Congressional Hearings Examine Medicare Fraud, ACA, Digital Health, MedPAC Report, Brain Injuries

Recent Congressional hearings on health policy issues include the following:

HHS Provides Update on ACA Insurance Costs and Choices, Announces Management Changes

HHS has released a report on premiums, tax credits, and health plan choices on the ACA federal Marketplace for plans operating in 2014.  In addition, CMS has launched an initiative, dubbed “From Coverage to Care," designed to answer questions consumers may have about their new health coverage under the ACA and to help individuals make the most of their new benefits. The Administration also has announced a number of management changes at CMS designed to strengthen implementation of the ACA going forward, including a Principal Deputy Administrator to oversee ACA Marketplace and other agency operations, a Marketplace Chief Executive Officer, and a Marketplace Chief Technology Officer.

Obama Administration Finalizes Employment Orientation Limit Applicable to ACA Health Coverage Waiting Period

On June 25, 2014, HHS and the Departments of Labor and Treasury are publishing a final rule addressing the treatment of employment orientation periods for purposes of the Affordable Care Act (ACA) health insurance coverage waiting period limitation. The ACA generally bars employer-sponsored group health plans and group health insurance issuers from imposing a health coverage waiting period of more than 90 days after an employee is “otherwise eligible for coverage.” Being “otherwise eligible” to enroll in a plan means having met the plan's substantive eligibility conditions, which could include satisfying a bona fide employment-based orientation period. Under the June 25 final rule, such bona fide employment-based orientation periods may not exceed one month. The rule is intended to “ensure that an orientation period is not used as a subterfuge for the passage of time, or designed to avoid compliance with the 90-day waiting period limitation.” The final regulations apply to group health plans and group health insurance issuers for plan years beginning on or after January 1, 2015.

CMS Abandons Plans to Finalize ACA Medicaid Drug Pricing Policy in July 2014

In an email today to stakeholders, CMS announced that it will not be finalizing the ACA Medicaid federal upper payment limits (FUL) for multiple source drugs in July 2014, as previously intended. CMS attributes the change to a delay in providing detailed guidance to the states in preparation for implementation. CMS expects to announce a new finalization date when it releases this subsequent guidance to states.

CMS Finalizes Updates to Medicare Advantage/Part D Policies for 2015

On May 23, 2014, CMS published a final rule revising the Medicare Advantage (MA) and Part D prescription drug program regulations to implement various statutory requirements, strengthen beneficiary protections, improve program efficiencies and payment accuracy; and clarify program requirements, generally effective for contract year 2015. CMS estimates that the proposed rule would reduce Medicare spending by $1.615 billion between 2015 and 2024. Among many other things, the final rule:

  • Requires that Part D “negotiated prices” be inclusive of all price concessions from network pharmacies except contingent price concessions that cannot reasonably be determined at the point-of-sale, effective beginning with contract year 2016. CMS also specifies that additional contingent amounts, such as incentive fees, that increase prices and that cannot reasonably be determined at the point-of-sale are always excluded from the negotiated price.
  • Implements an ACA requirement that MA plans and Part D sponsors report and return identified Medicare overpayments.
  • Addresses prescription drug abuse by, among other things, authorizing CMS to revoke a physician’s or eligible professional’s Medicare enrollment if he or she has a pattern of prescribing Part D drugs that is abusive and represents a threat to beneficiary health and safety or otherwise fails to meet Medicare requirements, or if the prescriber’s Drug Enforcement Administration (DEA) certificate of registration or state license is suspended or revoked. The rule also requires prescribers of Part D drugs to enroll in Medicare or have a valid record of opting out of Medicare as a condition of coverage for their prescriptions, effective June 1, 2015.

Note that CMS is not finalizing its proposed changes to the ACA “drug categories or classes of clinical concern” requirement; instead, CMS will maintain the existing six protected classes. CMS also is not finalizing its proposal to require consistently lower negotiated prices at pharmacies offering preferred cost sharing in light of its adoption of a different definition of negotiated price than originally proposed. Moreover, CMS is not finalizing its proposed “any willing pharmacy” contracting provisions, nor the proposed changes to limit the authorized levels of cost sharing, pending further study.

