In an executive order designed to promote health care price transparency, the Trump Administration directed DOL, HHS, and Treasury (Departments) to issue guidance in the near future addressing several key issues in the health and welfare plans space. The order, which was issued on June 24, 2019, directs the Departments to provide guidance on topics that include high-deductible health plans (HDHPs), health savings accounts (HSAs), Code Section 213(d) medical expenses, and health flexible savings arrangements (health FSAs).

Some of the order's provisions are targeted at surprise balance billing practices, under which individuals receive health care and are charged the difference between a health provider's fee and the amount paid by the individual's health plan (see Practice Note, Patient Protections and Clinical Trials Under the ACA: Cost-Sharing Requirements: Balance Billing). Surprise billing can arise in the emergency health care context, including emergency room services:

To combat this practice, the order instructs HHS to propose regulations that would require hospitals to publicly post (and regularly update) standard charge information for services, supplies, or fees billed by hospitals.

The order also directs the Departments to issue regulations and request comments on a proposal to require health providers, health insurers, and self-funded group health plans to provide or facilitate access to information about expected out-of-pocket costs for items or services to individuals before they receive care. The Departments must issue this guidance within 90 days of the order's date (that is, June 24, 2019).

HHS also must submit a report to the President (within 180 days) concerning additional steps the Trump Administration may take to address surprise medical billing.

The order directs HHS, in consultation with DOL, Treasury, the Office of Personnel Management (OPM), and other agencies to provide increased access to de-identified health claims data from group health plans and taxpayer-funded health care programs. This guidance, which must be provided within 180 days, must be consistent with current law on individuals' privacy and security (which presumably includes requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); see HIPAA Privacy, Security, and Breach Notification Toolkit). Among other purposes, the claims data will be used to identify inefficiencies in the delivery of health care (for example, patterns in performing medical procedures that fall outside recommended standards of care) (see Practice Note, Internal Claims and Appeals Under the ACA).

The order includes three directives that would impact existing design parameters for certain health and welfare arrangements.

First, the order directs the IRS to issue proposed regulations (within 120 days) to expand individuals' ability to choose HDHPs that can be used with HSAs – and that cover low-cost preventive care, pre-deductible – for medical care that helps maintain health status for individuals with chronic conditions (see Practice Note, Defined Contribution Health Plans: Overview: Health Savings Accounts (HSAs)).

Second, the IRS must propose regulations (within 120 days) to treat expenses related to certain types of benefit arrangements (for example, primary care arrangements and health care sharing ministries) as eligible medical expenses under Code Section 213(d) (26 U.S.C. § 213(d); see Practice Note, Cafeteria Plans: Health FSA Carryovers and HSA Eligibility and Legal Update, HHS Final Rules Expand Enforcement of Federal Conscience Protections for Health Care Entities).

Third, IRS must issue guidance (within 180 days) to increase the amount of funds that individuals can carry over without penalty at the end of the year under an FSA (see Practice Note, Cafeteria Plans: Flexible Spending Arrangements).

The order instructs HHS and other agencies to develop a "health quality roadmap" to improve reporting on data and quality measures across Medicare, Medicaid, the Children's Health Insurance Program (CHIP), the health insurance marketplace, the military health system (TRICARE), and the Veterans Affairs Health System (see Article, Health Insurance Exchange and Related Requirements Under the ACA).

In addition to the Trump Administration's proposals, efforts to address surprise balance billing are also underway in Congress, where a bill titled the Lower Health Care Costs Act (LHCCA) is in committee in the Senate. The states, too, have enacted laws regarding surprise billing. If recent experience is an indicator, the administration's proposals could have far-reaching implications in the near future for HSAs, HDHPs, and health FSAs. Health plan sponsors, administrators, and their advisors should expect additional guidance in upcoming months in response to the administration's order. An earlier Trump Administration order on health policy (Executive Order 13813 (October 2017)) resulted in a series of regulations (now final, though also the subject of federal court litigation) that address: