Friday, March 25, 2011

A False Alarm at the IRS for TPAs

We normally report on actual legislative/regulatory developments, but this post discusses a false alarm coming from the IRS that appeared to subject health care TPAs to burdensome new reporting requirements in order to help head off any potential industry confusion.

At issue is Department of Treasury Final Rule 6050 W, which was published way back in August of last year. The rule is intended to define “third party transaction settlement organizations” in furtherance of the IRS’ goal of creating a mechanism to better track the flow of money within the economy.

A section in the preamble labeled “Healthcare Networks and Self-Insured Arrangements” got the belated attention of small circle of IRS observers who have a health care focus. The actual preamble language for this section (just three paragraphs) is as follows:

The proposed regulations included an example to demonstrate that health insurance networks are outside the scope of section 6050W because a health care network does not enable the transfer of funds from buyers to sellers. Instead, health carriers collect premiums from covered persons pursuant to a plan agreement between the health carrier and the covered person for the cost of participation in the health care network. Separately, health care carriers pay healthcare providers to compensate providers for services rendered to covered person pursuant to provider agreements. This example is retained in the final regulations.

A commenter requested that the final regulations clarify that a self-insurance arrangement is also outside the scope of Section 6050W. According to the commenter, a typical self-insured arrangement involves a health insurance entity, health care providers, and the company that is self-insuring. The company submits bills for services rendered by a health care provider to the health insurance entity. The health insurance entity pays the healthcare provider the contracted rate and then debits the self-insuring company’s bank account for the payments made to the healthcare providers.

This suggestion was not adopted because this arrangement could create a third party payment network of which the health insurance entity is the third party settlement organization to the extent that the health insurance entity effectively enables buyers (the self-insuring companies) to transfer funds to sellers of healthcare goods or services. If so, payments under a self-insurance arrangements are reportable provided the arrangement meets both the statutory definition of a third party payment network and de minimis threshold (that is, for a given payee, the aggregate payments for year exceed $20,000 and the aggregate number of transactions exceeds 200).

First, it was curious that the IRS received a single comment regarding self-insurance. Moreover, the commentator described self-insured arrangements in an odd way by using the term “health insurance entity” in an apparent reference to TPAs

Based on this interpretation, it would seem that the IRS did construe TPAs as third party payment networks. As a practical matter, this would mean that TPAs would have to expand their current 1099 Misc. reporting procedures to include payments to providers broken down on a monthly basis, which would be complicated and burdensome.

But upon a more detailed legal review of the full text of the regulations, it was concluded that TPAs did not meet the statutory definition of third party payment networks. One of the key considerations is that it is the employer and not the TPA which contracts with provider networks.

In this regard, it seems that the IRS may have indeed wanted to make TPAs subject to the rule, but the statutory language does appear not support this intent, possibly due to ignorance on the part of the Agency on how self-insured health plans operate and the role of the TPA.

Of course, it’s not uncommon for IRS rules to be tested in court so we will be watching to see if any enforcement actions and/or legal challenges arise on this issue.

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