-readable file” to mean a digital representation of data or information

in a file that can be imported or read by a computer system for further processing without human

intervention, while ensuring no semantic meaning is lost. The requirement ensures that the

machine-readable file can be imported or read by a computer system without those processes

resulting in alterations to the ways data and commands are presented in the machine-readable

file. The Departments proposed to require each machine-readable file to use a non-proprietary,

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open format to be identified by the Departments in technical implementation guidance (for

example, JavaScript Object Notation (JSON), Extensible Markup Language (XML), or Comma

Separate Value(s) (CSV)). A portable document format (PDF) file, for example, would not meet

this definition due to its proprietary nature.

Contemporaneous with the proposed rules, the Departments published a PRA package

(OMB control number: 0938-1372 (Transparency in Coverage (CMS-10715)) that further

described the specific data elements that would be disclosed in the proposed machine-readable

files. Updated cost and burden estimates related to the collection requirements are discussed in

the ICR section of this preamble and are included in in the corresponding PRA package,

including changes to costs and burdens and additional collection instruments as a result of

modifications to the proposed rule made through the final rules.

The Departments proposed requiring group health plans and health insurance issuers to

publish their negotiated rates and historical allowed amount data in two machine-readable files,

one including required negotiated rate data with in-network providers, and a second including

required out-of-network allowed amount data. The Departments proposed requiring plans and

issuers to publish the data in two separate machine-readable files to account for the dissimilarity

between the negotiated rates paid to in-network providers under contract and the more variable

allowed amounts paid to out-of-network providers. The Departments solicited comment on

whether building and updating one file could be less burdensome for plans and issuers than

maintaining multiple files, and whether having the data in a single file could facilitate use by

third-party developers. The Departments were particularly interested in comments regarding

whether a single file for disclosure of all the required information would likely be extremely

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large, making it less than optimal for anticipated users, such as software application developers

and health care researchers.

Some commenters supported keeping the In-network Rates File and out-of-network

Allowed Amount File separate. One commenter noted the structure would allow quick

development of data aggregation efforts and consumer-friendly tools. Additionally, the

commenter stated that keeping the files separate would support file ingestion. Another

commenter stated that each file would contain fundamentally different data, and the costs

associated with storing and maintaining a large combined file would be very large.

The Departments agree that the information being required to be publicly disclosed

through the machine-readable files related to negotiated rates and allowed amounts is sufficiently

distinct to justify separating the information into separate files. In particular, the out-of-network

allowed amounts information must be derived from historical claims data, which is

fundamentally different in kind from simply listing applicable rates for each service.

Furthermore, the Departments also agree with comments indicating that splitting the files would

help reduce the maintenance and storage burdens of the files. Throughout this preamble, the

Departments have stressed the importance of ensuring the public disclosures required through the

final rules are accessible, especially to internet-based and mobile application developers, to

support development of innovative consumer-facing tools, as well as to other entities, such as

researchers, and regulators, to support efforts to better understand and support the

competitiveness of health care markets.

The requirement to publish more than one machine-readable file which will facilitate the

disclosure of data that is different in character, scope, and other factors, which will help facilitate

data ingestion for users of the machine-readable files, including third-party developers,

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researchers, regulators, and other interested parties. This approach will also help facilitate file

ingestion, data aggregation, and data analysis by researchers whose projects could lead to

important market insights that could inform efforts to further address the wide variation in health

pricing, and by regulators who would be able to leverage the data in their oversight activities.

As discussed earlier in this preamble, the final rules adopt a third Prescription Drug File

in recognition of the unique pricing attributes of prescription drug products. Prices related to

prescription drug products that plans and issuers would have been required to include in the In-

network Rate File under the proposed rules will now be required to be publicly disclosed through

the third Prescription Drug File. As discussed earlier in this preamble, the Departments estimate

that requiring a third file for prescription drugs will not add significantly to the burdens and costs

of developing and maintaining the machine-readable files calculated in relation to the final rules

because costs and burdens calculated for prescription drugs as included in the In-network Rate

File will be transferred to the Prescription Drug File. Additionally, the Departments anticipate

that removal of prescription drugs from the In-network Rate File will significantly reduce the

size of that file, which could reduce the costs associated with maintenance and storage for the In-

network Rate File. The Departments clarify that not all prescription drug pricing information

required to be disclosed through the final rules is required to be included in the Prescription Drug

File. Rather, the Prescription Drug File is required to include prescription drug pricing

information for in-network providers, including pharmacies and other prescription drug

dispensers, while the Allowed Amount File is required to include prescription drug pricing

information for out-of-network providers, including pharmacies and other prescription drug

dispensers. The Departments also clarify that the In-network Rate file may also contain

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prescription drug information to the extent the prescription drug is a part of a bundled payment

arrangement.

Some commenters argued that the method and format for providing information to the

public is not feasible. One commenter did not support the policy that the machine-readable files

should be provided in a public use file format, claiming the files would be millions of rows long

and very difficult to review. Another commenter expressed concern that the volume of data

would make it impossible to post all of the information in two files and further stated that there is

no single set of codes that describe every item or service, so it would be impossible to post this

data without very specific, standard definitions. Given the lack of standard definitions, this

commenter argued that there is no systematic way to compile and display the information

requested, so claim compilation would have to be done manually. The commenter further stated

that, even if there were standard definitions, it would be impossible to provide them in “plain

language.”

Based on consultations with industry and IT development professionals, the Departments

do not agree with commenters who stated that development of the machine-readable files would

not be feasible as envisioned by the proposed rules. The Departments are aware that these files

could be very large and could be difficult for laypersons to navigate. However, the Departments

are of the view that the files’ primary benefit to health care consumers will be the availability of

web-based tools and mobile applications developed for consumer use by third-party developers,

aggregation and analysis conducted by researchers, and oversight efforts by regulators. The

required machine-readable files will be optimal for ingestion, data aggregation, and data

analysis, all of which are functions performed by third-party internet-based developers,

researchers, and regulators who use large data sets in a manner that will lead to benefits for

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consumers. Additionally, notwithstanding that the Departments have designed these

transparency requirements so that it is not necessary that individual consumers use or ingest the

data in the machine-readable files, the Departments are of the view that many individual health

care consumers do possess the necessary expertise to access and navigate the files. The final

rules also impose a requirement to include plain language to identify each item and service

included in each file. This requirement will help ensure consumers, third party application

developers, researchers, regulators, and other interested parties are able to easily understand the

information.

The Departments have determined that the potential benefits for consumers of requiring

the disclosure of required data through machine-readable files outweigh the potential for

consumer confusion at the individual consumer level. Additionally, the Departments expect that

third party application developers, researchers, regulators, and other file users will have the

expertise to aggregate, standardize, and interpret the pricing information included in the file and

translate the pricing information into products, research, and market oversight and reforms that

will ultimately benefit consumers.

The Departments also do not agree that the volume of data would make the machine-

readable files too large to post publicly, regardless of whether the data is posted in two or three

files. The Departments’ rough estimate of file size, based, in part, upon numbers provided by

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commenters, suggests a file size of approximately 5 gigabytes.

204

CMS currently makes

available for download on its website some large public use file (PUF) data sets that are several

gigabytes. For example, the Part D Prescriber PUF,

205

available on the CMS website, is over

three gigabytes in size. The Departments acknowledge that because of the large file size, file

users will likely need to use database or statistical software to download the machine-readable

files as importing into Microsoft Excel would result in incomplete loading of data. However,

this approach is similar to that used for some of the larger PUF data sets available on the CMS

website, including the Part D Prescriber PUF, which must be opened using specialty software.

Assuming that plans’ and issuers’ negotiated rates are in a digitized format, even if the

negotiated rates are not stored in a single database, this information can be systematically

compiled and maintained by the plan or issuer. In recognition that there is no single set of billing

codes for non-prescription drug services, the Departments are providing flexibility in the final

rules by not prescribing which code or set of codes plans and issuers must use to publicly

disclose their data. Rather, the Departments are requiring that plans and issuers associate each

in-network applicable rate or out-of-network allowed amount with a CPT, HCPCS code, DRG,

or other common payer identifier. In the case of prescription drugs, the Departments are

requiring plans and issuers to associate each negotiated rate and historical net price with an

NDC. The Departments’ expectation is that the type of billing code plans and issuers use to

populate the machine-readable files will be consistent with the billing codes that plans and

204

As a reference point, a typical commercial two-hour Blu-ray film is approximately 15-25 gigabytes. “White

Paper Blue-ray Disc Format General.” Blue-ray Disc Association. 2018. Available at http://www.blu-

raydisc.com/Assets/Downloadablefile/White_Paper_General_5th_20180216.pdf.

205

The Part D Prescriber Public Use File (PUF) is available on the CMS website at the following location:

https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-

Data/PartD2017.

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issuers use in their operations when actually determining provider reimbursement and cost-

sharing liability.

The Departments further note that nothing prevents plans and issuers from including in

the files a mixture of billing code types so long as the billing codes included in the file are

reflective of the plan’s or issuer’s operations. To facilitate identification of the billing code type,

there will be an indicator in the file format described by the technical implementation guidance

that will allow plans and issuers to specify the particular type of billing code entered for each

data entry in the machine-readable files. The final rules also require that plans and issuers

include plain language descriptions for each billing code. The Departments note that in the case

of items and services that are associated with common billing codes (such as the HCPCS codes),

plans and issuers are permitted to use the codes’ associated short text description.

The final rules further clarify that, in the case of NDCs for prescription drugs, the plain

language description must be the proprietary and nonproprietary name assigned to the NDC by

the FDA. The Departments have made this change to align with the change to require only the

NDC billing code to be used for prescription drugs. Requiring the proprietary and

nonproprietary name assigned to the NDC by the FDA further standardized the product

identifiers for prescription drugs and will facilitate comparisons across prescription drug pricing

information for plans and issuers.

For all other items and services, as the Departments explicitly stated in the proposed rules

and elsewhere in this preamble, plans and issuers can meet the “plain language” description

requirements by using their chosen code’s short text description. However, the Departments

note that including the short text description for each code is a minimum requirement and

nothing in the final rules prevents plans and issuers from providing a more consumer-friendly

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plain language description for each covered item or service. Plans and issuers may be

incentivized to provide more consumer-friendly information in machine-readable files because it

may permit them to include disclaimer or clarifying language in the files, where applicable.

Furthermore, if a plan or issuer uses plain language descriptions for billing codes in its

operations that are more consumer-friendly than the established short text descriptions, the

Departments expect plans and issuers to include in the machine-readable files the plain language

descriptions they use in their operations.

The Departments received comments that supported the Departments’ development of

specific technical standards for the files to which plans and issuers must adhere. One commenter

recommended the Departments provide guidance to plan sponsors who are able to provide some,

but not all, of the file data elements. Another commenter stated that the proposed rules do not

make clear how to report items and serviced provided through capitated and bundled payment

arrangements in the files; noting that this information is necessary for consumers to measure

provider value. One commenter responded positively to the Departments’ provision of technical

implementation guidance for the files, but requested a robust public comment solicitation far in

advance of the applicability date for the rules.

The Departments are of the view that providing specific technical direction in separate

technical implementation guidance, rather than in the final rules, will better enable the

Departments to respond to technical issues and developments, as well as compliance questions

related to novel or rare payment arrangements. Therefore, as proposed, the Departments are

developing technical implementation guidance for plans and issuers to assist them in developing

the machine-readable files.

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The technical implementation guidance will be available online through GitHub, a

website and cloud-based service that helps developers store and manage their code, as well as to

track and control changes to their code. The GitHub space offers the Departments the

opportunity to collaborate with industry, including regulated entities, and third-party developers

to ensure the file format is adapted for reporting of the required public disclosure data for various

plan and contracting models. For example, the Departments have updated the schematics of the

file formats in response to comments received about and bundled payments and capitated

payment arrangements, as well as other alternative contracting models. Plans and issuers will be

able to access the GitHub schemas at any time and collaborate with the Departments in real-time.

The Departments’ goal in using GitHub is to facilitate this collaborative effort all allow

plans and issuers to meet the public disclosure requirements of the final rules while addressing

their unique IT system, issuer, and plan attributes. To the extent a plan or issuer’s unique

attributes (for example, IT system, plan benefit design, or reimbursement model) are not

addressed sufficiently through the technical implementation guidance, the Departments intend to

provide targeted technical assistance to ensure all plans and issuers are able to meet the public

disclosure requirements under the final rules. The technical implementation guidance will

provide instructions on how to obtain this technical assistance should the need arise.

The technical implementation guidance hosted on GitHub will include a repository set of

schemas describing the data formats (encoded as JSON, XML, and CSV) for all three

machine-readable files: the In-network Rate File, the Allowed Amount File, and the Prescription

Drug File. The technical implementation guidance will be available as part of the PRA package

developed for the ICRs included in the final rules. As part of the PRA process, stakeholders

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have an additional opportunity to submit comments related to the PRA for 30 days following the

publication of the final rules.

In the proposed rules, the Departments requested comment on whether the final rules

should adopt a single non-proprietary format for the machine-readable files, specifically JSON

files. The Departments understand that this format generally is easily downloadable, and it could

simplify the ability of file users to access the data.

The Departments received one comment in support of requiring JSON as the standardized

file format for the required machine-readable files. However, the Departments’ internal

technical experts agreed that the speed of technology developments weighs heavily in favor of

maintaining flexibility to adopt a suitable file format as a non-substantive, operational

requirement that will be identified in the relevant implementation guidance for the required

machine-readable files. Additionally, this flexibility will allow the Departments to adapt the file

technical specifications for new and emerging technologies. Therefore, the Departments decline

to require in regulation a more specific file format for the machine-readable files.

The Departments reiterate that, as finalized, all machine-readable files must conform to a

non-proprietary, open-standards format that is platform-independent and made available to the

public without restrictions that would impede the re-use of the information. Therefore, because a

PDF file format is proprietary, it would not be an acceptable file format in which to produce the

files. A plan or issuer’s file will be acceptable so long as it includes all required data elements

required for the respective file (that is, all applicable rates in the In-network Rate File, allowed

amounts and billed charges in the Allowed Amounts File, and negotiated rates and historical net

process in the Prescription Drug File) and is formatted in a manner consistent with the technical

implementation guidance the Departments are developing.

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The final rules therefore adopt, with modification, the required method and format for

disclosure of information through the machine-readable files. The Departments note several

non-substantive modifications to the regulatory text, which are being adopted in the final rules to

clarify and streamline the text. To further highlight the file technical implementation guidance,

the regulation text of the final rules has been modified non-substantively to specify that the

machine-readable files must be made available in a form and manner specified in guidance

issued by the Departments. In the proposed rules, the regulation text stated more broadly that the

machine-readable files must be made available in a form and manner determined by the

Departments. Additionally, the proposed rule included two sentences that simply restated what

must be publicly disclosed through the two proposed machine-readable files.

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The Departments

have removed these sentences from this this section of the regulatory text because they duplicate

language contained in the previous sections of the regulatory text, do not add any additional

value to this section of the regulatory text, and could cause confusion.

3. Required Accessibility Standards for Disclosure of Information to the Public

The Departments proposed to require a plan or issuer to make available on an internet

website the required machine-readable files, and that the files must be accessible free of charge,

without having to establish a user account, password, or other credentials, and without having to

submit any personal identifying information such as a name, email address, or telephone number.

The Departments also proposed to allow plans and issuers flexibility to publish the files in the

locations of their choosing based upon their superior knowledge of their website traffic and the

places on their website where the machine-readable files would be readily accessible by the

206

See 84 FR 65464, 65519 (Nov. 27, 2019).

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intended users. The Departments are finalizing these requirements as proposed. The

Departments also considered requiring plans and issuers to submit the internet addresses for the

machine-readable files to CMS, and having CMS make the information available to the public.

A central location could allow the public to access the information in one centralized location,

reducing confusion and increasing accessibility. However, the Departments opted to propose

flexible rules allowing plans and issuers to publish the files in the locations they have chosen

based upon their determinations regarding where the files will be most easily accessible by the

intended users. The Departments also considered that requiring plans and issuers to notify CMS

of the internet address for their machine-readable files would increase the burdens on plans and

issuers. The Departments requested comment on whether the proposed requirement to allow

issuers to display the files in the location of their choice is superior to requiring plans and issuers

to report the internet-based addresses of their files to CMS for public display. The Departments

were specifically interested in whether the burden associated with reporting file locations to

CMS would be outweighed by the risk that members of the public would be unable to easily

locate plans’ and issuers’ machine-readable files.

Several commenters supported the Departments’ proposal to make the machine-readable

files easily and publicly available. One commenter supported making the files available free of

charge and stated that individuals should not be required to register a user account, password, or

enter other credentials, or to submit PII to access the files. Several commenters suggested

alternative methods or more stringent requirements for making public the information required to

be disclosed through the machine-readable files. One commenter expressed a preference for

CMS to maintain a centralized location on the CMS website from which the public can access

links to the files. The commenter noted that if the Departments elected not to maintain a

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centralized database, the Departments should require plans and issuers to prominently display a

link to the files in the main menu of the homepage on their respective websites. Similarly,

another commenter asserted that the final rules should require issuers to report the location of

their files and provide a data dictionary to facilitate oversight and enforcement of plans and

issuers.

Other commenters suggested the Departments create a centralized database to house the

data required to be disclosed through the machine-readable files. One commenter recommended

the information required to be disclosed through the files be loaded into a publicly available

searchable database that anyone can access prior to receiving a medical service. Similarly,

another commenter recommended that HHS aggregate the data to create a centralized database.

By contrast, another commenter recommended the Departments should not create a central

location for negotiated rate information and historical data, making the argument that the private

sector is best suited to deliver this information to consumers.

As proposed, the machine-readable files must be made publicly available and accessible

to any person free of charge and without conditions, such as establishment of a user account,

password, or other credentials, or submission of PII to access the file. Additionally, the proposed

rules specified that the files must be made available in the form and manner specified by the

Departments. While the Departments considered comments related to the manner of the public

file disclosures (such as prominent display on a plan or issuer’s homepage), the Departments are

also mindful of the need to provide flexibility to plans and issuers so that they are able to house

the files in a location that meets their unique technical specifications. At this time, the

Departments are of the view that reporting of the links to the file locations is not necessary to

achieve the goals of the final rules. However, the Departments note that nothing in the final

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rules prevents a federal or state regulatory body, such as a state Department of Insurance (DOI),

from collecting this information from issuers subject to their jurisdiction.

The Departments are aware and understand commenters’ interest in HHS aggregating and

centralizing all of the data required to be publicly disclosed through the machine-readable files.

However, the Departments are of the view that HHS is not best suited for this role. As noted

throughout this preamble, the Departments expect making negotiated rate and allowed amount

information available through the machine-readable files will spur third-party internet-based

developers to innovate, resulting in consumer-facing tools. The Departments anticipate that

these consumer-facing tools developed by third parties could act as centralized databases,

aggregating the pricing information for many plans and issuers. The Departments are of the

view that the private sector is better suited to developing internet-based tools using this

information than the Departments, and further, that the competition spurred by several different

third parties operating in this space could benefit consumers seeking to find the third-party tool

that is best suited to their individual consumer needs.

The final rules adopt, as proposed, the accessibility requirements for the machine-

readable files. The final rules clarify that the accessibility requirements apply to all three

machine-readable files finalized within the final rules: the In-network Rate File (referred to in the

proposed rules as the Negotiated Rate File), the Allowed Amount File, and the Prescription Drug

File.

4. Required Timing of Updates of Information to be Disclosed to the Public

The proposed rules would have required group health plans and health insurance issuers

to update the information required to be included in each machine-readable file monthly. The

Departments also proposed to require plans and issuers to clearly indicate the date of the last

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update made to the In-network Rate Files and Allowed Amount Files in accordance with

guidance issued by the Departments.

The Departments recognized in the proposed rules that information in In-network Rate

Files (referred to in the proposed rules as the Negotiated Rate Files) could change frequently and

considered whether to require plans and issuers to update their In-network Rate Files more often

than monthly to ensure that consumers have access to the most up-to-date negotiated rate

information. Accordingly, the Departments sought comment on whether the final rules should

require plans’ and issuers’ In-network Rate Files to be updated more frequently. The

Departments also sought comment on an alternate proposal that would require plans and issuers

to update negotiated rate information within 10 calendar days after the effective date of new rates

with any in-network provider, and on whether the update timelines for negotiated rate

information and historical out-of-network payment data should be the same.

For the reasons discussed elsewhere in this section of this preamble, the final rules adopt,

as proposed, the requirement for a plan or issuer to update the information required to be

included in each machine-readable file monthly. The final rules clarify that this requirement to

update the machine-readable files monthly applies to all three machine-readable files being

finalized through the final rules: the In-network Rate File, the Allowed Amount File, and the

Prescription Drug File.

Several commenters stated that the requirement to update the In-network Rate Files and

Allowed Amount Files monthly is operationally burdensome and the benefits of this requirement

are limited because the information will not change significantly on a monthly basis. Some

commenters recommended the Departments change the required frequency of updates to every

six months, while others suggested that the final rules require updates to the In-network Rate File

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less frequently than monthly (for example, quarterly or semi-annually), but recommended that

the Allowed Amount File should be updated monthly. Another commenter recommended a

phased-in approach where the files would be updated twice a year in the first year of

implementation and quarterly thereafter. In contrast, one commenter recommended the files be

updated in real-time as soon as updates to rates are made.

Based on consultation with government-affiliated IT experts and the design of the file

schemas, the Departments are of the view that building the first machine-readable file will

facilitate the automation of the process to build future files. In other words, the ability to

produce subsequent files should be streamlined after completing initial development. Therefore,

the Departments do not find persuasive the contention that requiring file updates monthly will

significantly increase the overall costs and burdens related to producing the files. The

Departments, however, do not agree that the files should be updated in real-time as soon as

updates are made. With the monthly update requirement, the Departments are seeking to balance

the need to ensure the data is current and accurate for consumers with minimizing burdens on

plans and issuers.

As noted in the proposed rules, the Departments acknowledge there will be some costs

with making updates to the files, including costs to ensure the quality of data and costs

associated with posting the information on a public website. The Departments are of the view

that requiring plans and issuers to update the files on a monthly basis will sufficiently limit the

burden while ensuring that the most current data generally available. However, requiring

updates to the files more or less frequently would not adequately balance these interests.

Requiring updates to the files more frequently (such as on a daily basis), would add potentially

unnecessary burdens for plans and issuers. Requiring updates to the files less frequently would

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potentially result in consumers relying on outdated information for health care purchasing

decisions. While negotiated rates, in particular, may not change frequently for any one contract

with a provider or group of providers, the Departments understand that payer-provider contracts

are updated on a rolling basis and throughout the year. Therefore, updates throughout the year

are needed in order to ensure that the information disclosed remains up-to-date.

The final rules also require that the Prescription Drug File be updated on a monthly basis.

The Departments understand the complexities of prescription drug pricing and are aware that

drug prices can fluctuate as frequently as daily. However, the Departments have determined that

aligning the frequency of updates of all machine-readable files will mitigate the burden

associated with maintaining the files for plans and issuers, and will best balance the need for

disclosing current and accurate information against that burden. The Departments are aware that

the number of pricing updates in the monthly Prescription Drug File will likely be more than the

number of monthly pricing updates for medical services in the In-network Rate File. However,

the Departments are of the view that if plans and issuers can update their pharmacy claims

processing systems in real-time to account for fluctuating prices and adjudicate claims for

prescription drugs, then the burden to pull current pricing information into the Prescription Drug

File should be manageable.

The Departments will monitor the implementation of the machine-readable file

requirements and consider updates in future rulemaking if it is determined that monthly updates

are not adequately balancing the need for accurate and current information against the burdens

for plans and issuers.

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5. Special Rules to Prevent Unnecessary Duplication and Allow for Aggregation

Similar to the proposed cost-sharing information disclosure requirements for participants,

beneficiaries, and enrollees, the Departments proposed a special rule to streamline the

publication of data that would be included in the proposed machine-readable files. This special

rule has three components: one for insured group health plans where a health insurance issuer

offering coverage in connection with the plan has agreed to provide the required information,

another for plans and issuers that contract with third parties to provide the information on their

behalf, and a special rule allowing aggregation of out-of-network allowed amount data.

a. Insured group health plans

The Departments proposed that, to the extent coverage under a group health plan consists

of group health insurance coverage, the plan would satisfy the proposed machine-readable file

requirements if the issuer offering the coverage were required to provide the information

pursuant to a written agreement between the plan and issuer. Accordingly, if a plan sponsor and

an issuer enter into a written agreement under which the issuer agrees to provide the information

required under the proposed rules, and the issuer fails to provide full or timely information, then

the issuer, but not the plan, has violated the final rule’s disclosure requirements. This special

rule would only apply, however, to insured group health arrangements where the contractually-

obligated issuer is independently subject to the final rules.

The Departments received comments expressing strong support of the special rule to

streamline public disclosure and avoid unnecessary duplication of disclosures for insured group

health insurance coverage. These commenters recommended the policy be retained in the final

rules. Accordingly, the final rules retain this special rule as proposed.

b. Use of Third Parties to Satisfy Public Disclosure Requirements

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The Departments recognize that self-insured group health plans may rely on written

agreements with other parties, such as service providers, to obtain the necessary data to comply

with the final rules’ disclosure requirements. Furthermore, it is the Departments’ understanding

that most health care coverage claims in the U.S. are processed through health care

clearinghouses and that these entities maintain and standardize health care information, including

information regarding negotiated rates and out-of-network allowed amounts.

207

As a result, the

Departments noted in the proposed rules that a plan or issuer may reduce the burden associated

with making negotiated rates and out-of-network allowed amounts available in machine-readable

files by entering a business associate agreement and contracting with a health care claims

clearinghouse or other HIPAA-compliant entity to disclose this data on its behalf.

208

Accordingly, the Departments proposed to permit a plan or issuer to satisfy the public disclosure

requirement of the proposed rules by entering into a written agreement under which another

party (such as a TPA or health care claims clearinghouse) will make public the required

information in compliance with this section. However, if a plan or issuer chooses to enter into

such an agreement and the party with which it contracts fails to provide full or timely

information, the plan or issuer will have violated the final rules’ disclosure requirements.

Generally, commenters supported the use of clearinghouses or TPAs to store all of the

information that must be disclosed under the proposed rules. One commenter suggested that all

HIPAA-compliant third parties, not just clearinghouses, be allowed to satisfy the public

207

The Departments are adopting the definition of health care clearinghouse under 45 CFR 160.103 for purposes of

these rules. Under that definition, health care clearinghouse means a public or private entity that performs one of

two functions that involve the receiving and processing of health information data from a non-standard format to a

standard format or non-standard data elements to standard data elements and vice versa.

208

45 CFR 164.502(a)(3) and 164.504(e)(2).

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disclosure requirements. Some commenters raised concerns related to using clearinghouses

noting that the feasibility of using clearinghouses is dependent on the clearinghouse receiving all

of the necessary data from health insurance issuers and providers who possess the data. The

commenter strongly recommended the final rules require entities that possess the data to share

the information in a timely manner with the relevant clearinghouses. The commenter also noted

the costs charged by clearinghouses associated with data storage and noted that the prices must

be reasonable and not discriminatory (for example, against smaller plans).

Several commenters recommended the Departments’ special rule include protection for

plan sponsors if they fail to meet the public disclosure requirements due to an inability, while

acting in good faith, to obtain the data from a third-party service provider or when a contracted

third-party withholds information or fails to submit information in a timely manner. One of

these commenters also requested the Departments establish a policy that liability for failure to

comply rests with a contracted third party in the event a plan sponsor can show that, acting in

good faith, it is unable to comply with the disclosure requirements due to withholding of

information by the third party.

This special rule, as finalized, continues to permit a plan or issuer to satisfy the public

disclosure requirements of 26 CFR 54.9815-2715A3(b), 29 CFR 2590.715-2715A3(b), and, 45

CFR 147.212(b) of the final rules by entering into a written agreement under which another party

(such as a TPA or health care claims clearinghouse) will make public the required information in

compliance with this section. The final rules identify TPAs and health care claims

clearinghouses as examples of the types of parties a plan or issuer may contract with, but these

are not the only types of entities that may enter into such arrangements and the Departments

CMS-9915-F 322

expect that they will comply with any applicable privacy protection requirements, including

applicable privacy protections under HIPAA.

Plans and issuers are not required to enter into such agreements in order to comply with

the public disclosure requirements of the final rules. As the Departments noted in the preamble

to the proposed rules, if a plan or issuer chooses to enter into such an agreement it is ultimately

the responsibility of the plan or issuer to ensure that the third party provides the information

required by the final rules. As noted earlier in this section, the special rule for insured plans is

only available to plans that contract with an entity that is an issuer separately subject to final

rules. This requirement ensures that the Departments retain a mechanism to enforce the final

rules. Accordingly, this special rule relating to the use of third parties to satisfy these

requirements continues to provide that the plan or issuer would violate the requirements of the

final rules if the third party fails to provide full or timely information.

Another commenter recommended the Departments create a special rule or “safe harbor”

for plans that are unable to disclose negotiated rate information due to antitrust laws, which

prevent the plan from accessing information about its partners’ contracts when engaged in a

partnership alliance agreement. The commenter described a partnership alliance as shared

partner networks in other geographic areas in order to meet the needs of multi-state employer

groups.

As discussed earlier in this preamble, the Departments acknowledge that the Sherman

Antitrust Act prohibits any contract, combination, or conspiracy in restraint of trade or

CMS-9915-F 323

commerce.

209

Specifically, the law prohibits any “person” from entering into any such contract,

trust, or similar arrangement.

210

Nothing under the proposed or final rules creates, compels, or

endorses agreements or conspiracies between or among persons to form illegal arrangements or

trusts in restraint of trade or commerce. Antitrust law does not proscribe or limit action by the

federal government, to improve competition and lower costs to consumers, even if these actions

may involve disclosures that, if made by private parties under a collusive agreement, might invite

antitrust scrutiny.

211

Because the Departments are of the view that antitrust law will not prevent

plans and issuers from making the public disclosures required under the final rules, there is no

need for the Departments to create a special rule for plans that are unable to disclose negotiated

rate information due to antitrust laws.

One commenter expressed a concern that multiemployer plans generally do not have

access to the rate information needed to provide the cost-sharing disclosures required under the

proposed rules, yet plans could be subject to significant penalties for failure to comply. The

Departments note that insured multiemployer plans would qualify for the special rule for insured

plans under which an issuer providing coverage for a plan enters into an agreement to provide

the required information, which is being finalized through the final rules. If a multiemployer

plan sponsor enters into a written agreement with an issuer under which the issuer agrees to

provide the information required under the final rules, and the issuer fails to provide full or

209

15 U.S.C. 1.

210

Id.

211

For example, see 84 FR 65464, 65464-65 (Nov. 27, 2019).

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timely information, then the issuer, but not the plan, has violated the transparency disclosure

requirements and may be subject to enforcement mechanisms applicable to plans under the PHS

Act.

212

Therefore, insured multiemployer plans that contract with an issuer to provide the

information required under the final rules would not be subject to enforcement actions under this

mechanism; rather, the issuers with whom they have contracted will be subject to enforcement

action under the final rules for failure to meet the transparency disclosure requirements.

Under the second special rule, multiemployer plans may also contract with a TPA or

other third party (for example, a clearinghouse) to meet the transparency disclosure requirements

under the final rules. However, this commenter is correct that if a plan or issuer chooses to enter

into such an agreement, and the party with which it contracts fails to provide full or timely

information, the plan or issuer would violate the transparency disclosure requirements.

The notion that accountability for compliance rests with a plan or issuer when the issuer

or plan enlists a contractor or vendor for a business function is not inconsistent with other

applicable regulations.

213

While claims processing is the main function for which an issuer or

plan has contracted in this example, other responsibilities, such as responding to federal audits

and report requirements, may fall within the scope of the duties required by contract. The

Departments clarify that nothing in the final rules prevents an issuer or plan from ensuring

contracts with TPAs or other third parties include clear terms specifying functions required to

meet the disclosure requirements of the final rules, as well as establish service level agreements

212

Section 2723 of the PHS Act.

213

For example, plans remain liable for violations of claims regulations under 26 CFR 54.9815–2719 and 29 CFR

2590.715-2719; and QHPs issuers who contract with downstream or delegated entities must maintain compliance

with all applicable standards under 45 CFR 156.340(a).

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and performance metrics to hold the entities with whom the issuer or plan decides to contract

accountable.

Because multiemployer plans may be able to take advantage of the special rules

established under the proposed rules, the Departments do not view additional special

considerations necessary to address the ability of such plans to comply with the transparency

requirements of the final rules.

c. Aggregation for Allowed Amount Files

In order to further mitigate privacy concerns and to eliminate unnecessary duplication,

the Departments proposed to permit plans and issuers to satisfy the public disclosure

requirements of the proposed rules by making available out-of-network allowed amount data that

has been aggregated to include information from more than one plan or policy. As previously

discussed, a plan or issuer may satisfy the disclosure requirement by disclosing out-of-network

allowed amounts. Accordingly, under such circumstances, the proposed rules would have

permitted plans and issuers to aggregate out-of-network allowed amounts for more than one plan

or insurance policy or contract.

To the extent a plan or issuer provided aggregated out-of-network allowed amount

information, the Departments proposed to apply the minimum claims threshold to the aggregated

claims data set, but not at the plan or issuer level. Based on commenters’ requests for

clarification, the Departments have determined that the proposed approach to apply the minimum

claims threshold to the full aggregated claims data set could undermine the goal of the minimum

claims threshold. The out-of-network Allowed Amount File must include a unique plan

identifier for each plan or coverage included in the file under 26 CFR 54.9815-

2715A3(b)(1)(ii)(A), 29 CFR 2590.715-2715A3(b)(1)(ii)(A), and 42 CFR 147.212(b)(1)(ii)(A).

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Therefore, even if the data for each plan or coverage were to be aggregated for purposes of

determining whether the minimum claims threshold applies to a particular covered item or

service, the data in the Allowed Amounts File would be distinguishable at the level of the plan

identifier. The Departments are of the view that this could be problematic if all plans or

coverage included in an aggregated Allowed Amount File meet the minimum claim threshold for

an item or service when combined, but some or all individual plans do not independently meet

the minimum claim threshold of 20 claims.

For instance, data for two plans are aggregated in the same Allowed Amount File under

this rule. Plan A has 20 claims for Service X, while Plan B only has six claims for Service X. In

aggregate, the plans meet the 20-claim threshold with 26 total claims for Service X. However,

individually, only Plan A has met the minimum claim threshold. Under the proposal, data for

Service X would be required to be included for both Plan A and Plan B, along with both the plan

identifiers. The outcome of this requirement would be that Plan B would include data

identifiable at the plan level for Service X. The Departments are of the view that allowing Plan

B data to be included in the file for Service X would undermine the minimum claim threshold,

increasing risk that individual patients’ claims histories could be identified. To prevent this

outcome, data for each plan or coverage included in an aggregated Allowed Amount File must

independently meet the minimum claims threshold for each item or service and for each plan or

coverage included in the aggregated Allowed Amount File. To highlight this requirement, the

Departments are finalizing this provision of the proposed rules with a minor modification

clarifying that the flexibility to aggregate out-of-network allowed amounts for more than one

plan or coverage in a single machine-readable file is still subject to the minimum claims

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threshold applicable to individual plans or coverage as described under paragraph (b)(1)(ii)(C) of

the same section.

One commenter requested clarification of a plan’s obligation if a third party aggregates

the Allowed Amount File. The commenter specifically requested clarification regarding whether

the plan or third party would be responsible for posting the file, and whether there will be any

special labeling requirements for an aggregated file, including if the file will need to include a

disclosure that it includes aggregated data.

Nothing in the final rules prevents the Allowed Amount File from being hosted on a

third-party website or prevents a plan administrator from contracting with a third party to post

the file. The Departments have added text to the final rules to make clear that this flexibility

exists and to provide that if a plan chooses not to also host the file separately on its own public

website, it must provide a link on its website to the location where the file is publicly available.

The Departments will provide additional information on the form and manner, including

labeling, through the file technical implementation guidance.

III. Overview of the Final Rule Regarding Issuer Use of Premium Revenue under the

Medical Loss Ratio Program: Reporting and Rebate Requirements – The Department of

Health and Human Services

As stated in the preamble to the proposed rules, consumers with health insurance often

lack incentives to seek care from lower-cost providers, for example when consumers’ out-of-

pocket costs are limited to a set copayment amount regardless of the costs incurred by the issuer.

Innovative benefit designs can be used to increase consumer engagement in health care

purchasing decisions. HHS proposed to allow issuers that empower and incentivize consumers

through the introduction of new or different plans that include provisions encouraging consumers

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to shop for services from lower-cost, higher-value providers, and that share the resulting savings

with consumers, to take credit for such “shared savings” payments in their MLR calculations.

HHS believes this approach preserves the statutorily-required value consumers receive for

coverage under the MLR program, while encouraging issuers to offer new or different plan

designs that support competition and consumer engagement in health care.

Formula for Calculating an Issuer’s Medical Loss Ratio (45 CFR 158.221)

Section 2718(b) of the PHS Act requires a health insurance issuer offering group or

individual health insurance coverage (including grandfathered health insurance plans) to provide

rebates to enrollees if the issuer’s MLR falls below specified thresholds (generally, 80 percent in

the individual and small group markets and 85 percent in the large group market). Section

2718(b) of the PHS Act generally defines MLR as the percentage of premium revenue (after

certain adjustments) an issuer expended on reimbursement for clinical services provided to

enrollees and on activities that improve health care quality. Consistent with section 2718(c) of

the PHS Act, the standardized methodologies for calculating an issuer’s MLR must be designed

to take into account the special circumstances of smaller plans, different types of plans, and

newer plans.

Several states have considered or adopted legislation over the last few years to promote

health care cost transparency and encourage issuers to design and make available plans that

“share” savings with enrollees who shop for health care services and choose to obtain care from

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lower-cost, higher-value providers.

214

In addition, at least five states and a number of self-

insured group health plans have incorporated such “shared savings” provisions into all or some

of their health plans.

215

Under some plan designs, the savings are calculated as a percentage of

the difference between the rate charged by the provider chosen by the consumer for a medical

procedure and the average negotiated rate for that procedure across all providers in the issuer’s

network. Under other plan designs, the “shared savings” are provided as a flat dollar amount

according to a schedule that places providers in one or more tiers based on the rate charged by

each provider for a specified medical procedure. Under various plan designs, the “shared

savings” may be provided in form of a gift card, a reduction in cost sharing, or a premium credit.

HHS is of the view that such unique plan designs would motivate consumers to make more

informed choices by providing consumers with tangible incentives to shop for care at the best

price. As explained elsewhere in the preamble to the proposed rules, there is ample evidence that

increased transparency in health care costs would lead to increased competition among

214

24-A Maine Rev. Stat. Ann. Sec. 4318-A (adopted Jun. 19, 2017); Neb. Rev. Stat. Sec. 44-1401 et seq.

(adopted Apr. 23, 2018); Utah Code Ann. Sec. 31A-22-647 (adopted Mar. 19, 2018); AZ SB 1471 (2018); N.H.

HB 1784-FN (2018); MA H2184 (2017).

215

See the State of Kansas’ SmartShopper program for state employees enrolled with BCBSKS, available at:

https://healthbenefitsprogram.ks.gov/docs/default-source/site-documents/sehp/vendor-

documents/bcbs/smartshopper_state_of_kansas_steps.pdf?sfvrsn=cfa4e44_8; the state of Kentucky employee

member handbook for Livingwell CDHP’s SmartShopper program, available at:

https://personnel.ky.gov/KEHP/2020%20LivingWell%20CDHP%20Medical%20Benefit%20Booklet.pdf

and

https://www.smartshopper.com/legacy?utm_expid=.WJ_v45PuTXuo1k6ioPp4tA.1&utm; the State of Massachusetts

employee member handbook for Fallon Health Select Care’s SmartShopper program, available at:

https://www.mass.gov/doc/fallon-select-care-handbook-fy21/download; the State of New Hampshire employee

medical benefit, the Site of Service and Vitals SmartShopper Programs, available at:

https://das.nh.gov/riskmanagement/active/medical-benefits/cost-savings-programs.aspx#vitals-smartshopper; Utah

Public Employees Health Program Cost Tools, available at: https://www.pehp.org/save.

CMS-9915-F 330

providers.

216

HHS is of the view that allowing flexibility for issuers to include savings they share

with enrollees in the numerator of the MLR would increase issuers’ willingness to undertake the

investment necessary to develop and administer plan features that may have the effect of

increasing health care cost transparency, which in turn could lead to reduced health care costs.

HHS has in the past exercised its authority under section 2718(c) of the PHS Act to take

into account the special circumstances of different types of plans by providing adjustments to

increase the MLR numerator for “mini-med” and “expatriate” plans,

217

student health insurance

plans,

218

as well as for QHPs that incurred Exchange implementation costs

219

and certain non-

grandfathered plans (that is, “grandmothered” plans).

220

This authority has also been exercised to

recognize the special circumstances of new plans

221

and smaller plans.

