One mandate under the PPACA [1] required health care providers, non-grandfathered health insurance issuers and self-insured group health plans to provide consumers with access to information about the cost of services before they receive care (“Transparency in Coverage” or “TiC”). During his first term, President Trump issued an Executive Order requiring hospitals, group health plans, and health insurers to disclose the cost of services to consumers (“2019 E.O.”). Consistent with the PPACA mandate [2], final TiC rules were issued by the Departments on November 12, 2020 (“Rule”). The Rule builds on recent federal efforts to promote price transparency in health care, and requires health care providers, health insurance issuers and self-insured group health plans to provide consumers with sufficient information to “shop” for health care services. According to the Patient Rights Advocate only 21 percent of hospitals complied with the Rule in 2024.
On February 25, 2025, President Trump issued an Executive Order (“2025 E.O.”) entitled “Making America Healthy Again by Empowering Patients With Clear, Accurate, and Actionable Healthcare Pricing Information.” The 2025 E.O. increases the TiC compliance obligations and directs the Departments to implement and enforce healthcare price transparency regulations within ninety (90) days of the 2025 E.O. by: (1) requiring disclosure of actual prices, not estimates (emphasis added); (2) ensuring pricing information is standardized; and (3) updating enforcement policies to ensure compliance with the TiC requirements [3]. The 2025 E.O. reflects the current Administration’s interest in fostering consumer driven health care initiatives and is a sign that there may be more enforcement actions with respect to price transparency.
Sponsors and Plan Administrators of insured group health care arrangements should confirm that the Plan’s insurance carrier(s) and their providers are in compliance with TiC requirements. A Plan administrator of any self-insured group health care plan should make sure its third-party administration (“TPA”) agreement includes a certification that the TPA and all providers with which it contracts will comply with the Rule and 2025 E.O. Since there are penalties for non-compliance [4], the TPA agreement should include an indemnification by the TPA to the Plan, Plan Sponsor and Plan Administrator for any penalties and/or costs incurred due to any failure by the TPA or any of its providers to comply with these transparency rules. This highlights the need to adhere to a prudent fiduciary process under ERISA in the both the selection of vendors and terms of vendor arrangements.
Saul Ewing will continue to monitor guidance relating to consumer driven health care and other benefit plan developments. This article is not intended to serve as legal advice. Please reach out to the Saul Ewing Benefits Group to address your specific employee benefits questions.
[1]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).
[2]In response to Executive Order 13877 and consistent with sections 1311(e)(3) of the PPACA and section 2715A of the Public Health Services Act (“PHSA”) Act, the Departments of Labor, and Health and Human Services and Treasury (“Departments”) published a Notice of Proposed Regulations entitled ‘‘Transparency in Coverage’’ on November 27, 2019
[3]Compliance with the TiC by the Departments has been subject to certain safe harbors, non-enforcement polices and enforcement discretion. States regulate compliance with the TiC by health insurance carriers. See: ACA FAQ’s 49, 53 and 61.
[4]0Up to $100 per day (adjusted annually) for each violation and for each individual affected by the violation.
