To All Brokers, Employers, Carriers, TPAs, and PBMs:
We are writing this to all players involved in Section 204[1] RxDC Reporting. This includes employers sponsoring fully insured, level-funded, and self-insured group medical plans; brokers who facilitate employers, and carriers, TPAs, and PBMs who are paid to administer those plans. For simplicity, we use the term “Carrier” as a catch-all for carriers, including their respective TPAs and PBMs, who are engaging in the type of antics we outline below. We use the term “Plan Sponsor” to encompass employers who sponsor health plans subject to RxDC Reporting.
In the following sections, we provide examples of Carrier communications released in early February, explain why we are mad (and you should be, too), provide perspective for Plan Sponsors, and address Carriers. This article isn’t as long as it appears. It’s full of screen shots from Carrier communications regarding their processes for handling RxDC Reporting. Here’s what we have seen as of February 20, 2023.
March Madness Caused by Carrier Communications.
Let’s get our arms wrapped around the February frenzy that’s leading us to March Madness prematurely. By March Madness, we are referring to the arbitrary deadlines with which many of our Carriers have shackled Plan Sponsors, forcing them to make decisions for the 2022 reference year that they don’t have enough information to make.
Carriers making our final four are being called out for their bad behavior, bullying, and fiduciary theft. Here’s where Carriers stand as of February 17, 2023.
Cigna - February 24
Aetna - March 1
UHC - March 3
Anthem has pushed “pause” on the collection, and we don’t have a record of their prior stance.
This is Maddening.
Here’s what we know.
1. The 2022 RxDC reporting instructions are in progress but have not been released.
2. Every Carrier survey references the 2020/2021 RxDC reporting instructions.
3. Every Carrier survey demands a response by their arbitrary deadline.
4. The 2022 RxDC reporting deadline is June 1, 2023.
That’s it. With those four knowns, we can explain why the Carrier deadlines are maddening, arbitrary, bad behavior, and fiduciary theft.
We don’t know what changes the 2022 instructions will bring.
Yes, there will be changes in the 2022 instructions. What changes will there be? We don’t know. No one does because they have not been released. Hopefully, our friends at CMS RxDC Division have taken the last two months’ worth of stakeholders’ questions, be it by REGTAP webinars or REGTAP email policy questions, and address a fraction of them. We can expect, at a minimum, clarifications, examples, and a new understanding that their expectations for cooperation amongst competitors was misplaced.
We don’t know when the 2022 instructions will be released.
The 2022 RxDC reporting instructions are in progress but not yet published. We don’t even have a best guestimate as to when we can expect them.
Carriers’ insistence that Plan Sponsors “respond or else” to questions asked based on faulty assumptions is a breach of their duties and, arguably, in violation of the CAA, 2021.
Carriers are bullying Plan Sponsors.
Asking Plan Sponsors to complete Carrier “surveys” which are nothing more than a cut and paste of 2020/2021 instructions and data fields and then stonewalling when they ask for clarification is being a bully. Moreover, it’s bullying behavior to put fear in the Plan Sponsors for failing to act “timely” and threatening them with noncompliance. This is unacceptable and untrue.
For Plan Sponsors of fully insured and level-funded plans, the Carrier has everything except the premium contribution splits. Carriers could send out a one-question survey asking employers to enter their premium contribution structures and nothing more than that. Moving forward, Carriers should build this into the plan renewal process.
Asking Plan Sponsors to complete a multipage survey with little notice, no help, fear of noncompliance, based on obsolete instructions, and doubling down on the deadline is bullying… and arguably illegal under this same law Carriers reference in the introductory paragraph of the demand letter.
The RxDC submission deadline is June 1 for 2022 reference year.
The Carriers’ demands appear to be limited to the plan level (P2) and premiums & life years (D1) data files. Should it really take Carriers, with their manpower and resources, three months to compile the data and file on behalf of the Plan Sponsor?
Moreover, the requirement that those who miss the Carriers’ arbitrary deadlines must sign an NDA to satisfy the Plan Sponsors’ obligations under the law is legally and ethically offensive.
So, let’s calm down and demand that Carriers do the same.
Fiduciary Theft Explained.
Building on the madness, what’s infuriating is that Carriers have blatantly handcuffed Plan Sponsors in their fiduciary responsibilities. Adding insult to injury, the one-sided contracts of adhesion, demonstrated below, explicitly violates Section 201 of the CAA 2021 regarding prohibition of gag clauses. And, because Plan Sponsors feel powerless, they are allowing Carriers to bully them into submissions.
Cigna Upon Request, subject to (1) Cigna approval and (2) with an NDA
Anthem
From what we could tell, Plan Sponsors are not given an option to submit anything more than the D1, and that is only if they are an ASO.
UHC – Disallowing third-party filing, signed NDA, fee for pharmacy, AND they won’t provide the Plan Sponsor’s Data until LATE MAY! Wow. That’s bold.
Plan Sponsors, Take Courage, Take Responsibility, and Stand Up to the Bullies.
Listen, under ERISA, plan sponsors are fiduciaries of the plan. Being a fiduciary is a big deal! What’s an even bigger – and better – deal is that the CAA, 2021 empowered you in your fiduciary duties. It also applies to ALL Plan Sponsors, not just those covered by ERISA.
Explicitly, Section 201 prohibits Plan Sponsors (that’s you, employer) from entering into contracts with gag clauses which is exactly what the Carriers are doing with their NDA’s. Don’t be scared and don’t surrender your fiduciary duties. If anything, file a complaint with your state Department of Insurance (DOI) and let Tri-Agencies[2] know, too.
Carriers, Stop Being a Bully.
Carriers, your demand for responses based on obsolete instructions is wasteful. It’s worth repeating, you can capture the premium contributions for every plan and tier at the beginning of each plan year. This is a reasonable solution going forward.
[1] Section 204 (of Title II, Division BB) of the Consolidated Appropriations Act, 2021 (CAA) [2] The Centers for Medicare and Medicaid Services is collecting the RxDC report on behalf of the Departments of Health and Human Services, the Department of Labor, the Department of Treasury, and the Office of Personnel Management.