222

Consistent with this

approach, HHS proposed to exercise its authority to account for the special circumstances of new

216

Austin, D. A., and Gravelle, J. G. “Congressional Research Service Report for Congress: Does Price

Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Healthcare

Sector.” Congressional Research Service. July 24, 2007.”Available at: https://fas.org/sgp/crs/secrecy/RL34101.pdf

217

See 45 CFR 158.221(b)(3) for “mini-med” plans and 45 CFR 158.221(b)(4) for “expatriate” plans; see also the

Health Insurance Issuers Implementing Medical Loss Ratio (MLR) Requirements Under the Patient Protections and

Affordable Care Act; Interim Final Rule; 75 FR 74864, 74872 (Dec. 1, 2010).

218

See 45 CFR 158.221(b)(5); see also the Student Health Insurance Coverage; Final Rule, 77 FR 16453,

16458-16459 (Mar. 21, 2012).

219

See 45 CFR 158.221(b)(7); see also the Exchange and Insurance Market Standards for 2015 and Beyond; Final

Rule; 79 FR 30240, 30320 (May 27, 2014).

220

See 45 CFR 158.221(b)(6); see also 79 FR 30240, 30320 (May 27, 2014). See 45 CFR 158.221(b)(6); see also 79

FR 30240, 30320 (May 27, 2014); see also 45 CFR 158.221(b)(6); see also 79 FR 30240, 30320 (May 27, 2014).

“Grandmothered” plans is a term for certain non-grandfathered coverage in the small group and individual health

insurance markets. Since 2014, CMS has permitted, subject to applicable State authorities, health insurance issuers

to continue certain coverage that could not otherwise remain in place without significant changes to comply with

PPACA. Such health insurance coverage would not be treated as out of compliance with sections 2701-2707 and

2709 of the PHS Act and section 1312(c) of PPACA (group health plans must still comply with section 2704 and

270505 of the PHS Act). See Extended Non-Enforcement of Affordable Care Act-Compliance With Respect to

Certain Policies, available at

https://www.cms.gov/CCIIO/Resources/Regulations-and-

Guidance/Downloads/Limited-Non-Enforcement-Policy-Extension-Through-CY2020.pdf and

https://www.cms.gov/files/document/extension-limited-non-enforcement-policy-through-calendar-year-2021.pdf.

221

See 45 CFR 158.121; see also 75 FR 74864, 74872-74873 (Dec. 01, 2010) and the HHS Notice of Benefit and

Payment Parameters for 2018 Final Rule; 81 FR 94058, 94153-94154 (Dec. 22, 2016).

222

See 45 CFR 158.230 and 158.232; see also 75 FR 74864, 74880 (Dec. 01, 2010).

CMS-9915-F 331

and different types of plans that provide “shared savings” to consumers who choose lower-cost,

higher-value providers by adding a new paragraph 45 CFR 158.221(b)(9) to allow such “shared

savings” payments to be included in the MLR numerator. HHS made this proposal so that

issuers would not be required to pay MLR rebates based on a plan design that would provide a

benefit to consumers that is not currently captured in any existing MLR revenue or expense

category. HHS proposed that the amendment to 45 CFR 158.221 would become effective

beginning with the 2020 MLR reporting year (for reports filed by July 31, 2021). HHS invited

comments on this proposal.

After considering the public comments, HHS is finalizing the amendment to 45 CFR

158.221(b) as proposed.

The majority of comments on the proposed amendments to the MLR program rules

supported the proposal to add a new paragraph to 45 CFR 158.221(b). Supporters noted that

allowing issuers to include “shared savings” payments in their MLR calculation aligns issuer and

enrollee incentives, aligns with MLR’s purposes, is innovative, provides enrollees with value,

increases consumer engagement and empowerment, and will promote better enrollee decision-

making and reduce total health care costs. Several supportive commenters also noted that the

proposal may encourage more issuers to offer such “shared savings” programs, as allowing

“shared savings” payments to be included in the MLR numerator will remove any existing

barriers to such programs and facilitate the use of innovative benefit designs that increase

consumer engagement in health care purchasing decisions, while disallowing this approach

punishes issuers that offer innovative “shared savings” programs and disincentivizes issuers from

adopting such programs. Several commenters stated that there is evidence that patients are more

likely to shop for care when information on prices is coupled with incentives, and that such

CMS-9915-F 332

shopping can generate significant savings for issuers and lead health care providers to lower their

prices in order to remain competitive in the marketplace.

223

HHS agrees with the comments in support of the proposal and is finalizing this

amendment as proposed to provide additional flexibility to states and issuers and encourage the

economic effects the commenters highlighted.

Some commenters requested clarification regarding certain aspects of the “shared

savings” plans. Several commenters requested that HHS develop uniform standards and a

definition for “shared savings,” which according to commenters would, among other things, help

prevent fraud and abuse; and that HHS clarify the criteria for low-cost, high-value providers.

One commenter asked HHS to provide sub-regulatory guidance to specify in what form the

savings can be shared, how issuers will report their “shared savings,” how double-counting can

be prevented, and whether “shared savings” payments are taxable income. Other commenters

suggested that HHS provide maximum flexibility for issuers and states to innovate and develop

“shared savings” programs they determine are best suited for their populations.

While HHS appreciates these suggestions and is also concerned with preventing fraud

and abuse, HHS is of the view that state legislators and regulators are currently in a better

position than HHS to work with the issuers in their states to define the “shared savings”

programs that they support, issue standards and criteria for the programs for their respective

constituents, and decide in what form the savings can be made. These considerations include the

operational details of any “shared savings” program, such as creating standards and definitions,

223

For example, one commenter shared that since 2015, its “shared savings” program issued over 149,000 incentive

reward payments, generating over $85 million in savings. See https://beta.regulations.gov/document/CMS-2019-

0163-14320.

CMS-9915-F 333

developing acceptable payment methods, and addressing fraud concerns. HHS notes that several

issuers have already developed and implemented such programs and that a few states have done

the same. The amendment being finalized in this rulemaking is specific to the recognition of

“shared savings” payments in issuer MLR calculations and is intended to encourage more state

and issuer innovation with these types of programs. Accordingly, HHS will provide technical

guidance in the MLR Annual Reporting Form Instructions to clarify the reporting of “shared

savings” payments specifically for MLR purposes. With respect to the comment regarding how

double-counting can be prevented, HHS notes that 45 CFR 158.170 prevents double-counting by

requiring each expense to be reported in only one category or to be pro-rated between categories

for MLR purposes. Finally, whether “shared savings” payments to enrollees are taxable will

vary based on certain specific facts and circumstances. Some forms of “shared savings” may be

taxable; however, HHS defers to the Department of the Treasury to address the taxability of such

payments as necessary.

Opponents of the proposal stated that it fails to ensure that the savings are actually used

for health care or quality improvement activities (QIA), that HHS is subverting the statutory

scheme by allowing issuers to spend less on enrollees’ care and quality initiatives without

returning the premium dollars saved to all enrollees, and that the proposal would allow issuers to

further boost profits and diminish the MLR standards and issuer accountability. Some opponents

of the proposal argued that since any plan type can offer “shared savings,” adding a “shared

savings” payment component to a policy does not make it a “different” type of plan and it should

not be treated as such. Others were concerned that the proposal would incentivize issuers to

artificially drive down negotiated rates with providers and that these savings may not make their

way back to enrollees. One commenter opposed extending “shared savings” programs to self-

CMS-9915-F 334

insured ERISA plans. Another commenter pointed out that the National Association of

Insurance Commissioners (NAIC) did not mention the proposal in its comments and the MLR

statute provides that the NAIC shall establish the definitions and methodologies for MLRs.

HHS agrees that “shared savings” are neither an incurred claim nor a QIA. Instead, in

support of this amendment to 45 CFR 158.221(b), HHS is relying on the statutory directive

under section 2718(c) of the PHS Act that the MLR standardized methodologies shall be

designed to take into account the special circumstances of different types of plans and newer

plans, such as plans that offer “shared savings” payments to enrollees that seek care from lower-

cost, higher-value providers. HHS believes that any issuer that includes in its plan design(s) a

“shared savings” component is offering a “different” type of plan and a “newer” plan, as a

“shared savings” program is a new and unique feature. HHS notes that the amendment finalized

in these rules helps provide policyholders with value for their premium dollars, as intended by

section 2718 of the PHS Act. HHS disagrees that the amendment somehow subverts the

statutory scheme as issuers that implement these programs are sharing the savings and returning

dollars to enrollees who participate in these programs, and issuers must still otherwise meet the

applicable MLR threshold or provide a rebate to enrollees. For the same reasons, HHS does not

share certain commenters’ view that the amendment weakens the MLR standards and enables

issuers to improperly boost profits, as the amendment simply allows issuers to account for the

portion of the “shared savings” that is passed to participating enrollees and that consequently

does not increase issuers’ profits. With respect to comments regarding the impact on provider

negotiated rates and enrollee access to savings, HHS is unsure how the amendment would

incentivize issuers to artificially drive down negotiated rates with providers. However, if as a

result of this amendment, provider rates decrease, such a result would in fact benefit enrollees.

CMS-9915-F 335

In addition, because only actual payments made to enrollees can be included in an issuer’s MLR

calculation under the amendment, issuers will benefit for MLR calculation and reporting

purposes only if the savings are actually shared with enrollees. With respect to the comment

regarding self-insured ERISA plans, HHS notes that this amendment does not apply to or impact,

either self-funded ERISA plans, or self-funded non-ERISA plans, as these plans are not subject

to the MLR reporting and rebate requirements under section 2718 of the PHS Act. Last, with

respect to comments regarding the NAIC recommendations to HHS, section 2718(c) of the PHS

Act directed the NAIC, subject to certification by the Secretary, to establish uniform definitions

and standardized methodologies to guide MLR reporting and calculations. The NAIC met its

statutory obligation when it provided recommendations to HHS in 2010 in the form of a model

regulation.

224

The NAIC’s recommendations informed the Secretary’s decisions about the

federal definitions and methodologies for calculating MLRs.

225

In this rulemaking, HHS is

taking further action to recognize the special circumstances of the different and newer plans that

include “shared savings” programs with the addition of new paragraph (b)(9) to 45 CFR 158.221.

Some commenters expressed concerns that “shared savings” programs in general could

actually compromise the quality of care by driving consumer choices based on cost without

regard for quality, and that these programs could encumber and curtail medically necessary

clinical services in serving the financial interest of the payer. Some commenters requested that

HHS only allow “shared savings” where there is evidence that the participating enrollees actually

224

“Regulation for Uniform Definitions and Standardized Methodologies for Calculation of the Medical Loss Ratio

for Plan Years 2011, 2012, and 2013 per section 2718(b) of the Public Health Service Act,” MDL-190. Available

at: https://www.naic.org/store/free/MDL-190.pdf?4

225

See the Health Insurance Issuers Implementing Medical Loss Ratio (MLR) Requirements Under the Patient

Protection and Affordable Care Act; Interim Final Rule, 75 FR 74864 (Dec. 1, 2010); see also 45 CFR Part 158.

CMS-9915-F 336

receive better care at reduced costs. One commenter stated that the proposal fails to define

higher-value, which varies based on each enrollee’s circumstances. One commenter questioned

the feasibility of measuring whether reward systems generate actual savings.

HHS disagrees that programs that reward enrollees for critically examining their options

and pursuing cost-effective care interfere with the provision of medically necessary clinical

services. However, HHS agrees that quality as well as cost should be determinants of what

qualifies for inclusion in any given issuer’s “shared savings” program. That is why the

amendment to 45 CFR 158.221 includes both a cost and quality component; it permits issuers to

include in the MLR numerator “shared savings” payment made to enrollees choosing to obtain

care from a lower-cost and higher-value provider. However, HHS did not propose and is not

finalizing elements or criteria issuers must address or otherwise include in their respective

“shared savings” programs. The amendment finalized in this rulemaking is specific to

recognizing “shared savings” payments in issuer MLR calculations. As detailed above, HHS

believes state legislators and regulators are currently in the best position to work with issuers in

their states to develop standards and criteria for “shared savings” programs for their respective

constituents. HHS further believes that issuers are in the best position to perform the necessary

provider credentialing activities that will ensure that network providers that are included in their

“shared savings” programs are high-value, high-quality providers. Since higher-value can vary

by enrollee demographics and provider type, issuers must determine what this means for their

enrollees and providers and maintain all documents and other evidence necessary to support that

determination consistent with the maintenance of records requirements contained in 45 CFR

158.502. Issuers are sophisticated entities that understand that if their enrollees obtain lower-

quality care, their costs over the long-term will increase rather than decrease as their enrollees

CMS-9915-F 337

will likely need additional and possibly corrective medical care. HHS therefore believes that

issuers’ incentives are aligned with those of their enrollees when it comes to designing “shared

savings” programs.

HHS received a few comments urging that issuers be allowed to include some or all of

the costs of implementing the requirements of these price transparency rules as a QIA in the

numerator of the MLR calculation. A few commenters urged HHS to allow issuers to include

some or all of the costs of creating the cost estimator tool required by the price transparency

aspects of the proposed rules.

Price transparency implementation costs do not constitute an improvement to the quality

of health care and thus do not qualify as QIA and cannot be included in the numerator of the

MLR calculation.

Lastly, several commenters expressed support for or opposition to the MLR reporting and

rebate requirements in general. HHS appreciates these comments but notes that they are outside

the scope of the amendments to the MLR program rules contained in the proposed rule.

IV. Applicability

A. In General

1. Entities Subject to the Final Rules

The Departments proposed requiring group health plans, including self-insured plans, and

health insurance issuers of individual and group health insurance coverage to disclose pricing

information, with certain exceptions as discussed in more detail in this preamble. The

Departments are of the view that consumers across the private health insurance market will

benefit from the availability of pricing information that is sufficient to support informed health

care decisions. Although the Departments considered making the requirements applicable to a

CMS-9915-F 338

more limited segment of the private health insurance market, the Departments are of the view

that consumers across the market should receive and benefit from the same access to

standardized, meaningful pricing information and estimates. Moreover, applied broadly, these

changes have a greater potential to reform health care markets.

Additionally, the preamble to the proposed rules discussed how pricing information

related to items and services that are subject to capitation arrangements under a specific plan or

contract could meet transparency standards by disclosing only the consumer’s anticipated

liability. The Departments sought comment on whether there are certain reimbursement or

payment models (such as ACOs or staff model HMOs) that should be partially or fully exempt

from these requirements or should otherwise be treated differently. Further, the Departments

sought comment on how consumers may become better informed about their cost-sharing

requirements under these reimbursement or payment models.

The Departments also considered limiting applicability to issuers of individual health

insurance coverage and insured group health insurance coverage, but concluded that limiting

applicability would be inconsistent with section 2715A of the PHS Act. The Departments are

concerned that a more limited approach might encourage plans and issuers to simply shift costs

to sectors of the market where the final rules would not apply and where consumers have

diminished access to pricing information. Additionally, the Departments are concerned that a

more limited approach may distort the health care market by creating perverse incentives for

plans and issuers to avoid participating in certain markets that require compliance with these

requirements.

The Departments are aware that certain plans and health coverage are not subject to the

transparency provisions under section 2715A of the PHS Act and, therefore, are not be subject to

CMS-9915-F 339

the final rules. This includes grandfathered health plans, excepted benefits, health care sharing

ministries, and short-term, limited-duration insurance (STLDI).

Grandfathered health plans are health plans that were in existence as of March 23, 2010,

the date of enactment of PPACA, and that are only subject to certain provisions of PPACA, as

long as they maintain their status as grandfathered health plans under the applicable rules.

226

Under section 1251 of PPACA, section 2715A of the PHS Act does not apply to grandfathered

health plans. Therefore, the proposed rules would not have applied to grandfathered health plans

(as defined in 26 CFR 54.9815-1251, 29 CFR 2590.715-1251, and 45 CFR 147.140).

In accordance with sections 2722 and 2763 of the PHS Act, section 732 of ERISA, and

section 9831 of the Code, the requirements of title XXVII of the PHS Act, part 7 of ERISA, and

chapter 100 of the Code do not apply to any group health plan (or group health insurance

coverage offered in connection with a group health plan) or individual health insurance coverage

in relation to its provision of excepted benefits. Excepted benefits are described in section 2791

of the PHS Act, section 733 of ERISA, and section 9832 of the Code. Section 2715A of the PHS

Act is contained in title XXVII of the PHS Act, and, therefore, the proposed rules would not

have applied to a plan or coverage consisting solely of excepted benefits.

The Departments also proposed that the rules would not apply to STLDI. Under section

2791(b)(5) of the PHS Act, STLDI is excluded from the definition of individual health insurance

coverage and is therefore exempt from section 2715A of the PHS Act.

227

Therefore, the

proposed rules would not have applied to STLDI coverage.

226

26 CFR 54.9815-1251, 29 CFR 2590.715-1251, and 45 CFR 147.140.

227

See 26 CFR 54.9801-2, 29 CFR 2590.701-2, and 45 CFR 144.103.

CMS-9915-F 340

The Departments also proposed that the rules would not apply to health reimbursement

arrangements, or other account-based plans, as defined in 26 CFR 54.9815-2711(d)(6)(i), 29

CFR 2590.715-2711(d)(6)(i), and 45 CFR 147.126(d)(6)(i), that simply make reimbursements

subject to a maximum fixed dollar amount for a period, with the result that cost-sharing concepts

are not applicable to those arrangements.

In contrast, the Departments proposed that the final rules would apply to grandmothered

plans, meaning certain non-grandfathered health insurance coverage in the individual and small

group markets with respect to which CMS has announced it will not take enforcement action

even though the coverage is out of compliance with certain specified market requirements.

228

The Departments sought comment on whether grandmothered plans may face special challenges

in complying with these transparency reporting provisions and whether the proposed rules should

apply to grandmothered plans.

The final rules adopt these provisions as proposed. The final rules apply these

requirements to group health plans, and health insurance issuers offering non-grandfathered

group or individual health insurance coverage, with certain exceptions. Thus, the final rules

apply to grandmothered plans. The Departments are finalizing, as proposed, that these

requirements will not apply to certain plans and coverages that are not subject to the

transparency provisions under section 2715A of the PHS Act, including grandfathered health

plans, excepted benefits, and STLDI. Additionally, the final rules will not apply to health

reimbursement arrangements, or other account-based plans, as defined in 26 CFR 54.9815-

228

Pate, R. “Insurance Standards Bulletin Series.” Centers for Medicare & Medicaid Services. January 31, 2020.

Available at: https://www.cms.gov/files/document/extension-limited-non-enforcement-policy-through-calendar-

year-2021.pdf.

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2711(d)(6)(i), 29 CFR 2590.715-2711(d)(6)(i), and 45 CFR 147.126(d)(6)(i), as these account-

based arrangements simply make certain dollar amounts available, with the result that cost-

sharing and price setting concepts are not applicable to those arrangements.

The majority of commenters supported applying these requirements to issuers of

individual health insurance coverage and group health insurance coverage, as well as group

health plans. Commenters supported allowing consumers across the market to access important

pricing information. Some commenters suggested additional plans and coverages that should be

required to comply with these requirements, as discussed later in this preamble. The

Departments did not receive comments regarding application of the final rules to grandmothered

plans.

One commenter stated that the proposed rules would create an uneven playing field that

would unfairly advantage plans and issuers offering stand-alone dental or vision coverage over

plans that incorporate such benefits into major medical coverage. For example, the commenter

stated that a plan offering essential health benefits would have to include in a machine-readable

file negotiated rates for pediatric dental services. However, a plan offering stand-alone dental

coverage would not have to publish pricing information. For these reasons, the commenter

recommended that vision, dental, and hearing benefits, if offered as part of a plan or coverage

subject to the transparency requirements, should be excluded from information disclosed through

the internet-based self-service tool and machine-readable files.

In response to this comment, the Departments note that section 2721(b), (c)(1) through

(3) of the PHS Act provides an exemption from title XXVII of the PHS Act for “any individual

coverage or any group health plan (and group health insurance coverage offered in connection

with a group health plan) in relation to its provision of excepted benefits.” (See also section 732

CMS-9915-F 342

(b), (c) of ERISA, and section 9831(b), (c) of the Code) (emphasis added).

229

To the extent that a

plan or issuer provides a participant, beneficiary, or enrollee with the opportunity to opt out of

limited scope dental or vision benefits, those benefits are considered as not an integral part of the

plan and, accordingly, are considered excepted benefits.

230

Therefore, under the final rules, plans

and issuers that offer excepted benefits, such as limited scope dental or vision benefits, along

with their major medical coverage are not required to disclose the information required by the

final rules regarding their provision of those excepted benefits. Accordingly, the final rules do

not create an uneven playing field that would unfairly advantage plans and issuers offering stand-

alone dental or vision coverage over plans that incorporate such benefits into major medical

coverage.

The Departments received a mix of comments regarding whether the final rules should

apply to alternative contracting and alternative payment model structures, such as ACOs or

HMOs. One commenter recommended a narrower scope for ACOs and other capitated payment

arrangements, including only requiring transparency tools to display amounts that are not service

dependent (for example, flat copayments), as well as accumulator information about deductibles

and out-of-pocket maximums. As discussed elsewhere in this preamble, some commenters

expressed concern regarding how the final rules would apply to reference-based pricing models,

direct primary care, bundled or capitated payment arrangements, and value-based insurance

design. Additionally, some commenters expressed concern regarding how the final rules would

apply to plans with rental networks and quality-adjusted and risk-adjusted contracts (under which

229

See also section 2763 of the PHS Act.

230

26 CFR 54.9831-1(c)(3)(ii), 29 CFR 2590.732(c)(3)(ii), and 45 CFR 146.145(b)(3)(ii).

CMS-9915-F 343

prices can only be calculated after the fact). These commenters recommended that these kinds of

arrangements be exempt from the final rules’ requirements.

On the other hand, other commenters suggested that there is no justification for excluding

plans that reimburse their providers based on capitation from the requirements of the final rules

as this would result in an incomplete data set, and issuers of risk adjustment-covered plans

already assign values to services to administer benefits with deductibles and co-insurance, for

risk adjustment purposes under 45 CFR 153.710(c), and for internal reporting. One commenter

recommended that the final rules should apply to ACOs and other capitated arrangements and

that these arrangements should be required to disclose their underlying financial incentive

arrangements, not just consumer’s anticipated liability. The commenter also noted that any

exemptions may incentivize plans to move to these pricing models, which the commenter

characterized as opaque and potentially consumer-unfriendly. Several commenters agreed that

pricing information related to items and services subject to capitation arrangements could meet

transparency standards only through the disclosure of the consumer's anticipated liability.

Some commenters raised the concern that the proposed rules would have a particularly

negative impact on smaller entities that are less likely to have the financial reserves and

technological resources to build and maintain systems to operationalize disclosure requirements.

Some commenters requested that the final rules be optional or that smaller plans and TPAs be

exempted from the requirements. For example, a few commenters recommended providing an

exception to the price transparency requirement for small issuers, TPAs, and plans with revenue

below the $41.5 million small entity threshold or with 100,000 commercial participants,

beneficiaries, and enrollees or fewer. They suggested that an exception to the final rules would

allow small issuers to adopt elements of the requirements of most relevance to their participants,

CMS-9915-F 344

beneficiaries, and enrollees while not forcing them to create a much more expensive option that

may be of limited appeal.

In considering these concerns, the Departments weighed the competing goals of ensuring

that consumers have access to pricing information, the burden on plans, including self-insured

plans, and issuers of individual health insurance coverage and group health insurance coverage,

and encouraging innovative plan design. As finalized, all issuers of non-grandfathered

individual and group health insurance coverage and self-insured plans (that are not account-

based plans), are required to comply with the final rules. Finalizing these rules to be applicable

to plans as proposed is the most straightforward approach as it is impossible to define and predict

all possible modifications, plans, or models. Furthermore, doing so mitigates creating incentives

to adopt certain plan designs over others. The Departments believe that this is not likely to stifle

innovation. Rather, the Departments are of the view that this approach creates a level playing

field for non-grandfathered individual and group health insurance coverage and self-insured

plans (that are not account-based plans) to create innovative plan designs and increase

consumers’ access to pricing information that is sufficient to support informed health care

decisions. The Departments are of the view that exempting plan designs, such as alternative

contracting and alternative payment model structures, would create an opportunity for plans and

issuers to avoid sharing important pricing information with consumers. The Departments

maintain the view that consumers across the market should come to expect and receive the same

access to standardized, meaningful pricing information and estimates for all plans affected by the

final rules. In addition, as detailed earlier in this preamble, issuers of risk adjustment-covered

plans that include capitation arrangements are required under the final rules to submit a derived

CMS-9915-F 345

amount, potentially using the same internal methodology the issuer uses to assign a price value to

the item or service for purposes of submitting risk adjustment data under 45 CFR 153.710(c).

A few commenters supported exempting grandfathered health plans, HRAs or other

account-based plans, excepted benefits, and STLDI from the proposed rules. However, a

majority of commenters were concerned that the final rules, as proposed, would not apply to

plans or arrangements that may have the highest potential cost-sharing obligations, such as

STLDI and health care sharing ministries. These commenters were concerned that STLDI plans

often have dollar limits on covered benefits, limits on prescription drug coverage and covered

doctor visits, and excluded benefits, which often means consumers enrolled in these plans can

face higher cost-sharing liability when seeking medical care than patients covered by individual

health insurance coverage, as defined under section 2791(b)(5) of the PHS Act. They stated that

it is even more important for these patients to have access to their cost-sharing liability under the

final rules before receiving care or even signing up for a STLDI plan, so they are aware of their

coverage limits and are prepared to receive bills from the hospital and other health care providers

for amounts that exceed their coverage. One commenter stated that whether such plans are

considered “individual health insurance” is not relevant for such a determination, as the proposed

rules would not apply to just individual health insurance, but would also apply to group coverage

and grandmothered plans.

The Departments appreciate the concerns raised by commenters regarding these plans.

However, the final rules adopt these policies as proposed. As noted earlier in this section of this

preamble, certain types of coverage and arrangements such as STLDI, excepted benefits and

health care sharing ministries, are not subject to the transparency provisions under section 2715A

of the PHS Act and, therefore, are not subject to the final rules. However, the Departments

CMS-9915-F 346

encourage all plans that are not subject to the final rules to work to increase the transparency and

availability of pricing information, to enable consumers to make informed health care decisions.

One commenter sought clarification of the liability of individual employers concerning

Multiple Employer Welfare Arrangements (MEWAs) and Taft-Hartley plans. Section 715 of

ERISA incorporates section 2715A of the PHS Act into part 7 of ERISA. Generally, employers

are only responsible for ensuring compliance with the requirements of ERISA for a Taft-Hartley

plan (also known as a multi-employer plan), if they are a member of the association, committee,

joint board of trustees, or other similar group of representatives of the parties who establish or

maintain the plan, or are otherwise a fiduciary of the plan. For MEWAs that are employee

welfare benefit plans, the bona fide group or association that sponsors the MEWA assumes and

retains responsibility for operating and administering the MEWA, including ensuring compliance

with Part 7 of ERISA. In cases where the MEWA itself is not a plan, each employer that

provides benefits through a MEWA and, therefore, maintains its own plan, is separately

responsible for compliance with ERISA requirements, and thus with the requirements of the final

rules.

Some commenters recommended adding additional plans and coverages to the list of

health coverage not subject to these transparency requirements. One commenter recommended

adding expatriate health plans because the Expatriate Health Coverage Clarification Act of 2014

exempts expatriate health plans from most of the provisions of PPACA, including sections

1311(e)(3) of PPACA and section 2715A of the PHS Act, both of which the Departments cite in

asserting statutory authority to propose these transparency requirements. Another commenter

recommended that Denominational Health Plans be specifically exempted from the final rules.

This commenter noted that Denominational Health Plans can only offer coverage to a limited

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segment of the population —eligible employees in the denomination —based on church

requirements, beliefs, and polity. Therefore, most of the individuals to which this information

would be disclosed would not be eligible to enroll in these plans even if they wished to do so.

Other commenters recommended extending the final rules to health coverage to which 2715A of

the PHS Act does not apply. For example, a commenter recommended that the Departments add

Medicaid Managed Care Organization plans and Medicare-Medicaid Plans to the list of health

plans not subject to the transparency requirements. The commenter noted that the combination

of Medicaid payment rates and low cost-sharing requirements limit the usefulness of this

information in the Medicaid context.

The Departments are finalizing the final rules as proposed and, therefore, all plans subject

to section 2715A of the PHS Act must comply with these requirements. The Departments agree

with commenters that sections 1311(e)(3) of PPACA and 2715A of the PHS Act do not apply to

expatriate health plans

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and, therefore, such plans are not subject to the requirements in the final

rules. Furthermore, the Departments’ authority for the final rules derive from section 2715A of

the PHS Act, which only applies to group health plans and health insurance issuers offering

group or individual health insurance coverage, and not Medicaid Managed Care Organization

plans, Medicare-Medicaid Plans, and Denominational Health Plans.

Interaction of Final Rules with 45 CFR 156.220

The Departments recognize that health insurance issuers offering group or individual

health insurance coverage as QHPs through an Exchange are already subject to reporting

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42 U.S.C. 18014.

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requirements under 45 CFR 156.220 that implement the transparency in coverage requirements

of section 1311(e)(3) of PPACA. Pursuant to 45 CFR 156.220, issuers of QHPs offered through

an individual market Exchange or a Small Business Health Options (SHOP) Exchange, including

stand-alone dental plans, must submit specific information about their plans’ coverage to the

appropriate Exchange, HHS, and the state insurance commissioner, as well as make the

information available to the public in plain language.

The Departments acknowledge the similar purposes served by 45 CFR 156.220 and the

final rules. The Departments, however, note the final rules do not alter requirements under

section 45 CFR 156.220. Accordingly, QHP issuers must comply with both rules’ requirements.

If necessary and to the extent appropriate, HHS may issue future guidance to address QHP

issuers’ compliance with both section 45 CFR 156.220 and the final rules.

2. Applicability Dates

Except as otherwise provided for in the proposed MLR requirements,

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the Departments

proposed that all the proposed requirements would become applicable for plan years (or in the

individual market, policy years) beginning on or after one year after the finalization of the final

rules. The Departments requested feedback about this proposed timing. In particular, the

Departments were interested in information regarding the time necessary to develop cost

estimation tools and machine-readable files. The Departments are finalizing a modified

applicability timeline for the machine-readable files at 26 CFR 54.9815-2715A3, 29 CFR

2590.715-54.9815-2715A3, and 45 CFR part 147.212. The requirements to publish the machine-

232

As noted above, HHS proposed and finalized that the amendment to the MLR regulation will become effective

beginning with the 2020 MLR reporting year (for reports filed by July 31, 2021).

CMS-9915-F 349

readable files will become effective for plan years (or in the individual market, for policy years)

beginning on or after January 1, 2022. The Departments, in response to comments, are finalizing

an applicability date that is generally one-year later than the proposed applicability date for

complying with the internet-based self-service tool requirements. Specifically, plans and issuers

will be allowed to phase in the requirements at 26 CFR 54.9815-22715A2, 29 CFR 2590.715-

2715A2, and 45 CFR part 147.211 regarding the items and services included in the internet-

based self-service tool. Plans and issuers will be required to provide pricing information for a

minimum of 500 items and services identified by the Departments beginning with plan years (or

in the individual market, policy years) on or after January 1, 2023. Plans and issuers will be

required to provide the pricing information through the internet-based self-service tool for all

items and services by plan years (or in the individual market, policy years) beginning on or after

January 1, 2024.

The Departments are finalizing applicability dates that do not tie applicability timelines to

the beginning of plan years (or in the individual market policy years) that begin one year after

the effective date of the rules, as proposed. Because most plan and policy years begin on

January 1

, the Departments are of the view that this change in the applicability date likely will

not shorten the amount of time plans and issuers have to comply with the machine-readable file

requirements, as it has been the Departments’ intent, including under the proposed rules, to

require calendar year plans and policies to come into compliance with the final rules by January

1, 2022. The changed timeline is therefore unlikely to lead to increased burdens or costs. The

Departments are finalizing a 3-year applicability timeline for the internet-based self-service tool

requirements. Under the proposed rules, plans and issuers would have had to comply with all

relevant proposed requirements beginning with plan or policy years beginning on or after

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January 1, 2023. Under the final rules, full compliance with all requirements associated with the

internet-based self-service tool will not be required until plan or policy years beginning on or

after January 1, 2024. For these reasons, the final rule’s applicability dates for the self-service

tool requirements are also unlikely to lead to increased burdens or costs.

Many commenters submitted comments regarding the proposed applicability date of the

proposed rules. The majority of commenters strongly recommended delaying the proposed

applicability date for the internet-based self-service tool and machine-readable file requirements

of the rules for at least one year and up to five years from publication of the final rules.

Commenters recommended delaying the applicability date of the final rules because

complying with the requirements will require negotiations with administrative service providers,

and the design, building, and testing of websites. Other commenters cited the challenges in

accessing some of the required information from third parties and the technical challenges plans

will likely face as additional reasons to delay the applicability dates of these requirements.

Additionally, commenters noted that the proposed rules would require disclosure of large

volumes of data, which will have to be coordinated among various parties and for which systems

will need to be put into place to ensure timely, accurate disclosure. Some commenters noted that

a delay would be needed due to complex operational and compliance issues related to contracting

with TPAs, ownership of data, and building and operating new IT systems.

Commenters also cited vendor supply/demand challenges; extensive technology design,

development, and deployment work; amending agreements with third parties; financing required

to meet the requirements of the final rules; and time needed to test the tools for consumer use as

reasons to delay the applicability date. One commenter noted that their current price estimator

tools took considerable time and resources to develop, and large portions of a tool's underlying

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logic or feature set may not be compatible with the approach envisioned in the proposed rules.

Moreover, testing, evaluating, and resolving these types of issues will require significant

investment in IT development, numerous iterations of quality assurance and consumer testing,

extensive education and training for plan staff, and development of new consumer-facing

materials, among other challenges. Another commenter recommended that employers/plan

sponsors should not have to comply with the final rules until the first day of the first plan year

that is two years after the date on which the rules are published. Similarly, commenters

requested a lengthy phase-in period to give employers, third parties, issuers, and health care

providers time to modify their contractual agreements to provide all of the data the proposed

rules would require to be disclosed.

A few commenters stated the Departments severely underestimated the time needed to

implement the machine-readable files. The commenter noted that the timeline to implement the

machine-readable files is very short, which could compromise the integrity of the files and lead

to unintended consequences for consumers. Another commenter noted that, if not eliminated, the

requirement to make machine-readable files available should be applicable no earlier than plan

or policy years beginning three years after the date the rules are finalized.

As discussed in the economic impact analysis, the Departments are of the view that

developing the machine-readable files should be straightforward for most plans and issuers and

that plans and issuers will incur limited additional administrative burdens or costs after the one-

time initial file development. The development activities needed to establish the machine-

readable files involve gathering, formatting, and making publicly available already existing data

that plans and issuers use in their everyday operations. Plans and issuers need to keep this

information current for operational purposes, and the additional costs and burdens of ensuring

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that the machine-readable files are updated monthly is expected to decrease in subsequent years

and ultimately become minimal, as the Departments expect plans and issuers to automate the

updating and verification processes in the years following initial development.

The Departments are of the view that providing for a phased-in approach with regard to

the number of items and services required for the internet-based self-service tool will provide

more time for plans and issuers to plan for any increased costs, work with various vendors,

perform user testing, and build appropriate technology to handle the disclosure of data through

the internet-based self-service tool. Therefore, the final rules require plans and issuers to include

in the internet-based self-service tool (and by request, through the paper method) 500 items and

services identified by the Departments for plan years (in the individual market, for policy years)

beginning on or after January 1, 2023, and all items and services for plan years (in the individual

market, for policy years) beginning on or after January 1, 2024. The Departments are of the

view that providing more time to implement the internet-based self-service tool while generally

maintaining the timeline for the machine-readable files, strikes the appropriate balance between

minimizing burdens for issuers and maximizing price transparency for the public. Providing

information to the public through the machine-readable files sooner will also accelerate

researchers’ and third-party developers’ access to pricing information and potentially provide

additional resources and incentives for plans to build out their own consumer-tools.

Many commenters also encouraged the Departments to allow for a phased-in approach

for the internet-based self-service tool and machine-readable files. Some commenters suggested

finalizing a rule that allows for a phased-in approach for different group health plans and health

insurance issuers of individual and group health insurance coverage to come into compliance

with the final rules. Some commenters recommended finalizing a rule that allows for a phased-

CMS-9915-F 353

in approach by allowing smaller entities an extended implementation timeframe (that is, an

additional 3 to 5 years) due to the disproportionate IT burden that will be placed on these smaller

entities. Additionally, commenters were concerned that the rules may create a competitive

advantage for larger issuers and TPAs.

A few commenters recommended that the rules be implemented in a more gradual

fashion by requiring a price transparency tool that covers a narrower data set initially, for

example, one that includes only the most common shoppable services. These commenters

asserted that, over time, this scope could be broadened to be fully inclusive, but an initial narrow

focus could increase the chance that patients have critical, actionable information as soon as

possible.

Other commenters recommended a phased approach that would focus first on the

functionality providing the most value to consumers to establish a baseline standard of price

transparency across plans, while allowing time for the industry to solve more difficult technical

challenges. Another commenter recommended allowing employers that have highly customized

benefit structures additional time to implement the internet-based self-service tool. One

commenter recommended allowing for a transition period for issuers and plans to use their

current tools to meet the requirements.

A few commenters recommended including quality metrics. These commenters noted

that requiring quality information in the disclosures would take additional time. In particular,

one commenter was concerned that in the absence of quality data, price transparency could

actually increase spending. The commenter therefore recommended delaying the

implementation of the final rules until quality information, such as information related to patient

satisfaction and experience, adherence to clinical standards and evidence-based medicine, and

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patient safety and clinical outcomes, could be incorporated. Another commenter stated that, if

pharmacy quality information could be included, the Departments would need to provide for

several years to transform existing consensus-based processes to identify appropriate quality

metrics to include health plans serving different populations. Another commenter urged the

Departments to perform a study on the effects of price transparency and the potential

consequences on consumers seeking care to better understand how best to integrate quality

information alongside prices to allow consumers to evaluate the services that best respond to

their individual needs.

As the Departments explain in section II.C.1 of this preamble, government and private

sector actors are working to develop and implement reliable and reasonable quality measures that

can be applied to produce quality rating information that consumers may access and consider

alongside pricing. As commenters acknowledged, delaying the final rules for the purpose of

requiring the integration of quality information with price information would require several

additional years. While the Departments appreciate the value of quality information to informed

health care decision-making, the Departments are of the view that price transparency in health

coverage must not be delayed for years when some quality information is already available or

under development. Indeed, the Departments expect that the ready availability of pricing

information will create greater consumer interest in quality information and other data relevant to

health care decision-making, and that the market will respond to provide such information

through innovative resources such as online tools and mobile applications. The Departments

anticipate that innovators will seek ways to best present and integrate pricing and quality data.

However, the Departments also will consider what next steps are appropriate and feasible within

the Departments’ current authorities, including the possibility of conducting a study to evaluate

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how to best integrate quality information alongside prices. For these reasons and those noted

earlier in this preamble, the Departments decline to require plans and issuers to include quality

information in the disclosures required by the final rules.

The Departments are finalizing the applicability dates of the final rules as described

earlier in this preamble. The Departments are of the view that the additional time and flexibility

regarding the internet-based self-service tool will help address the concerns commenters raised

regarding smaller entities’ ability to comply with these requirements.

B. Enforcement and Good Faith Special Applicability

The preamble to the proposed rules did not discuss how the proposed rules would be

enforced. State regulators, in their comments to the proposed rules, sought greater clarity on

how the proposed rules’ requirements would be enforced as specifically applied to health issuers

in the individual and group markets. Section 1311(e)(3) is located in title I of PPACA and,

under section 1321(c)(2) of PPACA is subject to the enforcement scheme set forth in section

2723 of the PHS Act. Similarly, section 2715A of the PHS Act is subject to the enforcement

scheme set forth in section 2723 of the PHS Act. Therefore, states will generally be the primary

enforcers of the requirements imposed upon health insurance issuers by the final rules.

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The

Departments expect to work closely with state regulators to design effective processes and

partnerships for enforcing the final rules.

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DOL has jurisdiction to enforce the final rules as they apply to group health plans subject to ERISA. Treasury

has jurisdiction over certain church plans. HHS has jurisdiction over non-federal governmental plans and over

health insurance issuers where the HHS Secretary determines that a state has failed to substantially enforce the

requirements. OPM has jurisdiction over the Federal Employees Health Benefits Plans.