CMS Finalizes ACA Exchange, Insurance Market Standards for 2015 and Beyond

On May 27, 2014, CMS published a final rule updating ACA Affordable Insurance Exchange and insurance market standards beginning in 2015. Among other things, the rule addresses standards related to: standardized consumer notices regarding insurance product discontinuation and renewal; Qualified Health Plan (QHP) quality data reporting to support quality ratings for plans on the insurance marketplace beginning in 2016; non-discrimination standards; employee choice in the Small Business Health Options Program (SHOP); enforcement remedies in federally-facilitated exchanges; the imposition of civil money penalties for providing false or fraudulent information to the Exchange and for improperly using or disclosing information; updated standards for “Navigators” and other consumer assistance programs; increases the risk corridor calculation ceiling on allowable administrative costs and the floor on profits by 2% “to account for uncertainty and changes in the market prior to and during benefit year 2015”; and modifies the allocation of reinsurance collections if those collections do not meet projections. The rule also provides for an expedited prescription drug exceptions process based on exigent circumstances (defined as when an enrollee is suffering from a health condition that may seriously jeopardize the enrollee’s life, health, or ability to regain maximum function, or when an enrollee is undergoing a current course of treatment using a non-formulary drug). Under this provision, health plans must make coverage determinations within 24 hours after receiving the request; once an exception is granted, issuers must continue to provide the drug throughout the duration of the exigency. CMS states that it will continue to monitor this issue to consider whether it should propose additional standards.

Congressional Health Policy Hearings

A number of Congressional panels have focused on following health policy issues recently, including the following:

  • The House Ways and Means Health Subcommittee examined various Medicare hospital issues, including the CMS two-midnights policy, short inpatient stays, outpatient observation stays, Recovery Audit Contractor audits, and the appeals backlog.
  • The House Energy and Commerce Committee held a hearing on two bills that seek to equalize payments between different providers: (1) the Medicare Patient Access to Cancer Treatment Act of 2014, which would establish payment parity under the Medicare program for ambulatory cancer care services furnished in the hospital outpatient department and the physician office setting; and (2) the Bundling and Coordinating Post-Acute Care (BACPAC) Act of 2014, which would provide bundled payments for post-acute care services under Medicare Parts A and B.
  • The House Oversight and Government Reform Committee held hearings entitled "Examining the Federal Response to Autism Spectrum Disorders" and "Medicare Mismanagement: Oversight of the Federal Government Effort to Recapture Misspent Funds."
  • The Senate Special Committee on Aging focused on the role of health care providers in advance care planning.
  • The Senate Commerce, Science and Transportation Committee examined the ACA minimum medical loss ratio (MLR) requirements, which requires health insurers to provide rebates to consumers if the plans do not spend sufficient proportion of premium dollars on medical care.
     

OIG Releases Spring Semiannual Report Highlighting Major Program Integrity Efforts

The OIG has issued its spring Semiannual Report to Congress, which summarizes major OIG activities during the period of October 2013 through March 2014. The OIG highlights “ramped up” oversight of Affordable Care Act implementation efforts, particularly with regard to eligibility systems, payment accuracy, contractor oversight, and data security associated with the Health Insurance Marketplaces. Other core areas for the OIG during this time included ensuring the appropriate use of prescription drugs by Medicare and Medicaid beneficiaries, CMS oversight of Medicare contractors, and grants oversight and management. With regard to enforcement activities during the first half of FY 2014, the OIG reported 465 criminal actions against individuals or entities that engaged in crimes against HHS programs, along with 266 civil actions (including false claims and unjust-enrichment lawsuits, civil monetary penalties settlements, and administrative recoveries related to provider self-disclosure matters), and exclusions of 1,720 individuals and entities from participation in federal health care programs. The OIG also expects recoveries of more than $3.1 billion in the first half of FY 2014 (about $295 million in audit receivables and $2.83 billion in investigative receivables.

OIG Proposed Rule Would Expand Civil Monetary Penalty Authority

On the heels of its proposed rule to expand its health program exclusion authority, the Office of Inspector General (OIG) of the Department of Health and Human Services has published a proposed rule that would amend the health care program civil monetary penalty (CMP) regulations. The rule would codify the OIG’s expanded statutory authority under the Affordable Care Act to impose CMPs on providers and suppliers and would allow for significant penalties in a variety of scenarios, some of which could extend beyond what is currently permitted.

