Vol. 78 Friday,
No. 169 August 30, 2013
Part VI
Department of Health and Human Services
45 CFR Parts 147, 153, 155, et al.
Patient Protection and Affordable Care Act; Program Integrity: Exchange,
SHOP, and Eligibility Appeals; Final Rule
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1
Patient Protection and Affordable Care Act;
Establishment of Exchanges and Qualified Health
Plans; Exchange Standards for Employers, 77 FR
18310 (March 27, 2012).
2
Patient Protection and Affordable Care Act;
Standards Related to Reinsurance, Risk Corridors
and Risk Adjustment, 77 FR 17220 (March 23,
2012).
3
Patient Protection and Affordable Care Act; HHS
Notice of Benefit and Payment Parameters for 2014
and Amendments to the HHS Notice of Benefit and
Payment Parameters for 2014, 78 FR 15410 and
15541 (Mar. 11, 2013).
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Parts 147, 153, 155, and 156
[CMS–9957–F]
RIN 0938–AR82
Patient Protection and Affordable Care
Act; Program Integrity: Exchange,
SHOP, and Eligibility Appeals
AGENCY
:
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION
:
Final rule.
SUMMARY
:
This final rule implements
provisions of the Patient Protection and
Affordable Care Act and the Health Care
and Education Reconciliation Act of
2010 (collectively referred to as the
Affordable Care Act). Specifically, this
final rule outlines Exchange standards
with respect to eligibility appeals,
agents and brokers, privacy and
security, issuer direct enrollment, and
the handling of consumer cases. It also
sets forth standards with respect to a
State’s operation of the Exchange and
Small Business Health Options Program
(SHOP). It generally is finalizing
previously proposed policies without
change.
DATES
:
These regulations are effective
on September 30, 2013.
FOR FURTHER INFORMATION CONTACT
:
Leigha Basini at (301) 492–4380, or
Noah Isserman at (301) 492–4401 for
general information and matters relating
to parts 155 and 156.
Seth Schneer at (301) 492–4405 for
matters relating to the SHOP.
Jacob Ackerman at (301) 492–4179 for
matters relating to part 147.
Jaya Ghildiyal at (301) 492–5149 for
matters relating to part 153.
Christine Hammer at (301) 492–4431
for matters relating to part 155 subpart
F.
Paul Tibbits at (301) 492–4229 for
matters relating to part 156, subpart K.
SUPPLEMENTARY INFORMATION
:
Electronic Access
This
Federal Register
document is
also available from the
Federal Register
online database through
Federal Digital
System (FDsys),
a service of the U.S.
Government Printing Office. This
database can be accessed via the
internet at
http://www.gpo.gov/fdsys
.
Acronyms and Short Forms
Because of the many organizations
and terms to which we refer by acronym
in this proposed rule, we are listing
these acronyms and their corresponding
terms in alphabetical order below:
Affordable Care Act The Affordable Care
Act (which is the collective term for the
Patient Protection and Affordable Care Act
(Pub. L. 111–148) and the Health Care and
Education Reconciliation Act of 2010 (Pub.