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The proposed rules included a special applicability provision to address circumstances in

which a group health plan or health insurance issuer, acting in good faith, makes an error or

omission in its disclosures. Specifically, a plan or issuer would not fail to comply with the

proposed rules solely because it, acting in good faith and with reasonable diligence, made an

error or omission in a disclosure, provided that the plan or issuer corrects the information as soon

as practicable. Additionally, to the extent such an error or omission was due to good faith

reliance on information from another entity, the proposed rules included a special applicability

provision under which, to the extent compliance would require a plan or issuer to obtain

information from any other entity, the plan or issuer would not fail to comply with this section

because it relied in good faith on information from the other entity, unless the plan or issuer

knew, or reasonably should have known, that the information was incomplete or inaccurate.

Under the proposed rules, if a plan or issuer had knowledge that such information was

incomplete or inaccurate, the plan or issuer would be required to correct the information as soon

as practicable.

Furthermore, the proposed rules also included a special applicability provision to account

for circumstances in which a plan or issuer fails to make the required disclosures available due to

its internet website being temporarily inaccessible. Accordingly, the proposed rules provided

that a plan or issuer would not fail to comply with this section solely because, despite acting in

good faith and with reasonable diligence, its internet website is temporarily inaccessible,

provided that the plan or issuer makes the information available as soon as practicable.

The Departments solicited comments regarding whether, in addition to these special

applicability provisions, additional measures should be taken to ensure that plans and issuers that

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have taken reasonable steps to ensure the accuracy of required information disclosures are not

exposed to liability by virtue of providing such information as required by the proposed rules.

In general, commenters supported the good faith special applicability provisions (also

referred to as “safe harbors”) and recommended certain clarifications. One commenter requested

clarification regarding how the Departments would determine whether a plan or issuer acted in

“good faith” and with “reasonable diligence.” Another commenter requested additional guidance

on what it would mean to “correct” information, and specifically whether this requirement would

apply on a prospective or retrospective basis. Another commenter recommended the

Departments allow health plans 30 days to update accumulated amounts in the internet-based

self-service tool.

The Departments are finalizing the “good faith” safe harbor as proposed. While “good

faith” is not explicitly defined in the final rules, it is an established legal and business term that is

generally understood to involve honesty in fact and the observance of reasonable commercial

standards of fair dealing, according to the Uniform Commercial Code.

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Efforts to correct

omitted or erroneous information should proceed promptly after the plan or issuer is informed of

the error. At a minimum, correcting information should include replacing the incorrect

information, and may include notifying those affected of the error and the correction, using

digital or written communications to notify affected participants, beneficiaries, and enrollees, and

posting a notice on the internet website of the expected time before the error will be corrected.

234

“Uniform Commercial Code. General Definitions.” Cornell Law School Legal Information Institute. Available

at: https://www.law.cornell.edu/ucc/1/1-201#Goodfaith.

CMS-9915-F 358

The Departments received few comments on the good faith special applicability

provision to account for circumstances in which a plan or issuer fails to make the required

disclosures available due to its internet website being temporarily inaccessible. One commenter

recommended that the website inaccessibility safe harbor be expanded to cover situations in

which the internet-based self-service tool or machine-readable files are temporarily inaccessible,

including because the internet website is inaccessible. This clarification would cover other

technical issues, for example, that may affect only these resources, even though the remainder of

the issuer’s or plan’s website is accessible.

Several commenters recommended that the Departments expand the “safe harbor” to

account for additional circumstances. Commenters recommended that a safe harbor be created

for plans that do not have direct access to negotiated in-network rates and allowed amounts, or

information regarding reference based re-pricing in real time, and that may be unable to obtain

some of the required information despite good faith efforts. For example, commenters

recommended exempting employers, plan sponsors, and self-insured plans that rely on TPAs

from liability if they have made good faith efforts to obtain the required data but have failed to

do so. Commenters also recommended exempting plan sponsors that have been unable to

procure third-party vendors from liability if these plans sponsors have acted in good faith. One

commenter recommended that the Departments finalize a good faith special applicability

provision to protect health plans and issuers that provide cost estimates that meet the

requirements of the final rules if the estimates do not match the amounts actually paid by

participants, beneficiaries, or enrollees. This commenter also requested that this safe harbor be

extended to the cost-sharing estimate requirements.

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Commenters also recommended that the Departments consider a safe harbor provision for

covered entities that clearly provides that issuers and plans are not responsible for the

downstream privacy and security of PHI shared by a participant, beneficiary, or enrollee with a

third-party application consistent with the recent guidance issued by the HHS OCR.

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Another

commenter recommended the creation of additional safe harbor provisions to allow and

encourage health care organizations to share threat information about security risks and incidents

linked to third-party applications.

One commenter noted that disclosure of pricing information through the machine-

readable files and cost-sharing tool raises concerns for plan sponsors about the potential for

increased litigation under ERISA based on the release of payer-specific negotiated rates. The

commenter encouraged DOL to effectively and expressly address this issue so that any

disclosure requirement is crafted in a way that does not increase fiduciary liability for employer

plan sponsors. The commenter recommended that DOL consider proposing a “safe harbor” to

protect employers from downstream litigation risk related to the public disclosure of negotiated

rates and disclosure of negotiated rates through the cost-sharing tool. Such a “safe harbor” could

provide that so long as an employer can demonstrate it “considered” negotiated rates as part of

its decision-making process in selecting an administrative service organization (ASO) for its

plan, so that it would not be deemed to have acted imprudently as a fiduciary for purposes of

ERISA with respect to the selection of the ASO by virtue of the negotiated rates. While the

235

“HHS FAQ.” United States Department of Health and Human Services. Available at:

https://www.hhs.gov/hipaa/for-professionals/faq/3009/does-a-hipaa-covered-entity-bear-liability.html.

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Departments appreciate this comment regarding increased litigation under ERISA, this request is

beyond the scope of this rulemaking.

Finally, several commenters requested a deemed compliance standard for employers or

plans that already offer transparency tools designed to assist participants with cost estimates and

obtaining up-to-date cost-sharing information or for plans and issuers that voluntarily submit

their data to multi-payer claims databases. Other commenters noted that some existing state laws

require plans to provide the ability for enrollees to look up their out-of-pocket costs for several

hundred procedures online or by phone. These commenters recommended—to reduce burden on

issuer implementation and avoid duplication of effort—that health plans that comply with

existing state laws requiring treatment cost-estimator functionality be deemed in compliance

with any similar federal requirements. Another commenter recommended this safe harbor be

extended to the machine-readable files.

The Departments understand that states have been at the forefront of transparency

initiatives and some have required disclosure of pricing information for years. However, it is

important to note that states do not have authority to require such disclosures by plans subject to

ERISA, which compose a significant portion of the private market.

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As a result, a significant

portion of consumers do not have access to information on their plans, even in states that have

implemented transparency requirements. The Departments are also aware that many plans and

issuers have moved in the direction of increased price transparency. Despite these price

transparency efforts, the Departments understand that there continues to be a lack of easily

236

Panis, C. W. A., and Brien, M. J. “Self-Insured Health Benefit Plans 2019: Based on Filings through Statistical

Year 2016.” Deloitte. January 7, 2019. Available at: https://www.dol.gov/sites/dolgov/files/EBSA/researchers/

statistics/retirement-bulletins/annual-report-on-self-insured-group-health-plans-2019-appendix-b.pdf.

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accessible pricing information for consumers to use when shopping for health care services. The

final rules are meant, in part, to address this lack of easily accessible pricing information, and

represent a critical part of the ‘Departments’ overall strategy for reforming health care markets

by promoting transparency, competition, and choice.

The Departments will take these additional safe harbor recommendations into

consideration for future rulemaking. The Departments are not including in the final rules any

safe harbor rule that would substitute the offering of existing tools or compliance with existing

state transparency laws. The Departments have concluded that additional price transparency

efforts are necessary to empower consumers, promote competition in the health care industry,

and reduce the overall rate of growth in health care spending. The additional safe harbors

recommended by commenters would not allow for the consistent baselines and standards that the

Departments seek to establish with the final rules. As noted above, one of the goals of the final

rules is to empower plans and issuers in the commercial health care market to innovate and

compete in an industry where innovation and competition currently appear to be limited. By

requiring public disclosure of pricing data a year after the effective date of the rules, the final

rules will encourage issuers, TPAs, and third-party developers and innovators to create or

enhance their shopping tools, including the self-service tools also required by these final rules.

The development of these tools in turn will create additional consumerism, which will lead to

lower prices throughout the health care market. This impact is only achievable, however if all

applicable plans and issuers are held to the same standards and timelines. Furthermore, limiting

the applicability of the final rules would undermine the Departments’ overall strategy for

reforming health care markets by promoting transparency, competition, and choice across the

health care industry.

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The Departments are of the view that, ultimately, plans and issuers are responsible for

complying with the requirements outlined in the final rules. The Departments understand that

plans may have to make adjustments to their contracts and as such, the Departments have

factored that into the burden estimates and timing requirements for implementation explained

elsewhere in the final rules. As plans and issuers are responsible for complying with the

requirements outlined in the final rules, they should carefully examine the capacity of any

partners they may contract with to provide the required information. Finally, as discussed earlier

in this preamble, the Departments recognize the privacy concerns raised by commenters, but are

of the view that the final rules, which include an exemption for providers with fewer than 20

different claims for payment and do not require any disclosure of PII or PHI through an API, and

the continuing obligation of plans and issuers to comply with applicable privacy requirements,

do not raise sufficient privacy concerns to require an additional privacy-related safe harbor.

V. Economic Impact Analysis and Paperwork Burden

A. Summary/ Statement of Need

This regulatory action is taken, in part, in light of Executive Order 13877 directing the

Departments to issue an ANPRM, soliciting comments consistent with applicable law, requiring

providers, health insurance issuers, and self-insured group health plans to provide or facilitate

access to information about expected out-of-pocket costs for items or services to patients before

they receive care. As discussed previously in this preamble, in response to Executive Order

13877, the Departments published the proposed rules entitled “Transparency in Coverage.”

Despite the growing number of initiatives and the growing consumer demand for, and awareness

of, the need for pricing information, there continues to be a gap in easily accessible pricing

information for consumers to use to shop for health care items and services. The final rules add

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new requirements to 26 CFR part 54, 29 CFR part 2590, and 45 CFR part 147 aimed at

addressing this gap, and are a critical part of the Administration’s overall strategy for reforming

health care markets by promoting transparency and competition, creating choice in the health

care industry, and enabling consumers to make informed choices about their health care. As

discussed later in the RIA, the Departments acknowledge that more than 90 percent of plans,

issuers, and TPAs currently provide some form of internet-based self-service tool to their

consumers. However, as stated in section I.B of the final rules, the Departments understand that

utility and accuracy among existing issuer cost estimator tools varies widely. Based on issuer

demonstrations of their tools given to the Departments, some estimators reflect a combined range

of possible costs; others give estimates based off historical pricing or claims data from various

sources, while others are restricted in the types of procedures they include. Moreover, some

existing issuer tools do not take into account a participant’s, beneficiary’s, or enrollee’s

accumulators.

237

The Departments are of the view that it is important to establish a minimum set

of standards of what is acceptable so that consumers can take advantage of the information

market-wide. Consistency will give consumers confidence that the information presented by

these tools will not change arbitrarily. Reliability assures consumers that information in these

tools accurately reflects plans’ and issuers’ best estimates of costs. The availability of these tools

across all markets will ensure that no participant, beneficiary, or enrollee is denied access to the

237

See also “Are healthcare's cost estimate tools making matters worse for patients?” Becker’s Hospital CFO

Report. Available at https://www.beckershospitalreview.com/finance/are-healthcare-s-cost-estimate-tools-making-

matters-worse-for-patients.html (citing Gordon, E. “Patients Want To Price-Shop For Care, But Online Tools

Unreliable.” NPR. November 30, 2015. Available at https://www.npr.org/sections/health-

shots/2015/11/30/453087857/patients-want-to-price-shop-for-care-but-online-tools-unreliable) (“Some estimators

reflect a combined range of possible costs, while others are based off historical pricing or claims data from various

sources. Many online estimate tools are restricted in the types of procedures they include . . . .”).

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benefits of this rule and the Departments are of the view that this consistency is vital for success

and utilization. As discussed previously in section I.B, state transparency requirements are

generally not applicable to self-insured group health plans, and as a result, a significant portion

of consumers may not have access to information on their plans and their health care costs. The

Departments encourage additional functionality and innovation to be built around the

requirements of the final rules, but believe a baseline is required to give the participant,

beneficiary, or enrollee some confidence that no matter which plans tool they used, it would at

least offer the same basic information. By requiring group health plans and health insurance

issuers to disclose to participants, beneficiaries, or enrollees such individual’s cost-sharing

information for covered items or services furnished by a particular provider, the final rules

provide them sufficient information to determine their potential out-of-pocket costs related to

needed care and encourages them to consider price when making decisions about their health

care.

B. Overall Impact

The Departments have examined the impact of the final rules as required by Executive

Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563

on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility

Act (RFA) (September 19, 1980, Pub. L. 96-354), section 202 of the Unfunded Mandates

Reform Act of 1995 (March 22, 1995, Pub. L. 104-4), Executive Order 13132 on Federalism

(August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771

on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of

available regulatory alternatives and, if regulation is necessary, to select regulatory approaches

CMS-9915-F 365

that maximize net benefits (including potential economic, environmental, public health and

safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the

importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and

promoting flexibility. A regulatory impact analysis (RIA) must be prepared for rules with

economically significant effects ($100 million or more in any 1 year).

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an

action that is likely to result in a rule: (1) having an annual effect on the economy of $100

million or more in any 1 year, or adversely and materially affecting a sector of the economy,

productivity, competition, jobs, the environment, public health or safety, or state, local or tribal

governments or communities (also referred to as “economically significant”); (2) creating a

serious inconsistency or otherwise interfering with an action taken or planned by another agency;

(3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or

the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising

out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order.

An RIA must be prepared for major rules with economically significant effects ($100 million or

more in any 1 year), and a “significant” regulatory action is subject to review by the Office of

Management and Budget (OMB). The Departments have concluded that the final rules are likely

to have economic impacts of $100 million or more in at least 1 year, and, therefore, meet the

definition of “economically significant rule” under Executive Order 12866. Therefore, the

Departments have provided an assessment of the potential costs, benefits, and transfers

associated with the final rules. OMB reviewed this regulation in accordance with the provisions

of Executive Order 12866.

CMS-9915-F 366

Two commenters suggested that the proposed rules failed to comply with Executive

Order 12866. Executive Order 12866 defines rules likely to have an economic impact in excess

of $100 million as “significant” and requires that the agencies conduct an assessment of potential

costs. The commenters suggested that the economic impact analysis and cost assessment the

agencies provided for the proposed rules were short of the concrete, well-founded analysis

required of the economic analysis directed by Executive Order 12866 that must accompany a

proposed rulemaking as far-reaching, and potentially costly, as the proposed rules. One

commenter suggested that the proposed rules were inconsistent with both Executive Order 12866

and Executive Order 13563, both of which direct agencies to carefully consider alternatives to

regulations an agency has deemed necessary, and to select the least burdensome approach

available. The commenter maintained that the agencies did not adequately consider alternatives

and are proposing an unnecessarily and excessively burdensome approach.

After consideration and discussion of the comments related to proposed cost estimates

received in response to the proposed rules, the Departments chose to reevaluate the cost

estimates associated with the provisions in the final rules. The Departments also consulted with

internal and external IT professionals to gain a better insight into what individuals and tasks

would be needed to design, develop, and deploy the internet-based self-service tool and the three

machine-readable files required by the final rules. Based on this consultation and additional

research, the Departments have chosen to increase the cost estimates to account for the updated

understanding of the costs posed by the final rules, as well as the additional requirements

included in the final rules. The Departments further discuss changes to the final cost estimates

later in this preamble and in the associated ICR sections.

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The final rules will enable participants, beneficiaries, and enrollees to obtain information

about their potential cost-sharing liability for covered items and services that they might receive

from a particular provider by requiring plans and issuers to disclose cost-sharing information as

described at 26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211. As

discussed earlier in section I.B. of the final rules, there has been a shift in the health care market

from copayments to coinsurance. Coupled with increases in plans and coverages with high

deductibles, generally requiring sizeable out-of-pocket expenditures prior to receiving coverage

under the terms of the plan or policy, participants, beneficiaries, and enrollees are now

shouldering a greater portion of their health care costs than before. For example, over the period

from 2008 to 2018, the average health care costs incurred by families covered by large

employers – including premium contributions and out-of-pocket spending on health care services

– have increased 67 percent from $4,617 to $7,726 annually. Over the same period, the average

out-of-pocket costs alone have increased from $1,779 to $3,020 annually.

238

The Departments

are of the view that disclosure of pricing information is crucial for participants, beneficiaries, or

enrollees to engage in informed health care decision-making and believe that with greater price

transparency and access to more accurate and actionable pricing information, participants,

beneficiaries, and enrollees will be able to consider the value of an item or service when making

decisions related to their health care.

238

Rae, M., Copeland, R., and Cox, C. “Tracking the rise in premium contributions and cost-sharing for families

with large employer coverage.” Peterson-KFF. August 14, 2019. Available at:

https://www.healthsystemtracker.org/brief/tracking-the-rise-in-premium-contributions-and-cost-sharing-for-

families-with-large-employer-coverage/?utm_campaign=KFF-2019-Health-

Costs&amp;utm_medium=email&amp;_hsenc=p2ANqtz-_72_RHB9Twe8BpbqOg28rdlGqxq_SBgV6rB-

kbC4PuYMItIOSxHQLmh_D3OH4GOnUKZXa8&amp;utm_source=hs_email&amp;hsCtaTracking=048

48753-3235-436e-a0de-ae8238ad00ad%7Cc1097ae0-0521-4e9a-8e45-e5a87f67af4a.

CMS-9915-F 368

In addition, as described at 26 CFR 54.9815-2715A1, 26 CFR 54.9815-2715A2, 26 CFR

54.9815-2715A3, 29 CFR 2590.715-2715A1, 29 CFR 2590.715-2715A2, 29 CFR 2590.715-

2715A3, and 45 CFR 147.210, 147.211 and 147.212, the final rules require group health plans

and health insurance issuers to make public in-network rates, including amounts in underlying

fee schedules, negotiated rates, and derived amounts for in-network providers; historical allowed

amounts paid to out-of-network providers and billed charges for all covered items and services;

and negotiated rates and historical net prices for prescription drugs. The Departments are of the

view that these requirements, through providing greater transparency and access to pricing

information, will provide consistency and confidence across all internet-based self-service tools.

Access to data provided by the three machine-readable files will ensure that all consumers have

the pricing information they need in a readily accessible format, which could inform their

choices, in addition to potentially impacting cost disparities and improvements to the overall

functioning of the health care market. The Departments are of the view that greater price

transparency and the availability of price information to the public will empower the 26.1 million

uninsured consumers

239

to make more informed health care decisions and allow consumers who

wish to shop among plans and coverage options to better understand the potential cost of their

care. Public availability of this information will also allow third-party IT developers to provide

consumers with more accurate information on provider, plan, and issuer value, as well as

prescription drug pricing information, ensuring that such information is available to consumers

where and when it is needed. Furthermore, providing the in-network rates along with out-of-

239

“Income, Poverty and Health Insurance Coverage in the United States: 2019.” United States Census Bureau.

September 15, 2020. Available at: https://www.census.gov/newsroom/press-releases/2020/income-poverty.html.

CMS-9915-F 369

pocket costs will also show what future costs could be for a participant, beneficiary, or enrollee

for the same service, depending on the progress of his or her deductible. This information will

help consumers make informed decisions related to their health care needs now and in the future.

The Departments received many comments regarding the underlying economic principles

of the proposed rules. Many commenters were concerned the rules as proposed could disrupt

contract negotiations between providers and health plans and result in providers acting in

anticompetitive ways (such as collusion, consolidation, or price fixing), resulting in increased

rates (a so-called “race to the top”). Some of these commenters were particularly concerned with

the potential of the Departments’ proposals to spur anticompetitive behavior in highly

concentrated markets. Several of these commenters cited the FTC’s concerns about the potential

negative impacts of price transparency on competition in the health insurance markets, including

the possibility that providers (or sellers) will coordinate their behavior or bid less aggressively,

leading to higher prices. Commenters also cited similar concerns expressed by the Department

of Justice (DOJ) and the Congressional Budget Office (CBO) about the unintended consequences

of releasing competitive proprietary information such as the in-network rates of plans and

issuers. Commenters further stated increased costs would negatively impact consumer choice

and reduce the affordability of health insurance coverage of low- and middle-income consumers.

One commenter expressed concern that plans and issuers could also coordinate to reduce

provider payment levels below market competitive rates, which could negatively impact patient

access to quality care. In contrast, one commenter suggested that concerns about potential

collusion among providers are unfounded as local markets are currently populated by a limited

number of providers who tend to have knowledge of each other’s rates and consumers currently

receive pricing information through EOBs. The commenter also expressed the opinion that the

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argument put forth by issuers that in-network rates are trade secrets is self-serving and benefits

them at the expense of consumers and the public.

One issuer stated that its experience in state markets where health care price transparency

was implemented (Massachusetts, New Hampshire, and Maine) do not provide evidence that

transparency efforts produce reduced health care prices and that state price transparency efforts

negatively affected issuers’ ability to negotiate lower rates. However, another commenter cited a

study of the New Hampshire transparency initiative that found “a significant reduction in

negotiated prices.”

240

Some commenters suggested that the Departments should ensure that strong protections

are in place to prevent price fixing or unsustainably low reimbursement for care before requiring

public disclosure of in-network and out-of-network rates. For example, to address concerns

about price fixing, one commenter suggested working closely with the FTC and other

appropriate federal and state authorities to monitor health care provider markets for any

incidence of collusion, potentially leading to the prosecution of entities for violations that raise

costs for patients and plan sponsors.

By contrast, several commenters expressed the view that the public disclosure of payer-

specific in-network rates and transparency would promote competition in the health insurance

markets and will drive down costs, which could result in lower, more reasonable health care

240

Brown Z. Y. “Equilibrium Effects of Health Care Price Information.” 101 Review of Economics & Stat. 699

(2019). Available at: http://www-personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf.

CMS-9915-F 371

prices. One commenter cited a paper that reviewed outcomes after the implementation of price

transparency efforts and found evidence for behavioral changes that could place pressure on

providers to lower rates.

241

Specifically, the paper found evidence of shopping activity among

consumers, especially younger consumers, evidence of development activity by third-party

application developers using this information, and evidence that employers will use the data to

negotiate better rates. Another commenter noted that employers and health plans would be able

to leverage the information to negotiate rates that are more reasonable and encourage patients to

access higher-value providers.

As noted previously in sections I.B and I.C of this preamble, the Departments are of the

view that greater price transparency and the public disclosure of pricing information is necessary

to enable consumers to use and understand pricing data in a manner that will increase

competition, improve markets, reduce disparities in health care prices, and potentially lower

health care costs. The Departments continue to be of the view that effective downward pressure

on health care pricing cannot be fully achieved without increased price transparency and the

public disclosure of pricing information. As discussed in section E.3 of this preamble, the

federal government maintains laws and processes to investigate reports of collusive or other

anticompetitive practices.

Section 1311(e)(3) of PPACA and section 2715A of the PHS Act, as well the authority

vested in the Departments, grant participants, beneficiaries, enrollees, and the public the right to

know the prices of health care items and services, which will enable them make informed health

241

Blase, B. “Transparent Prices Will Help Consumers and Employers Reduce Health Spending.” Texas Public

Policy Foundation. September 27, 2019. Available at:

https://galen.org/assets/Blase_Transparency_Paper_092719.pdf.

CMS-9915-F 372

care purchasing decisions. Without access to price information, consumers are unable to

accurately assess and choose the least costly care and coverage options among all available

options, and choice cannot be meaningful without adequate information about those choices.

Currently, insured participants, beneficiaries, or enrollees, as well as uninsured consumers, do

not have access to adequate and accessible pricing information related to care and coverage. The

potential benefit of consumer access to this information is enormous. Furthermore, the

Departments are aware of consumer demand for this information. According to a May 2019 poll

conducted by the Harvard Center for American Political Studies, 88 percent of U.S. registered

voters (out of a sample of 1,295) stated they would support an initiative by the government to

mandate issuers, hospitals, doctors and other providers to disclose the cost of their services and

discounted or negotiated rates between these groups.

242

Furthermore, 65 percent of these

individuals would favor these initiatives even if in the short term they lead to an increase in

prices by some providers.

243

The vast majority of comments the Departments received in

response to the proposed rules were from individuals who expressed general support for the

transparency proposals and expressed frustration at the lack of information available about health

care pricing and a desire to have access to this information.

As noted in the preamble to the proposed rules and earlier in this preamble, the belief that

greater price transparency will reduce health care costs by encouraging providers to offer more

242

“The CAPS Harris Poll.” Harvard Center for American Political Studies, 45. May 2019. Available at:

https://harvardharrispoll.com/wp-

content/uploads/2019/06/HHP_May19_vF.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz--

NgSdTYggGUP4tWyR2IEQ7i8TCg1s3DcHuQyhErIgkX3KFUi3SFgl9OZKm4-JUOOi9tmMQ.

243

Id.at 46.

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competitive rates is consistent with the predictions of standard economic theory and a number of

empirical studies regarding price transparency in other markets. The Departments agree,

however, that the health care market presents unique challenges. The Departments reviewed a

study that notes certain special characteristics of the health care market, including that: (1)

diseases and treatments affect each patient differently, making health care difficult to standardize

and making price dispersion difficult to monitor; (2) patients cannot always know what they

want or need, and physicians effectively must serve as their agents (for example, by

recommending specialists and determining whether a patient is admitted to a hospital); and (3)

patients are typically in a poor position to choose a hospital because they do not have sufficient

information about hospital quality and costs.

244

This study suggests that these special

characteristics of the health care market, among other relevant factors, make it difficult to draw

conclusions based on empirical evidence gathered from other markets. Nevertheless, the same

study concluded that despite these complications, greater price transparency, such as access to

posted prices, might lead to more efficient outcomes and lower prices.

Another study evaluated hospital discharge information following the publication of

prices.

245

Hospital utilization increased for hospitals that priced below the mean market price,

while hospital utilization decreased for hospitals that priced above the mean market price.

244

Austin, A. D., and Gravelle, J. G. “Congressional Research Service Report to Congress: Does Price

Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Healthcare

Sector.” Congressional Research Service. July 24, 2007. Available at: https://fas.org/sgp/crs/secrecy/RL34101.pdf.

245

Kim, M. “The effect of hospital price transparency in health care markets.” University of Pennsylvania. 2011.

Available at: https://repository.upenn.edu/dissertations/AAI3475926.

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In a recent study of the New Hampshire price transparency tool, researchers found that

health care price transparency could shift care to lower-cost providers and save consumers and

payers money.

246

The study specifically focused on X-rays, CT scans, and MRI scans; it

determined that the transparency tool reduced the costs of medical imaging procedures by five

percent for patients and four percent for issuers; and estimated savings of $7.9 million for

patients and $36 million for issuers over a 5-year period.

In another example, in Kentucky, public employees were provided with a price

transparency tool that allowed them to shop for health care services and share in any cost-savings

realized by seeking lower-cost care.

247

Over a 3-year period, 42 percent of eligible employees

used the program to research information about prices and rewards.

248

The study found that 57

percent of those that used the transparency tool chose at least one cost-effective provider, saving

state taxpayers $13.2 million and resulting in $1.9 million in cash benefits paid to public

employees for seeking lower cost care.

249

The Departments recognize the transparency efforts in New Hampshire and Kentucky are

not necessarily generalizable nationwide and provide only some empirical data to support the

overarching goal of these final rules that transparency in health care can lead to savings for

consumers and issuers by putting downward pressure on prices. The Departments are of the

view that consumers equipped with information about the cost of their medical options prior to

246

Brown, Z. Y. “Equilibrium Effects of Health Care Price Information.” 100 REV. ECON. & STAT. 1. (2018).

Available at: http://www-personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf.

247

Rhoads, J. “Right to Shop For Public Employees: How health care incentives are saving money in Kentucky.”

The Dartmouth Institute for Health Policy and Clinical Practice. March 8, 2019. Available at:

https://thefga.org/wp-content/uploads/2019/03/RTS-Kentucky-HealthCareIncentivesSavingMoney-DRAFT8.pdf.

248

Id.

249

Id.

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receiving care will allow them to be able to make more informed decisions that will put

additional downward pressure on health care costs. While the often-unequal relationship

between patients and providers can sometimes mean that patients are not always best equipped to

determine their care, there are many health care purchasing decisions that could and should take

into account a patient’s financial concerns. For instance, physician providers may also be able to

provide health care transparency information when referring patients to specialists for in- or out-

of-network care, such as for elective procedures. The pricing information, combined with the

physician’s advice, could help health care consumers evaluate options along the cost and quality

spectrums and help guide them to high-value options. The Departments are of the view that

health care pricing transparency may increase the impact of economic market forces on the

health care markets, despite the health care market’s unique characteristics. The Departments

anticipate that once issuers, plans, and providers are aware that consumers can engage with the

markets in an informed manner, they may adjust their costs to potentially be more competitive in

their pricing of items and services.

1. Impact Estimates of the Transparency in Coverage Provisions and Accounting Table

The final rules set forth requirements for group health plans and health insurance issuers

to disclose to a participant, beneficiary, or enrollee, his or her cost-sharing information for

covered items or services from a particular provider or providers. The final rules also include

requirements for plans and issuers to disclose in-network rates (including negotiated rates,

amounts in underlying fee schedules and derived amounts) for in-network providers, historical

allowed amounts and billed charges for covered items and services provided by out-of-network

providers, and negotiated rates and historical net prices for prescription drugs through machine-

readable files posted on a public internet website. In accordance with OMB Circular A-4, Table

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2 depicts an accounting statement summarizing the Departments’ assessment of the benefits,

costs, and transfers associated with this regulatory action.

The Departments are unable to quantify all benefits and costs of the final rules. The

effects in Table 2 reflect non-quantified impacts and estimated direct monetary costs and

transfers resulting from the provisions of the final rules for plans, issuers, beneficiaries,

participants, enrollees, and state and the federal governments.

TABLE 2: Accounting Table

Intended Outcomes:

• Provides consumers with a tool to determine their estimated out-of-pocket costs, potentially becoming more informed on the

cost of their health care, which could result in lower overall costs if consumers choose lower-cost providers or items and

services.

• Potential increase in timely payments by consumers of medical bills as a result of knowing their estimated overall costs prior to

receiving services and having the ability to budget for expected health care needs.

• Potential profit gains by third-party mobile application developers by selling and exchanging consumer health data and potential

benefits to consumers through the development of mobile applications that may be more user-friendly and improve consumer

access to cost information, potentially resulting in reductions in out-of-pocket costs.

• Potentially enable consumers shopping for coverage to understand the in-network rates for providers and the negotiated rates

and historical net prices for prescription drugs in different group and individual health plans available to them and choose a plan

that could minimize their out-of-pocket costs.

• States could potentially use the In-network Rate and Prescription Drugs Files to determine if premium rates are set

appropriately.

• Potential reduction in cross-subsidization, which could result in lower prices as prices become more transparent.

• Public posting of in-network rates (including negotiated rates, amounts in underlying fee schedules, and derived amounts),

negotiated rates, and historical net prices for prescription drugs could facilitate the review of anti-trust violations and potential

collusion.

• Potential for the disclosure of in-network rates to apply pressure on providers to bill less aggressively.

• Strengthening of stakeholders’ ability to support consumers.

Benefits

• Potential societal resource savings (non-quantified efficiency portion of any overall reduction in consumer health care

expenditures).

• Potential to reduce the cost of surprise billing to consumers.

Costs:

Low Estimate

High Estimate

Year Dollar

Discount

Rate

Period

Covered

Annualized Monetized ($/year)

$4,080.2 million

$5,472.4 million

2020

7 percent

2021-2025

$4,047.7 million

$5,392.9 million

2020

3 percent

2021-2025

Quantitative:

• Cost to plans, issuers and TPAs to plan, develop, and build the required internet-based self-service tool and machine-readable

files, to provide in-network rates for in-network providers and out-of-network allowed amounts, and negotiated rates and

historical net prices for prescription drugs, maintain appropriate security standards and update and maintain the machine-

readable files per the final rules.

• Increase operating costs to plans and issuers as a result of training staff to use the internet-based self-service tool, responding to

consumer inquiries, and delivering consumer’s cost-sharing information and required notices.

• Cost to plans and issuers to review all the requirements in the final rules.

Non-Quantified:

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• Potential cost incurred by plans and issuers that wish to develop a mobile accessible version of their internet-based self-service

tool.

• Potential exposure of consumers to identity theft as a result of breaches and theft of PII.

• Potential increase in cyber security costs by plans and issuers to prevent data breaches and potential loss of PII.

• Potential increase in out-of-pocket costs for consumers if providers or prescription drug manufacturers increase prices for items

and services or plans and issuers shift those costs to consumers in the form of increased cost sharing other than increased

deductibles.

• Potential costs to states to review and enforce provisions of the final rules.

• Potential increase in consumer costs if reductions in cross-subsidization are for uncompensated care, as this could require

providers finding a new way to pay for those uncompensated care costs.

• Potential increase in health care costs if consumers confuse cost with quality and value of service.

• Potential costs to inform and educate consumers on the availability and functionality of an internet-based self-service tool.

• Potential consumer confusion related to low health care literacy and the potential complexity of internet-based self-service tools.

• Potential cost to plans and issuers to conduct quality control reviews of the information in the in-network rate, out-of-network

allowed amounts, and prescription drug machine-readable files.

• Potential costs to plans, issuers, and TPAs if they are required to renegotiate contracts in order to remove gag clauses in order to

meet the requirements of the final rules.

• Potential costs to plans, issuers, and TPAs if they incur use cases per user CPT licensure charges.

• Potential increase in costs to consumers and issuers if providers or prescription drug manufacturers engage in anticompetitive

behaviors.

• Potential state and federal costs associated with any changes in prescription drug prices resulting from the prescription drug

machine-readable file release that may impact state Medicaid, CHIP, and Basic Health Plan programs and federal health care

programs.

Transfers:

Estimate

Year Dollar

Discount Rate

Period Covered

Federal Annualized Monetized

($/year)

$425.2 million 2020 7 percent

2021-2025

$423.0 million

2020

3 percent

2021-2025

Other Annualized Monetized

($/year)

$274 million

2020

7 percent

2021-2025

$274 million

2020

3 percent

2021-2025

Quantitative:

• Transfers from the federal government to consumers in the form of increased premium tax credits by approximately $1,047

million in 2022, $623 million in 2023, $216 million in 2024, and $218 million in 2025 as a result of estimated premium

increases by issuers in the individual market to comply with the final rules.

• Transfer from consumers to issuers in the form of reduced MLR rebate payments in the individual and group markets by

approximately $120 million per year by allowing issuers to take credit for “shared savings” payments in issuers’ MLR

calculations.

• Transfers from providers to consumers and issuers of approximately $154 million per year as a result of lower medical costs for

issuers and consumers by allowing issuers to share with consumers the savings that result from consumers shopping for care

from lower-cost providers.

Non-Quantified:

• Potential transfer from providers to consumers facing collections to reduce the overall amounts owed to providers if they are

able to use competitor pricing as a negotiating tool.

• Potential transfer from providers to consumers if there is an overall decrease in health care costs due to providers reducing prices

to compete for customers.

• Potential transfer from issuers to consumers if there is an overall decrease in prescription drug costs due to potential reductions

in prescription drug prices.

• Potential transfer from consumers to issuers or prescription drug manufacturers if drug manufacturers increase prescription drug

prices.

• Potential transfer from consumers to providers if there is an increase in health care costs if providers and services increase their

in-network rates to match those of competitors.

• Potential transfer from issuers to consumers if premiums decrease and potential transfer from consumers to issuers if premiums

increase.

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• Potential transfer from issuers to consumers and the federal government in the form of decreased premiums and premium tax

credits as a result of issuers adopting provisions encouraging consumers to shop for services from lower-cost providers and

sharing the resulting savings with consumers.

• Potential Transfers from the federal government to drug manufacturers, PBMs, and retail pharmacies for any change in

prescription drug costs, which could impact prices paid by federal health care programs should prescription drug costs increase.

•

Potential Transfers from drug manufacturers, PBMs, and retail pharmacies to the federal government to for any change in

prescription drug costs, which could impact prices paid by federal health care programs should prescription drug costs decrease.

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Table 2 provides the anticipated benefits and costs (quantitative and non-quantified) to

plans and issuers to disclose cost-sharing information as described at 26 CFR 54.9815-2715A2,

29 CFR 2590.715-2715A2, 45 CFR 147.211, and at 26 CFR 54.9815-2715A3, 29 CFR

2590.715-2715A3, 45 CFR 147. 212, and make public in-network rates, amounts in underlying

fee schedules, or derived amounts of in-network providers, out-of-network allowed amounts paid

for covered items and services, and negotiated rates and historical net prices for prescription

drugs. The following information describes the benefits and costs – qualitative and non-

quantified – to plans and issuers separately for these three requirements. Some commenters

stated that the Departments attempted analysis of the economic impact of the proposed rules was

wholly inadequate and demonstrated that the Departments had not performed the basic fact-

gathering and analysis that agencies are expected to undertake before undertaking notice-and-

comment rulemaking. These comments stated that the material the Departments presented under

section VII, “Economic Impact Analysis and Paperwork Burden” was a patchwork of

speculation and assumptions without any grounding in empirical data or analysis. The

commenters further stated: the Departments listed 10 specific cost elements that they did not

attempt to quantify; failed to include any consideration of regulatory familiarization costs;

omitted consideration of training costs for both government employees who will be charged with

enforcing the regulation and for the staff of regulated issuers and plan sponsors who will be

responsible for compliance; and failed to account for the impact of the litigation burden on

regulated issuers, plan sponsors, and the public judicial system. Another commenter suggested

that the Departments failed to conduct an adequate cost-benefit analysis because they failed to

consider and quantify regulatory alternatives, failed to quantify potentially knowable costs, and

failed to quantify benefits or offer additional evidence supporting such benefits. Similarly,

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another commenter stated that the Departments’ analysis was lacking in any quantitative

assessment of benefits and did not credibly demonstrate that quantification of benefits might be

difficult.

The Departments consulted with various stakeholders in an effort to develop the

economic analysis associated with the final rules, including the estimated costs. Additionally,

the Departments requested comment on the estimates presented in the proposed rules to obtain

more information and input with respect to the unquantified costs and benefits. The Departments

received a number of comments related to the cost estimates, which are discussed later in the

RIA and ICR sections. However, the Departments did not receive any comments providing

actionable information as it relates to a number of the unquantifiable aspects of the proposed

rules.

As previously discussed in sections II.B.2.C and V.B.1 in this preamble, the Departments

received comments related to the lack of estimated costs associated with the renegotiation of

provider contracts, litigation expenses, and the removal of gag clauses. However, none of the

comments received provided any information that would aid the Departments in estimating such

costs. The Departments recognize that there are numerous aspects associated with the final rules

that they are unable to estimate due to an overall lack of knowledge and information with regard

to the actions that issuers, providers, or TPAs may be required to take to meet the requirements

of the final rules. As discussed in sections V.C and D, the Departments have sought to provide

estimates to account for the regulatory familiarization costs and other estimates related to the

alternatives considered in the development of the final rules. For the final rules, the Departments

have updated the regulatory review costs to include familiarization costs for each state DOI

(including the District of Columbia), issuers, and TPAs.

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2. Requirements for Disclosing Cost-sharing information to Participant, Beneficiaries, or

Enrollees under 26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211

Costs

Under 26 CFR 54.9815-2715A2(b), 29 CFR 2590.715-2715A2(b), and 45 CFR

147.211(b) of the final rules group health plans and health insurance issuers must disclose

required cost-sharing information in accordance with prescribed method and format requirements

upon the request of a participant, beneficiary, or enrollee. The required cost-sharing information

includes seven content elements, which are described in paragraph (b)(1) of the regulations and

discussed earlier in section II.B.1 in this preamble. The quantitative costs associated with this

requirement are detailed in the section VI.A.2 –of the ICR later in this preamble.

In addition to the costs described later in the corresponding ICR, the Departments

recognize there may be other costs associated with this requirement that are difficult to quantify

given the lack of information and data. For example, while the Departments are of the view that

the overall effect of the final rules will lower health care costs, the Departments recognize that

price transparency may have the opposite effect because in some markets where pricing is very

transparent, price ranges can narrow in response to greater transparency, and costs can

increase.

250

In section II.B.2.C in this preamble, the Departments addressed comments related to

the potential for unintended consequences related to the public disclosures required through the

In-network Rate. The Departments note that the current lack of pricing information means that

250

Kutscher, B. “Report: Consumers demand price transparency, but at what cost?” Modern Healthcare. June

2015. Available at: https://www.modernhealthcare.com/article/20150623/NEWS/150629957/consumers-demand-

price-transparency-but-at-what-cost.

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health care consumers are generally not able to include price in their health care purchasing

decisions. The Departments are of the view that making pricing information available will begin

to ameliorate distortions resulting from consumer decision-making not taking costs sufficiently

into account. Additionally, the Departments recognize that states may incur additional costs to

enforce the requirements in the final rules.