Reed Smith attorneys have prepared a Client Alert summarizing and analyzing the OIG’s proposed rule, including the various scenarios under which CMPs could be issued under the proposed regulations, such as: failure to report and return an overpayment; failure to grant OIG timely access to records upon request; ordering or prescribing items or services while excluded from a federal health care program, as well as arranging or contracting with an individual or entity who meets this criteria; making false statements or omitting or misrepresenting material facts in an application, bid, or contract; and failing to submit or certify drug-pricing and product information in a timely manner. In addition, the alert covers the changes in technical language proposed by OIG to clarify and more clearly define the scope of CMP regulations.

The Client Alert is available here.

HHS OIG Proposes Expansion of Exclusion Authorities

On May 9, 2014, the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) published a proposed rule that would significantly expand the exclusion regulations applicable to persons or entities that receive, directly or indirectly, funds from federal health care programs (the Proposed Rule). The Affordable Care Act (ACA) expanded the OIG’s authority for exclusion, and authorized the use of testimonial subpoenas in investigations of exclusion cases. In this Proposed Rule, the OIG incorporates these statutory changes, revises the definitions applicable to exclusions, proposes early reinstatement procedures, and offers a number of proposed policy changes as to when and how exclusions may take place.

Reed Smith has prepared a Client Alert that provides an overview of the Proposed Rule, including: proposed revisions to definitions; new grounds for exclusion; clarifications to existing regulations to add mitigating and aggravating factors; early reinstatement procedures; and proposed procedural changes in the OIG’s exclusion authorities. In particular, we discuss the OIG’s assertion that there should be no statute of limitations within which it would have to seek exclusion. This limitless look-back authority could place a tremendous burden on providers and suppliers, since their conduct and compliance efforts could be second-guessed many years into the future, when supporting documentation and witnesses may be long gone. We also discuss how these proposed changes to the OIG’s exclusion authorities could impact the debarment authority applicable to government contracts more generally.

The Client Alert is available here.

CMS Extends "Hardship Exemptions" Policy for Health Insurance Purchasers

CMS has provided additional guidance on its evolving hardship exemptions policy for individuals who had difficulty signing up for a qualified health plan (QHP) through an Affordable Insurance Exchange by the March 31, 2014 deadline. As previously reported, in March CMS announced it had established a “special enrollment period” for individuals who were “in line” but could not complete the enrollment process by March 31 deadline; such individuals were permitted to claim a hardship exemption from the shared responsibility payment for the months prior to the effective date of their coverage. According to a subsequent May 2, 2014 guidance document, CMS believes that “some consumers may not have realized that the relief provided by the guidance above was limited solely to those individuals purchasing QHPs through the Marketplace.” CMS therefore is extending a comparable hardship exemption for all months prior to the effective date of coverage for individuals who obtained minimum essential coverage effective on or before May 1, 2014 outside of the Marketplace, whether the individual is in a state with a federally-facilitated Marketplace or a state-based Marketplace. The May 2 guidance also discusses special enrollment periods for individuals eligible for COBRA, individuals whose individual market plans are renewing outside of open enrollment, and AmeriCorps/VISTA/National Civilian Community Corps members.

OIG Proposes Rules to Expand Exclusion, CMP Authorities

On May 9, 2014, the Office of Inspector General (OIG) of the Department of Human Services (HHS) published a proposed rule that would significantly expand the exclusion regulations applicable to persons or entities that receive, directly or indirectly, funds from federal health care programs. The Affordable Care Act (ACA) expanded the OIG’s authority for exclusion and authorized the use of testimonial subpoenas in investigations of exclusion cases. In this proposed rule, the OIG incorporates these statutory changes, revises the definitions applicable to exclusions, proposes early reinstatement procedures, and offers a number of proposed policy changes as to when and how exclusions may take place. Comments on the proposed rule are due July 8, 2014. 

Separately, on May 12, the OIG published a proposed rule that would implement the ACA’s expanded civil monetary penalty (CMP) authorities, including penalties for: failure to grant OIG timely access to records; ordering or prescribing while excluded; making false statements, omissions, or misrepresentations in an enrollment application; failure to report and return an overpayment; and making or using a false record or statement that is material to a false or fraudulent claim. The proposed rule addresses when and how these CMPs are applied, the methodology for calculating the penalties, and the liability guidelines under other OIG authorities. Comments will be accepted until July 11, 2014. Reed Smith is preparing Client Alerts regarding both rules, which will be available shortly.