L. 111–152))
AV Actuarial Value
CFR Code of Federal Regulations
CHIP Children’s Health Insurance Program
CMP Civil Money Penalty
CMS Centers for Medicare & Medicaid
Services
DOI State Department of Insurance
DOL U.S. Department of Labor
EFT Electronic Funds Transfer
EHB Essential Health Benefits
FEHB Federal Employees Health Benefits
FFE Federally-facilitated Exchange
FFE API Federally-facilitated Exchange
Application Programming Interface
FF–SHOP Federally-Facilitated Small
Business Health Options Program
GAO United States Government
Accountability Office
GLBA Gramm Leach Bliley Act
HHS U.S. Department of Health and Human
Services
HIPAA Health Insurance Portability and
Accountability Act of 1996 (Pub. L. 104–
191, as amended) and its implementing
regulations
IRS Internal Revenue Service
LEP Limited English Proficiency
MAGI Modified Adjusted Gross Income
MLR Medical Loss Ratio
NAIC National Association of Insurance
Commissioners
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PCIP Pre-existing Condition Insurance Plan
PHI Protected Health Information
PHS Act Public Health Service Act
PII Personally Identifiable Information
PRA Paperwork Reduction Act
QHP Qualified Health Plan
SHOP Small Business Health Options
Program
The Code Internal Revenue Code of 1986
TIN Taxpayer Identification Number
Executive Summary
Starting on January 1, 2014, qualified
individuals and qualified employees
will be able to be covered by private
health insurance coverage through
competitive marketplaces called
Affordable Insurance Exchanges, or
‘‘Exchanges’’ (also called Health
Insurance Marketplaces). This rule sets
forth standards for eligibility appeals,
verification of eligibility for minimum
essential coverage, and treatment of
incomplete applications. It also
establishes additional consumer
protections regarding privacy and
security; clarifies the role of agents,
brokers, and issuer application assisters
in assisting consumers with obtaining
Exchange coverage; provides for the
handling consumer cases; and
establishes non-discrimination
standards for methods of premium
payment. Finally, it sets forth provisions
regarding a State’s operation of the
SHOP.
Although many of the provisions in
this rule will become effective by
October 1, 2013, we do not believe that
affected parties will have difficulty
complying with the provisions by their
effective dates, because the standards
are based on existing standards
currently in effect in the private health
insurance market, were previously
addressed in the Exchange Blueprint
process, discussed in agency-issued sub-
regulatory guidance, or discussed in the
preambles to the Exchange
Establishment Rule,
1
Premium
Stabilization Rule,
2
or the HHS Notice
of Benefit and Payment Parameters for
2014.
3
In addition to comments on the
substance of the provisions we are now
finalizing, we sought input on ways to
implement the proposed policies to
minimize burden.
Table of Contents
I. Background
A. Legislative Overview
B. Stakeholder Consultation and Input
II. Provisions of the Proposed Regulations
and Analysis of and Responses to Public
Comments
A. Part 147—Health Insurance Reform
Requirements for the Group and
Individual Health Insurance Markets
1. Fair Health Insurance Premiums
B. Part 153—Standards Related to
Reinsurance, Risk Corridors, and Risk
Adjustment Under the Affordable Care
Act
1. Subpart F— Health Insurance Issuer
Standards Related to the Risk Corridors
Program
C. Part 155—Exchange Establishment
Standards and Other Related Standards
Under the Affordable Care Act
1. Subpart A—General Provisions
2. Subpart B—General Standards Related to
the Establishment of an Exchange
3. Subpart C—General Functions of an
Exchange
4. Subpart D—Exchange Functions in the
Individual Market: Eligibility
Determinations for Exchange
Participation and Insurance Affordability
Programs
5. Subpart E—Exchange Functions in the
Individual Market: Enrollment in
Qualified Health Plans
6. Subpart F—Appeals of Eligibility
Determinations for Exchange
Participation and Insurance Affordability
Programs
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4
Section 1321(c) of the Affordable Care Act
erroneously cites to section 2736(b) of the PHS Act
instead of 2723(b) of the PHS Act. This was clearly
a typographical error, and we have interpreted
section 1321(c) of the Affordable Care Act to
incorporate section 2723(b) of the PHS Act.