As described in section VI, the Departments assume most self-insured group health plans

will work with a TPA to meet the requirements of the final rules. The Departments estimated

costs in the high-range estimate by assuming that all issuers and TPAs (for self-insured group

health plans) will need to develop and build their internet-based self-service tool.

As described in section VI.A.1 of the ICR, the Departments assume most self-insured

group health plans will work with a TPA to meet the requirements of the final rules. The

Departments estimated cost in the high-end estimate by assuming that all issuers and TPAs (for

self-insured group health plans) will need to develop and build their internet-based self-service

tools from scratch. However, the Departments also provide a low-end estimate by assuming that

over 90 percent of plans, issuers, or TPAs currently provide an internet-based self-service tool

and will only be required to modify an existing internet-based self-service tool which may

already meet some (if not all) the requirements in the final rules.

251

The Departments recognize

that some plans, issuers, or TPAs might also voluntarily elect to develop or enhance a mobile

251

Sharma, A., Manning, R., and Mozenter, Z. “Estimating the Burden of the Proposed Transparency in Coverage

Rule.” Bates White Economic Consulting. January 22, 2020. Available at:

https://www.bateswhite.com/media/publication/183_Estimating%20Burden%20of%20Proposed%20TCR.pdf

. In

order to determine our estimates in determining the low-range cost estimate, the Departments estimated that only 90

percent of plans, issuers, and TPAs provided an online tool that would meet the assumptions used in developing the

estimated costs.

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application, if one is already available or in some stage of planning and implementation, which

will result in additional costs. Additionally, TPAs generally work with multiple self-insured

group health plans, and as a result, the costs for each TPA and self-insured group health plan

may be lower to the extent they are able to coordinate their efforts and leverage any resulting

economies of scale.

Moreover, health care data breach statistics show there has been an upward trend in data

breaches over the past 10 years, with 2019 having more reported data breaches than any other

year since records first started being published. Between 2009 and 2019 there have been 3,054

health care data breaches involving more than 500 records; resulting in the loss, theft, exposure,

or impermissible disclosure of 230,954,151 health care records, equating to more than 69.78

percent of the United States population. Health care data breaches are now being reported at a

rate of more than one per day.

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Based on this information, the Departments recognize the

requirements of the final rules provide additional opportunities for health care data breaches.

Although privacy and security costs have been imbedded into the development and

implementation cost estimates discussed in the section VI.A.1 and further discussed in section

II.B.4 of this preamble, the Departments expect that plans and issuers will follow existing

applicable state and federal laws regarding persons who may or must be allowed to access and

receive the information. The Departments recognize that some plans and issuers may incur

additional expenses to ensure a consumers’ PHI and PII are secure and protected. Additionally,

as consumers accessing the internet-based self-service tool may be required to input personal

252

” Healthcare Data Breach Statistics.” HIPAA Journal. Available at: https://www.hipaajournal.com/healthcare-

data-breach-statistics/.

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data to access the consumer-specific pricing information, consumers may be exposed to

increased risk and experience identity theft as a result of breaches and theft of PII. As noted

previously in section II.B.4 of this preamble, the Departments are finalizing a provision that

reminds plans and issuers of their duty to comply with requirements under other applicable state

or federal laws, including requirements governing the accessibility, privacy, or security of

information, or those governing the ability of properly authorized representatives to access

participant, beneficiary, or enrollee information held by plans and issuers.

One commenter stated that since multiemployer plans do not directly control the process

of negotiations or the resulting information, these plans do not have access to the information

necessary to satisfy the final rules and plans could be subject to significant penalties for failure to

comply. Another commenter, that surveyed employers who sponsor self-insured ERISA-covered

plans, noted that respondents would likely contract with a TPA to comply with the final rules

because employers do not have all the necessary data nor the capability to collect that data.

Employers indicated that contracting with a TPA for these requirements would come at a

significant compliance cost to them. Commenters noted that they rent networks from issuers and

contract with those issuers as TPAs to administer plan benefits. It is the issuer that holds the

pricing information for medical services, facilities, and providers, not the self-insured employer.

Another commenter stated that the burden incurred by plans, issuers, and TPAs would be

crippling for smaller TPAs and health plans, and that burden would ultimately be passed along to

employers, and, therefore, to consumers. Another commenter expressed concern that all of the

data aggregation and collection required under the regulations—along with the need to contract

with a third-party developer to create an on-line cost-sharing liability service tool that is capable

of providing customized cost-sharing information to a particular participant, beneficiary, or

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enrollee—may be overly costly to plans. The commenter further suggested that there may also

be significant costs associated with data storage.

The Departments appreciate the comments received in response to the proposed rules and

recognize that not all plans will be the source of the material information required to meet the

requirements of the final rules, and that many plans will ultimately seek out third-party

assistance in the development of their internet-based self-service tool and machine-readable files,

thus avoiding any potential penalties for noncompliance. As noted in section II.B.5 of this

preamble, multiemployer plans may contract with a TPA or other third party (for example, a

clearinghouse) to meet the requirements under the final rules. The Departments note that it is

possible that obtaining third-party assistance to meet the requirements of the final rules could

result in additional costs. The Departments expect, however, that TPA, or other third party,

assistance will help alleviate some of the cost concerns expressed by commenters as a result of

economies of scale. As noted above, commenters noted that many self-insured ERISA plans rent

networks from issuers and contract with issuers as TPAs to administer plan benefits. By

leveraging their relationships with their issuer-TPA, self-funded plans may be able to reduce

their overall costs by using any tools developed by those issuers. The Departments also

recognize that in order to meet the requirements of the final rules, some smaller TPAs and

issuers could face disproportionate increases in costs. However, the Departments anticipate that

a number of TPAs and issuer-TPAs will seek to coordinate their efforts and take advantage of

any resulting economies of scale to reduce their overall costs, and that this approach can be

leveraged in order to reduce concerns related to the development of both the internet-based self-

service tool as well as the required machine-readable files. The Departments recognize that

issuers and TPAs will incur potential costs associated with data storage and providing access to

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the internet-based self-service tool. These costs can be generally broken down into two sections:

bandwidth pricing and disc space. Bandwidth Pricing accounts for the amount of traffic going to

a site, the size of the information that is transferred from the server to the user's browser, and the

speed in which that happens. Provided that 99 percent of websites do not exceed 5 gigabytes of

bandwidth per month,

253

this means if an issuer’s or TPA’s self-service tool, hosted on

Microsoft's cloud product, would be free or minimal if beyond five gigabytes.

254

Disk Space

Pricing accounts for the size of the hard drives necessary to host a website. Assuming that each

issuer or TPA would need an estimated 351 gigabytes of storage this would translate to

approximately $8 per month. Thus, assuming that each issuer or TPA will not require five

gigabytes of bandwidth for their internet-based self-service tool, the Departments are of the view

that the overall costs to store and provide data through the internet-based self-service tool will be

minimal. The Departments recognize that the final rules will impose significant costs on plans,

issuers, and TPAs, and that some of these costs may be transferred to consumers in the form of

higher premiums or changes in the cost-sharing structure of plans.

Intended Outcomes

Informed Consumers. Through increased price transparency, consumers armed with

pricing information will have greater control over their own health care spending, which can

foster competition among providers, resulting in less disparity in health care prices or an overall

reduction in health care prices. Consumers who use the internet-based self-service tool will be

253

“How Much Bandwidth and Disk Space Do I Really Need?” Hosting Manual. Available at:

https://www.hostingmanual.net/bandwidth-disk-space-need/.

254

“Bandwidth Pricing Details.” Microsoft Azure. Available at: https://azure.microsoft.com/en-

us/pricing/details/bandwidth/.

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able to access their cost-sharing amount paid to date; their progress toward meeting their

accumulators, such as deductibles and out-of-pocket limits; their estimated cost-sharing liability

for an identified item or service; negotiated rates for in-network providers for covered items and

services, and the out-of-network allowed amounts for covered items and services. Additionally,

consumers will know how much health care services will cost for a particular treatment-, and,

and if applicable, whether coverage of a specific item or service is subject to a prerequisite. As

discussed previously in section II.B.1.a of this preamble, section 2713 of PPACA requires group

health plans and health insurance issuers to provide certain recommended preventive items and

services without cost-sharing. However, if the same items or services are furnished as non-

preventive actions or by an out-of-network provider, the participant, beneficiary, or enrollee may

be subject to the cost-sharing terms of his or her plan. If a plan or issuer cannot determine

whether the request is for a preventive item or service, the plan or issuer must display the non-

preventive cost-sharing liability, along with a note that the item or service may not be subject to

cost-sharing if it is billed as a preventive service. Pricing information also gives consumers the

ability to plan ahead for any known items and services they may require in the near future. The

Departments are of the view that access to this information is essential to enable consumers to

make informed decisions regarding specific services or treatments, budget appropriately to pay

any out-of-pocket expenses, and determine what impact any change in providers, items, or

services will have on the cost of a particular service or treatment.

Several consumers stated that they want the opportunity to shop for the best price when

seeking out medical care and expressed that this information is critical when deciding whether to

proceed with a test or procedure. Other consumers expressed the desire to shop for items and

services and stated that shopping for health care would give them more control over their

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personal health care decisions and spending. Some consumers felt strongly that they should be

able to compare prices to find the best deal for non-life-threatening care. Some other consumers

also expressed frustration when describing their own experiences of trying and failing to obtain

pricing information before receiving a particular service.

The Departments agree that providing the information required in the final rules will

provide consumers with tools and information they can use to determine and evaluate the

potential costs associated with their particular health care needs, thus providing them the

opportunity to obtain the care they need at a cost they find acceptable.

Consumers may become more cost conscious. The Departments are of the view that with

increased price transparency consumers may begin to focus more carefully on the costs of

services. Currently, consumers may be aware they have a coinsurance of 20 percent for an item

or service, but they may be unaware of what dollar amount they will ultimately be responsible

for paying. Knowing that dollar amount may motivate consumers to seek lower-cost providers

and services or seek needed care they did not obtain because of uncertainty or concerns about the

costs. As discussed in sections I.E.3, II.C, and V.B.2-4 in this preamble, there has been recent

evidence in New Hampshire and Kentucky that supports the Departments’ view that having

access to pricing information, along with currently available information on provider quality and

incentives to shop for lower prices, can result in consumers choosing providers with lower costs

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for items and services, thus potentially lowering overall health care costs.

255

The Departments

acknowledge that this may only hold true if cost and cost sharing varies between services and

providers. Depending on the degree of cost variation between specific items and services, there

could be large variations in the degree to which prices change per item or service resulting in

wide variations in health care costs and associated out-of-pocket costs.

256

Cost sharing in some

alternative contracting models, such as HMOs and Exclusive Provider Organizations (EPO),

generally occurs through fixed copayment amounts regardless which provider furnishes a

covered item or service and, therefore, the internet-based self-service tool will provide little

incentive for consumers to choose less costly providers in this context.

Timely Payment of Medical Bills. The Departments anticipate that consumers with

access to the information provided in response to the final rules will be more likely to pay their

medical bills on time. A recent Transunion survey found that 79 percent of respondents said

they would be more likely to pay their bills in a timely manner if they had price estimates before

255

Brown, Z. Y. “Equilibrium Effects of Health Care Price Information.” 100 Rev. of Econ. and Stat. 1. July 16,

2018. Available at: http://www-personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf; see also

Rhoads, J. “Right to Shop for Public Employees: How health care incentives are saving money in Kentucky.” The

Dartmouth Institute for Health Policy and Clinical Practice. March 8, 2019. Available at: https://thefga.org/wp-

content/uploads/2019/03/RTS-Kentucky-HealthCareIncentivesSavingMoney-DRAFT8.pdf.

256

The evidence cited in this RIA yields per-capita annual savings estimates ranging from between $3 and $5 (=$2.8

million + $1.3 million + $7.0 million + $2.3 million two-year savings, across 1.3 million California public

employees and their family members, per Boynton and Robinson (2015)), to $6.50 (=$7.9 million + $36 million

five-year savings found by Brown (2018), divided across the 1.36 million residents of New Hampshire), to $17

(=$13.2 million three-year savings across 0.26 million beneficiaries, per Rhoads (2019)). If these results were

extrapolated to the entire U.S. population, the estimate of rule-induced reductions in annual consumer expenditures

could range from $0.98 billion to $5.5 billion, with the median result across the three studies at $2.1 billion. This

range has a tendency toward overestimation, in that effects of the Hospital Price Transparency final rule and existing

non-federal transparency programs have not been subtracted off.

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obtaining care.

257

In addition, a non-profit hospital network found that the more information

they shared with patients, the better prepared those patients were for meeting their

responsibilities. The hospital network reported that providing price estimates to patients resulted

in increased point of service cash collections from $3 million in 2010 to $6 million in 2011.

258

However, the Departments recognize that consumers may not be aware of any potential balance

billing charges, where not prohibited by state law, and other potential costs associated with their

health care such as facility fees etc. While these consumers will have a better idea of the costs

they will incur when obtaining health care, they will likely be unaware of any additional charges

they could incur as a result of obtaining care resulting in higher than expected out-of-pocket

costs. Additionally, consumers may not fully be aware of their costs due to potential medical

complications that might arise during the course of treatment or while obtaining a specific

service.

Increased Competition Among Providers. Studies have found that state price

transparency regulations have resulted in hospitals decreasing their charges and a decrease in

mean price and price variability for queried procedures. One study found the publication of

chargemaster data resulted in a decrease in mean price and price variability for queried

257

Kutscher, B. “Report: Consumers demand price transparency, but at what cost?” Modern Healthcare. June

2015. Available at: https://www.modernhealthcare.com/article/20150623/NEWS/150629957/consumers-demand-

price-transparency-but-at-what-cost.

258

“Reimagining Patient Access.” Insurancenewsnet. December 29, 2015. Available at:

https://insurancenewsnet.com/oarticle/reimagining-patient-access#.

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procedures.

259

However, another study attributed the reduction in charges to the “reputational

costs of perceived overcharging,” yet also noted that reductions in charges were associated with

decreases in discounts leading to no consumer savings.

260

Another issuer-initiated price

transparency program, designed to encourage the selection of high-value providers, provided

consumers with price differences among MRI facilities.

261

Those patients provided pricing

information saw an 18.7 percent reduction in the cost per test and a decrease in the use of

hospital-based facilities.

262

The study also found that price variations between hospital and non-

hospital facilities were reduced by 30 percent.

263

As discussed in sections I.B in this preamble,

the Departments recognize that requiring hospitals to display payer-specific negotiated charges,

discounted cash prices, and de-identified minimum and maximum negotiated charges for as

many of the 70 CMS selected shoppable services and additional hospital-selected shoppable

services for a combined total of at least 300 shoppable services may play a role in decreasing

mean prices and price variability.

264

However, the Departments are of the view that the Hospital

Price Transparency final rule does not, in itself, result in reduced prices and price variability as

the rule does not result in consumers receiving complete price estimates for health care items and

services from both hospitals and issuers. Further, the Hospital Price Transparency final rule does

259

Ward, C., and Reeder, T. “The Evolution and Impact of Hospital Price Transparency in North Carolina.” North

Carolina Medical Journal. Volume 81. Issue 2. April 2020. Available at:

https://www.ncmedicaljournal.com/content/81/2/95.short

260

Christensen, H. B., Floyd, E., and Maffett, M. “The Only Prescription is Price Transparency: The Effect of

Charge-Price-Transparency Regulation on Healthcare Prices.” Management Science. February 21, 2019. Available

at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343367.

261

Wu, S. J., et al. “Price transparency for MRIs increased use of less costly providers and triggered provider

competition.” Health Affairs. August 2014. Available at:

https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2014.0168.

262

Id.

263

Id.

264

84 FR 65524 (Nov. 27, 2019).

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not provide price transparency with respect to items and services provided by other health care

providers. Therefore, the Departments are of the view that the requirements of the final rules

will provide the additional price transparency necessary to empower a more price-conscious and

responsible health care consumer and lead to increased competition among providers as

consumers will be aware of and have the ability to compare the out-of-pocket cost of a covered

item or service prior to receiving an item or service, which could force higher-cost providers to

lower their prices in order to compete for the price sensitive consumer.

3. Requirements for Public Disclosure of In-network Provider Rates for Covered Items and

Services, Out-of-network Allowed Amounts and Prescription Drug Pricing Information Through

Machine-readable Files under 26 CFR 54.9815-2715A3, 29 CFR 2590.715-2715A3, and 45

CFR 147.212.

Costs

Under 26 CFR 54.9815-2715A3(b), 29 CFR 2590.715-2715A3(b), and 45 CFR

147.212(b) of the final rules, group health plans and health insurance issuers are required to

make available to the public, on an internet website, three digital files in a machine-readable

format. The first file (the In-network Rate File) must include information regarding all

applicable rates, which may include negotiated rates, underlying fee schedules, or derived

amounts, to the extent they may be used for purposes of determining provider reimbursement or

cost-sharing for in-network providers. The Departments note that prescription drug products

may be included in the In-network Rate File only to the extent they are included as part of an

alternative payment arrangement, such as a bundled payment arrangement. The second file (the

Allowed Amount File) must provide data showing the allowed amounts and billed charges with

respect to covered items and services, including prescription drugs, furnished by out-of-network

providers over a 90-day period beginning 180 days prior to the publication date of the machine-

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readable file. The third file (the Prescription Drug File) must include information for negotiated

rates and historical net prices for prescription drugs, organized by NDC. Plans and issuers are

required to make the information available in accordance with certain method and format

requirements described at paragraph (b)(2) and update these files monthly as required under

paragraph (b)(3). The quantitative costs associated with meeting these requirements are detailed

in section VI.2 of the ICR section.

Some commenters stated that the requirement to use billing codes would be very costly

and potentially cost-prohibitive. One commenter indicated this is because use of CPT codes, the

most commonly used billing codes, requires licensure by the American Medical Association

(AMA). According to the commenter, the AMA charges licensing fees based on use cases per

user. Another commenter noted that some self-funded plans rent networks and do not have real-

time access to network pricing, and there are fees charged to plans to access the negotiated

discounts with the provider network the plan has rented. As a result, the commenter suggested

that plans will have to pay the network access fees twice—once the information required under

the final rules and a second time when the actual claim is received and processed through an

intermediary—to meet the requirements of the final rules.

The Departments understand that the use of CPT codes may represent an additional cost

for some plans and issuers. Generally, the Departments anticipate that if a plan or issuer

currently has the capability or licensure to record CPT codes on EOBs mailed to consumers, the

plans or issuers should also be able to use that CPT code to make the public disclosures required

through the final rules without, or with minimal, additional costs. The Departments also have

concluded that, as plans and issuers would already include licensing costs for using CPT codes in

the cost of doing business, they would not incur additional costs to use the CPT codes to

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populate the machine-readable files. The Departments acknowledge that some plans and issuers

could face instances where they could incur additional costs in order to access the required CPT

or network information based on the structure of licensing agreements to which they are

currently parties. However, due to an overall lack of specific information and knowledge

associated with the number of plans and issuers that currently have such licensing agreements,

the structure of those agreements, and the alternatives available to those plans and issuers, the

Departments are unable to accurately estimate any associated costs that might be incurred under

these circumstances.

One commenter stated that for many employer-sponsored health plans, in-network rates

usually belong to a network administrator, not the health plan, and, in the event network

administrators were to update their contractual agreements to permit plans to receive and share

pricing information, it is likely they will charge fees or request financial concessions from plans,

which will increase administrative burdens on group health plans.

The Departments understand that requiring release of this pricing information will affect

certain commercial arrangements and expectations that prevail in parts of the health care industry

today, which could result in certain one-time and ongoing administrative costs. However, the

Departments are of the view that making this information available to consumers and the public

will serve consumers’ long-term interests in facilitating a consumer-oriented, information-driven,

more competitive market. Additionally, as discussed previously in section II.C in this preamble,

the Departments are finalizing several special rules to streamline the provision of the public

disclosures required through the final rules. These special rules were designed to reduce the

overall compliance costs of the disclosures required by the final rules and to support smaller

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issuers and plans in meeting the requirements of the final rules by permitting certain contractual

arrangements and the aggregation of allowed amount data in some circumstances.

The Departments also recognize that a certain amount of data storage will be required to

post the machine-readable files on a publicly available internet website. Through the efficiencies

of cloud computing and data storage, the cost to host large files dramatically decreased in price

in the past several years. Popular services such as Simple Storage Service from Amazon Web

Services and Standard Storage from the Google Cloud Platform can host files for roughly $0.026

per gigabyte. The Departments’ size estimates of roughly 5 gigabytes for each machine-readable

file would incur a monthly data storage cost of approximately $0.39 for all of the machine-

readable files.

Non-Quantified Costs for Public Disclosure of In-Network Rates. In addition to the costs

described in section VI.A.2, the Departments recognize there may be other costs associated with

the requirement to make in-network rates publicly available that are difficult to quantify given

the current lack of information and data. While the Departments are of the view that the overall

effect of the final rules will be to provide greater price transparency and potentially lower health

care prices, there are instances in very transparent markets where price ranges can narrow and

average costs can increase as a result of price transparency.

265

The Departments also recognize

that plans and issuers may experience ongoing additional costs (for example, the cost of quality

265

Kutscher, B. “Report: Consumers demand price transparency, but at what cost?” Modern Healthcare. June

2015. Available at: https://www.modernhealthcare.com/article/20150623/NEWS/150629957/consumers-demand-

price-transparency-but-at-what-cost.

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control reviews) to ensure they comply with the requirements of the final rules. In addition, the

Departments are aware that information disclosures allowing competitors to determine the rates

their competitors are charging may dampen each competitor’s incentive to offer a lower price or

result in a higher price equilibrium.

266

While plans and issuers with the highest in-network rates

may see a decrease in their in-network rates, as their providers respond to consumer and smaller

issuers’ concerns regarding paying more for the same item and service, plans and issuers with the

lowest in-network rates may see their lower cost providers adjust their rates upward. However,

most research suggests that when better price information is available, prices for goods sold to

consumers fall. For example, in an advertising-related study, researchers found that the act of

advertising the price of a good or service is associated with lower prices.

267

A potential additional non-quantified cost could be the cost to remove gag clauses from

contracts between plans, issuers, and providers. Contracts between plans, issuers, and providers

often include a gag clause, which prevents plans and issuers from disclosing in-network rates.

The Departments recognize that plans, issuers and providers may incur a one-time expense for

their attorneys to review and update their provider contracts to remove any relevant gag clauses.

Comments received regarding gag clauses and contract negotiations are further discussed in

section VI.A.2 later in this preamble.

Another potential cost concerns the final rules’ impact on a plan’s or issuer’s ability or

incentive to establish a robust network of providers. A health insurance provider network is a

266

Koslov, T., and Jex, E. “Price transparency or TMI?” United States, Federal Trade Commission. Available at:

https://www.ftc.gov/news-events/blogs/competition-matters/2015/07/price-transparency-or-tmi.

267

Austin, D. A, and Gravelle, J. G. “Does Price Transparency Improve Market

Efficiency? Implications of Empirical Evidence in Other Markets for the Health Sector.” Congressional Research

Service. June 2007. Available at: https://fas.org/sgp/crs/secrecy/RL34101.pdf.

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group of providers that have contracted with a plan or issuer to provide care at a specified price

the provider must accept as payment in full. Many times, plans and issuers want consumers to

use the providers in their network because these providers have met the plan’s or issuer’s quality

standards and agreed to accept an in-network rate for their services in exchange for the patient

volume they will receive by being part of the plan's or issuer’s network.

268

Some plans and

issuers offer a narrow network: these networks operate with a smaller number of providers,

meaning a consumer will have fewer choices when it comes to in-network providers, but often

offer lower monthly premiums and out-of-pocket costs.

269

The Departments recognize that

making in-network rates public may create a disincentive for plans and issuers to establish a

contractual relationship with a provider (including in narrow networks) because providers may

be unwilling to give a discount to plans and issuers when that discount will be made public. As

addressed further in section VI.C later in this preamble, the requirements of the final rules could

result in a reduction in revenue for those smaller plans and issuers that are unable to pay higher

rates to providers and may require them to narrow their provider networks, which could affect

access to care for some consumers. Due to smaller plans’ and issuers’ potential inability to pay

providers with higher rates, smaller plans and issuers may further narrow their networks to

include only providers with lower rates, possibly making it more difficult for smaller plans and

issuers to fully comply with network adequacy standards described at 45 CFR 156.230 or other

applicable state network adequacy requirements.

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Davis, E. “Health Insurance Provider Network Overview.” Verywell Health. August 2019. Available at:

https://www.verywellhealth.com/health-insurance-provider-network-1738750.

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Anderman, T. “What to Know About Narrow Network Health Insurance Plans.” Consumer Reports. November

23, 2018. Available at: https://www.consumerreports.org/health-insurance/what-to-know-about-narrow-network-

health-insurance-plans/.

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Some commenters stated that public disclosure of in-network rates could affect the

sustainability and affordability of QHPs offered through the Exchanges by placing upward

pressure on rates and by placing provider participation in networks at risk. One commenter

stated that the potential negative effects on QHPs would especially harm unsubsidized

consumers and consumers in rural areas where provider consolidation is most common and could

impact overall marketplace stability and the risk pool. Furthermore, commenters asserted that

increased premiums for QHPs could result in increased federal spending in the form of higher

premium tax credit (PTC) payments, which could substantially increase the federal deficit over

10 years. One commenter stated that the Departments should not finalize the release of in-

network rates until they fully evaluate the impact on affordable plan options on the Exchanges

and the effects on federal spending.

As discussed later in section V.B.5 of this preamble, the Departments estimate premiums

for the fully-insured markets will be $471 billion for 2022, including the individual, small group,

and large group markets. The Departments estimate that the cost for 2022 represents

approximately 2.4 percent of projected commercial insured premiums for the fully-insured

market, 1.4 percent in 2023, 0.5 percent in 2024, and 0.5 percent in 2025. Assuming this level of

premium increase in the individual market, PTC outlays are estimated to increase by about

$1,047 million in 2022, $623 million in 2023, $216 million in 2024, and $218 million in 2025.

Given that the 2021 President’s Budget estimates that PTC outlays are expected to be $43.8

billion in 2022, $44.8 billion in 2023, $45.875 billion in 2024, and $48.2 billion in 2025,

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the

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OMB 2021 President’s Budget. Available at: https://www.whitehouse.gov/wp-

content/uploads/2020/02/budget_fy21.pdf.

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Departments expect the estimated increase of $1,047 million in 2022, $623 million in 2023, $216

million in 2024, and $218 million in 2025 to have minimal impacts on anticipated enrollment

and are not of the view that this increase will result in any widespread negative effects on market

stability. Additionally, the Departments have determined that enrollment impacts will be

minimal, as estimated premium impacts are relatively small, and rate increases for subsidized

enrollees in the individual market will be largely mitigated. Additionally, participants,

beneficiaries, and enrollees currently make health insurance coverage decisions based on their

particular health and financial situations, and it is not predictable how information provided as a

result of the final rules will significantly impact those health insurance coverage decisions.

Thus, the Departments do not expect the final rules to significantly increase the selection risk

beyond the levels that currently exist. The Departments do acknowledge that the estimated

increases in premiums could result in minor harm to unsubsidized consumers as they could be

faced with increased premiums that would not be negated by any increases in PTC and this could

impact those consumers’ decisions related to obtaining health insurance coverage.

The Departments received several comments from issuers, providers, and employers

stating that the requirement to publicly disclose in-network rates would threaten the viability of

their business models or business models upon which they rely. One commenter stated that the

proposal to release in-network rates could affect the viability of individual and small group

market health plans sold by small issuers. The commenter further suggested that “safety net”

health plans (which serve individuals and families that do not have access to other sources of

coverage in markets that other issuers find unprofitable) currently may be able to access more

favorable contract terms with providers, and these types of arrangements would be at risk if the

in-network rate information were required to be made public. The commenter expressed

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particular concern that exposure of the rates of safety net hospitals may uniquely disadvantage

them in negotiations with plans and issuers because they may have to raise rates on certain

services to support safety net activities. Similarly, a hospital system stated that publishing in-

network rates would negatively impact its ability to contain costs and threaten its current

participation in the networks of nearly all area health plans. Another commenter indicated that

providers would leave plans’ and issuers’ networks if plans’ and issuers’ attempts to achieve

more favorable rates using public in-network rate information proved unsuccessful. Another

commenter argued that the policy requiring disclosure of in-network rates could also result in the

collapse of the network administrator business model, which would result in significantly

increased administrative costs for health plans that would need to contract separately with each

participating provider.

The Departments understand that requiring the release of this pricing information will

upset certain commercial arrangements and expectations that prevail in parts of the health care

industry today, which could result in certain one-time and ongoing administrative costs.

However, the Departments have concluded that providing increased price transparency and

making this information available to the public will serve the public’s long-term interests in

facilitating a consumer-oriented, information-driven, more competitive market potentially

leading to reduced overall health care costs.

Some commenters suggested that, by using publicized in-network rate information, plans

and issuers could also coordinate to reduce provider payment levels below market competitive

rates, a so-called “race to the bottom.” Some of these commenters stated that this “race to the

bottom” could also potentially hurt access to, and quality of, care. For example, one commenter

stated that if provider reimbursement rates were set too low, patient access to care would be

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negatively impacted because providers will not have the resources to invest in technology,

training, and equipment.

One commenter suggested that plans and issuers would likely want to re-negotiate rates

once they learn local prices and that dominant issuers could use payer specific in-network rate

information to deter and punish hospitals that lower their rates or enter into value-based

arrangements with the dominant issuer’s competitors.

Several commenters stated that required disclosure of in-network rates could result in an

increase in health care prices. Others specifically expressed concerns that making payer-specific

in-network rates available would disrupt contract negotiations between providers and health

plans and result in providers changing their rates in anticompetitive ways (“race to the top”) and

could promote an environment that could support collusion between providers, resulting in

increased prices. Other commenters suggested that required disclosures would lead to the

consolidation of providers and even greater consolidation in the commercial health insurance

industry, and expressed concerns that disclosures could particularly harm small health plans and

TPAs who may have been able to get discounted rates by offering health plans in a limited

service area.

One commenter noted that other states' transparency systems used several distinguishable

features to mitigate the risks of publicizing rates, but noted that, despite these efforts, the data

was still used in contract negotiations.

The Departments recognize that there is the potential for adverse market outcomes as a

result of the final rules. As noted previously, the Departments are aware of the potential that

plans and issuers could seek to use the public availability of in-network rates or underlying fee

schedules in attempts to lower prices in what certain commenters called a “race to the bottom.”

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As noted previously in this section, the Departments recognize the potential for anticompetitive

behaviors and increased consolidation that may occur should providers use the in-network rate or

fee schedule data to increase their rates or should smaller plans and issuers struggle to comply.

The Departments recognize that provider collusion could result in increased prices, and also

recognize that this sort of behavior could result in distinct coverage areas or agreements where

providers choose not to compete for consumers. As discussed previously in this preamble, the

Departments nonetheless have concluded that providing increased price transparency and making

this information available to the public will serve the public’s long-term interests in facilitating a

consumer-oriented, information-driven, more competitive health care market.

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Should the

market become more competitive, as the Departments anticipate, the reduction in prices may

provide more options for those providers that function as “safety-net providers” to expand their

networks or enhance the services they currently provide by organizing and delivering a

significant level of health care and other related services to uninsured, Medicaid, and other

vulnerable populations. The Departments also reason that the likelihood of price and other forms

of collusion will be mitigated to some extent by the actions of state and federal regulatory and

antitrust enforcement authorities and the enforcement of current market laws and regulations.

The Departments are of the view that enforcement actions taken to reduce the likelihood of price

collusion will further reduce the chances that issuers will seek to reduce the size of their

networks.

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Gudiksen K. L., Chang, S. M., and King, J. S. “The Secret of Health Care Prices: Why Transparency Is in the

Public Interest.” California Health Care Foundation. July 2019. Available at: https://www.chcf.org/wp-content/

uploads/2019/06/SecretHealthCarePrices.pdf.

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Although consumer education is not a requirement of the final rules, plans, issuers and

TPAs may face additional costs if they chose to inform and educate their consumers about the

options available to them, how to use these tools, increase their general health care knowledge.

Providing educational opportunities to participants, beneficiaries, or enrollees could encourage

those participants, beneficiaries, or enrollees to seek lower cost services, providing plans, issuers

and TPAs the potential to realize a return on the investments incurred to comply with the final

rules.

Non-Quantified Cost for Public Disclosure of out-of-network allowed amounts. In

addition to the costs described in section VI.A.2 and the previous analysis related to the public

disclosure of in-network rates, the Departments recognize that there may be other costs

associated with the requirement to make historical payments of out-of-network allowed amounts

and billed charges publicly available that are difficult to quantify, given the current lack of

information and data.

Furthermore, while plans and issuers must de-identify data (such as claim payment

information for a single provider) and ensure certain sensitive data are adequately protected,

unauthorized disclosures of PHI and PII may increase as a result of manual preparation and

manipulation of the required data. The potential disclosures of PHI and PII may require plans,

issuers, and TPAs to obtain additional cyber-security insurance that could lead to additional

costs.

Non-Quantified Cost for Public Disclosure of Prescription Drug Pricing Information. In

addition to the costs described in section VI.A.2and the previous analysis related to the public

disclosure of in-network rates and allowed amounts, the Departments recognize that there are

other costs associated with the requirement to make negotiated rates and historical net prices for

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prescription drugs publicly available that are difficult to quantify, given the current lack of

information and data. For example, as a result of the availability of consolidated negotiated rates

and historical net prices, drug manufacturers may seek to restructure their rebate and discount

programs and could potentially cease providing rebates to plans and issuers, PBMs, or

pharmacies, which could then result in less savings being passed on to consumers.

Intended Outcomes

The Departments are of the view that providing greater price transparency by requiring

group health plans and health insurance issuers to make information regarding all applicable

rates publicly available, which may include negotiated rates, amounts in underlying fee

schedules, or derived amounts for in-network provider rates; 90-days of historical allowed

amount and billed charges data for out-of-network providers; and prescription drug negotiated

rates and historical net prices will ultimately benefit plans and issuers, regulatory authorities,

consumers, and the overall health care market.

Group Health Plans and Health Insurance Issuers. Plans and issuers may benefit from

these requirements because under the final rules a plan or issuer would have a better

understanding of other plans’ or issuers’ in-network rates. This may allow plans and issuers

paying higher rates for the same items or services to negotiate with certain providers to lower

their rates, thereby lowering provider reimbursement rates, reducing price variation, and

potentially resulting in an overall decrease in health care costs. The Departments acknowledge,

however, as noted in the “costs” section (V.B.3) earlier in this preamble, that knowledge of other

providers’ in-network rates could also drive up rates if a provider discovers they are currently

being paid less than other providers by a plan or issuer and, therefore, seek to negotiates higher

rates.

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In addition, the final rules may result in more plans and issuers using a reference pricing

structure. Under this structure, participants, beneficiaries, or enrollees who select a provider

charging above the reference price (or contribution limit) must pay the entire difference and

these differences do not typically count toward that individual’s deductible or out-of-pocket

limit. Plans and issuers may want to use a reference pricing structure to pass on any potential

additional costs associated with what they can identify as higher-cost providers to the participant,

beneficiary, or enrollee. The Departments recognize that reference pricing might not impact

every consumer. For example, the California Public Employees' Retirement System (CalPERS)

provides exceptions from reference pricing when a member lives more than 50 miles from a

facility that offers the service below the price limit. It also exempts the patient if the patient’s

physician gives a clinical justification for using a high-priced facility or hospital setting.

Another example is a business with a self-insured group health plan that exempts laboratory tests

for patients with a diagnosis of cancer from its reference pricing program. However, reference

pricing has generally been shown to result in price reductions, as opposed to mere slowdowns in

the rate of price growth. For example, in the first two years after implementation, reference

pricing saved CalPERS $2.8 million for joint replacement surgery, $1.3 million for cataract

surgery, $7.0 million for colonoscopy, and $2.3 million for arthroscopy.

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Regulatory Authorities. In many states, issuers must obtain prior approval for rate

changes from the state’s DOI. Regulatory authorities such as state DOIs might benefit from the

final rules because knowledge of provider in-network rates and out-of-network allowed amounts

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Boynton, A., and Robinson, J. “Appropriate Use of Reference Pricing Can Increase Value.” Health Affairs

Blog. July 7, 2015. Available at: https://www.healthaffairs.org/do/10.1377/hblog20150707.049155/full/.

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paid to out-of-network providers could support determinations of whether premium rates,

including requests for premium rate increases, are reasonable and justifiable.

Consumers. Access to the in-network rates between plans and issuers and in-network

providers, the amount plans and issuers have paid to out-of-network providers, and prescription

drug pricing information will allow consumers to understand the impact of their choice of health

insurance coverage option and their choices of providers on the cost of a particular service, item,

or treatment. Giving consumers access to this information as part of their health care decision-

making process may facilitate a greater degree of control over their own health care costs.

Furthermore, having access to publicly available out-of-network allowed amounts will provide

consumers who are shopping for health insurance coverage the ability to compare the different

rates plans and issuers ultimately pay for items and services, including items and services from

providers that might be out-of-network. While the Departments are of the view that consumers

will benefit from the final rules, the Departments recognize that utilizing the required

information will not be practical or reasonable in an emergency situation. Similarly, some

consumers may need assistance in understanding complex terms or other associated mechanisms

in order to utilize this information.

The Departments recognize that beneficiaries and enrollees in state and federal health

care programs (including Medicare, Medicaid, CHIP, Basic Health Program and coverage

provided by the Department of Defense and Veterans Administration) will be impacted by

spillover effects related to any reductions or increase in prices for individual items and services

and prescription drugs as a result of the final rules. For example, Medicare Part B has

historically reimbursed physicians for physician-administered drugs using a formula that is based

off the average sales price (ASP). To the extent the final rules drive changes in prescription drug

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prices, that will change the federal reimbursement rates under Medicare Part B and may impact

Medicare beneficiaries’ out-of-pocket costs for their prescriptions. In addition, by law, Medicaid

programs in every state receive the lowest negotiated rate for prescription drugs. To the extent

the final rules drive changes in prescription drug prices, this will impact the amount all states, the

federal government, and some beneficiaries pay for prescription drugs. Similarly, if providers

start increasing (or decreasing) their in-network rates, there could also be spillover effects for

Medicare Advantage or Medicaid Managed Care Organizations (MCO), particularly for issuers

and plans that use the same network for both private plans, Medicare Advantage Plans and

Medicaid MCOs. These changes will impact the amount the federal government, states, and

beneficiaries will need to pay for their Medicare and/or Medicaid.

Overall Health Insurance Market. The price transparency required by the final rules may

also induce an uninsured person to obtain health insurance coverage. Depending on premium

rates, an uninsured individual might select health insurance coverage after learning the actual

dollar difference between the usual and customary rates that he or she pays for items and services

and the in-network rates and out-of-network allowed amounts under the terms of a plan or

issuer’s policy. In addition, the final rules might force providers to lower their rates for certain

items and services in order to compete for the price sensitive consumer, plan, or issuer.

Although the immediate payment impact would be categorized as a transfer, any accompanying

health and longevity improvements would be considered benefits (and any accompanying

increases in utilization would, thus, be considered additional costs). As discussed in section V.B

in this preamble, a study of New Hampshire’s HealthCost initiative found that the availability of

pricing information resulted in a five percent reduction in costs for medical imaging procedures.

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The study further found that patients saved approximately $7.5 million dollars on X-Ray, CT,

and MRI scans over the five-year study period (dollars are stated in 2010 dollars).

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Some commenters suggested that the biggest impact on health care spending and costs

would come from self-insured employers who would now be able to access and use in-network

rate data to negotiate lower rates on behalf of plan participants; improve their provider networks;

make more informed decisions about plan offerings; help steer enrollees to higher-quality, lower-

cost providers; and more meaningfully implement value-based payment designs. Other

commenters stated that the proposed rules would help create more efficient and value-based

health care systems by encouraging issuers to design innovative benefit designs that push

patients toward lower-cost care. Another commenter stated that requiring plans and issuers to

share publicly their in-network rates and the allowed amounts paid to out-of-network providers

had the potential to increase competition among plans and issuers.

The Departments are of the view that the requirements in the final rules will provide

providers, plans, and issuers the ability to provide quality health care services at lower costs to

participants, beneficiaries, or enrollees through enhanced provider and payer competition.

4. Medical Loss Ratio (45 CFR 158.221)

“Shared savings” programs allow issuers to share with enrollees any savings that result

from enrollees shopping for, and receiving care from, lower-cost, higher-value providers. In the

final rules, HHS is amending 45 CFR 158.221(b) to allow health insurance issuers that elect to

offer “shared savings” programs to take credit for such “shared savings” payments in their MLR

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Brown, Z. Y. “Equilibrium Effects of Health Care Price Information.” 100 Rev. Econ. & Stat. 1. (2018).

Available at: http://www-personal.umich.edu/~zachb/zbrown_eqm_effects_price_transparency.pdf.