Congressional Committees to Consider HHS Secretary Nomination, HHS Budget, ACA Implementation, Cancer Research

The Senate Appropriations Committee has scheduled a May 7, 2014 hearing to review the Administration’s FY 2015 budget request for the Department of Health and Human Services (HHS). Also on May 7, the House Energy and Commerce Oversight Subcommittee will examine the status of health insurance enrollment under the ACA, and the Senate Aging Committee will focus on cancer research. On May 8, the Senate Health, Education, Labor and Pensions Committee has scheduled a hearing on the nomination of Sylvia Burwell to be HHS Secretary.

CMS Releases Proposed Medicare Inpatient PPS/LTCH Update for FY 2015

Late on April 30, 2014, CMS released the advance text of its proposed rule to update the Medicare acute hospital inpatient prospective payment system (IPPS) and long-term care hospital (LTCH) prospective payment system (PPS) for fiscal year (FY) 2015.

With regard to IPPS hospitals, the rule would provide for a 1.3% operating payment rate update, which reflects a 2.7% market basket update, adjusted by a -0.4 percentage point multi-factor productivity cut and an additional -0.2 percentage point cut (both mandated by the Affordable Care Act), with an additional -0.8 percentage point documentation and coding recoupment adjustment. Updates to IPPS hospitals are also subject to several other quality-related adjustments under the Hospital Value-Based Purchasing (VBP) Program, the Hospital Readmissions Reduction Program, the Hospital-Acquired Condition (HAC) Reduction Program, the Hospital Inpatient Quality Reporting Program, and the Electronic Health Records Incentive Program. Despite the positive operating rate update, total IPPS payments (capital and operating payments) are projected to decrease by about $241 million in FY 2015 as a result of reductions under the Hospital Readmissions Reduction Program, the HAC Reduction Program, Medicare disproportionate share hospital payment changes, the expiration of certain statutory provisions that temporarily increased payments to hospitals, and other policy changes included in the sweeping 1688-page rule.

With regard to LTCHs, CMS estimates that the rule would increase LTCH PPS payments by 0.8%, or approximately $44 million. This increase would result from a 2.1% update to the standard federal rate (reflecting a 2.7% market basket update offset by a 0.4 percentage point multi-factor productivity adjustment and a -0.2 percentage point reduction under the ACA), a -1.3% budget neutrality adjustment, and a projected decrease in estimated high cost outlier payments. LTCHs are subject to a 2.0 percentage point reduction for failure to submit required quality data for FY 2015. Moreover, other policies in the proposed rule, including implementation of statutory provisions in the Pathway for SGR Reform Act of 2013 and the Protecting Access to Medicare Act of 2014 (including reinstating moratoria on full implementation of the “25 percent threshold” payment adjustment and on the development of new LTCHs and LTCH satellite facilities and additional LTCH beds) and a proposed expansion of the interrupted stay policy, among others, would reduce LTCH PPS payments by approximately $14 million, for a total net increase of approximately $30 million.

The official version of the proposed rule will be published on May 15, 2014. CMS will accept comments on the proposed rule until June 30, 2014. The final rule will be published by August 1, 2014, and will apply generally to discharges occurring on or after October 1, 2014.

CMS to Implement Fingerprint-Based Background Checks for High-Risk Providers and Suppliers in 2014

Fingerprint-based background checks intended to “detect bad actors” enrolled or attempting to enroll in federal health programs

This post was authored by Elizabeth Carder-Thompson and Debra McCurdy.

More than three years after publication of final regulations to implement Affordable Care Act (ACA) provisions that strengthen provider and supplier enrollment screening provisions under federal health care programs, the Centers for Medicare & Medicaid Services (CMS) has selected a Fingerprint-Based Background Check Contractor (FBBC) and intends to phase in fingerprint-based background checks beginning in 2014.