7. Subpart H—Exchange Functions: Small
Business Health Options Program
(SHOP)
D. Part 156—Health Insurance Issuer
Standards Under the Affordable Care
Act, Including Standards Related to
Exchanges
1. Subpart A—General Provisions
2. Subpart C—Qualified Health Plan
Minimum Certification Standards
3. Subpart D—Federally-facilitated
Exchange Qualified Health Plan Issuer
Standards
4. Subpart I—Enforcement Remedies in
Federally-facilitated Exchanges
5. Subpart K—Cases Forwarded to
Qualified Health Plans and Qualified
Health Plan Issuers in Federally-
facilitated Exchanges by HHS
6. Subpart M—Qualified Health Plan Issuer
Responsibilities
III. Collection of Information Requirements
IV. Regulatory Impact Analysis
V. Regulations text
I. Background
A. Legislative Overview
The Patient Protection and Affordable
Care Act (Pub. L. 111–148) was enacted
on March 23, 2010. The Health Care and
Education Reconciliation Act of 2010
(Pub. L. 111–152), which amended and
revised several provisions of the Patient
Protection and Affordable Care Act, was
enacted on March 30, 2010. In this final
rule, we refer to the two statutes
collectively as the ‘‘Affordable Care
Act.’’
Subtitles A and C of Title I of the
Affordable Care Act reorganized,
amended, and added to the provisions
of Title XXVII of the Public Health
Service Act (PHS Act) relating to health
insurance issuers in the group and
individual markets and to group health
plans that are non-Federal governmental
plans. As relevant here, section 2701 of
the PHS Act (fair health insurance
premiums) provides that the premium
rate charged by a health insurance
issuer for non-grandfathered health
insurance coverage in the individual or
small group market may vary with
respect to a particular plan or coverage
only based on family size, rating area,
age (within a ratio of 3:1 for adults), and
tobacco use (within a ratio of 1.5:1).
Starting on October 1, 2013 for
coverage starting as soon as January 1,
2014, qualified individuals and
qualified employers will be able to
enroll in qualified health plans
(QHPs)—private health insurance that
has been certified as meeting certain
standards—through competitive
marketplaces called Exchanges or
Health Insurance Marketplaces. The
Departments of Health and Human
Services, Labor, and the Treasury have
been working in close coordination to
release guidance related to QHPs and
Exchanges in several phases. The word
‘‘Exchanges’’ refers to both State
Exchanges, also called State-based
Exchanges, and Federally-facilitated
Exchanges (FFEs). In this final rule, we
use the terms ‘‘State Exchange’’ or
‘‘FFE’’ when we are referring to a
particular type of Exchange. When we
refer to ‘‘FFEs,’’ we are also referring to
State Partnership Exchanges, which are
a form of FFE.
In the proposed rule, we encouraged
State flexibility. Sections 1311(b) and
1321(b) of the Affordable Care Act
provide that each State has the
opportunity to establish an Exchange.
Section 1311(b)(1) gives each State the
opportunity to establish an Exchange
that both facilitates the purchase of
QHPs and provides for the
establishment of a Small Business
Health Options Program (SHOP) that
will help qualified employers enroll
their qualified employees in QHPs.
Section 1311(b)(2) contemplates the
separate operation of the individual
market Exchange and the SHOP under
different governance and administrative
structures, permitting the individual
market Exchange and SHOP to be
merged if States have adequate
resources to assist both populations
(individual and small employers).
Section 1321(a) of the Affordable Care
Act provides general authority for the
Secretary of Health and Human Services
(referred to throughout this rule as the
Secretary) to establish standards and
regulations to implement the statutory
requirements related to Exchanges,
QHPs, and other components of Title I
of the Affordable Care Act.
Section 1321(c)(1) requires the
Secretary to establish and operate an
FFE within States that either: do not
elect to establish an Exchange or, as
determined by the Secretary, will not
have any required Exchange operational
by January 1, 2014.
Section 1321(c)(2) of the Affordable
Care Act authorizes the Secretary to
enforce the Exchange standards using
civil money penalties (CMPs) on the
same basis as detailed in section 2723(b)
of the PHS Act.
4
Section 2723(b) of the
PHS Act authorizes the Secretary to
impose CMPs as a means of enforcing
the individual and group market
reforms contained in Title XXVII, Part A
of the PHS Act when a State fails to
substantially enforce these provisions,
as determined by the Secretary.
Section 1311(d)(4)(A) of the
Affordable Care Act directs that each
Exchange must implement procedures
for the certification, recertification, and
decertification of health plans as QHPs,
consistent with guidelines developed by
the Secretary.