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calculations. For this impact estimate, HHS is assuming that only relatively large issuers (with at

least 28,000 enrollees) that have consistently reported investment costs in health IT on the MLR

Annual Reporting Form of at least $10.50 per enrollee, which represents issuers with 70 percent

of total reported commercial market health IT investment or issuers that operate in states that

currently or may soon support “shared savings” plan designs,

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will initially choose to offer plan

designs with a “shared savings” component. HHS assumes that such issuers will share, on

average, 50 percent of the savings with enrollees (which will increase the MLR numerator under

the final rules), and that issuers whose MLRs were previously below the applicable MLR

standards will use their retained portion of the savings to lower enrollees’ premiums in future

years (which will reduce the MLR denominator). Based on 2017-2019 MLR data, HHS

estimates that this will reduce MLR rebate payments from issuers to enrollees by approximately

$120 million per year, while facilitating savings that will result from lower medical costs of

approximately $154 million per year for issuers and enrollees (some of which will be retained by

issuers, shared directly with enrollees, or used by issuers to reduce future premium rates).

5. Summary of Estimated Transfers

The Departments are assuming that because 2021 premium rates are nearly finalized,

health insurance issuers will not be able to charge for the expenses incurred to implement the

requirements of the final rules in their 2021 rates. Because issuers will not have the opportunity

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The states that supported “shared savings” plan designs at the time the estimate was developed and therefore

were included in the estimate are Maine, Massachusetts, New Hampshire, and Utah.

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to reflect the 2021 development costs in the 2021 premium rates, some issuers may apply margin

to the ongoing expenses as they develop premium rates for 2022 and after. The Departments

estimate premiums for the fully-insured markets will be $471 billion for 2022, $494 billion in

2023, $516 billion in 2024, and $539 billion in 2025, which includes the individual, small group,

and large group markets.

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The Departments estimate that the ongoing expense represents

approximately 2.4 percent of projected commercial insured premiums for the fully-insured

market in 2022, 1.4 percent in 2023, and 0.5 percent in 2024 and 2025 (an average of 1.2 percent

per year). Assuming this level of premium increase in the individual market, PTC outlays are

estimated to increase by about $1,047 million in 2022, $623 million in 2023, $216 million in

2024, and $218 million in 2025. Given that 2022 PTC outlays are expected to be $44 billion,

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the Departments expect that the estimated premium impacts will be relatively small, and rate

increases for subsidized enrollees in the individual market will largely be mitigated. Therefore,

the Departments expect enrollment impacts to be minimal. The Departments note that any

impact of the final rules on provider prices has not been estimated as limited evidence has

generally shown no predictable impact on provider prices. As a result, the Departments are

assuming that the overall impact will be minimal. However, there is a large degree of

uncertainty regarding the effect on prices, so actual experience could differ.

The Departments received comments stating that the broader impact to premiums was not

considered in the proposed rules. Several commenters stated that increased health care prices

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2017 earned premium data was taken from amounts reported for MLR, and trended forward using overall Private

Health Insurance trend rates from the NHE projections.

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OMB 2021 President’s Budget. Available at: https://www.whitehouse.gov/wp-

content/uploads/2020/02/budget_fy21.pdf.

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could be passed along to consumers, patients, and taxpayers in the form of higher premiums.

Some commenters specifically observed that the cost of developing and maintaining the required

machine-readable files on a monthly basis would likely be passed on to consumers in the form of

higher premiums. Another commenter noted that employers, TPAs, and issuers might incur

increased costs relative to the rules regarding potential data breaches, increased liability, and

cyber-coverage costs (liability insurance designed to cover financial losses that result from data

breaches and other cyber events) that could also impact plan premiums.

Other commenters suggested that use of information in the In-network Rate File could be

used by consumers to engage in practices that would lead to adverse selection and potentially

higher premiums. One commenter asserted that the proposed rules would allow individuals to

enter the insurance pool for specific costly treatments or procedures and then drop coverage or

switch coverage at the end of the contract year for a plan with lower premiums, which would

result in higher premiums for all consumers because there is no ability for health plans to spread

the risk across a reliable and long-term customer base.

By contrast, one commenter observed that premium increases could be mitigated if low-

deductible participants, beneficiaries, or enrollees were given information about the cost of the

health care they utilize, and that over time price transparency could create lower health care

costs.

The Departments recognize that many issuers and TPAs will likely transfer the costs

associated with meeting the requirements in the final rules to consumers in the form of increased

premiums. However, the Departments do not currently have enough information or evidence to

determine the overall effects the final rules will have on premiums and therefore have not

estimated how the final rules will impact an individual’s premium. The Departments also note

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that adverse selection risk currently exists in the individual market; individuals already make

health care coverage decisions based on their particular health and financial situations. It is not

clear how the price information contained in the In-network Rate, Allowed Amount, and

Prescription Drug Files will significantly impact an individual's health care coverage decisions.

The Departments do not expect the final rules to significantly increase the selection risk beyond

the levels that currently exist.

Also, it is questionable how much the final rules will lower health care costs for low

deductible participants, beneficiaries, or enrollees because cost-sharing amounts are usually

much less than the cost of the services, so that the participants, beneficiaries, or enrollee have no

economic incentive to seek lower cost services. Additionally, evidence is limited but generally

does not show significant differences in insured participant, beneficiary, or enrollee behavior as a

result of price transparency.

C. Regulatory Review Costs

Affected entities will need to understand the requirements of the final rules before they

can comply. Group health plans and health insurance issuers are responsible for ensuring

compliance with the final rules. However, as assumed elsewhere, it is expected that issuers and

TPAs (for self-insured group health plans) will incur this cost and burden for most group health

plans, and only the largest self-insured plans may incur this cost and burden directly. Thus,

issuers and TPAs (and possibly some of the largest self-insured plans) will be responsible for

providing plans with compliant services. The Departments are currently not aware of any

specific number of large self-insured plans that will seek to meet the requirements of the final

rules without third-party assistance and are thus unable to accurately account for those plans,

however, those plans will incur similar costs and burdens as TPAs and issuers in order to

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develop the required tools and to review and understand the final rules. Therefore, the cost and

burden for the regulatory review is estimated to be incurred by the 1,959 issuers and TPAs. The

Departments also are of the view that each state DOI, 50 states plus the District of Columbia,

will need to review and understand the final rules in order to be able to provide the appropriate

level of oversight and enforcement.

If regulations impose administrative costs on private entities, such as the time needed to

read and interpret the final rules, the Departments should estimate the cost associated with

regulatory review. Due to the uncertainty involved with accurately quantifying the number of

entities that will review and interpret the final rules, the Departments are assuming that the total

number of issuers, TPAs, and state DOIs will be required to comply with the final rules.

Nonetheless, the Departments acknowledge that this assumption may understate or

overstate the costs of reviewing the final rules. It is possible that not all affected entities will

review the final rules in detail, and some entities may seek the assistance of outside counsel to

read and interpret them. For these reasons, the Departments are of the view that the number of

issuers, TPAs, and DOIs would be a fair estimate of the number of reviewers of the final rules.

Using the wage information from the Bureau of Labor Statistics (BLS)

277

for a Computer

and Information Systems Manager (Code 11-3021), a Lawyer (Code 23-1011) and a state

Compliance Officer (Code 13-1041).

278

The Departments estimate that the cost for each issuer

277

Wage information available at https://www.bls.gov/oes/current/oes_nat.htm.

278

Wages obtained for State Government, excluding schools and hospitals at

https://www.bls.gov/oes/current/naics4_999200.htm.

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or TPA to review the final rules will be $285.66 per hour, including overhead and fringe

benefits, and each state DOI will incur a cost of approximately $55.58 per hour.

279

Assuming an

average reading speed, the Departments estimate that it will take approximately two hours for

each staff member to review and interpret the final rules; therefore, the Departments estimate

that the cost of reviewing and interpreting the final rules for each issuer and TPA will be

approximately $571.32 and $111.16 for each state DOI, including the District of Columbia.

Thus, the Departments estimate that the overall cost for the estimated 1,959 issuers and TPAs

and each state DOI will be $1,124,885.04 (($571.32 x 1,959 (total number of estimated issuers

and TPAs)) + ($111.16 x 51 (total number of DOIs))).

D. Regulatory Alternatives Considered

In developing the policies contained in the final rules, the Departments considered

alternatives to the final rules. In the following paragraphs, the Departments discuss the key

regulatory alternatives the Departments considered.

1. Limiting Cost-sharing Disclosures to Certain Covered Items and Services, and Certain

Types of Group Health Plans and Health Insurance Issuers

The final rules require group health plans and health insurance issuers to disclose cost-

sharing information for any requested covered item or service. The Departments considered

limiting the number of items or services for which plans and issuers would be required to provide

cost-sharing information to lessen the costs on these entities. However, limiting disclosures to a

specified set of items and services reduces the breadth and availability of useful cost estimates to

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Adjusted hourly wages are determined by multiplying the mean hourly rate by 100 percent to account for fringe

benefits and overhead costs.

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determine anticipated cost-sharing liability and limits the impact of price transparency efforts by

reducing the incentives to lower prices and provide higher-quality care. The Departments

assumed that plans (or TPAs on their behalf) and issuers, whether for a limited set of covered

items and services or for all covered items and services, would be deriving these data from the

same data source. Because the data source would be the same, the Departments assumed that

any additional costs to produce the information required for all covered items and services, as

opposed to a limited set of covered items and services, would be minimal. The Departments are

of the view that this limited additional cost is outweighed by the potentially large benefit to

consumers of having access to the required pricing information for the full scope of items and

services covered by their plan or issuer. For these reasons, in order to allow consumers to

estimate their out-of-pocket costs for all services and items covered under their plan or coverage,

and to achieve lower health care costs and reduce spending through increased price transparency,

the final rules are requiring cost-sharing information be disclosed for all covered items and

services. However, in recognition of commenters’ concerns regarding the implementation

timetable for the internet-based self-service tool, the final rules include a staggered

implementation schedule for the disclosure of cost-sharing information through the internet-

based self-service tool.

The Departments also considered implementing a more limited approach by imposing

requirements only on individual market plans and fully-insured group coverage. However, the

Departments are concerned that this limited approach might encourage plans to simply shift costs

to sectors of the market where these requirements would not apply and where consumers would

have less access to pricing information. The Departments are of the view that all consumers

should be able to access the benefits of greater price transparency and that a broader approach

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will have the greatest likelihood of controlling the cost of health care industry-wide. Indeed, if

the requirements of the final rules were limited to only individual market plans, the Departments

estimate only 9,716,000 individuals would receive the intended benefits of the final rules. In

contrast, under the final rules, a total of 212,314,000 participants, beneficiaries, and enrollees

may receive the intended benefits.

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The Departments acknowledge that limiting applicability of

the requirements of the final rules to the individual market would likely reduce the overall cost

estimates identified in section V.B.2, but the overall cost estimates per covered life would likely

increase. Further, there is a great deal of overlap in issuers that offer coverage in both the

individual and group markets. Issuers offering coverage in both markets would be required to

comply with the requirements of the final rules even if the Department limited the applicability

to only the individual market. Because TPAs provide administrative functionality for self-

insured group health insurance coverage, those non-issuer TPA entities would not incur any costs

because they do not have any overlap between the individual and group markets. The

Departments are of the view that the benefits of providing consumer pricing information to an

estimated total 212,314,000 participants, beneficiaries, and enrollees outweigh the increased

costs that a subset of plans, issuers, and TPAs, that are not active participants in the individual

market, would incur. The Departments have determined that the benefits of the final rules being

widely applicable will not only provide access to health care pricing information to a greater

280

“Health Insurance Coverage in the United States: 2019” (Appendix A). United States Census Bureau/

September 15, 2020. Available at: https://www2.census.gov/programs-surveys/demo/tables/p60/271/table1.pdf.

The number of covered individuals in the individual market and the total number of covered individuals have been

updated from those estimated in the proposed rule. The numbers provided in this final rule are based on more recent

data and more accurately reflect the number of covered individuals in the private market (excluding those enrolled in

Tricare coverage). The data provided is for 2019, whereas the data presented in the proposed rule was derived from

multiple sources for multiple years (2016 and 2019).

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number of individuals, but that any developed economies of scale will have a much greater

likelihood of achieving the goal of controlling the cost of health care industry-wide.

As noted in section I.B of this preamble, in the summer and fall of 2018, HHS hosted

listening sessions in which attendees stated that existing tools usually use historical claims data,

which results in broad, sometimes regional, estimates, rather than accurate and individualized

prices. The Departments considered allowing plans and issuers to use rate information from

historical claims data to calculate price estimates. The Departments recognize that many plans

and issuers use historical claims data to inform and determine cost-sharing estimates, but the

Departments are of the view that using pricing information such as negotiated rates will provide

for a more accurate and reliable estimate. Providing more accurate estimates of consumer prices

will provide more benefit to consumers, allowing them to better estimate their potential out-of-

pocket costs and search for items and services they feel are more affordable.

2. Requirement to Make Available Machine-Readable Files of In-Network Rates, Historical

Data for Out-of-network Allowed Amount Payments Made to Out-of-network Providers, and

Prescription Drug Pricing Information on a Public Website

In proposing the requirement that group health plans and health insurance issuers post in-

network rates, historical data for out-of-network allowed amount payments made to out-of-

network providers, and negotiated rates and historical net prices for each prescription drug on a

publicly accessible website, the Departments considered requiring plans and issuers to submit the

internet addresses for the machine-readable files to CMS. CMS would then make the

information available to the public from CMS’s website. A central location could allow the

public to access in-network rate information, out-of-network allowed amounts, and prescription

drug information for all plans and issuers in one place, potentially reducing confusion and

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increasing accessibility. Posting in-network rates, out-of-network allowed amounts, and

prescription drug information in a central location might also make it easier to post available

quality information alongside price information. However, to provide flexibility and reduce

costs, the Departments are of the view that plans and issuers should determine where to post the

in-network rate, out-of-network allowed amount, and prescription drug information rather than

prescribing the location where the information is to be disclosed. Further, requiring plans and

issuers to submit internet addresses for their machine-readable files to CMS would result in

additional costs to the extent plans and issuers already post this information in a different

location.

3. Frequency of Updates to Machine-Readable Files

In developing 26 CFR 54.9815-2715A3(b)(3), 29 CFR 2590.715-2715A3(b)(3), and 45

CFR 147.212(b)(3) of the final rules, the Departments considered requiring more frequent

updates (i.e., within 10 calendar days of new rate finalization) to the in-network rates, out-of-

network allowed amounts, and prescription drug information. More frequent updates would

provide a number of benefits for patients, providers, and the public at large. Specifically, such a

process would ensure that the public has access to the most up-to-date rate information so that

consumers can make the most meaningful, informed decisions about their health care utilization.

Requiring group health plans, health insurance issuers, and TPAs (or other entity acting on a plan

or issuers behalf) to update the machine-readable files more frequently would result in increased

costs for those affected entities, however. With respect to the In-network Rate File, the

Departments estimate that requiring updates within 10 calendar days of rate finalization would

result in each plan, issuer, or TPA incurring a burden of 4,428 hours, with an associated

equivalent cost of $635,112 in the second year after implementation of the final rules and an

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annual burden of 1,116 hours, with an associated equivalent cost of $162,828 in subsequent

years. Based on recent data the Departments estimate a total 1,959 entities – 1,754 issuers

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and

205 TPAs

282

– will be responsible for implementing the final rules. For all 1,959 issuers and

TPAs, the total burden, in the second year of implementation of the final rules, would be

8,674,452 hours, with an associated equivalent cost of $1,244,184,408 and an annual ongoing

burden of 2,186,244 hours, with an associated ongoing annual costs of $318,980,052 in

subsequent years. As discussed in section VI.A.2, requiring a less frequent 30 calendar day

update will reduce the burden, in year two, for each entity to 1,476 hours with an associated

equivalent cost of $211,704. The burden and associated costs, in subsequent years, will be

reduced to 372 hours, with an associated cost of $54,276. For all 1,959 issuers and TPAs, the

total burden, in year two, is reduced to 2,891,484 hours, with and associated equivalent cost of

$414,728,136. For subsequent years, the total burden is reduced to 728,748 hours, with an

associated equivalent cost of $106,326,684. With respect to the Allowed Amount File, the

Departments estimate that requiring updates within 10 calendar days of rate finalization would

result in each plan, issuer, or TPA incurring a burden of 1,908 hours, with an associated

equivalent cost of $290,628 in the second year and an annual ongoing burden of 468 hours, with

an associated equivalent cost of $61,452 in subsequent years. For all 1,959 issuers and TPAs,

the total burden, in year two, would be 3,737,772 hours with and associated equivalent cost of

$569,340,252. For subsequent years, the total ongoing burden would be 916,812 hours, with an

associated equivalent cost of $120,384,468. As further discussed in section VI.A.2, requiring a

281

2018 MLR Data Trends.

282

Non-issuer TPAs based on data derived from the 2016 Benefit Year reinsurance program contributions.

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less frequent update will reduce the year two burden for each issuer and TPA to 636 hours, with

an associated equivalent cost of $96,876. For subsequent years, the total ongoing burden will be

reduced to 156 hours, with an associated equivalent cost of $20,848. For all 1,959 issuers and

TPAs, the total burden for year two is reduced to 1,245,924 hours, with an associated equivalent

cost of $189,780,084. For subsequent years, the total ongoing burden will be reduced to 305,604

hours, with an associated equivalent cost of $40,128,156. With respect to the Prescription Drug

File, the Departments estimate that requiring updates within 10 calendar days of rate finalization

would result in each plan, issuer, or TPA incurring a burden of 2,700 hours, with an associated

equivalent cost of $416,664 in the second year and an annual ongoing burden of 1,116 hours,

with an associated equivalent cost of $162,828 in subsequent years. For all 1,959 issuers and

TPAs, the total burden, in year two, would be 5,289,300 hours with and associated equivalent

cost of $816,244,776. For subsequent years, the total ongoing burden would 2,186,244 hours,

with an associated equivalent cost of $318,980,052. As discussed in section VI.A.2, requiring a

less frequent update will reduce the year two burden for each issuer and TPA to 900 hours, with

an associated equivalent cost of $138,888. For subsequent years, the total ongoing burden will

be reduced to 372 hours, with an associated equivalent cost of $54,276. For all 1,959 issuers and

TPAs, the total burden for year two is reduced to 1,763,100 hours, with an associated equivalent

cost of $272,081,592. For subsequent years, the total ongoing annual burden will be reduced to

728,748 hours, with an associated equivalent cost of $106,326,684. By requiring monthly

updates to the machine-readable files, rather than updates every 10 calendar days, the

Departments have chosen to strike a balance between placing a significant burden on issuers (and

their service providers) and assuring the availability of accurate information.

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4. File Format Requirements

In 26 CFR 54.9815-2715A3(b)(2), 29 CFR 2590.715-2715A3(b)(2), and 45

CFR 147.212(b)(2), the final rules require group health plans and health insurance issuers to post

information in three machine-readable files. A machine-readable file is defined as a digital

representation of data or information in a file that can be imported or read by a computer system

for further processing without human intervention, while ensuring no semantic meaning is lost.

The final rules require each machine-readable file to use a non-proprietary, open format. The

Departments considered requiring issuers and TPAs to post in-network rates, allowed amounts

paid for out-of-network services, and prescription drug information using a specific file format,

namely JSON. However, the Departments are of the view that being overly prescriptive

regarding the file type will impose an unnecessary costs on issuers and TPAs despite the

advantages of JSON, namely that JSON files are downloadable and readable for many health

care consumers, and the potential for JSON to simplify the ability of price transparency tool

developers to access the data. Therefore, the Departments are requiring that issuers and TPAs

post the in-network rate, allowed amount, and prescription drug pricing information in three

distinct machine-readable files using a non-proprietary, open format. The Departments will

provide additional guidance regarding the file format in future technical implementation

guidance.

In addition, the Departments considered requiring plans and issuers to provide the

specific out-of-network allowed amount methodology needed for consumers to determine out-of-

pocket liability for services by providers not considered in-network by the plan or issuer, rather

than historical data on paid out-of-network claims. However, the Departments understand

providing a formula or methodology for calculating a provider’s out-of-network allowed amount

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does not provide the data users need in an easy-to-use machine-readable format. The

Departments determined that providing monthly data files on allowed amounts by plans and

issuers over a 90-day period for items and services provided by out-of-network providers will

enable users to more readily determine what costs a plan or issuer may pay toward items or

services obtained out-of-network. Because a plan or issuer does not have a contract with an out-

of-network provider that establishes negotiated rates, the plan or issuer cannot anticipate what

that provider’s charges will be for any given item or service; therefore, the Departments, as

discussed previously in this preamble, are requiring the inclusion of billed charges in the

Allowed Amounts File.

Providing data on the billed charge in connection with each unique allowed amount on

the out-of-network Allowed Amount File will provide consumer with information related to what

their plan or issuer will likely contribute to the costs of items or services obtained from out-of-

network providers and the billed charges associated with those item or services. This

information will provide the consumer with a reasonably accurate estimate of the amount of

additional liability a consumer could be required to pay for a particular item or service received

from an out-of-network provider. Out-of-network allowed amount and billed charges data will

provide increased price transparency for consumers, and the costs related to producing these data

are not considered to be significantly higher than that associated with producing the

methodology for determining allowed amounts for payments to out-of-network providers. Given

these circumstances, the final rules are requiring that payers provide allowed amount data for

out-of-network covered items or services furnished by a particular out-of-network provider

during the 90-day time period that begins 180 days prior to the publication date of the Allowed

Amount File, and billed charges rather than requiring plans and issuers to report their

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methodology or formula for calculating the allowed amounts for out-of-network items and

services.

5. Requiring Disclosure of Cost-sharing information to Participants, Beneficiaries, and

Enrollees and Publicly-posted Machine-readable Files with In-network Rates, Out-of-network

Allowed Amounts, and Prescription drug pricing information.

The Departments considered whether it would be duplicative to require group health

plans and health insurance issuers to disclose cost-sharing information through an internet-based

self-service tool or in paper form to participants, beneficiaries, or enrollees so that they may

obtain an estimate of their cost-sharing liability for covered items and services and publicly-

posted machine-readable files containing data on in-network rates, out-of-network allowed

amounts, and prescription drug pricing information. The requirement to disclose cost-sharing

information to participants, beneficiaries, or enrollees in the final rules require plans and issuers

to provide consumer-specific information on potential cost-sharing liability to enrolled

consumers, complete with information about their deductibles, copays, and coinsurance.

However, cost-sharing information for these plans and coverage would not be available or

applicable to consumers who are uninsured or shopping for plans pre-enrollment. Data disclosed

to participants, beneficiaries, or enrollees would also not be available to third parties who are

interested in creating internet-based self-service tools to assist both uninsured and insured

consumers with shopping for the most affordable items or services. Limiting access to data to a

subset of consumers would not promote the transparency goals of the final rules and would

reduce the potential for the final rules to drive down health care costs by increasing competition.

As discussed in more detail in section VI.A.1 in this preamble, the Departments have

estimated the high-end three-year average annual cost to develop only the internet-based self-

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service tool, including the initial tool build and maintenance, customer service training, customer

assistance, and mailing costs. The Departments estimate the three-year average total burden per

issuer, or TPA will be approximately 23,338 hours, with an associated equivalent average annual

cost of approximately $3,262,262. For all 1,959 issuers and TPAs, the Departments estimate the

total three-year average annual burden will be 45,718,171 hours with an associated equivalent

total average annual cost of approximately $6,390,770,952.

Additionally, the Departments estimated that for implementation of the required internet-

based self-service tool in conjunction with the out-of-network allowed amount, in-network and

prescription drug machine-readable files, the Departments estimate that the annual high-end

three-year average annual costs and burden for each issuer or TPA will be approximately 28,958

hours, with an associated equivalent cost of approximately $4,040,142. For all 1,959 issuers and

TPAs, the Departments estimate the total three-year average annual burden and cost to be

56,727,751 hours with an associated equivalent total average annual cost of approximately

$7,914,635,260.

In contrast, and as discussed in more detail in section VI.A.1, the Departments estimate

that the low-end three-year average burden and cost to develop and maintain only the internet-

based self-service tool, including the initial tool build and maintenance, customer service

training, customer assistance, and mailing costs. The Departments estimate the total three-year

average cost and burden per issuer or TPA will be approximately 15,475 hours, with an

associated equivalent average annual cost of approximately $2,150,169. For all 1,959 issuers

and TPAs, the Departments estimate the total three-year average annual burden to be 30,315,730

hours with an associated equivalent total average annual cost of approximately $4,212,181,157.

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Finally, the Departments estimated that for implementation of the required internet-based

self-service tool in conjunction with the out-of-network allowed amount, in-network rate, and

prescription drug machine-readable files, the Departments estimate that the three-year average

annual low-end cost and burden for each issuer or TPA will be approximately 21,095 hours, with

an associated equivalent average annual cost of approximately $2,928,048. For all 1,959 issuers

and TPAs, the Departments estimate the total three-year average annual low-end burden and cost

will be 41,325,310 hours with an associated equivalent total average annual cost of

approximately $5,736,045,465. While the Departments recognize that requiring disclosures

through all mechanisms will increase the costs for issuers and TPAs required to comply with the

final rules, the Departments are of the view that the additional costs associated with greater price

transparency are outweighed by the benefits that will accrue to the broader group of consumers

(such as the uninsured and individuals shopping for coverage) and other individuals who would

benefit directly from the additional information provided through the machine-readable files.

Additionally, the Departments are of the view that the final rules have the potential to reduce the

cost of surprise billing to consumers. The Departments further believe that the final rules will,

with the disclosure of in-network rates, potentially apply pressure on providers to bill less

aggressively. Consumer advocacy groups could also use the wide price dispersion of the same

CPT level service or NDC level drug by the same providers with different negotiated rates,

depending upon issuer or TPA contract, to further place downward pressure on health care costs.

In addition, as noted earlier in section II.C.1-2 of this preamble, researchers and third-party

developers will also be able to use the data included in the machine-readable files in a way that

could create even more benefits to consumers, including those consumers not currently enrolled

in a particular plan or coverage. For these reasons, the Departments have concluded that, in

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addition to requiring plans and issuers to disclose cost-sharing information to participants,

beneficiaries, or enrollees through an internet-based self-service tool, requiring plans and issuers

to publicly disclose information regarding in-network rates, out-of-network allowed amounts,

and prescription drug pricing will further the goals of price transparency and create benefits for

all potentially affected stakeholders.

6. Requiring an Internet-Based Self-Service Tool and Machine-Readable Files in Lieu of an

API

The Departments considered whether to require group health plans and health insurance

issuers to make the information required by the final rules available through a standards-based

API, instead of through the proposed internet-based self-service tool and machine-readable files.

Access to pricing information through an API could have a number of benefits for consumers,

providers, and the public at large. This information could ensure the public has access to the

most up-to-date rate information. Providing real-time access to pricing information through a

standards-based API could allow third-party innovators to incorporate the information into

applications used by consumers or combined with electronic medical records for point-of-care

decision-making and referral opportunities by clinicians for their patients. Additionally, being

able to access this data through a standards-based API would allow consumers to use the

application of their choice to obtain personalized, actionable health care price estimates, rather

than being required to use one developed by their plan or issuer (or a service provider), although

those consumers may be required to pay for access to those applications.

While there are many benefits to a standards-based API, it is the Departments’ view that

both an internet-based tool and machine-readable files are the first iterative steps towards

developing price transparency standards-based APIs. It is the Departments’ view that standards-

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based API would be a natural next technological step. The Departments also recognize that the

majority of issuers have an existing internet-based tool that could be enhanced to meet the

disclosure requirements in the final rules. The burden associated with updating existing tools to

standardize data attributes is going to be less than building a standards-based API. Looking at

the average cost over a 3-year period for the API for all 1,959 issuers and TPAs, the Departments

estimate an average annual cost that would significantly exceed the estimated annual cost of

implementing the internet-based self-service tool and machine-readable files. The Departments

recognize that the development of an API may be streamlined by leveraging existing APIs

currently used by plans, issuers, or TPAs for their own applications. Additionally, any

requirements for an API would build on the requirements finalized in CMS’s Interoperability &

Patient Access final rule

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requiring certain entities, such as Federally-facilitated Exchange QHP

issuers and companies that participate in both Medicare and the individual or group market, to

provide certain data through a standards-based API. Building on the Interoperability & Patient

Access final rule could result in significantly lower costs for issuers and TPAs as it relates to the

development and implementation of a standards-based API. Nonetheless, while the

Interoperability & Patient Access final rule focuses on the disclosure of information regarding

post care and clinical data, the rules finalized here require plans and issuers to provide

information related to a participant’s, beneficiary’s, or enrollee’s individual’s cost-sharing,

allowed amounts for covered items and services from out-of-network providers, and negotiated

rates and historical net prices for each prescription drug prior to seeking or obtaining care. The

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85 FR 25510 (May 1, 2020).

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Departments are therefore of the view that plans, issuers, and TPAs would incur significant and

distinct costs if required to us a standards-based API to comply with the final rules.

Although not estimated here, the Departments expect any associated maintenance costs

would also decline in succeeding years as plans, issuers, and TPAs gain additional efficiencies or

undertake similar procedures to maintain any currently used internal APIs. Nonetheless,

weighing the costs of providing the required information using an internet-based self-service tool

and machine-readable files against the potential costs of using a standards-based API,

particularly given the timeframes required by the final rules, the Departments are of the view

that, at least in the short-term, requiring an internet-based self-service tool and machine-readable

files is the more sensible approach.

Even though the Departments are of the view that an internet-based self-service tool and

machine-readable files are appropriate in the short-term, as discussed earlier in this preamble, the

Departments recognize that a standards-based API format in the long-term may be more

beneficial to the public, as it would provide access to the most up-to-date rate information; would

allow health care consumers to use the application of their choice to obtain personalized,

actionable health care service price estimates; and would allow third-party developers to use the

collected data to develop internet-based self-service tools. Therefore, the Departments are

considering future rulemaking to further expand access to pricing information through standards-

based APIs, including individuals’ access to estimates about their own cost-sharing liability and

information about in-network rates, historical payment data for out-of-network allowed amounts,

and negotiated rates and historical net prices for prescription drugs.

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VI. Collection of Information Requirements.

The final rules contain ICRs that are subject to review by OMB. A description of these

provisions is given in the following paragraphs with an estimate of the annual burden,

summarized in Table 24.

To fairly evaluate whether an information collection should be approved by OMB,

section 3506(c)(2)(A) of the PRA requires that the Departments solicit comment on the

following issues:

● the need for the information collection and its usefulness in carrying out the proper

functions of each of the Departments.

● the accuracy of the Departments’ estimate of the information collection burden.

● the quality, utility, and clarity of the information to be collected.

● recommendations to minimize the information collection burden on the affected public,

including automated collection techniques.

The Departments solicited comment on each of the required issues under section

3506(c)(2)(A) of the PRA for the following information collection requirements.

A. Wage Estimates

To derive wage estimates, the Departments generally use data from the BLS to derive

average labor costs (including a 100 percent increase for fringe benefits and overhead) for

estimating the burden associated with ICRs.

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One commenter noted that the markup rates for

labor, fringe benefits, and overhead are underestimated at 100 percent, while the conventional

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May 2018 Bureau of Labor Statistics, Occupational Employment Statistics, National Occupational Employment

and Wage Estimates. Available at: https://www.bls.gov/oes/current/oes_stru.htm.

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standard is 200 percent to 300 percent. The commenter further stated that if the Departments

were to update the burden estimates with the conventional standard for overhead markup, the

total of annual quantified costs would increase to over $500 million per year.

The Departments acknowledge that there are various methodologies used to determine

and estimate fringe benefits and other overhead costs; however, the commenter did not provide

any source recognizing or supporting their assertion that the conventional standard is to use 200

percent to 300 percent increases. The Departments agree that if a higher percentage were used to

estimate hourly wages and overhead, then the estimated costs for the final rules could potentially

be significantly higher. However, the Departments note that the use of 100 percent is necessarily

a rough adjustment, both because fringe benefits and overhead costs vary significantly across

employers, and because methods of estimating these costs vary widely across studies. The

Departments are of the view that doubling the hourly wage to estimate total cost is a reasonably

acceptable estimation method.

The Departments recognize that the maturity of technology will vary from organization to

organization. An independent study by Bates White Economic Consulting (Bates White),

commissioned by one commenter, developed an assessment of the costs of the proposed rules by

interviewing a mix of 18 large and small health insurance issuers covering about 78 million lives.

They reported various degrees of existing tools’ compliance with the requirements of the

proposed rules. The Departments reevaluated its initial burden estimates developed for the

proposed rules based on feedback from commenters and the Bates Whites study. Because the

Departments could not make an estimate for any specific issuer, an independent government cost

estimate (IGCE) was conducted for each of the machine-readable files and the internet-based

self-service tool to aid the Departments in conducting the burden and cost estimates for the final

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rules. The goals of an IGCE are to aid the government acquisition process in determining a

project’s cost estimates based on project requirements or objectives that are typically found in a

performance work statement or statement of work. IGCEs are developed by the government

without contractor influence and are based on market research. The estimated skill sets required

to build both the internet based self-service tool and machine-readable files can be found in

TABLE 3 below. The Departments based the IGCE cost estimates on the rule’s requirements

and each IGCE has baseline assumptions that are built into the final estimate.

The IGCE assumptions for the internet-based self-service tool included things such as

research, engineering development, and design and were not based on any existing tools. There

was an assumption that product development would be done in the cloud to take advantage of

economies of scale or with on-premise infrastructure that allows for the development of

“infrastructure as code.” The IGCE assumptions for the machine-readable files included that all

items and services for a specific plan have a negotiated price, that all price numbers are digitized,

that pricing information is stored in many locations (not in a single database), that pricing

information is accessible through internal systems, that building the first machine-readable file

will facilitate automation for building future machine-readable files, and that there is an ability to

run queries against claims data.

Based on comments discussed later sections VI.A.1-2, the Departments have chosen to

use the Contract Awarded Labor Category (CALC)

285

database tool, managed by the General

Services Administration (GSA), to derive the hourly rates for the burden and cost estimates in

the final rules. The CALC tool was built to assist acquisition professionals with market research

285

CALC information and wage rates are available at: https://calc.gsa.gov/about/.

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and price analysis for labor categories on multiple U.S. GSA & Veterans Administration (VA)

contracts. Wages obtained from the CALC database are fully burdened to account for fringe

benefits and overhead costs. The Departments chose to use wages derived from the CALC

database because, even though the BLS data set is valuable to economists, researchers, and

others that would be interested in larger, more macro-trends in parts of the economy, the CALC

data set is meant to help market research based on existing government contracts in determining

how much a project/product will cost based on the required skill sets needed. The CALC data

set also factors in the fully-burdened hourly rates (base pay + benefits) into wages whereas BLS

rates do not. CALC occupations and wages provide the Departments with data that aligns more

with, and provides more detail related to, the occupations required for the implementation of the

requirements in the final rules. As discussed earlier, after consideration and discussion of

comments, the Departments chose to further reevaluate the cost and burden estimates. Based on

the Departments consultation with internal and external IT professionals and additional research,

the Departments have chosen to increase our overall costs and burden estimates to account for

our updated understanding of the burdens associated with the final rules and the additional

requirements included in the final rules. The Departments further discuss changes to the final

cost and burden estimates in the corresponding ICR sections.

While the following estimates for the internet-based self-service tool assume that entities

are either iterating on an existing tool or building a brand new tool from the ground up, the

Departments are of the view that it is highly likely that third-party developers will take this

opportunity to build white-label products that meet the requirements of the final rules and that

they will reduce costs through economies of scale by doing so. As such, the Departments’ cost

estimates may have some tendency towards over-estimation.

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Table 3 presents the fully burdened hourly wage and job descriptions used in the

Departments’ estimates.

TABLE 3: Hourly Wages Used in Burden Estimates.

CALC Occupation Title

Mean

Hourly

Wage

($/hour)

Project Manager/Team Lead

$153.00

Scrum Master

$105.00

Technical Architect/Sr. Developer

$149.00

Application Developer, Senior

$143.00

Business Analyst

$120.00

UX Researcher/Service Designer

$154.00

Designer

$116.00

DevOps Engineer

$181.00

Customer Service Representative

$40.00

Web Database/Application Developer IV

$152.00

Service Designer/Researcher

$114.00

1. ICR Regarding Requirements for Disclosures to Participants, Beneficiaries, or Enrollees

(26 CFR 54.9815-2715A2, 29 CFR 2590.715-2715A2, and 45 CFR 147.211)

The Departments add 26 CFR 54.9815-2715A2(b), 29 CFR 2590.715-2715A2(b), and 45

CFR 147.211(b), requiring group health plans and health insurance issuers of individual and

group health insurance coverage to disclose, upon request, to a participant, beneficiary, or

enrollee, such individual’s cost-sharing information for items; negotiated rates and underlying

fee schedule rates for in-network providers; and allowed amounts for covered items and services

from out-of-network providers. As discussed previously in section II.B.1 of this preamble, in

paragraphs 26 CFR 54.9815-2715A2(b)(1)(i), 29 CFR 2590.715-2715A2(b)(1)(i), and 45 CFR

147.211 (b)(1)(i) through (vii) the final rules require plans and issuers to make this information

available through an internet-based self-service tool on an internet website and, if requested, in

paper form or other format agreed upon between the plan, issuer, or TPA and participant,

beneficiary, or enrollee.

CMS-9915-F 434

The final rules require plans and issuers to disclose, upon request, certain information

relevant to a determination of a participant’s, beneficiary’s, or enrollee’s cost-sharing liability for

a particular health care item or service from a particular provider, to the extent relevant to the

individual’s cost-sharing liability for the item or service, in accordance with seven content

elements: the individual-specific estimated cost-sharing liability; the individual-specific

accumulated amounts; the in-network rate; the out-of-network allowed amount for a covered

item or service, if applicable; the items and services content list when the information is for

items and services subject to a bundled payment arrangement; a notice of prerequisites to

coverage (such as prior authorization); and a disclosure notice. However, as discussed earlier in

this section II.B.1 of this preamble, in instances where items or services, generally considered

preventive, are furnished as non-preventive items or services, the participant, beneficiary, or

enrollee may be subject to the cost-sharing terms of his or her plan. If a plan or issuer cannot

determine whether the request is for a preventive item or service, the plan or issuer must display

the non-preventive cost-sharing liability, along with a note that the item or service may not be

subject to cost-sharing if it is billed as a preventive service. The final rules also require the

disclosure notice to include several statements, written in plain language, which include

disclaimers relevant to the limitations of the cost-sharing information disclosed, including: a

statement that out-of-network providers may balance bill participants, beneficiaries, or enrollees,

a statement that the actual charges may differ from those for which a cost-sharing liability

estimate is given, and a statement that the estimated cost-sharing liability for a covered item is

not a guarantee that coverage will be provided for those items and services. In addition, plans

and issuers will be permitted to add other disclaimers they determine appropriate so long as such

information is not in conflict with the disclosure requirements of the final rules. The

CMS-9915-F 435

Departments have developed model language that plans and issuers will be able to use to satisfy

the requirement to provide the notice statements described earlier in section II.B.1 of this

preamble.

As discussed in section II.B.1 of this preamble, the final rules require plans and issuers to

make available the information described in 26 CFR 54.9815-2715A2(b), 29 CFR 2590.715-

2715A2(b), and 45 CFR 147.211(b) of the final rules through an internet-based self-service tool.

The information is required to be provided in plain-language through real-time responses. Plans

and issuers will be required to allow participants, beneficiaries, or enrollees to search for cost-

sharing information for covered items and services by billing code, or by descriptive term, per

the user’s request, in connection with a specific in-network provider, or for all in-network

providers. In addition, the internet-based self-service tool must allow users to input information

necessary to determine the out-of-network allowed amount for a covered item or service

provided by an out-of-network provider (such as zip code). The internet-based self-service tool

is required to have the capability to refine and reorder results by the geographic proximity of in-

network providers, and the estimated amount of cost-sharing liability to the beneficiary,

participant, or enrollee.

As discussed in sections II.B.1 and 2 earlier in this preamble, the final rules require plans

and issuers to furnish upon request, in paper form, the information required to be disclosed under

26 CFR 54.9815-2715A2(b)(1), 29 CFR 2590.715-2715A2(b)(1), and 45 CFR 147.211(b)(1) of

the final rules to a participant, beneficiary, or enrollee. As discussed in sections II.B.1 and 2 in

this preamble, a paper disclosure is required to be furnished according to the consumer’s filtering

and sorting preferences and mailed to the participant, beneficiary, or enrollee within two

business days of receiving the request. Plans or issuers may, upon request, provide the required

CMS-9915-F 436

information through other methods, such as over the phone, through face-to-face encounters, by

facsimile, or by email.

