The Departments of Treasury, Labor, and Health and Human Services (collectively, the “Departments”) recently issued a set of Frequently Asked Questions (Part XV) (the “FAQs”), which provide that, starting in 2014, employers and health insurance issuers must implement two new requirements under ACA that apply to non-grandfathered group health plans:

(1) a prohibition on discriminating against health care providers that are licensed or certified under state law; and

(2) a mandate to cover routine patient costs or services for participation in certain clinical trials for life-threatening diseases.

The FAQs state that the Departments do not intend to issue regulations implementing these two requirements in the near future and therefore employers and health insurance issuers must implement the requirements based on a good-faith, reasonable interpretation of the statutory provisions.  The FAQs also delay, until at least 2015, implementation of requirements to disclose publicly certain information regarding group health plans, such as financial information, cost-sharing requirements, and data on claim denials and enrollment.

Health-Care Provider Nondiscrimination.  Effective January 2014, non-grandfathered group health plans and health insurance issuers may not discriminate, when determining which health care providers may participate in the plan’s network, against any health care professional who is acting within the scope of his license or certification under state law, solely on the basis of the provider’s license or certification.  For example, a plan that covers obstetric care by a physician might be required to cover the same care by a certified midwife.

The nondiscrimination rule does not require plans or issuers to accept all types of licensed or certified health-care providers into a network.  In addition, the rule does not govern provider reimbursement rates, which may be based on quality of services, market conditions, or other performance measures.  The FAQs indicate that plans and issuers might find helpful guidance in regulations implementing a similar statutory requirement that applies to Medicare Advantage plans.  Employers should consider reviewing agreements or contracts with third-party administrators and health insurance issuers to ensure that the agreements appropriately address the new requirement.

Coverage Required for Clinical Trials.  Also effective January 2014, non-grandfathered group health plans and health insurance issuers will be required to cover, on the same basis as non-trial participants, routine patient costs for items and services furnished in connection with participation in an approved clinical trial for the treatment of a life-threatening disease or condition.  Coverage for routine patient costs includes coverage for items and services that are covered for participants who are not enrolled in a clinical trial, but does not include coverage for investigational or data-collection items or services.

An approved clinical trial generally includes a federally-funded trial or certain trials conducted for new drug applications reviewed by the Food and Drug Administration.  If an in-network provider is participating in the clinical trial, the plan may require a participant seeking to participate in the trial to do so under the care of the in-network provider.

Descriptions of plan benefits in SPDs and other plan documents may need to be updated in 2014 to reflect this new requirement.

Reporting Requirements.  Group health plans and health insurance issuers must disclose to HHS, state insurance regulators, and the general public certain information about the plan, including financial information, cost-sharing for out-of-network coverage, and data on claim denials, enrollment, and rating practices.  The FAQs clarify that group health plans will not be required to report the information before 2015.