Section 1312(c) of the Affordable Care
Act directs a health insurance issuer to
consider all enrollees in all health plans
(other than grandfathered health plans)
offered by such issuer to be members of
a single risk pool for each of its
individual and small group markets.
Section 1312(c) of the Affordable Care
Act also gives States the option to merge
the individual and small group markets
within the State into a single risk pool.
Section 1312(e) of the Affordable Care
Act directs the Secretary to establish
procedures under which a State may
permit agents and brokers to enroll
qualified individuals and qualified
employers in QHPs through an
Exchange, and to assist individuals in
applying for advance payments of the
premium tax credit and cost-sharing
reductions.
Section 1313 of the Affordable Care
Act, combined with section 1321 of the
Affordable Care Act, provides the
Secretary with the authority to oversee
the financial integrity, compliance with
HHS standards, and efficient and non-
discriminatory administration of State
Exchange activities. Section
1313(a)(6)(A) of the Affordable Care Act
specifies that payments made by,
through, or in connection with an
Exchange are subject to the False Claims
Act (31 U.S.C. 3729, et seq.) if those
payments include any Federal funds.
Under section 1411 of the Affordable
Care Act, the Secretary is directed to
establish a program for determining
whether an individual meets the
eligibility standards for Exchange
participation, advance payments of the
premium tax credit, cost-sharing
reductions, and exemptions from the
shared responsibility payment under
section 5000A of the Code.
Section 1411(g) of the Affordable Care
Act specifies that information provided
by an applicant or received from a
Federal agency may be used only for the
purpose of, and to the extent necessary
in, ensuring the efficient operation of
the Exchange, including for the purpose
of verifying the eligibility of an
individual to enroll through an
Exchange, to claim a premium tax credit
or cost-sharing reduction, or for
verifying the amount of the tax credit or
reduction.
Section 1411(h) of the Affordable Care
Act sets forth civil penalties that any
person may be subject to if he or she
fails to provide correct information or
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5
Questions and Answers Related to Health
Insurance Market Reforms (April 26, 2013).
Available at:
http://www.cms.gov/CCIIO/Resources/
Fact-Sheets-and-FAQs/qa
_
hmr.html
.
knowingly and willfully provides false
or fraudulent information under section
1411(b), or improperly uses or discloses
information provided by an applicant or
another Federal agency under section
1411(b), (c), (d), or (e).
Sections 1412 and 1413 of the
Affordable Care Act and section 1943 of
the Social Security Act (the Act), as
added by section 2201 of the Affordable
Care Act, contain additional provisions
regarding eligibility for advance
payments of the premium tax credit and
cost-sharing reductions, as well as
provisions regarding simplification and
coordination of eligibility
determinations and enrollment with
other health programs.
Unless otherwise specified, the
provisions in this final rule related to
the establishment of minimum
functions of an Exchange are based on
the general authority of Secretary under
section 1321(a)(1) of the Affordable Care
Act.
B. Stakeholder Consultation and Input
HHS has consulted with stakeholders
on a number of polices related to the
operation of Exchanges, including the
SHOP, and premium stabilization
programs. HHS has held a number of
listening sessions with consumers,
providers, employers, health plans, and
State representatives to gather public
input. HHS consulted with stakeholders
through regular meetings with the
National Association of Insurance
Commissioners (NAIC); regular contact
with States through the Exchange
establishment grant process and the
Exchange Blueprint approval process;
and meetings with tribal leaders and
representatives, health insurance
issuers, trade groups, consumer
advocates, employers, and other
interested parties. We considered all of
the public input as we developed the
policies in the proposed rule and this
final rule.