The Departments assume fully-insured group health plans will rely on issuers to develop

and maintain the internet-based self-service tool and provide any requested disclosures in paper

form. While the Departments recognize that some self-insured plans might independently

develop and maintain the internet-based self-service tool, at this time the Departments assume

that self-insured plans will rely on TPAs (including issuers providing administrative services and

non-issuer TPAs) to develop the required internet-based self-service tool. The Departments

make this assumption because the Departments understand that most self-insured group health

plans rely on TPAs for performing most administrative duties, such as enrollment and claims

processing. For those self-insured plans that choose to develop their own internet-based self-

service tools, the Departments assume that they will incur a similar cost and burden as estimated

for issuers and TPAs, as discussed in section VI.A.1 later in this preamble. In addition, 26 CFR

54.9815-2715A2(b)(3), 29 CFR 2590.715-2715A2(b)(3), and 45 CFR 147.211(b)(3) of the final

rules provide for a special rule to prevent unnecessary duplication of the disclosures with respect

to health insurance coverage, which provides that a plan may satisfy the disclosure requirements

if the issuer offering the coverage is required to provide the information pursuant to a written

agreement between the plan and issuer. Thus, the Departments have used issuers and TPAs as

the unit of analysis for the purposes of estimating required changes to IT infrastructure and

administrative costs and burdens. The Departments estimate approximately 1,754 issuers and

205 TPAs will be affected by the final rules.

The Departments acknowledge that the costs described in these ICRs may vary

depending on the number of lives covered, the number of providers and items and services for

CMS-9915-F 437

which cost-sharing information must be disclosed, and the fact that some plans and issuers

already have robust tools that can be easily adapted to meet the requirements of the final rules.

In addition, plans and issuers may be able to license existing cost estimator tools offered by

third-party vendors, obviating the need to establish and maintain their own internet-based self-

service tools. The Departments assume that any related vendor licensing fees would be

dependent upon complexity, volume, and frequency of use, but assume that such fees would be

lower than an overall initial build and associated maintenance costs. Nonetheless, for purposes

of the estimates in these ICRs, the Departments assume all 1,959 issuers and TPAs will be

affected by the final rules. The Departments also developed the following estimates based on the

mean average size, by covered lives, of issuers or TPAs. As noted later in this section, the

Departments sought comment on the inputs and assumptions that were used to develop these cost

and burden estimates, particularly regarding existing efficiencies that would reduce the cost and

burden estimates.

High range estimate for Internet-based self-service tool from start-up to operational

functionality.

The Departments estimate that the one-time costs and burden each issuer or TPA will

incur to complete the one-time technical build; including activities such as planning, assessment,

budgeting, contracting, building and systems testing, incorporating any necessary security

measures, incorporating disclaimer and model notice language, or development of the model and

disclaimer notice materials for those that choose to make alterations. The Departments assume

that this one-time cost and burden will be incurred in 2022 to develop and build the internet-

based self-service tool and provide information for the 500 required items and services, and

additional one-time costs will be incurred in 2023 in order to fully meet the requirements of the

CMS-9915-F 438

final rules. As mentioned earlier in section V.A.2 of this preamble, the Departments

acknowledge that a number of issuers and TPAs have previously developed some level of

internet-based self-service tool similar to, and containing some functionality related to, the

requirements in the final rules. The Departments thus seek to estimate a burden and cost range

(high-end and low-end) associated with the final rules for those issuers and TPAs. In order to

develop the high-end hourly burden and cost estimates, the Departments assume that all issuers

and TPAs will need to develop and build their internet-based self-service tool from start-up to

operational functionality. The Departments estimate that for each issuer or TPA it will take a

Project Manager/Team Lead 4,160 hours (at $153 per hour), a Scrum Master 4,160 hours (at

$105 per hour), a Technical Architect/Sr. Developer 4,160 hours (at $149 per hour), an

Application Developer, Senior 4,160 hours (at $143 per hour), a Business Analyst 4,160 hours

(at $120 per hour), a UX Researcher/Service Designer 4,160 hours (at $154 per hour), a Designer

4,160 hours (at $116 per hour), a DevOps Engineer 4,160 hours (at $181 per hour), and a Web

Database/Application Developer IV 4,160 hours to complete this task. The Departments

estimate the total burden per issuer or TPA will be approximately 37,440 hours, with an

equivalent cost of approximately $5,295,680. For all 1,959 issuers and TPAs, the total first year

one-time total burden is estimated to be 73,344,960 hours, with an equivalent total cost of

approximately $10,374,237,120. The Departments’ estimates are higher-bound estimates that do

not consider potential cost savings that could be realized should issuers and TPAs buy or lease an

internet-based self-service tool from a third-party vendor or other issuer. However, the

Departments are of the view that issuers or TPAs that choose to buy or rent an internet-based

self-service tool from another entity could incur significantly less costs and burdens.

CMS-9915-F 439

TABLE 4A: Total High-End First Year Estimated One-time Cost and Hour Burden for

Internet-based Self-service Tool for Each Issuer or TPA.

CALC Occupation

Burden Hours per

Respondent

Labor Cost

per Hour

Total Cost per Respondent

Project Manager/Team

Lead

4,160

$153.00

$636,480.00

Scrum Master

4,160

$105.00

$436,800.00

Technical Architect/Sr.

Developer

4,160

$149.00

$619,840.00

Application Developer,

Senior

4,160

$143.00

$594,880.00

Business Analyst

4,160

$120.00

$499,200.00

UX Researcher/Service

Designer

4,160

$154.00

$640,640.00

Designer

4,160

$116.00

$482,560.00

DevOps Engineer

4,160

$181.00

$752,960.00

Web

Database/Application

Developer IV

4,160

$152.00

$632,320.00

Total per respondent

37,440

$5,295,680.00

TABLE 4B: Total High-End First Year Estimated One-time Cost and Hour Burden for

Internet-based Self-service Tool for All Issuers and TPAs.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

37,440.0

73,344,960

$10,374,237,120

Several commenters stated that the Departments grossly underestimated the cost burden

of implementation on plans and issuers. One commenter stated that surveyed issuers estimated

an average cost of $6.2 million to build, develop or modify, implement, test, and launch an

internet-based self-service tool. This is 28 times greater than the Departments’ proposed

estimate for an issuer that needs to build a new tool and 112 times greater than the Departments’

estimate for an issuer that has an existing tool. Furthermore, this commenter noted that surveyed

issuers estimated average annual maintenance costs of $1.4 million per issuer—over 100 times

greater than those anticipated by the Departments. Surveyed issuers also estimated set-up costs

CMS-9915-F 440

that averaged about $5.53 million (ranging from $1,000,000 to $15,000,000) compared to the

Departments’ proposed estimate of $221,029. This is more than 25 times what the Departments

estimated as the cost for a full build of the internet-based self-service tool. Although most of the

issuers surveyed had an existing internet-based self-service tool meeting many of the required

elements of the final rules, several issuers expressed significant concern about the cost and

feasibility of complying with the requirements of the proposed rules. Specifically, the issuers

surveyed expressed concerns noting that the requirements may necessitate a complete rebuild of

their consumer tool. The surveyed issuers further indicated that the proposed rules would be

costlier than implementing real-time claims adjudication, in which the claim for the medical

service is adjudicated at the time the service is provided. They stated that they would need to

effectively adjudicate the claim before it actually happens – to provide estimates for every

conceivable type of medical item or service while integrating this information with various

benefits. The surveyed issuers also noted that condensing all of the detail required in the final

rules into a user-friendly format for use by enrollees would be a considerable and possibly even

infeasible challenge. They further stated that the Departments' assumption that issuers with an

existing internet-based self-service tool would face a lower hour burdens and costs to comply

with the proposed rules was incorrect.

The Departments have considered the comments submitted in response to the cost and

burden estimates related to the internet-based self-service tool. In response, the Departments

have adjusted the costs and burden estimates to better reflect and align with the values submitted

by commenters. In addition, the Departments have developed the estimates above, and in other

ICR sections, using CALC wage rates as discussed in section VI.A of this preamble.

Low range estimate for internet-based self-service tool requiring partial build.

CMS-9915-F 441

The Departments recognize that a significant number of issuers and TPAs may already

have some form of internet-based self-service tool that allows for comparison shopping of

different plans and that a large number of issuers and TPAs may currently provide participants,

beneficiaries, or enrollees with the ability to obtain some estimated out-of-pocket costs.

286

For

those issuers and TPAs that currently have some level of functional internet-based self-service

tool that would meet some (or all) of the requirements of the final rules, the Departments

recognize that these entities may incur lower burdens and costs overall, as the Departments are of

the view that these entities may require an overall lower level of effort and capital expenditure to

meet the requirements of the final rules. Thus, the Departments have estimated a low-end

burden and cost to comply with the final rules. Assuming that over 90 percent of issuers and

TPAs currently provide an internet-based self-service tool and will only be required to make

changes to their current system in order to meet the requirements in the final rules, the

Departments estimate that 175 issuers and 21 TPAs will be required to develop an internet-based

self-service tool from start-up to operational functionality. The Departments also estimate that

each of those 196 entities will incur a first-year one-time cost and burden of approximately

37,440 hours, with an equivalent cost of approximately $5,295,680 (as discussed previously in

this ICR). For those 196 entities, the total first year one-time burden is estimated to be 7,334,496

hours with an equivalent total cost of approximately $1,037,423,712.

286

See AHIP release dated August 2, 2019. “AHIP Issues Statement on Proposed Rule Requiring Disclosure of

Negotiated Prices.” America’s Health Insurance Providers. August 2, 2019. Available at:

https://www.ahip.org/ahip-issues-statement-on-proposed-rule-requiring-disclosure-of-negotiated-prices/; see also

Higgins, A., Brainard, N., and Veselovskiy, G. “Characterizing Health Plan Price Estimator Tools: Findings from a

National Survey.” 22 Am. J. Managed Care 126. 2016. Available at:

https://ajmc.s3.amazonaws.com/_media/_pdf/AJMC_02_2016_Higgins%20(final).pdf.

CMS-9915-F 442

TABLE 5A: Low-Range First Year One-time Cost and Hour Burden for Internet-based

Self-service Tool for Issuers and TPAs Requiring a Complete Build.

Number of

Respondents

Number of

Responses

Burden

Hours Per

Respondent

Total Burden

Hours

Total Cost

196

37,440

7,334,496

$1,037,423,712.00

The Departments estimate that those issuers and TPAs that will only be required to make

changes to their existing systems will already have operational capabilities that meet

approximately 70 percent of the requirements in the final rules and will only incur costs and

burdens related to changes needed to fully meet the requirements of the final rules. Based on this

assumption, the Departments estimate that 1,579 issuers and 184 TPAs will incur a first-year

one-time hour burden of 11,232 hours, with an associated cost of $1,588,704.00 to fully satisfy

the initial requirements of the final rules. For all 1,763 issuers and TPAs, the Departments

estimates the total first year one-time burden will be 19,803,139 hours, with an equivalent total

cost of approximately $2,801,044,022.40. The Departments recognize that issuers and TPAs

may currently have some form of internet-based self-service tool that may provide greater

functionality that could meet a greater proportion of the requirements in the final rules. In those

cases, issuers and TPAs could see lower costs and burdens. The Departments also recognize that

there are likely a number of issuers and TPAs that currently provide some form of internet-based

self-service tool that would require more development to meet the requirements of the final rules.

In those instances, those issuers and TPAs could incur greater costs and burdens. The

Departments’ estimates are higher-bound estimates that do not consider potential cost savings

that could be realized should issuers and TPAs buy or lease an internet-based self-service tool

from a third-party vendor or other issuer. However, the Departments are of the view that issuers

CMS-9915-F 443

or TPAs that choose to buy or rent an internet-based self-service tool from another entity could

incur significantly less costs and burdens.

TABLE 5B: Low-End First Year One-time Cost and Hour Burden for Internet-based Self-

service Tool for Issuers and TPAs Requiring Only a Partial Build.

Number of

Respondents

Number of

Responses

Burden Hours

Per

Respondent

Total Burden

Hours

Total Cost

1,763

11,232

19,803,139

$2,801,044,022.40

TABLE 5C: Total Low-End First Year One-time Cost and Hour Burden for Internet-based

Self-service Tool for all Issuers and TPAs.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

13,853

27,137,635

$3,838,467,734.40

In addition to the range of year one one-time costs and burdens estimated in Tables 4B,

5B, and 5C, issuers and TPAs will incur additional costs in the second year of implementation in

order to include all items and services in their internet-based self-service tools and fully meet the

requirements of the final rules. The Departments estimate that for each issuer and TPA it will

take a Project Manager/Team Lead 3,120 hours (at $153 per hour), a Scrum Master 3,120 hours

(at $105 per hour), a Technical Architect/Sr. Developer 3,120 hours (at $149 per hour), an

Application Developer, Senior 4,160 hours (at $143 per hour), a Business Analyst 2,080 hours

(at $120 per hour), a UX Researcher/Service Designer 2,080 hours (at $154 per hour), a Designer

1,560 hours (at $116 per hour), a Web Database/Application Developer IV (at $154.00 per hour)

3,120 hours (at $152.00 per hour), and a DevOps Engineer 2,080 hours (at $181 per hour) to

perform these tasks. The total second year burden for each issuer or TPA will be 24,440 hours,

with an equivalent cost of approximately $3,466,320. For all 1,959 issuers and TPAs, the total

second year implementation burden is estimated to be 47,877,960 hours with an equivalent total

cost of approximately $6,611,791,831 The Departments consider this to be an upper-bound

CMS-9915-F 444

estimate and expect maintenance costs to decline in succeeding years as issuers and TPAs gain

efficiencies and experience in updating and managing their internet-based self-service tools.

TABLE 6A: Estimated Year Two Implementation Cost and Hour Burden for Internet-

based Self-service Tool for Each Issuer or TPA.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Project Manager/Team Lead

3,120

$153.00

$477,360.00

Scrum Master

3,120

$105.00

$327,600.00

Technical Architect/Sr.

Developer

3,120

$149.00

$464,880.00

Application Developer, Senior

4,160

$143.00

$594,880.00

Business Analyst

2,080

$120.00

$249,600.00

UX Researcher/Service Designer

2,080

$154.00

$320,320.00

Designer

1,560

$116.00

$180,960.00

DevOps Engineer

2,080

$181.00

$376,480.00

Web Database/Application

Developer IV

3,120

$152.00

Total per Respondent

24,440

$3,466,320.00

TABLE 6B: Estimated Year Two Implementation Cost and Hour Burden for Internet-

based Self-service Tool for All Issuers and TPAs.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

24,440.0

47,877,960

$6,611,791,830.97

In addition to the range of one-time costs and burdens estimated in Tables 4B, 5B, 5C,

6A, and 6B, issuers and TPAs will incur annual costs such as those related to ensuring cost

estimation accuracy, providing quality assurance, conducting website maintenance and making

updates, and enhancing or updating any needed security measures. The Departments estimate

that for each issuer and TPA, it will take a Project Manager/Team Lead 1,040 hours (at $153 per

hour), a Scrum Master 1,300 hours (at $105 per hour), an Application Developer, Senior 1,560

hours (at $143 per hour), a Business Analyst (at $120.00 per hour) 520 hours, a Designer (at

$116.00 per hour) 1,040 hours, a DevOps Engineer (at $181.00 per hour) 520 hours, a Web

Database/Application Developer IV (at $152.00 per hour) 1,560 hours, and a UX

CMS-9915-F 445

Researcher/Service Designer 520 hours (at $154 per hour) to perform these tasks. The total

annual burden for each issuer or TPA will be 8,060 hours, with an equivalent cost of

approximately $1,113,060. For all 1,959 issuers and TPAs, the total annual maintenance burden

is estimated to be 15,789,540 hours, with an equivalent associated total cost of approximately

$2,180,484,540.00. The Departments recognize that issuers and TPAs will likely have varying

levels of IT capabilities and experience in maintaining and internet-based tool and could incur

higher or lower costs and burdens depending on those capabilities. The Departments expect

maintenance costs to decline in succeeding years as issuers and TPAs gain efficiencies and

experience in updating and managing their internet-based self-service tool.

TABLE 7A: Estimated Annual Cost and Hour Burden for Maintenance of Internet-based

Self-service Tool for Each Issuer or TPA.

Occupation

Burden Hours

per Respondent

Labor Cost

per Hour

Total Cost per

Respondent

Project Manager/Team Lead

1,040

$153.00

$159,120.00

Scrum Master

1,300

$105.00

$136,500.00

Application Developer, Senior

1,560

$143.00

$223,080.00

Business Analyst

520

$120.00

$62,400.00

Designer

1,040

$116.00

$120,640.00

DevOps Engineer

520

$181.00

$94,120.00

Web Database/Application

Developer IV

1,560

$152.00

$237,120.00

UX Researcher/Service Designer

520

$154.00

$80,080.00

Total per Respondent

8,060

$1,113,060.00

TABLE 7B: Estimated Annual Cost and Hour Burden for Maintenance of Internet-based

Self-service Tool for All Issuers and TPAs

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

8,060.0

15,789,540

$2,180,484,540.00

As noted previously in this ICR section, commenters stated that the Departments grossly

underestimated the cost burden of implementation on plans and issuers. Additionally,

commenters stated that the Departments had underestimated the maintenance costs associated

CMS-9915-F 446

with the internet-based self-service tool. Issuers estimated the annual maintenance costs to be on

average, about $3.78 million per issuer or TPA (ranging from $375,000 to $10,000,000). As

noted previously in this ICR section, based on comments received, the Departments have

adjusted the costs and burden estimates to better reflect and align with the values submitted by

commenters. The Departments estimate the high-end three-year average total hour burden, for

all issuers and TPAs to develop, build, and maintain an internet-based self-service tool will be

45,670,820 hours annually, with an average annual total equivalent cost of $6,388,837,830.

The Departments acknowledge that the costs described earlier in this section may vary

depending on the number of covered lives and the number of providers and items and services

incorporated into the internet-based self-service tool. Recognizing that many issuers and TPAs

currently have some form of internet-based self-service tool in operation that meets some aspects

of the requirements of the final rules, the Departments estimate the low-end average three-year

annual total burden, for all issuers and TPAs to develop, build, and maintain an internet-based

self-service tool will be 30,268,378 hours annually, with an average annual total equivalent cost

of $4,210,248,035. The Departments recognize that plans, issuers, and TPAs may be able to

license existing internet-based self-service tools offered by vendors, obviating the need to

establish, upgrade, and maintain their own internet-based self-service tools, and that vendor

licensing fees, dependent upon complexity, volume, and frequency of use, could be lower than

the burden and costs estimated here.

TABLE 8: Estimated High-End Three Year Average Annual Hour Burden and Costs for

All Issuers and TPAs to Develop and Maintain the Internet-based Self-service Tool.

Year

Estimated

Number of

Health

Insurance

Issuers

and TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2022 1,959 1,959 37,440.0 73,344,960 $10,374,237,120

CMS-9915-F 447

Year

Estimated

Number of

Health

Insurance

Issuers

and TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2023 1,959 1,959 24,440.0 47,877,960 $6,611,791,830.97

2024 1,959 1,959 8,060.0 15,789,540 $2,180,484,540.00

3 year

Average

1,959 1,959 23,313 45,670,820 $6,388,837,830.32

TABLE 9: Estimated Low-End Three Year Average Annual Hour Burden and Costs for

All Issuers and TPAs to Develop and Maintain the Internet-based Self-service Tool.

Year

Estimated

Number of

Health

Insurance

Issuers

and TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2022 1,959 1,959 13,853 27,137,635 $3,838,467,734.40

2023

1,959

24,440

47,877,960

$6,611,791,830.97

2024 1,959 1,959 8,060 15,789,540 $2,180,484,540.00

3 year

Average

1,959 1,959 15,451 30,268,378 $4,210,248,035.12

In addition to the one-time and annual maintenance costs estimated in Table 8 and Table

9, issuers and TPAs will also incur an annual burden and costs associated with customer service

representative training, consumer assistance and education, and administrative and distribution

costs related to the disclosures required in the final rules. The Departments estimate that, to

understand and navigate the internet-based self-service tool and provide the appropriate

assistance to consumers, each customer service representative will require approximately two

hours (at $40 per hour) of annual consumer assistance training at an associated cost of $80 per

hour. The Departments estimate that each issuer and TPA will train, on average, 10 customer

service representatives annually, resulting in a total annual burden of 20 hours, with an

associated total cost of $800. For all 1,959 issuers and TPAs, the total annual burden is

estimated to be 39,180 hours, with an equivalent total annual cost of approximately $1,567,200.

CMS-9915-F 448

The Departments recognize that some issuers or TPAs may require varying levels of training to

acquaint their customer service representatives with the functionalities of their internet-based

self-service tool depending on the degree of changes required to comply with the final rules, in

which case some issuers could incur higher costs and burdens to appropriately train personnel.

TABLE 10A: Estimated Annual Cost and Hour Burden per Issuer or TPA to Train

Customer Service Representatives to Provide Assistance to Consumers Related to the

Internet-based Self-service Tool.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Customer Service

Representatives

$40.00

$80.00

Total per Respondent

$80.00

TABLE 10B: Estimated Annual Cost and Hour Burden for All Issuers and TPAs to Train

Customer Service Representatives to Provide Assistance to Consumers Related to the

Internet-based Self-service Tool.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

39,180

$1,567,200.00

The Departments assume that the greatest proportion of beneficiaries, participants, or

enrollees that will request disclosure of cost-sharing information in paper form will do so

because they do not have access to the internet. However, the Departments acknowledge that

some consumers with access to the internet will contact a plan or issuer for assistance with using

the internet-based self-service tool and may request to receive cost-sharing information in paper

form.

CMS-9915-F 449

Recent studies have found that approximately 20 million households do not have an

internet subscription.

287

Further, approximately 19 million Americans (6 percent of the

population) lack access to fixed broadband services that meet threshold levels.

288

Additionally, a

recent Pew Research Center analysis found that 10 percent of U.S. adults do not use the internet,

citing the following major factors: difficulty of use, age, cost of internet services, and lack of

computer ownership.

289

Additional research indicates that an increasing number, 17 percent, of

individuals and households are now considered “smartphone only” and that 37 percent of U.S.

adults mostly use smartphones to access the internet and that many adults are forgoing the use of

traditional broadband services.

290

Further research indicates that younger individuals and

households, including approximately 93 percent of households with householders aged 15 to 34,

are more likely to have smartphones compared to those aged over 65.

291

The Departments are of

the view that the population most likely to use the internet-based self-service tool would

287

“2017 American Community Survey Single-Year Estimates.” United States Census Bureau. September 13,

2018. Available at: https://www.census.gov/newsroom/press-kits/2018/acs-1year.html.

288

“Eight Broadband Progress Report.” United States Federal Communications Commission. December 14, 2018.

Available at: https://www.fcc.gov/reports-research/reports/broadband-progress-reports/eighth-broadband-progress-

report. In addition to the estimated 19 million Americans that lack access, they further estimate that “in areas where

broadband is available, approximately 100 million Americans still do not subscribe.”

289

Anderson, M. et al. “10% of Americans don’t use the internet. Who are they?” Pew Research Center. April 22,

2019. Available at: https://www.pewresearch.org/fact-tank/2019/04/22/some-americans-dont-use-the-internet-who-

are-they/.

290

Anderson, M. “Mobile Technology and Home Broadband 2019.” Pew Research Center. June 13, 2019.

Available at: https://www.pewinternet.org/2019/06/13/mobile-technology-and-home-broadband-2019/ (finding that

overall 17 percent of Americans are now “smartphone only” internet users, up from 8 percent in 2013. They study

also shows that 45 percent of non-broadband users cite their smartphones as a reason for not subscribing to high-

speed internet).

291

Ryan, C. “Computer and Internet Use in the United States: 2016.” American Community Survey Reports:

United States Census Bureau. August 2018. Available at:

https://www.census.gov/content/dam/Census/library/publications/2018/acs/ACS-39.pdf.

CMS-9915-F 450

generally consist of younger individuals, who are more comfortable using technology and are

more likely to have internet access via broadband or smartphone technologies.

The Departments note that there are 212.3 million beneficiaries, participants, or enrollees

enrolled in group health plans or with health insurance issuers required to comply with the

requirements of the final rules for at least part of the year.

292

On average, it is estimated that

each issuer or TPA would annually administer the benefits for 108,379 beneficiaries,

participants, or enrollees.

A recent study noted that only one to 12 percent of consumers that have been offered

internet-based or mobile application-based price transparency tools use them.

293

Taking that into

account, and assuming that six percent of covered individuals lack access to fixed broadband

services, the Departments estimate that on average six percent of participants, beneficiaries, or

enrollees will seek customer support (a mid-range percentage of individuals that currently use

available cost estimator tools) and that an estimated one percent of those participants,

beneficiaries, or enrollees will request any pertinent information be disclosed to them in in a non-

internet manner – resulting in an estimated 0.06 percent of participants, beneficiaries, or

enrollees requesting information. As discussed in section V.D.1 of this preamble, the

Departments have adjusted the estimates related to customer service and mailed requests in order

to account for more recent data related to the number of participants, beneficiaries, and enrollees.

The Departments estimate that each issuer or TPA, on average, will require a customer service

292

Id. at 283.

293

Mehrotra, A., Chernew, M., and Sinaiko, A. “Health Policy Report: Promises and Reality of Price

Transparency.” April 5, 2018. 14 N. Eng. J. Med. 378. Available at:

https://www.nejm.org/doi/full/10.1056/NEJMhpr1715229.

CMS-9915-F 451

representative to interact with a beneficiary, participant, or enrollee approximately 65 times per

year on matters related to cost-sharing information disclosures required by the final rules. The

Departments estimate that each customer service representative will spend, on average, 15

minutes (at $40 per hour) for each interaction, resulting in a cost of approximately $10 per

interaction. The Departments estimate that each issuer or TPA will incur an annual burden of 16

hours, with an associated equivalent cost of approximately $650; resulting in a total annual

burden of 31,847 hours, with an associated cost of approximately $1,273,884 for all issuers and

TPAs.

The Departments assume that all beneficiaries, participants, or enrollees that contact a

customer service representative will request non-internet disclosure of the internet-based self-

service tool information. Of these, the Departments estimate that 54 percent of the requested

information would be transmitted via email or facsimile at negligible cost to the issuer or TPA

and that 46 percent will request the information be provided by mail. The Departments estimate

that, on average, each issuer or TPA will send approximately 30 disclosures by mail annually.

Based on these assumptions, the Departments estimate that the total number of annual

disclosures sent by mail for all issuers and TPAs will be 58,599. The Departments recognize that

the numbers of per issuer and TPA mailings may represent a low-end estimate and the number of

requests may vary amongst each issuer or TPA depending on the demographics of their

beneficiaries, participants, or enrollees. The Departments are of the view that although more

individuals will contact customer support for cost information the vast majority of those

individuals will likely obtain this information over the phone or have it emailed rather than have

it mailed to them.

CMS-9915-F 452

The Departments assume, on average, the length of the printed disclosure will be

approximately nine single-sided pages in length, assuming two pages of information (similar to

that provided in an EOB) for three providers (for a total of six pages) and an additional three

pages related to the required notice statements, with a printing cost of $0.05 per page. Therefore,

including postage costs of $0.55 per mailing, the Departments estimate that each issuer or TPA

will incur a material and printing costs of approximately $1.00 ($0.45 printing plus $0.55

postage costs) per mailed request. Based on these assumptions, the Departments estimate that

each issuer or TPA will incur an annual printing and mailing cost of approximately $30, resulting

in a total annual printing and mailing cost of approximately $58,599 for all issuers and TPAs.

TABLE 11A: Estimated Annual Cost and Hour Burden per Response per Issuer or TPA to

Accept and Fulfill Requests for a Mailed Disclosures.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Customer Service

Representatives

0.25

$40.00

$10

Total per Respondent

0.25

$10

TABLE 11B: Estimated Annual Cost and Hour Burden for All Issuers and TPAs to Accept

and Fulfill Requests for Mailed Disclosures.

Number of

Respondents

Number of

Responses

Burden

Hours Per

Respondent

Total

Burde

Hours

Total Labor

Cost of

Reporting

Printing

and

Materials

Cost

Total Cost

1,959

1132,509

31,847

$1,273,884.00

$58,598.66

$1,332,482.66

The Departments solicited comment on the overall estimated costs and burdens related to

this collection of information request. The Departments also sought comment on the technical

and labor requirements or costs that may be required to meet the requirements of the proposed

rules: for example, what costs may be associated with any potential consolidation of information

needed for the internet-based self-service tool functionality. The Departments sought comment

on the estimated number of issuers and TPAs currently in the group and individual markets and

CMS-9915-F 453

the number of self-insured group health plans that might seek to independently develop an

internet-based self-service tool, the percentage of consumers who might use the internet-based

self-service tool, and the percentage of consumers who might contact their plan, issuer, or TPA

requesting information via a non-internet disclosure method. The Departments sought comment

on any other existing efficiencies that could be leveraged to minimize the burden on plans,

issuers, and TPAs, as well as how many or what percentage of plans, issuers, and TPAs might

leverage such efficiencies. The Departments sought comment on the proposed model notice and

any additional information that stakeholders thought should be included, removed, or expanded

upon and its overall adaptability.

All comments received with regard the topics above have been noted and addressed in

their corresponding ICR sections.

In conjunction with the final rules, CMS is seeking approval for this information

collection (OMB control number: 0938-1372 (Transparency in Coverage (CMS-10715)). CMS

is requiring the following information collections to include the following burden. DOL and the

Department of the Treasury will submit their burden estimates upon approval.

2. ICRs Regarding Requirements for Public Disclosure of In-network Rates, Historical

Allowed Amount Data for Covered Items and Services from Out-of-Network Providers and

Prescription Drug Pricing Information under 26 CFR 54.9815-2715A3, 29 CFR 2590.715-

2715A3, and 45 CFR 147.212.

The Departments are adding 26 CFR 54.9815-2715A3(b), 29 CFR 2590.715-2715A3(b),

and 45 CFR 147.212(b) to the final rules requiring group health plans and health insurance

issuers to make public in-network rates for covered items and services, out-of-network allowed

amounts for covered items or services, and negotiated rates and historical net prices for each

CMS-9915-F 454

prescription drug NDC through three machine-readable files that must conform to guidance

issued by the Departments. The list of required data elements that must be included for each file

for each covered item or service are discussed in section II.C previously in this preamble and

enumerated under paragraph (b)(1)(i) for the In-network Rate File, paragraph (b)(1)(ii) for the

Allowed Amount File, and paragraph (b)(1)(iii) for the Prescription Drug File of the final rules.

Under paragraphs (b)(2) and (3) of the final rules, the machine-readable files must be posted on a

public internet site accessible to any person free of charge and without conditions and must be

updated monthly.

For the In-network Rate File, the final rules require the negotiated rates, underlying fee

schedules, or derived amounts under a plan or coverage regarding each covered item or service

be furnished for in-network providers. As discussed in section II.C earlier in this preamble, the

Departments expect plans and issuers to make public the negotiated rate, fee schedule, or derived

amount that is used to adjudicate claims for the purpose of reconciling a provider’s payment to

determine a participant’s, beneficiary’s, or enrollee’s cost-sharing liability. As discussed in the

previous ICR section, the Departments assume fully-insured group health plans will rely on

issuers and most self-insured group health plans will rely on issuers or TPAs to develop and

update the machine-readable files. The Departments recognize that there may be some self-

insured plans that wish to individually comply with the final rules and will thus incur a similar

burden and cost as described in the following paragraphs.

Many commenters stated the costs associated with the technical build and maintenance of

the machine-readable files will be significant, and many commenters strongly suggested that the

costs and burden of implementing the files would be significantly higher than those estimated in

the proposed rules. Some commenters stated that the final rules would unreasonably burden

CMS-9915-F 455

issuers with administrative costs and could be especially burdensome for small issuers and self-

insured plans. One commenter noted that a significant amount of burden would be placed on

out-of-network providers to provide information regarding costs to plans and issuers. Another

commenter, a hospital association, stated that the proposed rules would be an administrative

burden for hospitals as they would require a massive investment by hospitals to provide data to

comply and that these resources would be diverted from patient care support.

The Departments recognize that the requirements in the final rules could result in

instances where small issuers and self-insured plans face a disproportionate burden due to their

size; however, as noted earlier in this preamble, the Departments expect that small issuers, plans,

and TPAs will combine their efforts and seek to take advantage of any resulting economies of

scale.

An independent study by Bates White Economic Consulting (Bates White),

commissioned by one commenter, developed an assessment of the costs of the proposed rules by

interviewing a mix of 18 large and small health insurance issuers covering about 78 million

lives; Bates White assessed the average issuer cost to implement the In-network Rate File as

$2,139,167 with a range from $85,000 to $10,000,000. Bates White reported that commercial

issuers estimated an average cost of $2.1 million per issuer to develop and implement the In-

network Rates File. Per the study, issuers view the In-network Rate File as about 20 times

costlier to implement than the Departments’ proposed estimate. In addition, Bates White

assessed the average annual issuer cost to maintain the In-network Rate Files would be $467,000

with a range from $15,000 to $1,000,000. Another commenter noted that commercial issuers

estimated annual costs of $600,000 per issuer to maintain the In-network Rate File. Issuers

CMS-9915-F 456

viewed the In-network Rate File as about 13 times costlier to maintain than the Departments’

proposed estimate.

In another attempt to quantify this burden, one commenter emphasized that the potential

universe of prices that would need to be disclosed on the files is enormous and could be in the

hundreds of billions (more than 94,000 codes multiplied by the number of unique practitioners,

which in the large issuer’s system alone could exceed 2 million).

One commenter noted that the effort to comply would involve an immense amount of

data aggregation, de-identification, and application development work, and these tasks would be

especially difficult for small issuers and self-insured plans who are more likely to rely on

“rented” networks. The commenter stated that to comply with the final rules, issuers would need

a team with data expertise and knowledge of plan design and medical service billing to aggregate

data, build re-pricing engines, and assure accuracy.

Due to the belief that the burden estimate in the proposed rules and related PRA grossly

underestimated the burden of implementation on plans and issuers, one commenter suggested the

Departments should retract the PRA and work with stakeholders to develop a less burdensome

transparency solution. Other commenters stated the burden estimates included in the proposed

rules violate the spirit and express provision of the PRA.

The Departments recognize the concerns and issues noted by commenters. As noted in

section VI.A in this preamble, the Departments have reviewed comments related to the costs and

burdens associated with the requirements of the final rules and devised updated estimates using

CALC derived wage rates. The Departments note that the conclusions of the Bates White study

referenced earlier in this preamble were based on interviews with issuers in which issuers

described the steps they viewed as necessary to establish the required internet-based self-service

CMS-9915-F 457

tool and the machine-readable files, and provided related costs estimates associated with the

estimated initial set-up of the internet-based self-service tool and machine-readable files. These

estimates, however, did not provide the level of detail necessary for the Departments to assess

how those initial cost estimates differ from the Departments’ estimates.

The Bates White study also recognized the difficulty associated with assessing issuer

estimates reported from issuer study participants. The study recognized that issuers interviewed

varied widely in size, had different levels of experience, and had engaged in different levels of

analysis of the impacts in the proposed rules. The study further noted the differences in the

extent to which issuers evaluated the costs and feasibility of complying with the proposed rules.

The study also recognized that issuers interviewed made different assumptions about the degree

of support from vendors or trade associations that may have affected issuers’ perception of the

administrative and operational costs of implementation, and that issuers did not provide details of

the varied operational and implementation costs and activities underlying their stated estimates

for complying with the proposed rules. Specifically, the study provided no insight regarding the

labor categories, wages, or hourly burdens that were considered to produce these cost estimates.

Accordingly, the Bates White study did not provide details sufficient to allow those estimates to

be compared to the Departments’ estimates in the proposed rules.

Given the limited utility of information offered by the Bates White study, the

Departments took additional steps to ensure the reasonableness and accuracy of the cost

estimates associated with compliance with the final rules. In developing the updated estimates,

the Departments took into account the potential aggregation of data and the potential likelihood

that the data required to meet the requirements of the final rules would need to be obtained from

multiple sources. The Departments recognize that the size and complexity of the machine-

CMS-9915-F 458

readable files will result in data files that are large. However, the Departments do not anticipate

that data storage would impose a significant burden for issuers or TPAs due to the relatively

inexpensive costs associated with storage methods such as cloud storage.

The Departments estimate a one-time first year burden and cost to issuers and TPAs to

make appropriate changes to IT systems and processes, to develop, implement and operate the

In-network Rate File in order to meet the requirements of the final rules. The Departments

estimate that each health or TPA will require a Project Manager/Team Lead 364 hours (at $153

per hour), a Scrum Master 1,404 hours (at $105 per hour), a Technical Architect/Sr. Developer

2,080 hours (at $149 per hour), an Application Developer, Senior 1,716 hours (at $143 per hour),

a Business Analyst 1,404 hours (at $120 per hour), a Service Designer/Researcher 520 hours (at

$114 per hour) and a DevOps Engineer 260 hours (at $181 per hour) to complete this task. The

total one-time first year burden for each issuer or TPA is estimated to be approximately 7,748

hours, with an equivalent associated cost of approximately $1,033,240. For all 1,959 issuers and

TPAs, the Departments estimate the total one-time first year burden will be 15,178,332 hours

with an associated cost of approximately $2,024,117,160. The Departments emphasize that these

are upper bound estimates that are meant to be sufficient to cover substantial, complex activities

that may be necessary for some plans, issuers, or TPAs to comply with the final rules due to the

manner in which their current systems are designed. Such activities may include such significant

activities as the design and implementation of databases that will support the production of the

In-network Rate Files.

TABLE 12A: Estimated One-Time Year One Cost and Hour Burden per Issuer or TPA for

the In-network Rate File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per Respondent

Project Manager/Team

Lead

364

$153.00

$55,692.00

CMS-9915-F 459

Scrum Master

1,404

$105.00

$147,420.00

Technical

Architect/Sr.

Developer

2,080

$149.00

$309,920.00

Application

Developer, Senior

1,716

$143.00

$245,388.00

Business Analyst

1,404

$120.00

$168,480.00

Service

Designer/Researcher

520

$114.00

$59,280.00

DevOps Engineer

260

$181.00

$47,060.00

Total per Respondent

7,748

$1,033,240.00

TABLE 12B: Estimated One-Time Year One Cost and Hour Burden for All Issuers and

TPAs for the In-network Rate File.

Number of

Respondents

Number of

Responses

Burden

Hours Per

Respondent

Total Burden

Hours

Total Cost

1,959

7,748

15,178,332

$2,024,117,160.00

In addition to the one-time year one costs estimated in Tables 12A and 12B, issuers or

TPAs will incur an additional year two burden and cost to update the In-network Rate File

monthly as required in the final rules. The Departments estimate that for each month each issuer

or TPA it will require a Project Manager/Team Lead 22 hours (at $153 per hour), a Scrum

Master 22 hours (at $105 per hour), a Technical Architect/Sr. Developer 22 hours (at $149 per

hour), an Application Developer, Senior 22 hours (at $143 per hour), a Business Analyst 13

hours (at $120 per hour) and a DevOps Engineer 22 hours (at $181 per hour) to make the

required updates and needed adjustments to the In-network Rate File. The Departments estimate

that each issuer or TPA will incur a monthly year two burden of 123 hours, with an associated

monthly cost of approximately $17,642 to adjust and update the In-network Rate File. Each

issuer or TPA will need to update the In-network Rate File 12 times during a given year,

resulting in a year two burden of 1,476 hours, with an associated equivalent cost of

approximately $211,704. The Departments estimate the total year two burden for all 1,959

CMS-9915-F 460

issuers and TPAs will be 2,891,484 hours, with an associated equivalent cost of approximately

$414,728,136. The Departments consider this estimate to be an upper-bound estimate and expect

ongoing update costs to decline in succeeding years as issuers and TPAs gain efficiencies and

experience in updating and managing the In-network Rate File.

TABLE 13A: Estimated Monthly Year Two Cost and Hour Burden per Issuer or TPA for

the In-network Rate File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Project Manager/Team Lead

$153.00

$3,366.00

Scrum Master

$105.00

$2,310.00

Technical Architect/Sr.

Developer

$149.00

$3,278.00

Application Developer, Senior

$143.00

$3,146.00

Business Analyst

$120.00

$1,560.00

DevOps Engineer

$181.00

$3,982.00

Total per Respondent

123

$17,642.00

TABLE 13B: Estimated Year Two Cost and Hour Burden for All Issuers and TPAs for the

In-network Rate File.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

23,508

1,476

2,891,484

$414,728,136.00

In addition to the one-time year one and monthly year two costs estimated Tables 12A,

12B, 13A, and 13B, in subsequent years, issuers and TPAs will incur an ongoing monthly burden

and cost to update and maintain the In-network Rate File on a monthly basis as required by the

final rules. The Departments estimate that for each issuer or TPA it will require a Project

Manager/Team Lead 9 hours (at $153 per hour) and an Application Developer, Senior 22 hours

(at $143 per hour) to make the required updates to the In-network Rate File. The Departments

estimate that each issuer or TPA will incur a monthly burden of 31 hours, with an associated cost

of approximately $4,523 to update the In-network Rate File. Each issuer or TPA will need to

update the In-network Rate File 12 times during a given year, resulting in an ongoing annual

CMS-9915-F 461

hour burden of 372 hours, with an associated equivalent cost of approximately $54,276. The

Departments estimate the total annual burden for all 1,959 issuers and TPAs will be 728,748

hours, with an associated equivalent cost of approximately $106,326,684. The Departments

consider this estimate to be an upper-bound estimate and expect ongoing update costs to decline

in succeeding years as issuers and TPAs gain efficiencies and experience in updating and

managing the In-network Rate File.