 

By way of background, CMS published a final rule on February 2, 2011 pursuant to Section 640 of the ACA, which required the Department of Health and Human Services to establish procedures for screening providers and suppliers participating in federal health care programs (specifically, Medicare, Medicaid, and the Children’s Health Insurance Program).  Among other things, the final rule applies various screening tools, including unannounced site visits, background checks, and fingerprinting, based on the level of risk associated with different provider and supplier types.  CMS established three levels of risk – limited, moderate, and high – and every provider and supplier category is assigned to one of these three levels.  Individuals who maintain a 5 percent or greater direct or indirect ownership interest in a provider or supplier in the high risk category -- including newly-enrolling home health agencies (HHAs) and newly-enrolling durable medical equipment, orthotics, prosthetics, and supplies (DMEPOS) suppliers -- are subject to a fingerprint-based criminal history report check of the Federal Bureau of Investigations (FBI) Integrated Automated Fingerprint Identification System. 

 

While the final rule was effective March 25, 2011, as mandated by the ACA, CMS delayed the effective date of the fingerprint-based criminal history record check provision until after additional subregulatory guidance was issued.   CMS awarded a $4.19 million FBBC contract to Accurate Biometrics, Inc. in March 2014, a significant step in the implementation process.  Following this award, CMS issued a provider update announcing that it intends to phase in the fingerprint-based background check implementation beginning in 2014Not all providers and suppliers in the "high" level of risk category will initially be a part of the fingerprint-based background check requirement, but eventually the fingerprint-based background check will be completed on all individuals with a 5 percent or greater ownership interest in a provider or supplier that falls under the high-risk category.

 

Providers and suppliers subject to the fingerprint requirements will receive a notification letter from their Medicare Administrative Contractor (MAC), and applicable individuals will have 30 days from the date of the notification letter to be fingerprinted at one of at least three locations identified by the FBBC (individuals will incur the cost of having their fingerprints taken). After fingerprinting is complete, the fingerprints will be forwarded to the FBI, which will compile the background history and share results with the FBBC within 24 hours of receipt. The FBBC will assess the data and provide a "fitness recommendation" to CMS indicating whether the criminal history record information contains enrollment violations or otherwise fails to meet requirements or guidelines established by CMS for enrollment of a Medicare provider or supplier; CMS will then make the final determination about the provider or supplier. CMS will notify providers and suppliers if the assessment of the fingerprint-based background check results in the denial of an enrollment application or revocation of existing Medicare billing privileges. The CMS guidance also provides information on standards for securing the data under the review process.

 

This announcement marks the latest steps in seemingly ever-escalating CMS efforts to clamp down on fraud and abuse in the Medicare and Medicaid programs. While the initial targets of the fingerprint-based background requirements are new DMEPOS suppliers and HHAs, the policy also will apply to those who are elevated to the high risk category in accordance with enrollment screening regulations, which could include providers/suppliers coming back into the Medicare fee-for-service program after a moratorium is lifted, or providers which have been subject to a payment suspension, exclusion, or revocation. It is likely that some "owners" of entities, such principals of investment firms with financial interests in providers and suppliers, will balk at the whole idea of being fingerprinted. Moreover, the pending fingerprint process will doubtless provide even more opportunities for administrative missteps, and erroneous and time-consuming supplier/provider number revocations.

April Congressional Hearings

Recent Congressional hearings on health policy issues include the following:

  • House Energy and Commerce Committee hearings on the “Helping Families in Mental Health Crisis Act”; the FDA’s proposed changes to generic drug labeling; and legislation intended to improve predictability and transparency in Drug Enforcement Agency and FDA regulation (H.R. 4299, H.R. 4069, and H.R. 4250).
  • House Ways and Means Health Subcommittee hearing on final Treasury Department regulations implementing the employer mandate and employer information reporting requirement provisions of the ACA..

In addition, on April 9, 2014, the Senate Health, Education, Labor and Pensions Committee is holding a hearing on “Addressing Primary Care Access and Workforce Challenges: Voices from the Field.”