II. Provisions of the Proposed
Regulations and Analysis of and
Responses to Public Comments
A proposed rule, titled ‘‘Patient
Protection and Affordable Care Act;
Program Integrity: Exchange, SHOP,
Premium Stabilization Programs, and
Market Standards’’ (78 FR 37032), was
published in the
Federal Register
on
June 19, 2013 with a comment period
ending on July 19, 2013. In total, we
received 99 public comments on the
proposed rule from various
stakeholders, including States, health
insurance issuers, consumer groups,
agents and brokers, provider groups,
Members of Congress, Tribal
organizations, and other stakeholders.
Of the comments received, about 22
were substantially identical submissions
related to non-discrimination standards,
Web-brokers, incomplete applications,
and payment method non-
discrimination standards for the
unbanked. We received a few comments
that were outside the scope of the
proposed rule. In this final rule, we
provide a summary of each proposed
provision, a summary of the public
comments received and our responses to
them, and the policies we are finalizing.
We are not finalizing all the provisions
from this proposed rule. This final rule
includes those provisions that need to
be effective for the beginning of open
enrollment on October 1, 2013. We will
finalize the other provisions at a later
date.
Another proposed rule, entitled
‘‘Essential Health Benefits in Alternative
Benefit Plans, Eligibility Notices, Fair
Hearing, and Appeal Processes for
Medicaid and Exchange Eligibility
Appeals and Other Provisions Related to
Eligibility and Enrollment for
Exchanges, Medicaid and CHIP, and
Medicaid Premiums and Cost Sharing’’
(78 FR 4594), was published in the
Federal Register
on January 22, 2013
with a comment period ending on
February 13, 2013. We received a total
of 741 comments from various
stakeholders including individuals,
State Medicaid agencies, advocacy
groups, and Tribal organizations. In this
final rule, we are only addressing from
that proposed rule the provisions
related to appeals in Part 155 Subpart F
and § 155.740. Other provisions from
the January 22, 2013 proposed rule were
finalized in a final rule, titled ‘‘CMS–
2234–F: Medicaid and Children’s Health
Insurance Programs: Essential Health
Benefits in Alternative Benefit Plans,
Eligibility Notices, Fair Hearing and
Appeal Processes, and Premiums and
Cost Sharing; Exchanges: Eligibility and
Enrollment’’ (78 FR 42160) published in
the
Federal Register
on July 15, 2013.
A. Part 147—Health Insurance Reform
Requirements for the Group and
Individual Health Insurance Markets
1. Fair Health Insurance Premiums
(§ 147.102)
We proposed two clarifications in
§ 147.102, which implements section
2701 of PHS Act regarding fair health
insurance premiums. In paragraph (a),
we proposed to add a reference to the
single risk pool standard codified in
§ 156.80 to clarify the connection
between section 1312(c) of the
Affordable Care Act and section 2701 of
the PHS Act with respect to the
development of rates and premiums for
health insurance coverage in the
individual and small group markets.
In paragraph (a)(1)(ii), we proposed to
clarify that for rating purposes under
section 2701 of the PHS Act, the
geographic rating area is determined in
the small group market using the
principal business address of the group
policyholder, and in the individual
market using the address of the primary
policyholder, regardless of the location
of other individuals covered under the
plan or coverage. These proposed
standards would apply both inside and
outside of the Exchanges and are
consistent with previously released
guidance describing our intended
approach.
5
We solicited comments on
this proposal.
Comment:
While some commenters
supported our proposal that issuers in
the small group market apply rates
based on the employer’s principal
business address, other commenters
noted that issuers in some States have
already developed administrative
systems and rates for 2014 based on
guidance from State regulators to use
each employee’s place of residence.
These commenters requested that States
have flexibility to use either employer
or employee address when rating for
geography.