TABLE 14A: Estimated Monthly Ongoing Cost and Hour Burden per Issuer or TPA for

the In-network Rate File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Project Manager/Team Lead

$153.00

$1,377.00

Application Developer, Senior

$143.00

$3,146.00

Total per Respondent

$4,523.00

TABLE 14B-: Estimated Annual Ongoing Cost and Hour Burden for All Issuers and TPAs

for the In-network Rate File.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

23,508

372

728,748

$106,326,684.00

The Departments estimate the total one-time year one burden for all issuers and TPAs

will be 15,178,332 hours, with an associated equivalent cost of approximately $2,024,117,160 to

develop and build the In-network Rate File in a machine-readable format. In year two, the

Departments estimate the burden and costs to update and maintain the In-network Rate file for

all issuers and TPAs will be 2,891,484 hours, with an associated equivalent cost of

approximately $414,728,136. In subsequent years, the Departments estimate the total annual

burden to maintain and update the In-network Rate File will be 728,748 hours, with an annual

CMS-9915-F 462

associated equivalent cost of approximately $106,326,684. The Departments estimate the three-

year average annual total burden, for all issuers and TPAs, will be 6,266,188 hours, with an

average annual associated equivalent total cost of $848,390,660.

TABLE 15: Estimated Three Year Average Annual Hour Burden and Costs for All Issuers

and TPAs to Develop and Maintain the In-network Rate File.

Year

Estimated

Number of

Health

Insurance

Issuers and

TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2021

1,959

7,748

15,178,332

$2,024,117,160.00

2022

1,959

23,508 1,476 2,891,484 $414,728,136.00

2023

1,959

23,508

372

728,748

$106,326,684.00

3 year

Average

1,959

16,325 3,199 6,266,188 $848,390,660.00

As mentioned in sections V.B in this preamble, the Departments understand that plans

and issuers may include gag clauses in their provider contracting agreements, which prevent

disclosure of in-network rates. The Departments sought comment on whether such agreements

would need to be renegotiated to remove such clauses, and, if so, sought comment regarding any

costs and burden associated with this action.

One commenter stated the Departments have not sufficiently accounted for costs

associated with updating legal agreements (with physicians, hospitals, drug manufacturers, and

device manufacturers, for example), updating and integrating data from multiple systems, and

establishing processes for making updates to files in the ordinary course of business. Another

commenter observed the Departments have not adequately accounted for the time, resources, and

cost burdens of renegotiating contracts to remove gag clauses or confidentiality clauses, which

prevent disclosure of in-network rates. One commenter provided examples of these costs:

printing and paper, mailing, attorney drafting initial amendments and review of non-standard

CMS-9915-F 463

language requests, costs for employees charged with negotiation and administration, and costs

paid to vendors.

Due to the potential complexities and time involved in contract negotiations, the

Departments recognize that should contracts require renegotiation, all associated parties will face

additional costs and burdens. However, the Departments do not have insight into these

complexities or knowledge of how these contracts are structured, and they are thus not able to

quantify the costs and burdens associated with these tasks. Also, as addressed earlier in this

preamble, it is not uncommon for new or modified regulatory requirements or new statutory

provisions to alter private contract arrangements. The Departments note that the possibility of

new or modified regulatory requirements or new statutory provisions altering such contracts

often is contemplated in the contracts themselves; for example, drafters may include contract

language indicating that terms may be altered by changes in law or regulation. Such language

would obviate the need for updates outsides of the regular contracting schedule and any

associated costs and burden.

For the Allowed Amount File, the final rules require plans and issuers to make available a

machine-readable file showing the unique out-of-network allowed amounts and billed charges

for covered items or services furnished by out-of-network providers during the 90-day time

period that begins 180 days before the publication date of the file. As discussed earlier in this

preamble, to the extent that a group health plan or health insurance issuer has paid multiple bills

for an item or service to a particular out-of-network provider at the same allowed amount, the

final rules will only require a plan or issuer to list the allowed amount once. Additionally, if the

plan or issuer would only display allowed amounts in connection with 20 or fewer claims for a

CMS-9915-F 464

covered item or service for payment to a provider during any relevant 90-day period, the plan or

issuer will not be required to report those unique allowed amounts.

As previously noted, an independent study by Bates White, commissioned by one

commenter, assessed the average issuer cost to implement the Allowed Amount File as

$1,071,167 with a range from $42,000 to $5,000,000 and estimated the cost to implement the

Allowed Amount File as about 9 times costlier to implement than the Departments’ proposed

estimate. This commenter also argued that the average annual issuer cost to maintain the

Allowed Amount File would be $643,000 with a range from $12,000 to $1,500,000. Another

commenter argued that the cost to maintain the Allowed Amount File would be about 44 times

costlier than the Departments’ proposed estimate.

As noted above regarding the In-network Rate File cost and burdens, the Departments

have devised updated estimates for the Allowed Amounts File using CALC derived wage rates.

In developing the updated estimates, the Departments took into account the potential aggregation

of data and the potential likelihood that the data required to meet the requirements of the final

rules would need to be obtained from multiple sources.

The Departments estimate a one-time year one burden and cost to issuers and TPAs to

make appropriate changes to IT systems and processes, to develop, implement, and operate the

Allowed Amount File in order to meet the requirements of the final rules. The Departments

estimate that each issuer or TPA will require a Scrum Master 520 hours (at $105 per hour), a

Technical Architect/Sr. Developer 780 hours (at $149 per hour), an Application Developer,

Senior 2,080 hours (at $143 per hour), a Business Analyst 520 hours (at $120 per hour), and a

DevOps Engineer 260 hours (at $181 per hour) to complete this task. The Departments estimate

the total one-time first year burden for each issuer or TPA will be approximately 4,160 hours,

CMS-9915-F 465

with an equivalent associated cost of approximately $577,720. For all 1,959 issuers and TPAs,

the Departments estimate the total one-time year one burden will be 8,149,440 hours, with an

equivalent associated cost of approximately $1,131,753,480.

TABLE 16A: Estimated One-Time Year One Cost and Hour Burden per Issuer or TPA for

the Allowed Amount File

Occupation

Burden Hours

per Respondent

Labor Cost

per Hour

Total Cost per Respondent

Scrum Master

520

$105.00

$54,600.00

Technical Architect/Sr.

Developer

780

$149.00

$116,220.00

Application Developer,

Senior

2,080 $143.00 $297,440.00

Business Analyst

520

$120.00

$62,400.00

DevOps Engineer

260

$181.00

$47,060.00

Total per Respondent

4,160

$577,720.00

TABLE 16B: Estimated One-Time Year One Cost and Hour Burden for All Issuers and

TPAs for the Allowed Amount File.

Number of

Respondents

Number

Responses

Burden

Hours Per

Respondent

Total Burden Hours

Total Cost

1,959

4,160

8,149,440

$1,131,753,480.00

In addition to the one-time year one costs estimated in Tables 16A and 16B, issuers and

TPAs will incur additional monthly burdens and costs in year two to update the Allowed Amount

File. The Departments estimate that, in year two, each issuer or TPA will require a Scrum

Master 9 hours (at $105 per hour), an Application Developer, Senior 22 hours (at $143 per hour),

and a DevOps Engineer 22 hour (at $181) to make the required monthly Allowed Amount File

updates. The Departments estimate that each issuer or TPA will incur a monthly burden of 53

hours, with an equivalent associated cost of approximately $8,073 to update the Allowed

Amount File. The Departments estimate that each issuer or TPA will need to update the

Allowed Amount File 12 times during a given year, resulting in a year two annual burden of

approximately 636 hours, with an equivalent associated cost of approximately $96,876. The

CMS-9915-F 466

Departments estimate the total year two burden for all 1,959 issuers and TPAs will be 1,245,924

hours, with an equivalent associated cost of approximately $189,780,084. The Departments

consider this estimate to be an upper-bound estimate and expect ongoing Allowed Amount File

update costs to decline in succeeding years as issuers and TPAs gain efficiencies and experience

in updating and managing the Allowed Amount File.

TABLE 17A: Estimated Year Two Monthly Cost and Hour Burden per Issuer or TPA for

the Allowed Amount File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Scrum Master

$105.00

$945.00

Application Developer, Senior

$143.00

$3,146.00

DevOps Engineer

$181.00

$3,982.00

Total per Respondent

$8,073.00

TABLE 17B: Estimated Year Two Cost and Hour Burden for All Issuers and TPAs for the

Allowed Amount File.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

23,508

636

1,245,924

$189,780,084.00

In addition to the one-time year one, monthly and total year two costs estimated in Tables

16A, 16B, 17A and 17B, in subsequent years, issuers and TPAs will incur additional ongoing

monthly burdens and costs to update the required Allowed Amount File. The Departments

estimate that for each issuer or TPA it will require a Scrum Master 4 hours (at $105 per hour),

and an Application Developer, Senior 9 hours (at $143 per hour) to make the required monthly

Allowed Amount File updates. The Departments estimate that each issuer or TPA will incur a

monthly burden of 13 hours, with an equivalent associated cost of approximately $1,707 to

update the Allowed Amount File. The Departments estimate that each issuer or TPA will need

to update the Allowed Amount File 12 times during a given year, resulting in an ongoing annual

burden of approximately 156 hours, with an equivalent associated cost of approximately

CMS-9915-F 467

$20,484. The Departments estimate the total burden for all 1,959 issuers and TPAs will be

305,604 hours, with an equivalent associated cost of approximately $40,128,156. The

Departments consider this estimate to be an upper-bound estimate and expect ongoing Allowed

Amount File update costs to decline in succeeding years as issuers and TPAs gain efficiencies

and experience in updating and managing the Allowed Amount File.

TABLE 18A: Estimated Monthly Ongoing Cost and Hour Burden per Issuer or TPA for

the Allowed Amount File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Scrum Master

$105.00

$420.00

Application Developer, Senior

$143.00

$1,287.00

Total per Respondent

$1,707.00

TABLE 18B: Estimated Annual Ongoing Cost and Hour Burden for All Issuers and TPAs

for the Allowed Amount File.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

23,508

156

305,604

$40,128,156.00

The Departments estimate the one-time year one burden for all issuers and TPAs will be

8,149,440 hours, with an equivalent associated cost of approximately $1,131,753,480 to develop

and build the Allowed Amount File to meet the requirements of the final rules. In year two, the

Departments estimate the total annual burden of 1,245,924 hours to maintain and update the

Allowed Amount File, with an equivalent associated cost of approximately $189,780,084. In

subsequent years, the Departments estimate the total annual burden to maintain and update the

Allowed Amount File will be 305,604 hours, with an annual equivalent associated cost of

approximately $40,128,156. The Departments estimate the three-year average annual total

burden for all issuers and TPAs will be 3,233,656 hours, with an average annual total equivalent

associated cost of approximately $453,887,240.

CMS-9915-F 468

TABLE 19: Estimated Three Year Average Annual Hour Burden and Costs for All Issuers

and TPAs to Develop and Maintain the Allowed Amount File.

Year

Estimated

Number of

Issuers

and TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2021 1,959 1,959 4,160 8,149,440 $1,131,753,480.00

2022

1,959

23,508

636

1,245,924

$189,780,084.00

2023 1,959 23,508 156 305,604 $40,128,156.00

3 year

Average

1,959 16,325 1,651 3,233,656 $453,887,240.00

The Departments sought comment for this collection of information request related to all

aspects of the estimated burdens and costs. Specifically, the Departments sought comments

related to any technical or operational difficulties associated with maintaining current and up-to-

date provider network information or any out-of-network allowed amounts for covered items and

services. The Departments also sought comments related to the technical and labor requirements

or costs that may be required to meet the requirements in the final rules; specifically, any factors

that could minimize the frequency of updates that issuers or TPAs would be required to make to

the Allowed Amount File.

The Departments also solicited comments for this collection of information request

related to all aspects of the estimated burdens and costs. Specifically, the Departments sought

comments related to any technical or operational difficulties associated with collecting data and

maintaining any out-of-network allowed amounts for covered items and services, including, any

difficulties associated with the adjudication of paid claims and incorporating covered items or

services furnished by a particular out-of-network provider during the 90-day time period that

begins 180 days prior to the publication date of the Allowed Amount File. The Departments also

sought comments related to the technical and labor requirements or costs that may be required to

meet the requirements in the proposed rules: specifically, any factors that could minimize the

CMS-9915-F 469

burdens and costs associated with updates that issuers or TPAs would be required to make to the

Allowed Amount File.

As addressed in section II.C in this preamble, the use of a HIPAA-compliant

clearinghouse is permitted, but not required, in order to make the required information public.

Plans and issuers are permitted to use HIPAA-compliant clearinghouses to meet the disclosure

requirements and the Departments anticipate they may do so if this method is more efficient and

cost-effective.

The Departments acknowledge that as many as 95 percent of group health plans and

health insurance issuers may already contract with claims clearinghouses that currently collect

some or all of the information required to be disclosed under the final rules and might be able to

meet the requirements in the final rules easily, potentially obviating the need for the plan, issuer,

or TPA to invest in IT system development. The Departments assume that these plans, issuers,

and TPAs will still incur burdens and costs, albeit reduced, related to oversight and quality

assurance regarding any associated clearinghouse activities. The Departments sought comments

on existing efficiencies, such as the use of clearinghouses that could be leveraged by plans,

issuers, and TPAs related to the development and updating of the required machine-readable files

and how many issuers, TPAs, or self-insured plans may already contract with clearinghouses that

collect the information required. Comments received are discussed earlier in the Use of Third

Parties to Satisfy Public Disclosure Requirements section of this preamble.

For the Prescription Drug File, the Departments estimate one-time first-year burdens and

costs to issuers and TPAs to make appropriate changes to IT systems and processes to develop,

implement, and operate the Prescription Drug File in order to meet the requirements in the final

rules. The Departments estimate that each issuer or TPA will require a Project Manager/Team

CMS-9915-F 470

Lead 260 hours (at $153 per hour), a Scrum Master 260 hours (at $105 per hour), an Application

Developer, Senior 520 hours (at $143 per hour), a Business Analyst 520 hours (at $120 per

hour), and a DevOps Engineer 260 hours (at $181 per hour) to complete this task. The total one-

time first year burden for each issuer or TPA is estimated to be approximately 1,820 hours, with

an equivalent associated cost of approximately $250,900. For all 1,959 issuers and TPAs, the

Departments estimate the total one-time first year burden will be 3,565,380 hours, with an

associated estimated cost of approximately $491,513,100. The Departments emphasize that

these are upper bound estimates that are meant to be sufficient to cover substantial, complex

activities that may be necessary for some plans and issuers to comply with the final rules due to

the manner in which their current systems are designed. Such activities may include such

significant activity as the design and implementation of databases that will support the

production of the Prescription Drug File.

TABLE 20A: Estimated One-Time Year One Cost and Hour Burden per Issuer or TPA for

the Prescription Drug File.

Occupation

Burden Hours per

Respondent

Labor Cost

per Hour

Total Cost per

Respondent

Project Manager/Team Lead

260

$153.00

$39,780.00

Scrum Master

260

$105.00

$27,300.00

Application Developer,

Senior

520

$143.00

$74,360.00

Business Analyst

520

$120.00

$62,400.00

DevOps Engineer

260

$181.00

$47,060.00

Total per Respondent

1,820

$250,900.00

TABLE 20B: Estimated One-Time Year One Cost and Hour Burden for All Issuers and

TPAs for the Prescription Drug File.

Number of

Respondents

Number of

Responses

Burden Hours

Per

Respondent

Total Burden

Hours

Total Cost

1,959

1,820

3,565,380

$491,513,100.00

CMS-9915-F 471

In addition to the one-time year one costs estimated in Tables 20A and 20B, issuers and

TPAs will incur additional year two burdens and costs to update the required Prescription Drug

File monthly. The Departments estimate that for each month, each issuer or TPA will require a

Project Manager/Team Lead 22 hours (at $153 per hour), an Application Developer, Senior 22

hours (at $143 per hour), a Business Analyst 9 hours (at $120 per hour) and a DevOps Engineer

22 hours (at $181 per hour) to make the required updates and needed adjustments to the

Prescription Drug File. The Departments estimate that each issuer or TPA will incur a monthly,

year two, burden of 75 hours, with an associated monthly cost of approximately $11,574 to

update the Prescription Drug File. Each issuer or TPA will need to update the Prescription Drug

File 12 times during a given year, resulting in a year two burden of 900 hours, with an associated

equivalent cost of approximately $138,888. The Departments estimate the total year two burden

for all 1,959 issuers and TPAs will be 1,763,100 hours, with an associated equivalent cost of

approximately $272,081,592. The Departments consider this estimate to be an upper-bound

estimate and expect ongoing update costs to decline in succeeding years as issuers and TPAs

gain efficiencies and experience in updating and managing the Prescription Drug File.

TABLE 21A: Estimated Monthly Year Two Cost and Hour Burden per Issuer or TPA for

the Prescription Drug File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Project Manager/Team Lead

$153.00

$3,366.00

Application Developer, Senior

$143.00

$3,146.00

Business Analyst

$120.00

$1,080.00

DevOps Engineer

$181.00

$3,982.00

Total per Respondent

$11,574.00

TABLE 21B: Estimated Year Two Cost and Hour Burden for All Issuers and TPAs for the

Prescription Drug File.

Number of

Respondents

Number of

Responses

Burden Hours

Per Respondent

Total Burden

Hours

Total Cost

1,959

23,508

900

1,763,100

$272,081,592.00

Number of Number of Burden Hours Total Burden

Total Cost

Respondents Responses Per Respondent Hours

CMS-9915-F 472

In addition to the one-time year one and monthly year two costs estimated in Tables 20A,

20B, 21A and 21B, in subsequent years, issuers and TPAs will incur ongoing monthly burdens

and costs to update and maintain the Prescription Drug File on a monthly basis. The

Departments estimate that each issuer or TPA will require a Scrum Master 9 hours (at $153 per

hour) and an Application Developer, Senior 22 hours (at $143 per hour) to make the required

updates to the Prescription Drug File. The Departments estimate that each issuer or TPA will

incur a monthly burden of 31 hours, with an associated cost of approximately $4,523, to update

the Prescription Drug File. An issuer or TPA will need to update the Prescription Drug File 12

times during a given year, resulting in an ongoing annual burden of 372 hours, with an associated

equivalent cost of approximately $54,276. The Departments estimate the total annual burden for

all 1,959 issuers and TPAs will be 728,748 hours, with an associated equivalent cost of

approximately $106,326,680. The Departments consider this estimate to be an upper-bound

estimate and expect ongoing update costs to decline in succeeding years as issuers and TPAs

gain efficiencies and experience in updating and managing Prescription Drug File.

TABLE 22A: Estimated Monthly Ongoing Cost and Hour Burden per Issuer or TPA for

the Prescription Drug File.

Occupation

Burden Hours per

Respondent

Labor Cost per

Hour

Total Cost per

Respondent

Scrum Master

$153.00

$1,377.00

Application Developer, Senior

$143.00

$3,146.00

Total per Respondent

$4,523.00

TABLE 22B: Estimated Annual Ongoing Cost and Hour Burden for All Issuers and TPAs

for the Prescription Drug File

CMS-9915-F 473

1,959

23,508

372

728,748

$106,326,684.00

The Departments estimate the total one-time year one burden for all issuers and TPAs

will be 3,565,380 hours, with an associated equivalent cost of approximately $491,513,100 to

develop and build the Prescription Drug File in a machine-readable format. In year two, the

Departments estimate the burden and costs to update and maintain the Prescription Drug File, on

a monthly basis, for all issuers and TPAs to be 1,763,100 hours, with an associated equivalent

cost of approximately $272,081,592. In subsequent years, the Departments estimate the total

annual burden of 728,748 hours to maintain and update the Prescription Drug File, with an

annual associated equivalent cost of approximately $106,326,684. The Departments estimate the

three-year average annual total burden, for all issuers and TPAs, will be 2,019,076 hours with an

average annual associated equivalent total cost of $289,973,792.

TABLE 23: Estimated Three Year Average Annual Hour Burden and Costs for All Issuers

and TPAs to Develop and Maintain the Prescription Drug File.

Year

Estimated

Number of

Issuers and

TPAs

Responses

Burden per

Respondent

(hours)

Total Annual

Burden

(hours)

Total Estimated

Labor Cost

2021

1,959

1,820

3,565,380

$491,513,100.00

2022

1,959

23,508

900

1,763,100

$272,081,592.00

2023

1,959

23,508

372

728,748

$106,326,684.00

3 year

Average

1,959 16,325 1,031 2,019,076 $289,973,792.00

Due to comments received in response to the proposed rules, the Departments have made

changes to the final rules and the ICR sections discussed above. The Departments seek comment

regarding the changes associated with these ICR sections. The Departments also seek comment

on the use of the CALC database, as discussed in section VI.A, to determine occupational

descriptions and hourly wage rates. The Departments seek comment on the revised costs and

CMS-9915-F 474

burdens discussed in section VI.A.1 as they relate to the required internet-based self-service tool.

The Departments also seek comment on model language developed by the Departments, as

discussed in section II.B.1.g of this preamble, to meet the requirements of the final rule. The

Departments also seek comment on the revised costs and burdens, as discussed in section VI.A.2,

related to the requirements for the public disclosure of In-network Rate, Allowed Amount, and

Prescription Drug Files. Additionally, the Departments seek comment on the data element

changes associated with those collection instruments. For the In-network Rate File, the

Departments seek comment regarding the data elements added to the collection instrument;

specifically, addition of data elements including the TIN, Place of service code, derived amount,

underlying fee schedule rates, payment arrangement indicator, the use of base negotiated rates

(for certain reimbursement models), and other data elements discussed in section C.1.c of this

preamble. The Departments also seek comment on the Allowed Amount File regarding the

addition of data elements including the TIN, NPI, and billed charges associated with allowed

amounts. The Departments seek comment on all data elements discussed in section C.1.c of this

preamble as they relate to the Prescription Drug File, as well as the estimated costs and burdens

estimated above.

In association with amendments made to the final rules, CMS is seeking OMB approval

for the information collection requirements associated with OMB control number 0938-1372

(CMS-10715 – Transparency in Coverage). Comments will be solicited through a 60-day

Federal Register notice, in accordance with Section 3506(c)(2)(A) of the Paperwork Reduction

Act. Data collection requirements associated with the internet-based self-service tool, In-

network Rate, Allowed Amount, and Prescription Drug Files will not be effective until OMB

CMS-9915-F 475

approval is sought. The Department of Labor and the Department of the Treasury will submit

their burden estimates upon approval.

2. ICRs Regarding Medical Loss Ratio (45 CFR 158.221)

HHS is finalizing its proposal to amend 45 CFR 158.221(b) to allow health insurance

issuers offering group or individual health insurance coverage to include in the MLR numerator

“shared savings” payments made to enrollees as a result of the enrollee choosing to obtain health

care from a lower-cost, higher-value provider. HHS does not anticipate that implementing this

provision will require significant changes to the MLR Annual Reporting Form or will

significantly change the associated burden. The burden related to this collection is currently

approved under OMB Control Number 0938-1164 (Exp. 10/31/2020); Medical Loss Ratio

Annual Reports, MLR Notices, and Recordkeeping Requirements (CMS-10418).

CMS-9915-F 476

3. Summary of Annual Burden Estimates for Requirements

TABLE 24: Estimated Three Year Average Proposed Annual Recordkeeping and

Reporting Requirements.

Regulation

Section(s)

OMB

control

number

Number of

Respondents

Number of

Responses

Burden per

Response

(hours)

Total

Annual

Burden

(hours)

Labor

Cost of

Reporting

($)

Mailing

Cost

($)

Total Cost

($)

§§ 54.9815-

0938-

1,959

23,313

45,670,820

$6,388,837,830.32

$6,388,837,83

2715A2(b)(2) 1372* 0.32

(i);

2590.715-

2715A2(b)(2)

(i); and

147.211(b)(2)

(i)

§§ 54.9815-

2715A2(b)(2)

(ii);

2590.715-

2715A2(b)(2)

(ii); and

147.211(b)(2)

(ii)

0938-

1372

1,306

84,926

21,231

$849,256.00

$39,065.

$888,321.78

§§ 54.9815-

2715A3(b)(i);

2590.715-

2715A3(b)(i);

and

147.212(b)(1)

(i)

0938-

1372

1,959

16,325

3,199

6,266,188

$848,390,660.00

$848,390,660.

§§54.9815-

2715A3(b)(1)

(ii);

2590.715-

2715A3(b)(1)

(ii); and

147.212(b)(1)

(ii)

0938-

1372

1,959

16,325

1,651

3,233,656

$453,887,240.00

$453,887,240.

§§54.9815-

2715A3(b)(1)

(iii);

2590.715-

2715A3(b)(1)

(iii); and

147.212(b)(1)

(iii)

0938-

1372

1,959

16,325

1,031

2,019,076

$289,973,792.00

$289,973,792.

Total

135,860

29,204

57,210,971 $7,981,938,778.32

$39,065.

$7,981,977,84

4.10

* High-end three year estimated values are represented in the table and used to determine the overall estimated

3-year average.

CMS-9915-F 477

For PRA purposes, the Departments are splitting the burden: CMS will account for 50

percent of the associated costs and burdens and the Departments of Labor and the Department of

the Treasury will each account for 25 percent of the associated costs and burdens. The burden

for CMS will be 28,605,486 hours, with an equivalent associated cost of approximately

$3,990,969,389 and a cost burden of $19,533. For the Departments of Labor and the Treasury,

each Department will account for a burden of 14,302,743 hours with an equivalent associated

cost of approximately $1,995,484,695 and a cost burden of $9,766.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, (5 U.S.C. 601, et seq.), requires agencies to prepare a

final regulatory flexibility analysis to describe the impact of proposed rules on small entities,

unless the head of the agency can certify that the rule would not have a significant economic

impact on a substantial number of small entities. The RFA generally defines a “small entity” as

(1) a proprietary firm meeting the size standards of the Small Business Administration (SBA),

(2) a not-for-profit organization that is not dominant in its field, or (3) a small government

jurisdiction with a population of less than 50,000. States and individuals are not included in the

definition of “small entity.”

HHS uses a change in revenues of more than three to five percent as its measure of

significant economic impact on a substantial number of small entities.

The final rules require that group health plans and health insurance issuers disclose to a

participant, beneficiary, or enrollee such individual’s cost-sharing information for covered items

or services from a particular provider or providers; to make public in-network rates, including

amounts in underlying fee schedules, negotiated rates, and derived amounts for in-network

CMS-9915-F 478

providers; historical allowed amounts paid to out-of-network providers and billed charges for all

covered items and services; and negotiated rates and historical net prices for prescription drugs.

The Departments are of the view issuers generally exceed the size thresholds for “small entities”

established by the SBA, so the Departments are not of the view that an initial regulatory

flexibility analysis is required for such firms. ERISA-covered plans are often small entities,

however. While the Departments are of the view that these plans would rely on the larger issuers

or TPAs to comply with the final rules, they would still experience increased costs because the

costs of complying with these requirements will likely be passed on to them. However, as

discussed in more detail later in this section of this preamble, the Departments are not of the

view that the additional costs meet the significant impact requirement. In addition, while the

requirements of the final rules do not apply to providers, providers may experience a loss in

revenue as a result of the demands of price sensitive consumers and plans, and because smaller

issuers may be unwilling to continue paying higher rates than larger issuers for the same items

and services.

The Departments are of the view that issuers would be classified under the North

American Industry Classification System code 524114 (Direct Health and Medical Insurance

Carriers). According to SBA size standards, entities with average annual receipts of $41.5

million or less would be considered small entities under North American Industry Classification

System codes. Issuers could possibly be classified under code 621491 (HMO Medical Centers)

and, if this is the case, the SBA size standard would be $35 million or less.

294

The Departments

294

“Table of Small Business Size Standards Matched to North American Industry Classification System Codes.”

United States Small Business Administration. Available at: https://www.sba.gov/sites/default/files/2019-

08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf.

CMS-9915-F 479

are of the view that few, if any, insurance companies underwriting comprehensive health

insurance policies (in contrast, for example, to travel insurance policies or dental discount

policies) fall below these size thresholds. Based on data from MLR annual report submissions

for the 2017 MLR reporting year, approximately 90 out of 500 issuers of health insurance

coverage nationwide had total premium revenue of $41.5 million or less.

295

This estimate likely

overstates the actual number of small health insurance issuers that may be affected, since over 72

percent of these small issuers belong to larger holding groups, and most, if not all, of these small

issuers are likely to have non-health lines of business that will result in their revenues exceeding

$41.5 million. The Departments are of the view that these same assumptions also apply to the

TPAs that would be affected by the final rules. The Departments do not expect any of these 90

potentially small entities to experience a change in rebates under the amendments to the MLR

provisions of the final rules in 45 CFR part 158. The Departments acknowledge that it may be

likely that a number of small entities might enter into contracts with other entities in order to

meet the requirements in the final rules, perhaps allowing for the development of economies of

scale. Due to the lack of knowledge regarding what small entities may decide to do in order to

meet these requirements and any costs they might incur related to contracts, the Departments

sought comment on ways that the final rules will impose additional costs and burdens on small

entities and how many would be likely to engage in contracts to meet the requirements.

The Departments received a number of comments related to the potential additional costs,

burdens, and other effects the final rules could have on small entities. These comments have

295

“Medical Loss Ratio Data and System Resources.” CCIIO. Available at

https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.

CMS-9915-F 480

been noted and addressed in the RIA and ICR sections titled Regarding Requirements for Public

Disclosure of In-network Rates, Historical Allowed Amount Data for Covered Items and

Services from Out-of-Network Providers and Prescription Drug Pricing Information;

Requirements for Disclosing Cost-sharing information to Participant, Beneficiaries, or Enrollees;

and the Applicability Date section of this preamble.

For purposes of the RFA, the DOL continues to consider a small entity to be an employee

benefit plan with fewer than 100 participants.

296

Furthermore, while some large employers may

have small plans, most small plans are maintained by small employers.

Thus, the Departments are of the view that assessing the impact of the final rules on small

plans is an appropriate substitute for evaluating the effect on small entities. The definition of

small entity considered appropriate for this purpose differs, however, from a definition of small

business that is based on size standards promulgated by the SBA (13 CFR 121.201) pursuant to

the Small Business Act (15 U.S.C. 631, et seq.). Therefore, EBSA requested comments on the

appropriateness of the size standard used in evaluating the impact of the final rules on small

entities. Using the DOL definition of small, about 2,160,743 of the approximately 2,327,339

plans are small entities. Using a threshold approach, if the total costs of the final rules are spread

evenly across all 1,754 issuers, 205 TPAs, and 2,327,339 ERISA health plans, without

considering size, using the three-year average costs, the per-entity costs could be $3,426.77

($7,981,977,844.10/2,329,298). If those costs are spread evenly across the estimated 212.3

million beneficiaries, participants, or enrollees

297

enrolled in plans or issuers required to comply

296

The basis for this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to

prescribe simplified annual reports for pension plans that cover fewer than 100 participants.

297

Id. at 272.

CMS-9915-F 481

with the requirements then the average cost per covered individual would be $37.60

($7,981,977,844.102/212.3 million). Neither the cost per entity nor the cost per covered

individual is a significant impact. Further, the costs estimated in section VI in this preamble may

be overstated as it is assumed that all of issuers and TPAs will build the internet-based self-

service tool and the machine-readable files, compile the appropriate data, and perform the

required updates themselves rather than using common third parties such as clearinghouses, as

discussed in section II.C in this preamble. If private health insurance transactions are processed

through clearinghouses, with at least the fields required in the machine-readable files, there could

be an unaccounted for source of savings, as clearinghouses may already process much of the data

that issuers and TPAs would be required to collect under the final rules.

In addition, section 1102(b) of the SSA (42 U.S.C. 1302) requires the Departments to

prepare a regulatory impact analysis if a rule may have a significant impact on the operations of

a substantial number of small rural hospitals. This analysis must conform to the provisions of

section 604 of the RFA. For purposes of section 1102(b) of the SSA, the Departments define a

small rural hospital as a hospital that is located outside of a metropolitan statistical area and has

fewer than 100 beds.

As noted and addressed in section II.B.2.C in this preamble, commenters expressed

concerns that exposure of in-network rates could have various unintended consequences on the

health care industry, group health plans and health insurance issuers, and providers. Also as

discussed in the sections VI.A.2, one commenter stated that the proposed rules would create

administrative burdens for hospitals as hospitals would be required to make massive investments

to provide the data required under the final rules. The Departments note that the final rules do

not explicitly apply to hospitals and do not agree that hospitals will require massive investments

CMS-9915-F 482

to comply with the final rules, as opposed to the potential costs they could incur in order to

comply with the Hospital Price Transparency final rule. Furthermore, the Departments recognize

that while the requirements of the final rules do not apply to providers, including hospitals, some

providers may experience a loss in revenue as a result of the demands of price sensitive

consumers. The Departments also recognize that while the requirements in the final rules may

result in instances where small rural hospitals face additional costs and burdens due to their size

and the market dynamics in their areas, the generally reduced competition amongst rural

hospitals, due to the overall lower number of hospitals in these areas, will provide them more

leverage when negotiating with issuers. Nonetheless, some rural hospitals may see their costs

increase if the lack of competition results in these hospitals being unable to negotiate more

favorable terms with plans and issuers. This dynamic could result in some small rural hospitals

seeing their revenue decrease as reimbursement rates decline and overall costs increase, though

rural hospitals could also see reduced costs and burdens if they are able to successfully negotiate

more favorable network contracts. Due to a lack of information and overall knowledge, the

Departments are not able to confidently estimate the effects the final rules will have on small

rural hospitals; however, the Departments are of the view that the final rules will not have a

significant impact on the operations of a substantial number of small rural hospitals.

Impact of Regulations on Small Business – Department of the Treasury

Pursuant to section 7805(f) of the Code, the proposed rules that preceded the final rules

were submitted to the Chief Counsel for Advocacy of the SBA for comment on their impact on

small businesses, and no comments were received.

CMS-9915-F 483

C. Unfunded Mandates

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that

agencies assess anticipated costs and benefits and take certain actions before issuing a final rule

that includes any federal mandate that may result in expenditures in any one year by a state,

local, or tribal governments, in the aggregate, or by the private sector, of $100 million in 1995

dollars, updated annually for inflation. In 2020, that threshold is approximately $156 million.

State, local, or tribal governments may incur costs to enforce some of the requirements of

the final rules. The final rules include instructions for disclosures that would affect private sector

firms (for example, issuers offering health insurance coverage in the individual and group

markets, and TPAs providing administrative services to group health plans). The Departments

acknowledge that state governments could incur costs associated with enforcement of sections

within the final rules and, although the Departments have not been able to quantify all costs, the

Departments expect the combined impact on state, local, and tribal governments to be below the

threshold. The costs incurred by the private sector have been previously discussed in Collection

of Information Requirements sections.

One commenter contended that due to the requirement to make the machine-readable

files publicly available, issuers would also be required to post files with complete negotiated

payment amount information, and that these files would be very complex, with thousands of

procedure codes and many different plans and networks offered by issuers. The commenter

further contended that due to the complexity and size of the files significant state resources

would be required to review these files in order to ensure their accuracy, completeness, and

timeliness. They contended that without funding states will be challenged in maintaining

CMS-9915-F 484

effective enforcement and urged the Departments to consider providing grants to states to cover

the cost of enforcing any final rules.

The Departments recognize that due to size and complexity of the machine-readable files

required some states will incur increased burdens and costs to review and ensure compliance

with the requirements in the final rules. However, at this time, the Departments do not have

available funding to provide grants to assist states in their efforts. The Departments will take it

under consideration and evaluate the potential necessity to provide grants to assist states in their

efforts should a significant need arise. The Departments expect that a number of states with the

requisite authority to enforce the provisions of the final rules may defer enforcement to federal

regulators because of lack of funds.

D. Federalism

Executive Order 13132 establishes certain requirements that an agency must meet when it

issues a final rule that imposes substantial direct costs on state and local governments, preempts

state law, or otherwise has federalism implications. Federal agencies promulgating regulations

that have federalism implications must consult with state and local officials and describe the

extent of their consultation and the nature of the concerns of state and local officials in this

preamble to the regulation.

In the Departments’ view, the final rules may have federalism implications, because they

would have direct effects on the states, the relationship between national governments and states,

and on the distribution of power and responsibilities among various levels of government

relating to the disclosure of health insurance coverage information to the public.

Under the final rules, all group health plans and health insurance issuers, including self-

insured, non-federal governmental group health plans as defined in section 2791 of the PHS Act,

CMS-9915-F 485

will be required to develop an internet-based self-service tool to disclose to a participant,

beneficiary, or enrollee, the consumer-specific estimated cost-sharing liability for covered items

or services from a particular provider and also to provide this information by mail upon request.

The final rules also require plans and issuers to disclose provider in-network rates, historical data

on out-of-network allowed amounts, and negotiated rates and historical net prices for

prescription drugs through digital files in a machine-readable format posted publicly on an

internet website. Such federal standards developed under section 2715A of the PHS Act preempt

any related state standards that require pricing information to be disclosed to the participant,

beneficiary, or enrollee, or otherwise publicly disclosed, to the extent the state disclosure

requirements would provide less information to the consumer or the public than what is required

under the final rules.

The Departments are of the view that the final rules may have federalism implications

based on the required disclosure of pricing information, as the Departments are aware of at least

28 states that have passed some form of price-transparency legislation, such as all-payer claims

databases, consumer-facing price comparison tools, and the right to shop programs.

298

Under

these state provisions, state requirements vary broadly in terms of the level of disclosure

required.

299

Some states list the price for each individual service, whereas some states list the

aggregate costs across providers and over time to measure the price associated with an episode of

illness. States also differ in terms of the dissemination of the information. For example,

298

“Transparency of Health Costs; State Actions.” National Conference of State Legislatures. March 2017.

Available at: https://www.ncsl.org/research/health/transparency-and-disclosure-health-costs.aspx.

299

Mehrotra, A., Chernew, M., and Sinaiko, A. “Promise and Reality of Price Transparency.” 14 N. Engl. J. Med.

378. April 5, 2018. Available at: https://www.nejm.org/doi/full/10.1056/NEJMhpr1715229.

CMS-9915-F 486

California mandates that uninsured patients receive estimated prices upon request. In contrast,

other states use websites or software applications that allow consumers to compare prices across

providers. Only seven states have published the pricing information of issuers on consumer-

facing public websites.

300

Therefore, the final rules may require a higher level of disclosure by

plans and issuers than some state laws.

One commenter asked that the Departments clarify their intentions regarding federal

preemption with respect to state laws that conflict with the final rules. Congress passed PPACA

to improve the health insurance markets on a nationwide basis. King. v. Burwell, 135 S. Ct.

2480, 2496 (2015). Under section 1321(d) of PPACA and section 2724(a) of the PHS Act,

nothing in these regulations would preempt state law unless such state law prevents the

application of the applicable federal requirement. Based on this legal context, the Departments

intend the implementation of the rules to preempt state law to the extent enforcement of state law

would prevent the application of PPACA.

301

To the extent the final rules preempt state law, they

do so under well-settled law.

In general, through section 514, ERISA supersedes state laws to the extent that they relate

to any covered employee benefit plan, and preserves state laws that regulate insurance, banking,

or securities. Furthermore, the preemption provisions of section 731 of ERISA and section 2724

of the PHS Act (implemented in 29 CFR 2590.731(a) and 45 CFR 146.143(a)) apply so that the

HIPAA requirements (including those of PPACA) are not to be “construed to supersede any

300

Evans, M. “One State’s Effort to Publicize Hospital Prices Brings Mixed Results.” Wall Street Journal. June

26, 2019. Available at: https://www.wsj.com/articles/one-states-effort-to-publicize-hospital-prices-brings-mixed-

results-11561555562.

301

See section 1321(d) of PPACA (“Nothing in this title shall be construed to preempt any State law

that does not prevent the application of the provisions of this title.)

CMS-9915-F 487

provision of state law which establishes, implements, or continues in effect any standard or

requirement solely relating to issuers in connection with group health insurance coverage except

to the extent that such standard or requirement prevents the application of a ‘requirement’ of a

federal standard.” The conference report accompanying HIPAA indicates that this preemption is

intended to be the “narrowest” preemption of states laws (See House Conf. Rep. No. 104– 736,

at 205, reprinted in 1996 U.S. Code Cong. & Admin. News 2018). States may therefore continue

to apply state law requirements to issuers except to the extent that such requirements prevent the

application of PPACA requirements that are the subject of this rulemaking. Accordingly, states

have significant latitude to impose requirements on issuers that are more restrictive than the

federal law.