CMS Extends Deadline for Individuals to Enroll in Health Insurance through Exchanges

CMS has extended the Affordable Care Act (ACA) insurance enrollment period for individuals (1) who have had difficulty signing up for a health insurance plan through an Affordable Insurance Exchange by March 31, 2014, or (2) who have not signed up by March 31 due to a wide range of circumstances. First, in a March 26, 2014 document, CMS announces it has established a “special enrollment period” for individuals who cannot complete the enrollment process “despite their best efforts” for reasons such as “high consumer traffic across various consumer enrollment channels…leading up to the March 31 deadline.” Provided that consumers who were “in line” pay their first month’s premium by the deadline set by their chosen insurance company, CMS anticipates that enrollments made in an unspecified time period after March 31 will have a May 1 coverage effective date. Consumers who receive a special enrollment period for being “in line” and select new coverage within the timeframes outlined in the guidance will be able to claim a hardship exemption from the shared responsibility payment for the months prior to the effective date of their coverage.

CMS also has compiled all of the categories CMS has identified to date that warrant special enrollment periods after the end of the March 31 open enrollment period, including situations involving: certain exceptional circumstances; misinformation, misrepresentation, or inaction by entities providing formal enrollment assistance; enrollment error; system errors related to immigration status; display errors on Marketplace website; Medicaid/CHIP - Marketplace transfer problems; error messages; unresolved casework; victims of domestic abuse; or other system errors that hindered enrollment completion.

Obama Administration Continues to Update ACA Insurance Exchange and Health Plan Regulations

The Administration has issued numerous regulations recently that make additional changes to operational policies, payment provisions, and other standards applicable to health plans and Health Insurance Exchanges (also called Marketplaces) under the Affordable Care Act (ACA). Highlights include the following:

  • On March 21, 2014, the Department of Health and Human Services (HHS) published a proposed rule to update ACA Exchange and insurance market standards beginning in 2015. Among other things, HHS proposes standards related to: consumer notification of insurance product discontinuation and renewal; Qualified Health Plan (QHP) quality data reporting to support quality ratings; non-discrimination standards; employee choice in the Small Business Health Options Program (SHOP); enforcement remedies; HHS’s allocation of reinsurance contributions; the ceiling on allowable administrative expenses in risk corridor calculation; eligibility standards for an exemption from the shared responsibility payment; the imposition of civil money penalties for providing false or fraudulent information to the Exchange and for improperly using or disclosing information; updated standards for “Navigators” and other consumer assistance programs; amendments to Exchange appeals, coverage enrollment, and coverage termination standards; and adjustments to the medical loss ratio program standards. Comments will be accepted until April 21, 2014.
  • HHS published a final rule on March 11, 2014 setting forth key payment and policy provisions for health insurers participating in Exchanges in 2015. Among many other things, the lengthy rule establishes standards for: premium stabilization programs (risk adjustment, reinsurance, and risk corridors programs); the open enrollment period for 2015 (November 15, 2014 through February 15, 2015); cost sharing limitations; consumer protections; financial oversight; privacy and security of personally identifiable information in the Exchange; and SHOP functions. Of note, the rule provides a state-level adjustment in the risk corridors formula to account for a transition policy announced on November 14, 2013 that allowed certain insurers in the small group and individual insurance markets to renew policies that did not comply with all 2014 insurance market rules, if permitted by their state (an extension of this transition policy is discussed in a separate post). According to HHS, this risk corridor adjustment is designed to offset unanticipated higher average claims costs that issuers of plans complying with market rules could experience as a result of the transition policy. The regulations are effective on May 12, 2014.
  • HHS has published a final rule establishing the Basic Health Program (BHP), which provides states with the flexibility to establish a health benefits coverage program for certain low-income individuals who are not eligible for Medicaid and who would otherwise be eligible to purchase coverage through the Exchange. Specifically, the rule establishes: (1) the requirements for state administration of the BHP consistent with its certified “Blueprint”; (2) eligibility and enrollment requirements; (3) minimum benefits requirements; (4) the availability of federal funding; (5) the purposes for which states can use federal funding; (6) enrollee financial participation parameters; and (7) requirements for administration and oversight of BHP funds. The rule is effective January 1, 2015.  HHS set forth the specific methods for calculating and providing payment to states in a separate final rule, also published on March 12.
  • The Internal Revenue Service (IRS) published final regulations implementing an ACA provision specifying that certain health insurance issuers, employers, and others that provide minimum essential coverage to individuals must report to the IRS information about the type and period of coverage and provide a statement to individuals. Among other things, the regulations address coverage subject to reporting, entities required to report, information required to be reported, and the time and manner of reporting. The IRS also published related regulations regarding the specific reporting requirements applicable to certain large employers (generally those with at least 50 full-time employees, including full-time equivalent employees).  Both regulations are effective on March 10, 2014.
  • The Administration has published a request for information regarding an ACA provision specifying that a “group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable state law.” The notice, which was jointly published by the Centers for Medicare & Medicaid Services (CMS), the IRS, and the Employee Benefits Security Administration, solicits feedback on all aspects of the interpretation of this provision, including comments on access, costs, other federal and state laws, and feasibility. Comments will be accepted until June 10, 2014.