Response:
We believe it is important
that all issuers offering coverage within
a State, both through the Exchanges and
outside of the Exchanges, use a
consistent geographic rating
methodology to promote the accuracy of
the risk adjustment program established
under section 1343 of the Affordable
Care Act. Further, we believe that rating
based on the employer’s principal
business address is consistent with
current prevailing industry practice and
will simplify administration of the
geographic rating factor. We recognize,
however, that issuers in some cases may
have relied in good faith on guidance or
instructions from States to rate based on
employee address for 2014. Thus, while
we are finalizing our proposed policy
that geographic rating be based on the
employer’s principal business address
generally for plan years beginning on or
after January 1, 2014, we are also
providing in this final rule that where
issuers can demonstrate that they have
relied in good faith on different
guidance from a State insurance
regulator prior to the issuance of this
final rule, the amendments to
§ 147.102(a)(1)(ii) will not apply until
the first plan year beginning on or after
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Subpart M—Qualified Health Plan
Issuer Responsibilities
§ 156.1230 Direct enrollment with the QHP
issuer in a manner considered to be
through the Exchange.
(a) A QHP issuer that is directly
contacted by a potential applicant may,
at the Exchange’s option, enroll such
applicant in a QHP in a manner that is
considered through the Exchange. In
order for the enrollment to be made
directly with the issuer in a manner that
is considered to be through the
Exchange, the QHP issuer needs to
comply with at least the following
requirements:
(1)
QHP issuer general requirements.
(i) The QHP issuer follows the
enrollment process for qualified
individuals consistent with § 156.265.
(ii) The QHP issuer’s Web site
provides applicants the ability to view
QHPs offered by the issuer with the data
elements listed in § 155.205(b)(1)(i)
through (viii) of this subchapter.
(iii) The QHP issuer’s Web site clearly
distinguishes between QHPs for which
the consumer is eligible and other non-
QHPs that the issuer may offer, and
indicate that advance payments of the
premium tax credit and cost sharing
reductions apply only to QHPs offered
through the Exchange.
(iv) The QHP issuer informs all
applicants of the availability of other
QHP products offered through the
Exchange through an HHS-approved
universal disclaimer and displays the
Web link to and describes how to access
the Exchange Web site.
(v) The QHP issuer’s Web site allows
applicants to select and attest to an
advance payment of the premium tax
credit amount, if applicable, in
accordance with § 155.310(d)(2) of this
subchapter.
(2)
QHP issuer application assister
eligibility application assistance
requirements.
If permitted by the
Exchange pursuant to § 155.415 of this
subchapter, and to the extent permitted
by State law, a QHP issuer may permit
its issuer application assisters, as
defined at § 155.20, to assist individuals
in the individual market with applying
for a determination or redetermination
of eligibility for coverage through the
Exchange and for insurance affordability
programs, provided that such issuer
ensures that each of its application
assisters at least-
(i) Receives training on QHP options
and insurance affordability programs,
eligibility, and benefits rules and
regulations;
(ii) Complies with the Exchange’s
privacy and security standards adopted
consistent with § 155.260 of this
subchapter; and
(iii) Complies with applicable State
law related to the sale, solicitation, and
negotiation of health insurance
products, including applicable State law
related to agent, broker, and producer
licensure; confidentiality; and conflicts
of interest.
(b)
Direct enrollment in a Federally-
facilitated Exchange.
The individual
market Federally-facilitated Exchanges
will permit issuers of QHPs in each
Federally-facilitated Exchange to
directly enroll applicants in a manner
that is considered to be through the
Exchange, pursuant to paragraph (a) of
this section, to the extent permitted by
applicable State law.
§ 156.1240 Enrollment process for
qualified individuals.
(a)
Premium payment.
A QHP issuer
must—
(1) Follow the premium payment
process established by the Exchange in
accordance with § 155.240.
(2) At a minimum, for all payments in
the individual market, accept paper
checks, cashier’s checks, money orders,
EFT, and all general-purpose pre-paid
debit cards as methods of payment and
present all payment method options
equally for a consumer to select their
preferred payment method.
(b) [Reserved]
(Catalog of Federal Domestic Assistance
Program No. 93.778, Medical Assistance
Program)
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: August 13, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: August 15, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human
Services.
[FR Doc. 2013–21338 Filed 8–28–13; 4:15 pm]
BILLING CODE 4120–01–P
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