Deadline for Prescription Drug and Health Care Spending Reporting
The Consolidated Appropriations Act (CAA) adopted a new prescription drug reporting mandate on November 12, 2021. The mandate requires group health plans and group health insurers to submit prescription drug and health care spending reports to the Department of Labor, the Department of Health and Human Services, and the Internal Revenue Service (“the agencies”) on annual basis. Under the CAA, the following information must be reported to the agencies by December 27, 2022:
- Start and end dates of the plan year;
- Total number of participants in the plan;
- Each state where the plan or coverage is offered;
- The top 50 brand prescription drugs by frequency and the total number of paid claims for each drug;
- The top 50 prescription drugs by annual total spend and the total amount spent on each drug;
- The 50 prescription drugs contributing to the biggest increase in plan costs compared to the prior plan year, and the total cost difference for each drug compared to the prior plan year;
- Total medical and prescription drug spending broken down into various categories (including hospital costs, professional costs for primary care and specialists, prescription drugs, and other medical costs);
- Average monthly premium paid, split between the employer and employee; and
- Any impact on premium or out-of-pocket cost impact due to rebates or other payments by drug manufacturers. This includes reporting on rebates or other remuneration paid by drug manufacturers to the plan sponsor by therapeutic class and for each of the top 25 drugs yielding the highest rebates or other remuneration.
Most of this information may be aggregated at the state/market level, rather than separately for each plan. The only plan-level information collected is the general plan information. Plans and insurers must submit this information based on the calendar year immediately preceding the calendar year in which the data submission is due (the “reference year”) beginning on December 27, 2021. However, the agencies have advised that the reporting deadlines for the 2020 and 2021 reference years will be delayed until December 27, 2022. Subsequent due dates would be the following June 1 for the next reference year. Therefore, plans and health plan issuers are required to submit the reports for the 2020 and 2021 reference years by December 27, 2022 to avoid enforcement action. The deadline to submit the report for the 2022 reference year is June 1, 2023.
HHS has released data submission instructions for the 2020 and 2021 reference years. In addition, the instructions explain how the data is to be submitted through the RxDC module in the Health Insurance Oversight System (HIOS).
Insured plans may enter into a written agreement with their health insurance carrier to report the required information. If the carrier fails to report, then the carrier violates the reporting requirements, not the plan. For both insured and self-insured plans, the carrier or plan may enter into a written agreement with a third-party reporting entity (such a PBM or TPA) to comply with the reporting requirements. If the third-party entity fails to report the required information, the plan or carrier violates the reporting requirements and not the third-party entity. Therefore, the agreements should be written to indemnify the plan or carrier against any enforcement actions for failure to report.
If you have any questions regarding this Alert, please contact the authors, E. Rena Felton, counsel in our Atlanta office at efelton@fordharrison.com or Tiffany Downs, partner in our Atlanta office and head of our employee benefits practice group at tdowns@fordharrison.com.