CMS Releases Subregulatory Guidance on ACA Insurance Coverage, Exchange Issues

Recent CMS subregulatory guidance and related announcements regarding ACA insurance coverage and insurance exchange issues include the following:

  • On March 14, 2014, CMS released its final “2015 Letter to Issuers in the Federally-facilitated Marketplaces,” which provides operational and technical guidance to issuers seeking to offer qualified health plans (QHPs) in a federally-facilitated Marketplace and/or SHOP.
  • CMS is extending its previously-announced “hardship” exemption and allowing consumers in the individual and small group markets to renew policies that do not comply with ACA QHP standards through October 1, 2016 (if the policies are still offered and if permitted by applicable state authorities). CMS will consider the impact of this two-year extension of the “transitional policy” in assessing whether an additional one-year extension is appropriate. 
  • An HHS blog post announced that beginning in 2015, if an insurance company offers health coverage to opposite-sex spouses, it cannot choose to deny that coverage to same-sex spouses.
  • CMS is allowing enrollees in the federal Pre-Existing Condition Insurance Plan (PCIP) who have not yet enrolled in new health insurance coverage through an Exchange plan to purchase an additional month of PCIP coverage, through April 30, 2014.

CMS Rule Requires Qualified Health Plans to Accept Certain Third-Party Premium Payments

Today CMS published an interim final rule with comment period that requires qualified health plan (QHP) issuers to accept premium and cost-sharing payments made on behalf of enrollees by the Ryan White HIV/AIDS Program, Indian tribes and organizations, and other federal and state government programs that provide premium and cost sharing support. This rulemaking was prompted by CMS concerns that some QHP issuers continue to reject Ryan White cost-sharing payments despite previous CMS guidance, which is resulting in beneficiary access problems. This standard applies to all individual market QHPs, including Stand Alone Dental Plans (SADP), regardless of whether they are offered through a federal or state Exchange or outside of the Exchanges. On the other hand, CMS specifies in the preamble that the rule would not prevent QHPs and SADPs from rejecting premium and cost sharing payments made by other third parties, including hospitals, other healthcare providers, and other commercial entities. CMS continues to encourage QHPs and SADPs to reject such payments, given CMS’s concern that they “could skew the insurance risk pool and create an unlevel competitive field in the insurance market.” The interim final rule is effective on March 14, 2014; comments will be accepted on the rule until May 13, 2014.

Older Entries

March 18, 2014 — "Medicare Care Choices Model" to Allow Certain Hospice Patients to Seek Curative Care

March 4, 2014 — Obama Administration Cites Record-Breaking Health Fraud Recoveries under Joint DOJ-HHS Program

March 3, 2014 — Obama Administration Issues ACA Health Coverage Waiting Period Regulations

March 3, 2014 — CMS to Allow Retroactive ACA Insurance Subsidies for Certain Non-Marketplace Plans

February 18, 2014 — CMS Issues Draft Guidance for Qualified Health Plan Issuers for 2015

February 17, 2014 — CMS Seeks New Participants for Bundled Payments for Care Improvement Initiative

February 17, 2014 — IRS Issues ACA Employer "Shared Responsibility" Guidance; Delays Compliance Deadlines for Certain Employers

February 14, 2014 — GAO Urges CMS to Finalize ACA Medicaid Drug Pricing Reforms

February 13, 2014 — CMS Considering Innovative Episode-Based Payment Models for Outpatient Specialty Practitioner Services

January 30, 2014 — Congressional Health Policy Hearings

January 30, 2014 — Advisory Panel Recommends Access Standards for Medical Diagnostic Equipment

January 7, 2014 — CMS Proposes 2015 Funding Methodology for ACA Basic Health Program

January 7, 2014 — CMS Issues Formally Updates 2014 Health Exchange Enrollment Deadlines