In compliance with the requirement of Executive Order 13132 that agencies examine

closely any policies that may have federalism implications or limit the policy making discretion

of the states, the Departments have engaged in efforts to consult with and work cooperatively

with affected states, including participating in conference calls with and attending conferences of

NAIC, and consulting with state insurance officials on an individual basis. The Departments

intend to act in a similar fashion in enforcing PPACA, including the provisions of section 2715A

of the PHS Act. While developing the final rules, the Departments attempted to balance the

states’ interests in regulating issuers with Congress’ intent to provide an improved level of price

transparency to the public in every state. By doing so, it is the Departments’ view that they have

complied with the requirements of Executive Order 13132.

Pursuant to the requirements set forth in section 8(a) of Executive Order 13132, and by

the signatures affixed to the final rules, the Departments certify that the Department of the

CMS-9915-F 488

Treasury, Employee Benefits Security Administration, and the CMS have complied with the

requirements of Executive Order 13132 for the final rules in a meaningful and timely manner.

E. Congressional Review Act

The final rules are subject to the Congressional Review Act provisions of the Small

Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801, et seq.), which specifies

that before a rule can take effect, the federal agency promulgating the rule shall submit to each

House of the Congress and to the Comptroller General a report containing a copy of the rule

along with other specified information. Therefore, the final rules have been transmitted to the

Congress and the Comptroller General. Pursuant to the Congressional Review Act, the Office of

Information and Regulatory Affairs designated the final rules as “major rules” as that term is

defined in 5 U.S.C. 804(2), because it is likely to result in an annual effect on the economy of

$100 million or more. In accordance with the provisions of Executive Order 12866, this

regulation was reviewed by the Office of Management and Budget.

F. Reducing Regulation and Controlling Regulatory Costs

Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs,

was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an agency,

unless prohibited by law, to identify at least two existing regulations to be repealed when the

agency publicly proposes for notice and comment, or otherwise issues, a new regulation. In

furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new

incremental costs associated with new regulations shall, to the extent permitted by law, be offset

by the elimination of existing costs associated with at least two prior regulations.

The final rules are considered an Executive Order 13771 regulatory action. The

Departments estimate that these rules will generate $3,489.71 million in costs in 2021,

CMS-9915-F 489

$10,761.15 million in 2022, $6,569 million in 2023, and annual costs of approximately $2,330

million thereafter. Discounted at 7 percent relative to year 2016, over a perpetual time horizon

the annualized value of these costs is $2,413.54 million. Details on the estimated costs of the

final rules can be found in the preceding analyses.

VII. Statutory Authority

The Department of the Treasury regulations are adopted pursuant to the authority

contained in sections 7805 and 9833 of the Code.

The Department of Labor regulations are adopted pursuant to the authority contained in

29 U.S.C. 1135, 1185d, and 1191c; and Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9,

2012).

The Department of Health and Human Services regulations are adopted pursuant to the

authority contained in sections 1311 of PPACA, 2701 through 2763, 2791, 2792, and 2794 of the

PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, 300gg-92, and 300gg-94), as amended.

________________________________

______________________________

Deputy Commissioner for Services and Enforcement,

Internal Revenue Service.

Approved:

Assistant Secretary of the Treasury (Tax Policy).

___________________________________________

Signed at Washington DC, this XX day of [insert], 2020

Jeanne Klinefelter Wilson,

Acting Assistant Secretary,

Employee Benefits Security Administration,

Department of Labor

Dated: October 8, 2020.

_____________________________

Seema Verma,

Administrator,

Centers for Medicare & Medicaid Services.

Dated: October 20, 2020.

___________________________________

Alex M. Azar II,

Secretary,

Department of Health and Human Services.

CMS-9915-F BCO 9/23/20 493

List of Subjects

26 CFR part 54

Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping

requirements.

29 CFR part 2590

Continuation coverage, Disclosure, Employee benefit plans, Group health plans, Health

care, Health insurance, Medical child support, Reporting and recordkeeping requirements.

45 CFR part 147

Health care, Health insurance, Reporting and recordkeeping requirements, State

regulation of health insurance.

45 CFR part 158

Administrative practice and procedure, Claims, Health care, Health insurance, Penalties,

Reporting and recordkeeping requirements.

CMS-9915-F BCO 9/23/20 494

DEPARTMENT OF THE TREASURY

Internal Revenue Service

Amendments to the Regulations

For the reasons set forth in this preamble, the Department of the Treasury amends 26 CFR part

54 as set forth below:

PART 54—PENSION EXCISE TAXES

Par. 1. The authority citation for part 54 is amended by adding an entry for § 54.9815-2715A in

numerical order to read in part as follows:

Authority: 26 U.S.C. 7805 * * *

Section 54.9815-2715A1, 54.9815-2715A2, 54.9815-2715A3 are also issued under 26

U.S.C. 9833;

* * * * *

Par. 2. Sections 54.9815-2715A1, 54.9815-2715A2, 54.9815-2715A3 are added to read as

follows:

§ 54.9815-2715A1 Transparency in coverage- Definitions.

(a) Scope and definitions (1) Scope. This section sets forth definitions for the price

transparency requirements for group health plans and health insurance issuers offering group

health insurance coverage established in this section and §§ 54.9815-2715A2, 54.9815-2715A3.

(2) Definitions. For purposes of this section and §§ 54.9815-2715A2, 54.9815-2715A3,

the following definitions apply:

(i) Accumulated amounts means:

(A) The amount of financial responsibility a participant or beneficiary has incurred at the

time a request for cost-sharing information is made, with respect to a deductible or out-of- pocket

limit. If an individual is enrolled in other than self-only coverage, these accumulated amounts

shall include the financial responsibility a participant or beneficiary has incurred toward meeting

CMS-9915-F BCO 10/26/20 495

his or her individual deductible or out-of-pocket limit, as well as the amount of financial

responsibility that all the individuals enrolled under the plan or coverage have incurred, in

aggregate, toward meeting the other than self-only deductible or out-of-pocket limit, as

applicable. Accumulated amounts include any expense that counts toward a deductible or out-

of-pocket limit (such as a copayment or coinsurance), but exclude any expense that does not

count toward a deductible or out-of-pocket limit (such as any premium payment, out-of-pocket

expense for out-of-network services, or amount for items or services not covered under the group

health plan or health insurance coverage); and

(B) To the extent a group health plan or health insurance issuer imposes a cumulative

treatment limitation on a particular covered item or service (such as a limit on the number of

items, days, units, visits, or hours covered in a defined time period) independent of individual

medical necessity determinations, the amount that has accrued toward the limit on the item or

service (such as the number of items, days, units, visits, or hours the participant or beneficiary,

has used within that time period).

(ii) Beneficiary has the meaning given the term under section 3(8) of the Employee

Retirement Income Security Act of 1974 (ERISA).

(iii) Billed charge means the total charges for an item or service billed to a group health

plan or health insurance issuer by a provider.

(iv) Billing code means the code used by a group health plan or health insurance issuer or

provider to identify health care items or services for purposes of billing, adjudicating, and paying

claims for a covered item or service, including the Current Procedural Terminology (CPT) code,

Healthcare Common Procedure Coding System (HCPCS) code, Diagnosis-Related Group (DRG)

code, National Drug Code (NDC), or other common payer identifier.

CMS-9915-F BCO 10/26/20 496

(v) Bundled payment arrangement means a payment model under which a provider is

paid a single payment for all covered items and services provided to a participant or beneficiary

for a specific treatment or procedure.

(vi) Copayment assistance means the financial assistance a participant or beneficiary

receives from a prescription drug or medical supply manufacturer towards the purchase of a

covered item or service.

(vii) Cost-sharing liability means the amount a participant or beneficiary is responsible

for paying for a covered item or service under the terms of the group health plan or health

insurance coverage. Cost-sharing liability generally includes deductibles, coinsurance, and

copayments, but does not include premiums, balance billing amounts by out-of-network

providers, or the cost of items or services that are not covered under a group health plan or health

insurance coverage.

(viii) Cost-sharing information means information related to any expenditure required by

or on behalf of a participant or beneficiary with respect to health care benefits that are relevant to

a determination of the participant’s or beneficiary’s cost-sharing liability for a particular covered

item or service.

(ix) Covered items or services means those items or services, including prescription

drugs, the costs for which are payable, in whole or in part, under the terms of a group health plan

or health insurance coverage.

(x) Derived amount means the price that a group health plan or health insurance issuer

assigns to an item or service for the purpose of internal accounting, reconciliation with providers,

or submitting data in accordance with the requirements of 45 CFR 153.710(c).

CMS-9915-F BCO 10/26/20 497

(xi) Historical net price means the retrospective average amount a group health plan or

health insurance issuer paid for a prescription drug, inclusive of any reasonably allocated rebates,

discounts, chargebacks, fees, and any additional price concessions received by the plan or issuer

with respect to the prescription drug. The allocation shall be determined by dollar value for non-

product specific and product-specific rebates, discounts, chargebacks, fees, and other price

concessions to the extent that the total amount of any such price concession is known to the

group health plan or health insurance issuer at the time of publication of the historical net price

in a machine-readable file in accordance with § 54.9815-2715A3. However, to the extent that

the total amount of any non-product specific and product-specific rebates, discounts,

chargebacks, fees, or other price concessions is not known to the group health plan or health

insurance issuer at the time of file publication, then the plan or issuer shall allocate such rebates,

discounts, chargebacks, fees, and other price concessions by using a good faith, reasonable

estimate of the average price concessions based on the rebates, discounts, chargebacks, fees, and

other price concessions received over a time period prior to the current reporting period and of

equal duration to the current reporting period, as determined under § 54.9815-2715A3

(b)(1)(iii)(D)(3).

(xii) In-network provider means any provider of any item or service with which a group

health plan or health insurance issuer, or a third party for the plan or issuer, has a contract setting

forth the terms and conditions on which a relevant item or service is provided to a participant or

beneficiary.

(xiii) Items or services means all encounters, procedures, medical tests, supplies,

prescription drugs, durable medical equipment, and fees (including facility fees), provided or

assessed in connection with the provision of health care.

CMS-9915-F BCO 10/26/20 498

(xiv) Machine-readable file means a digital representation of data or information in a file

that can be imported or read by a computer system for further processing without human

intervention, while ensuring no semantic meaning is lost.

(xv) National Drug Code means the unique 10- or 11-digit 3-segment number assigned

by the Food and Drug Administration, which provides a universal product identifier for drugs in

the United States.

(xvi) Negotiated rate means the amount a group health plan or health insurance issuer has

contractually agreed to pay an in-network provider, including an in-network pharmacy or other

prescription drug dispenser, for covered items and services, whether directly or indirectly,

including through a third-party administrator or pharmacy benefit manager.

(xvii) Out-of-network allowed amount means the maximum amount a group health plan

or health insurance issuer will pay for a covered item or service furnished by an out-of-network

provider.

(xviii) Out-of-network provider means a provider of any item or service that does not

have a contract under a participant’s or beneficiary’s group health plan or health insurance

coverage to provide items or services.

(xix) Out-of-pocket limit means the maximum amount that a participant or beneficiary is

required to pay during a coverage period for his or her share of the costs of covered items and

services under his or her group health plan or health insurance coverage, including for self-only

and other than self-only coverage, as applicable.

(xx) Plain language means written and presented in a manner calculated to be understood

by the average participant or beneficiary.

CMS-9915-F BCO 10/26/20 499

(xxi) Prerequisite means concurrent review, prior authorization, and step-therapy or fail-

first protocols related to covered items and services that must be satisfied before a group health

plan or health insurance issuer will cover the item or service. The term prerequisite does not

include medical necessity determinations generally or other forms of medical management

techniques.

(xxii) Underlying fee schedule rate means the rate for a covered item or service from a

particular in-network provider, or providers that a group health plan or health insurance issuer

uses to determine a participant’s or beneficiary’s cost-sharing liability for the item or service,

when that rate is different from the negotiated rate or derived amount.

(b) [Reserved]

§ 54.9815-2715A2 Transparency in coverage - Required disclosures to participants and

beneficiaries.

(a) Scope and definitions. (1) Scope. This section establishes price transparency

requirements for group health plans and health insurance issuers offering group health insurance

coverage for the timely disclosure of information about costs related to covered items and

services under a group plan or health insurance coverage.

(2) Definitions. For purposes of this section, the definitions in § 54.9815-2715A1 apply.

(b) Required disclosures to participants and beneficiaries. At the request of a

participant or beneficiary who is enrolled in a group health plan, the plan must provide to the

participant or beneficiary the information required under paragraph (b)(1) of this section, in

accordance with the method and format requirements set forth in paragraph (b)(2) of this section.

(1) Required cost-sharing information. The information required under this paragraph

(b)(1) is the following cost-sharing information, which is accurate at the time the request is

CMS-9915-F BCO 10/26/20 500

made, with respect to a participant’s or beneficiary’s cost-sharing liability for covered items and

services:

(i) An estimate of the participant’s or beneficiary’s cost-sharing liability for a requested

covered item or service furnished by a provider or providers that is calculated based on the

information described in paragraphs (b)(1)(ii) through (iv) of this section.

(A) If the request for cost-sharing information relates to items and services that are

provided within a bundled payment arrangement, and the bundled payment arrangement includes

items or services that have a separate cost-sharing liability, the group health plan or health

insurance issuer must provide estimates of the cost-sharing liability for the requested covered

item or service, as well as an estimate of the cost-sharing liability for each of the items and

services in the bundled payment arrangement that have separate cost-sharing liabilities. While

group health plans and health insurance issuers are not required to provide estimates of

cost-sharing liability for a bundled payment arrangement where the cost-sharing is imposed

separately for each item and service included in the bundled payment arrangement, nothing

prohibits plans or issuers from providing estimates for multiple items and services in situations

where such estimates could be relevant to participants or beneficiaries, as long as the plan or

issuer also discloses information about the relevant items or services individually, as required in

paragraph (b)(1)(v) of this section.

(B) For requested items and services that are recommended preventive services under

section 2713 of the Public Health Service Act (PHS Act), if the group health plan or health

insurance issuer cannot determine whether the request is for preventive or non-preventive

purposes, the plan or issuer must display the cost-sharing liability that applies for non-preventive

purposes. As an alternative, a group health plan or health insurance issuer may allow a

CMS-9915-F BCO 10/26/20 501

participant or beneficiary to request cost-sharing information for the specific preventive or non-

preventive item or service by including terms such as “preventive”, “non-preventive” or

“diagnostic” as a means to request the most accurate cost-sharing information.

(ii) Accumulated amounts;

(iii) In-network rate, comprised of the following elements, as applicable to the group

health plan’s or health insurance issuer’s payment model:

(A) Negotiated rate, reflected as a dollar amount, for an in-network provider or providers

for the requested covered item or service; this rate must be disclosed even if it is not the rate the

plan or issuer uses to calculate cost-sharing liability; and

(B) Underlying fee schedule rate, reflected as a dollar amount, for the requested covered

item or service, to the extent that it is different from the negotiated rate;

(iv) Out-of-network allowed amount or any other rate that provides a more accurate

estimate of an amount a group health plan or health insurance issuer will pay for the requested

covered item or service, reflected as a dollar amount, if the request for cost-sharing information

is for a covered item or service furnished by an out-of-network provider; provided, however, that

in circumstances in which a plan or issuer reimburses an out-of-network provider a percentage of

the billed charge for a covered item or service, the out-of-network allowed amount will be that

percentage.

(v) If a participant or beneficiary requests information for an item or service subject to a

bundled payment arrangement, a list of the items and services included in the bundled payment

arrangement for which cost-sharing information is being disclosed.

(vi) If applicable, notification that coverage of a specific item or service is subject to a

prerequisite; and,

CMS-9915-F BCO 10/26/20 502

(vii) A notice that includes the following information in plain language:

(A) A statement that out-of-network providers may bill participants or beneficiaries for

the difference between a provider’s billed charges and the sum of the amount collected from the

group health plan or health insurance issuer and from the participant or beneficiary in the form of

a copayment or coinsurance amount (the difference referred to as balance billing), and that the

cost-sharing information provided pursuant to this paragraph (b)(1)(i) does not account for these

potential additional amounts. This statement is only required if balance billing is permitted

under state law;

(B) A statement that the actual charges for a participant’s or beneficiary’s covered item

or service may be different from an estimate of cost-sharing liability provided pursuant to

paragraph (b)(1)(i) of this section, depending on the actual items or services the participant or

beneficiary receives at the point of care;

not a guarantee that benefits will be provided for that item or service;

(D) A statement disclosing whether the plan counts copayment assistance and other

third-party payments in the calculation of the participant’s or beneficiary’s deductible and out-of-

pocket maximum;

(E) For items and services that are recommended preventive services under section 2713

of the PHS Act, a statement that an in-network item or service may not be subject to cost-sharing

if it is billed as a preventive service if the group health plan or health insurance issuer cannot

determine whether the request is for a preventive or non-preventive item or service; and

CMS-9915-F BCO 10/26/20 503

(F) Any additional information, including other disclaimers, that the group health plan or

health insurance issuer determines is appropriate, provided the additional information does not

conflict with the information required to be provided by this paragraph (b)(1).

(2) Required methods and formats for disclosing information to participants and

beneficiaries. The methods and formats for the disclosure required under this paragraph (b) are

as follows:

(i) Internet-based self-service tool. Information provided under this paragraph (b) must

be made available in plain language, without subscription or other fee, through a self-service tool

on an internet website that provides real-time responses based on cost-sharing information that is

accurate at the time of the request. Group health plans and health insurance issuers must ensure

that the self-service tool allows users to:

(A) Search for cost-sharing information for a covered item or service provided by a

specific in-network provider or by all in-network providers by inputting:

(1) A billing code (such as CPT code 87804) or a descriptive term (such as “rapid flu

test”), at the option of the user;

(2) The name of the in-network provider, if the user seeks cost-sharing information with

respect to a specific in-network provider; and

(3) Other factors utilized by the plan or issuer that are relevant for determining the

applicable cost-sharing information (such as location of service, facility name, or dosage).

(B) Search for an out-of-network allowed amount, percentage of billed charges, or other

rate that provides a reasonably accurate estimate of the amount a group health plan or health

insurance issuer will pay for a covered item or service provided by out-of-network providers by

inputting:

CMS-9915-F BCO 10/26/20 504

(1) A billing code or descriptive term, at the option of the user; and

(2) Other factors utilized by the plan or issuer that are relevant for determining the

applicable out-of-network allowed amount or other rate (such as the location in which the

covered item or service will be sought or provided).

providers, and the amount of the participant’s or beneficiary’s estimated cost-sharing liability for

the covered item or service, to the extent the search for cost-sharing information for covered

items or services returns multiple results.

(ii) Paper method. Information provided under this paragraph (b) must be made

available in plain language, without a fee, in paper form at the request of the participant or

beneficiary. In responding to such a request, the group health plan or health insurance issuer

may limit the number of providers with respect to which cost-sharing information for covered

items and services is provided to no fewer than 20 providers per request. The group health plan

or health insurance issuer is required to:

(A) Disclose the applicable provider-per-request limit to the participant or beneficiary;

(B) Provide the cost-sharing information in paper form pursuant to the individual’s

request, in accordance with the requirements in paragraphs (b)(2)(i)(A) through (C) of this

section; and

individual’s request is received.

(D) To the extent participants or beneficiaries request disclosure other than by paper (for

example, by phone or e-mail), plans and issuers may provide the disclosure through another

means, provided the participant or beneficiary agrees that disclosure through such means is

CMS-9915-F BCO 10/26/20 505

sufficient to satisfy the request and the request is fulfilled at least as rapidly as required for the

paper method.

(3) Special rule to prevent unnecessary duplication.

(i) Special rule for insured group health plans. To the extent coverage under a group

health plan consists of group health insurance coverage, the plan satisfies the requirements of

this paragraph (b) if the plan requires the health insurance issuer offering the coverage to provide

the information required by this paragraph (b) in compliance with this section pursuant to a

written agreement. Accordingly, if a health insurance issuer and a plan sponsor enter into a

written agreement under which the issuer agrees to provide the information required under this

paragraph (b) in compliance with this section, and the issuer fails to do so, then the issuer, but

not the plan, violates the transparency disclosure requirements of this paragraph (b).

(ii) Other contractual arrangements. A group health plan or health insurance issuer may

satisfy the requirements under this paragraph (b) by entering into a written agreement under

which another party (such as a pharmacy benefit manager or other third-party) provides the

information required by this paragraph (b) in compliance with this section. Notwithstanding the

preceding sentence, if a group health plan or health insurance issuer chooses to enter into such an

agreement and the party with which it contracts fails to provide the information in compliance

with this paragraph (b), the plan or issuer violates the transparency disclosure requirements of

this paragraph (b).

after January 1, 2023 with respect to the 500 items and services to be posted on a publicly

available website, and with respect to all covered items and services, for plan years beginning on

or after January 1, 2024.

CMS-9915-F BCO 10/26/20 506

(2) As provided under § 54.9815-1251, this section does not apply to grandfathered

health plans. This section also does not apply to health reimbursement arrangements or other

account-based group health plans as defined in § 54.9815-2711(d)(6) or short-term, limited-

duration insurance as defined in § 54.9801-2.

(3) Nothing in this section alters or otherwise affects a group health plan’s or health

insurance issuer’s duty to comply with requirements under other applicable state or federal laws,

including those governing the accessibility, privacy, or security of information required to be

disclosed under this section, or those governing the ability of properly authorized representatives

to access participant or beneficiary information held by plans and issuers.

(4) A group health plan or health insurance issuer will not fail to comply with this section

solely because it, acting in good faith and with reasonable diligence, makes an error or omission

in a disclosure required under paragraph (b) of this section, provided that the plan or issuer

corrects the information as soon as practicable.

(5) A group health plan or health insurance issuer will not fail to comply with this section

solely because, despite acting in good faith and with reasonable diligence, its internet website is

temporarily inaccessible, provided that the plan or issuer makes the information available as soon

as practicable.

(6) To the extent compliance with this section requires a group health plan or health

insurance issuer to obtain information from any other entity, the plan or issuer will not fail to

comply with this section because it relied in good faith on information from the other entity,

unless the plan or issuer knows, or reasonably should have known, that the information is

incomplete or inaccurate.

CMS-9915-F BCO 10/26/20 507

(d) Severability. Any provision of this section held to be invalid or unenforceable by its

terms, or as applied to any person or circumstance, or stayed pending further agency action, shall

be severable from this section and shall not affect the remainder thereof or the application of the

provision to persons not similarly situated or to dissimilar circumstances.

§ 54.9815-2715A3 Transparency in coverage - Requirements for public disclosure.

(a) Scope and definitions--(1) Scope. This section establishes price transparency

requirements for group health plans and health insurance issuers offering group health insurance

coverage for the timely disclosure of information about costs related to covered items and

services under a group plan or health insurance coverage.

(2) Definitions. For purposes of this section, the definitions in § 54.9815-2715A1 apply.

(b) Requirements for public disclosure of in-network provider rates for covered items and

services, out-of-network allowed amounts and billed charges for covered items and services, and

negotiated rates and historical net prices for covered prescription drugs. A group health plan or

health insurance issuer must make available on an internet website the information required

under paragraph (b)(1) of this section in three machine-readable files, in accordance with the

method and format requirements described in paragraph (b)(2) of this section, and that are

updated as required under paragraph (b)(3) of this section.

(1) Required information. Machine-readable files required under this paragraph (b) that are

made available to the public by a group health plan or health insurance issuer must include:

(i) An in-network rate machine-readable file that includes the required information under

this paragraph (b)(1)(i) for all covered items and services, except for prescription drugs that are

subject to a fee-for-service reimbursement arrangement, which must be reported in the

CMS-9915-F BCO 10/26/20 508

prescription drug machine-readable file pursuant to paragraph (b)(1)(iii) of this section. The in-

network rate machine-readable file must include:

(A) For each coverage option offered by a group health plan or health insurance issuer,

the name and the 14-digit Health Insurance Oversight System (HIOS) identifier, or, if the

14-digit HIOS identifier is not available, the 5-digit HIOS identifier, or if no HIOS identifier is

available, the Employer Identification Number (EIN);

(B) A billing code, which in the case of prescription drugs must be an NDC, and a plain

language description for each billing code for each covered item or service under each coverage

option offered by a plan or issuer; and

underlying fee schedule rates, or derived amounts. If a group health plan or health insurance

issuer does not use negotiated rates for provider reimbursement, then the plan or issuer should

disclose derived amounts to the extent these amounts are already calculated in the normal course

of business. If the group health plan or health insurance issuer uses underlying fee schedule rates

for calculating cost sharing, then the plan or issuer should include the underlying fee schedule

rates in addition to the negotiated rate or derived amount. Applicable rates, including for both

individual items and services and items and services in a bundled payment arrangement, must be:

(1) Reflected as dollar amounts, with respect to each covered item or service that is

furnished by an in-network provider. If the negotiated rate is subject to change based upon

participant or beneficiary-specific characteristics, these dollar amounts should be reflected as the

base negotiated rate applicable to the item or service prior to adjustments for participant or

beneficiary-specific characteristics;

CMS-9915-F BCO 10/26/20 509

(2) Associated with the National Provider Identifier (NPI), Tax Identification Number

(TIN), and Place of Service Code for each in-network provider;

(3) Associated with the last date of the contract term or expiration date for each provider-

specific applicable rate that applies to each covered item or service; and

(4) Indicated with a notation where a reimbursement arrangement other than a standard

fee-for-service model (such as capitation or a bundled payment arrangement) applies.

(ii) An out-of-network allowed amount machine-readable file, including:

(A) For each coverage option offered by a group health plan or health insurance issuer, the

name and the 14-digit HIOS identifier, or, if the 14-digit HIOS identifier is not available, the 5-

digit HIOS identifier, or, if no HIOS identifier is available, the EIN;

(B) A billing code, which in the case of prescription drugs must be an NDC, and a plain

language description for each billing code for each covered item or service under each coverage

option offered by a plan or issuer;

items or services, furnished by out-of-network providers during the 90-day time period that

begins 180 days prior to the publication date of the machine-readable file (except that a group

health plan or health insurance issuer must omit such data in relation to a particular item or

service and provider when compliance with this paragraph (b)(1)(ii)(C) would require the plan or

issuer to report payment of out-of-network allowed amounts in connection with fewer than 20

different claims for payments under a single plan or coverage). Consistent with paragraph (c)(3)

of this section, nothing in this paragraph (b)(1)(ii)(C) requires the disclosure of information that

would violate any applicable health information privacy law. Each unique out-of-network

allowed amount must be:

CMS-9915-F BCO 10/26/20 510

(1) Reflected as a dollar amount, with respect to each covered item or service that is

furnished by an out-of-network provider; and

(2) Associated with the NPI, TIN, and Place of Service Code for each out-of-network

provider.

(iii) A prescription drug machine-readable file, including:

(A) For each coverage option offered by a group health plan or health insurance issuer,

the name and the 14-digit HIOS identifier, or, if the 14-digit HIOS identifier is not available, the

5-digit HIOS identifier, or, if no HIOS identifier is available, the EIN;

(B) The NDC and the proprietary and nonproprietary name assigned to the NDC by the

Food and Drug Administration (FDA) for each covered item or service that is a prescription drug

under each coverage option offered by a plan or issuer;

(1) Reflected as a dollar amount, with respect to each NDC that is furnished by an in-

network provider, including an in-network pharmacy or other prescription drug dispenser;

(2) Associated with the NPI, TIN, and Place of Service Code for each in-network

provider, including each in-network pharmacy or other prescription drug dispenser; and

(3) Associated with the last date of the contract term for each provider-specific negotiated

rate that applies to each NDC; and

(D) Historical net prices that are:

(1) Reflected as a dollar amount, with respect to each NDC that is furnished by an in-

network provider, including an in-network pharmacy or other prescription drug dispenser;

(2) Associated with the NPI, TIN, and Place of Service Code for each in-network

provider, including each in-network pharmacy or other prescription drug dispenser; and

CMS-9915-F BCO 10/26/20 511

(3) Associated with the 90-day time period that begins 180 days prior to the publication

date of the machine-readable file for each provider-specific historical net price that applies to

each NDC (except that a group health plan or health insurance issuer must omit such data in

relation to a particular NDC and provider when compliance with this paragraph (b)(1)(iii)(D)

would require the plan or issuer to report payment of historical net prices calculated using fewer

than 20 different claims for payment). Consistent with paragraph (c)(3) of this section, nothing

in this paragraph (b)(1)(iii)(D) requires the disclosure of information that would violate any

applicable health information privacy law.

(2) Required method and format for disclosing information to the public. The machine-

readable files described in this paragraph (b) must be available in a form and manner as specified

in guidance issued by the Department of the Treasury, the Department of Labor, and the

Department of Health and Human Services. The machine-readable files must be publicly

available and accessible to any person free of charge and without conditions, such as

establishment of a user account, password, or other credentials, or submission of personally

identifiable information to access the file.

(3) Timing. A group health plan or health insurance issuer must update the machine-

readable files and information required by this paragraph (b) monthly. The group health plan or

health insurance issuer must clearly indicate the date that the files were most recently updated.

(4) Special rules to prevent unnecessary duplication—

(i) Special rule for insured group health plans. To the extent coverage under a group

health plan consists of group health insurance coverage, the plan satisfies the requirements of

this paragraph (b) if the plan requires the health insurance issuer offering the coverage to provide

the information pursuant to a written agreement. Accordingly, if a health insurance issuer and a

CMS-9915-F BCO 10/26/20 512

group health plan sponsor enter into a written agreement under which the issuer agrees to

provide the information required under this paragraph (b) in compliance with this section, and

the issuer fails to do so, then the issuer, but not the plan, violates the transparency disclosure

requirements of this paragraph (b).

(ii) Other contractual arrangements. A group health plan or health insurance issuer may

satisfy the requirements under this paragraph (b) by entering into a written agreement under

which another party (such as a third-party administrator or health care claims clearinghouse) will

provide the information required by this paragraph (b) in compliance with this section.

Notwithstanding the preceding sentence, if a group health plan or health insurance issuer chooses

to enter into such an agreement and the party with which it contracts fails to provide the

information in compliance with this paragraph (b), the plan or issuer violates the transparency

disclosure requirements of this paragraph (b).

(iii) Aggregation permitted for out-of-network allowed amounts. Nothing in this section

prohibits a group health plan or health insurance issuer from satisfying the disclosure

requirement described in paragraph (b)(1)(ii) of this section by disclosing out-of-network

allowed amounts made available by, or otherwise obtained from, an issuer, a service provider, or

other party with which the plan or issuer has entered into a written agreement to provide the

information, provided the minimum claim threshold described in paragraph (b)(1)(ii)(C) of this

section is independently met for each item or service and for each plan or coverage included in

an aggregated Allowed Amount File. Under such circumstances, health insurance issuers,

service providers, or other parties with which the group health plan or issuer has contracted may

aggregate out-of-network allowed amounts for more than one plan or insurance policy or

contract. Additionally, nothing in this section prevents the Allowed Amount File from being

CMS-9915-F BCO 10/26/20 513

hosted on a third-party website or prevents a plan administrator or issuer from contracting with a

third party to post the file. However, if a plan or issuer chooses not to also host the file

separately on its own website, it must provide a link on its own public website to the location

where the file is made publicly available.

after January 1, 2022.

(2) As provided under § 54.9815-1251, this section does not apply to grandfathered

health plans. This section also does not apply to health reimbursement arrangements or other

account-based group health plans as defined in § 54.9815-2711(d)(6) or short term limited

duration insurance as defined in § 54.9801-2.

(3) Nothing in this section alters or otherwise affects a group health plan’s or health

insurance issuer’s duty to comply with requirements under other applicable state or federal laws,

including those governing the accessibility, privacy, or security of information required to be

disclosed under this section, or those governing the ability of properly authorized representatives

to access participant, or beneficiary information held by plans and issuers.

(4) A group health plan or health insurance issuer will not fail to comply with this section

solely because it, acting in good faith and with reasonable diligence, makes an error or omission

in a disclosure required under paragraph (b) of this section, provided that the plan or issuer

corrects the information as soon as practicable.

(5) A group health plan or health insurance issuer will not fail to comply with this section

solely because, despite acting in good faith and with reasonable diligence, its internet website is

temporarily inaccessible, provided that the plan or issuer makes the information available as soon

as practicable.

CMS-9915-F BCO 10/26/20 514

(6) To the extent compliance with this section requires a group health plan or health

insurance issuer to obtain information from any other entity, the plan or issuer will not fail to

comply with this section because it relied in good faith on information from the other entity,

unless the plan or issuer knows, or reasonably should have known, that the information is

incomplete or inaccurate.

(d) Severability. Any provision of this section held to be invalid or unenforceable by its

terms, or as applied to any person or circumstance, or stayed pending further agency action, shall

be severable from this section and shall not affect the remainder thereof or the application of the

provision to persons not similarly situated or to dissimilar circumstances.

CMS-9915-F BCO 9/23/20 515

DEPARTMENT OF LABOR

For the reasons set forth in this preamble, the Department of Labor amends 29 CFR 2590 as set

forth below:

PART 2590—RULES AND REGULATIONS FOR GROUP HEALTH PLANS

3. The authority citation for part 2590 continues to read as follows:

Authority: 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185,

1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Pub. L. 104-191, 110 Stat. 1936; sec.

401(b), Pub. L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110-343, 122

Stat. 3881; sec. 1001, 1201, and 1562(e), 124 Stat. 119, as amended by Pub. L. 111-152, 124

Stat. 1029; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9, 2012).

4. Sections 2590.715-2715A1, 2590.715-2715A2, and 2590.715-2715A3 are added to

read as follows:

§ 2590.715-2715A1 Transparency in coverage- Definitions.

(a) Scope and definitions (1) Scope. This section sets forth definitions for the price

transparency requirements for group health plans and health insurance issuers offering group

health insurance coverage established in this section and §§ 2590.715-2715A2, and 2590.715-

2715A3.

(2) Definitions. For purposes of this section and §§ 2590.715-2715A2, and 2590.715-

2715A3, the following definitions apply:

(i) Accumulated amounts means:

(A) The amount of financial responsibility a participant or beneficiary has incurred at the

time a request for cost-sharing information is made, with respect to a deductible or out-of- pocket

limit. If an individual is enrolled in other than self-only coverage, these accumulated amounts

shall include the financial responsibility a participant or beneficiary has incurred toward meeting

CMS-9915-F BCO 10/26/20 516

his or her individual deductible or out-of-pocket limit, as well as the amount of financial

responsibility that all the individuals enrolled under the plan or coverage have incurred, in

aggregate, toward meeting the other than self-only deductible or out-of-pocket limit, as

applicable. Accumulated amounts include any expense that counts toward a deductible or out-

of-pocket limit (such as a copayment or coinsurance), but exclude any expense that does not

count toward a deductible or out-of-pocket limit (such as any premium payment, out-of-pocket

expense for out-of-network services, or amount for items or services not covered under the group

health plan or health insurance coverage); and

(B) To the extent a group health plan or health insurance issuer imposes a cumulative

treatment limitation on a particular covered item or service (such as a limit on the number of

items, days, units, visits, or hours covered in a defined time period) independent of individual

medical necessity determinations, the amount that has accrued toward the limit on the item or

service (such as the number of items, days, units, visits, or hours the participant or beneficiary,

has used within that time period).

(ii) Billed charge means the total charges for an item or service billed to a group health

plan or health insurance issuer by a provider.

(iii) Billing code means the code used by a group health plan or health insurance issuer or

provider to identify health care items or services for purposes of billing, adjudicating, and paying

claims for a covered item or service, including the Current Procedural Terminology (CPT) code,

Healthcare Common Procedure Coding System (HCPCS) code, Diagnosis-Related Group (DRG)

code, National Drug Code (NDC), or other common payer identifier.

CMS-9915-F BCO 10/26/20 517

(iv) Bundled payment arrangement means a payment model under which a provider is

paid a single payment for all covered items and services provided to a participant or beneficiary

for a specific treatment or procedure.

(v) Copayment assistance means the financial assistance a participant or beneficiary

receives from a prescription drug or medical supply manufacturer towards the purchase of a

covered item or service.

(vi) Cost-sharing liability means the amount a participant or beneficiary is responsible for

paying for a covered item or service under the terms of the group health plan or health insurance

coverage. Cost-sharing liability generally includes deductibles, coinsurance, and copayments,

but does not include premiums, balance billing amounts by out-of-network providers, or the cost

of items or services that are not covered under a group health plan or health insurance coverage.

(vii) Cost-sharing information means information related to any expenditure required by

or on behalf of a participant or beneficiary with respect to health care benefits that are relevant to

a determination of the participant’s or beneficiary’s cost-sharing liability for a particular covered

item or service.

(viii) Covered items or services means those items or services, including prescription

drugs, the costs for which are payable, in whole or in part, under the terms of a group health plan

or health insurance coverage.

(ix) Derived amount means the price that a group health plan or health insurance issuer

assigns to an item or service for the purpose of internal accounting, reconciliation with providers,

or submitting data in accordance with the requirements of 45 CFR 153.710(c).

(x) Historical net price means the retrospective average amount a group health plan or

health insurance issuer paid for a prescription drug, inclusive of any reasonably allocated rebates,

CMS-9915-F BCO 10/26/20 518

discounts, chargebacks, fees, and any additional price concessions received by the plan or issuer

with respect to the prescription drug. The allocation shall be determined by dollar value for non-

product specific and product-specific rebates, discounts, chargebacks, fees, and other price

concessions to the extent that the total amount of any such price concession is known to the

group health plan or health insurance issuer at the time of publication of the historical net price

in a machine-readable file in accordance with § 2590.715-2715A3. However, to the extent that

the total amount of any non-product specific and product-specific rebates, discounts,

chargebacks, fees, or other price concessions is not known to the group health plan or health

insurance issuer at the time of file publication, then the plan or issuer shall allocate such rebates,

discounts, chargebacks, fees, and other price concessions by using a good faith, reasonable

estimate of the average price concessions based on the rebates, discounts, chargebacks, fees, and

other price concessions received over a time period prior to the current reporting period and of

equal duration to the current reporting period, as determined under § 2590.715-2715A3

(b)(1)(iii)(D)(3).

(xi) In-network provider means any provider of any item or service with which a group

health plan or health insurance issuer, or a third party for the plan or issuer, has a contract setting

forth the terms and conditions on which a relevant item or service is provided to a participant or

beneficiary.

(xii) Items or services means all encounters, procedures, medical tests, supplies,

prescription drugs, durable medical equipment, and fees (including facility fees), provided or

assessed in connection with the provision of health care.

CMS-9915-F BCO 10/26/20 519

(xiii) Machine-readable file means a digital representation of data or information in a file

that can be imported or read by a computer system for further processing without human

intervention, while ensuring no semantic meaning is lost.

(xiv) National Drug Code means the unique 10- or 11-digit 3-segment number assigned

by the Food and Drug Administration, which provides a universal product identifier for drugs in

the United States.

(xv) Negotiated rate means the amount a group health plan or health insurance issuer has

contractually agreed to pay an in-network provider, including an in-network pharmacy or other

prescription drug dispenser, for covered items and services, whether directly or indirectly,

including through a third-party administrator or pharmacy benefit manager.

(xvi) Out-of-network allowed amount means the maximum amount a group health plan or

health insurance issuer will pay for a covered item or service furnished by an out-of-network

provider.

(xvii) Out-of-network provider means a provider of any item or service that does not have

a contract under a participant’s or beneficiary’s group health plan or health insurance coverage to

provide items or services.

(xviii) Out-of-pocket limit means the maximum amount that a participant or beneficiary is

required to pay during a coverage period for his or her share of the costs of covered items and

services under his or her group health plan or health insurance coverage, including for self-only

and other than self-only coverage, as applicable.

(xix) Plain language means written and presented in a manner calculated to be

understood by the average participant or beneficiary.

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(xx) Prerequisite means concurrent review, prior authorization, and step-therapy or fail-

first protocols related to covered items and services that must be satisfied before a group health

plan or health insurance issuer will cover the item or service. The term prerequisite does not

include medical necessity determinations generally or other forms of medical management

techniques.

(xxi) Underlying fee schedule rate means the rate for a covered item or service from a

particular in-network provider, or providers that a group health plan or health insurance issuer

uses to determine a participant’s or beneficiary’s cost-sharing liability for the item or service,

when that rate is different from the negotiated rate or derived amount.

(b) [Reserved]

§ 2590.715-2715A2 Transparency in coverage - Required disclosures to participants and

beneficiaries.

(a) Scope and definitions. (1) Scope. This section establishes price transparency

requirements for group health plans and health insurance issuers offering group health insurance

coverage for the timely disclosure of information about costs related to covered items and

services under a group plan or health insurance coverage.

(2) Definitions. For purposes of this section, the definitions in § 2590.715-2715A1

apply.

(b) Required disclosures to participants and beneficiaries. At the request of a

participant or beneficiary who is enrolled in a group health plan, the plan must provide to the

participant or beneficiary the information required under paragraph (b)(1) of this section, in

accordance with the method and format requirements set forth in paragraph (b)(2) of this section.

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