IRS, HHS, DOL Clarify “Reasonable Method” For Reference-Based Pricing


The Departments of Labor, Health and Human Services and the Treasury have issued guidance setting forth factors that they will consider when determining if a non-grandfathered group health plan has met its obligations under PHS Act Sec. 2707(b). This latest in a series of frequently-asked questions (FAQs) addresses obligations with regard to reference-based pricing. Under reference-based pricing, a plan pays only a fixed amount for a particular procedure, which certain providers then accept as payment in full.

Reference-based pricing must stay within MOOP costs. PHS Act 2707(b), as added by the Patient Protection and Affordable Care Act (ACA), provides that annual cost-sharing imposed by a non-grandfathered group health plan may not exceed the limitations under ACA(c)(1), which limits enrollees’ out-of-pocket costs. The maximum out-of-pocket (MOOP) costs for plan or policy years beginning in 2015 is $6,600 for self-only coverage, and $13,200 for other coverage.

Previously, the Departments have expressed concerns that reference-based pricing, designed to encourage plans to negotiate treatments with high-quality providers at reduced costs, could be a subterfuge for the imposition of otherwise prohibited limitations on coverage, without ensuring access to quality care and an adequate network of providers. Therefore, they clarified that reference-based pricing would not cause a plan to run afoul of PHS Act Sec. 2707(b) MOOP provisions as long as the plan uses a reasonable method to ensure that it offers adequate access to quality providers.

What is a reasonable method? The Departments have stated that they will consider all facts and circumstances when determining if a plan is ensuring adequate access to quality providers at a reference price. Such facts and circumstances include the following:

Type of service. If a plan treats providers that accept the reference amount as the only in-network providers, the reference-based pricing should apply only to services for which the time between the discovery of the need for care and the provision of care lets a consumer make an informed choice with regard to their provider. Also, for emergency services, it will not be considered reasonable to limit or exclude a plan’s cost-sharing from counting toward the MOOP with respect to providers who do not accept the reference-based price.

Reasonable access. Plans should ensure that an adequate number of providers accepting a reference price are available to participants and beneficiaries.

Quality standards. The providers accepting the reference price should meet reasonable quality standards.

Exceptions process. This should be easily accessible, and services rendered by providers that do not accept the reference price should be treated by the plan as if they were administered by a provider that did accept the reference price if: (a) access is unavailable to a provider that accepts the reference price or (b) quality could be compromised with the reference price provider.

Disclosure. A fee may not be charged for the following disclosures: (1) information on pricing structure, which should be provided automatically; and (b) upon request, a list of providers accepting the reference price, a list of providers accepting a negotiated price above the reference price, and information on the process and underlying data that ensure quality standards are met by the providers accepting the reference price.

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