Transparency in Coverage Rules - Public Website Requirement

Just curious if anybody has seen any regulatory guidance or discussion around steps to comply with the transparency in coverage (TiC) rules' requirement to post a link to required rate information on an employer's publicly accessible website in a situation where the employer has no website at all.  I understand that employers can contract with third parties to have them host the information on other websites but under the rules the employer still has to post a link to the other third-party website on the employer's own website so that doesn't solve the issue.  I have seen a few articles that touch on this question and simply advise that employers with no website should consult ERISA counsel.  Unfortunately, the company's ERISA counsel was apparently absent the day they covered this topic in law school.  I don't know what it might cost to create a basic public website for the company that might at least link to a third party site if need be but it strikes me that may be a better way to come at this rather than looking for some exception.  Appreciate any thoughts or suggestions.

The rules on this are unclear at best in my opinion. You may have already read these, but a few helpful articles discussing the lack of clarity in whether/how to link from the employer's public website. (Note that the final regulations place the obligation on the plan, not the employer as plan sponsor.) 

https://aleragroup.com/news/legal-alert-deadline-to-publish-certain-machine-readable-files-pursuant-to-final-cms-transparency-fast-approaching-03242022/

https://www.newfront.com/blog/where-will-employers-post-links-to-tic-machine-readable-files

The second is from Brian Gilmore, who I know is active on here, so maybe he will weigh in. 

From my reading, and as noted in the first article, the commonly quoted public-website link language is found only in a specific section of the regulations dealing with an aggregated out-of-network "allowed amount" file. I don't read it as a general requirement for every plan (or every employer).

The communications from carriers to plan sponsors that I've seen generally have requested links on employer websites under all circumstances, even for fully insured plans, which I think is overbroad.  

Not sure you're going to find a perfectly clear answer. 

Read Brian Gilmore’s article, which sets out a great logic path for an employer that administers its “self-insured” group health plan.

To that article’s smart ordering, I might add another possibility:

An internet site designed for much of the content to be “behind the password” might also have some webpages that are deliberately “in front of the password”. For example, a website’s landing page might include hyperlinks to publicly available webpages, which would present or link to information the employer/administrator allows anyone to see with no password or other identifier.

Some retirement plans I advise use this format.

We just recently got a helpful technical clarification post from CMS that addresses the issue:

https://www.cms.gov/healthplan-price-transparency/resources/technical-clarification

Thanks, Brian.  This is very helpful.

Just to be sure I'm interpreting correctly, I read this to basically eliminate any requirement that the plan (employer) also provide a link to the files on the plan's public website?  I assume plans may reference or provide instructions for accessing the files in printed SPDs or other communications to participants in order to provide notice of the postings but the Answer here doesn't seem to mandate any particular actions.  Hopefully there will be more formal guidance soon.

I read it to say that employers without a public website for the group health plan may satisfy the disclosure requirements by entering into a written agreement with the TPA to post the files on the TPA’s public website on behalf of the plan.  More guidance to come, but that's at least addressing the biggest gap in the guidance previously.

The files are for machines to read, so I wouldn't include them in the SPD.  It's a way for big data orgs to mine for info on pricing structures that have previously been proprietary.  It's not a employee tool.  That one comes later starting in '23.

Thanks