January 7, 2014 — Hardship Exemption for Individuals with Cancelled Insurance Policies

December 10, 2013 — CMS Updates Medicare Physician Fee Schedule, Other Part B Policies for CY 2014

December 10, 2013 — CMS Proposed Rule on ACA Benefit and Payment Parameters for 2015

December 10, 2013 — Congressional Hearings Examine ACA Insurance Developments and Other Health Policies

December 3, 2013 — House Approves "Keep Your Health Plan Act"

November 25, 2013 — Congressional Panels Continue Focus on ACA Insurance Enrollment, Security, and Cost Issues, and Other Health Policy Topics

November 25, 2013 — CMS Seeks Input on Quality Ratings for ACA Exchange Plans

November 25, 2013 — CMS Releases Standard Consumer Notices under ACA Grandfathering/Transitional Policy

November 14, 2013 — HHS Allows Grandfathering of Certain Insurance Policies Cancelled under ACA Rules

November 14, 2013 — Obama Administration Releases Initial Health Insurance Marketplace Enrollment Numbers

November 14, 2013 — House Schedules Vote on "Keep Your Health Plan Act"

November 14, 2013 — Congressional Hearings Focus on HealthCare.gov Enrollment, Other Policy Issues

November 14, 2013 — HHS Corrects March 2013 ACA Benefit, Payment Parameter Rules

November 11, 2013 — CMS Announces Inflation Update to "Sunshine Act" Reporting Thresholds for 2014

October 30, 2013 — Obama Administration Aligns Health Exchange Enrollment Deadline and "Shared Responsibility" Penalty Trigger

October 30, 2013 — Congressional Hearings Focus on Rocky HealthCare.gov Rollout

October 30, 2013 — CMS Finalizes ACA Exchange Program Integrity & Financial Oversight Standards

October 30, 2013 — Nominees Invited for PCORI Physician Representative

October 10, 2013 — ACA Health Insurance Marketplace Opens for Business to Mixed Reviews

October 10, 2013 — HHS Proposes ACA Basic Health Program Regulations

October 10, 2013 — CMS Proposes Rules for Medicare FQHC PPS, CLIA Amendments

October 10, 2013 — Obama Administration Warns Consumers about Potential "Obamacare" Fraud

September 17, 2013 — CMS Finalizes ACA Exchange/Qualified Health Plan Financial Integrity and Oversight Standards

September 17, 2013 — House Approves Bill to Require Verification of ACA Individual Subsidy Eligibility

September 17, 2013 — IRS Finalizes ACA Individual "Shared Responsibility" Payment Requirements

September 16, 2013 — CMS Releases ACA Medicaid DSH Funding Final Rule

September 16, 2013 — OIG Urges CMS Action on Medicaid Drug Pricing Changes in Preparation of ACA Enrollment Expansion

September 16, 2013 — Upcoming House Hearings on ACA Implementation (Sept. 18 & 19)

September 16, 2013 — Congressional Health Policy Hearings

September 10, 2013 — No CMS DME Face-to-Face Rule Enforcement Before 2014

August 27, 2013 — HHS Seeks Comments on ACA Provision Preventing Discrimination in Certain Health Programs, Activities

July 29, 2013 — CMS Announces First Temporary Moratoria on HHA, Ambulance Supplier Enrollment in High-Risk Areas under ACA Authority

July 29, 2013 — House Approves Legislation to Amend ACA to Delay Insurance Mandates

July 29, 2013 — CMS Finalizes ACA Health Insurance Exchange "Navigator" Standards

July 29, 2013 — CMS Issues Final Medicaid Eligibility/Enrollment Rule under the ACA

July 29, 2013 — Obama Administration Finalizes Revised ACA Contraceptive Coverage Requirements

July 29, 2013 — July Health Policy Hearings

July 29, 2013 — In Advance of Sunshine Act Reporting, CMS Releases Physician & Industry Resources

July 5, 2013 — Medicare Home Health PPS Rates to Drop under Proposed CY 2014 Rule

July 3, 2013 — Obama Administration Announces Delay in Employer ACA "Shared Responsibility" Payments, Reporting Requirements until 2015

June 27, 2013 — HHS Releases Final ACA Exchange Rule on "Shared Responsibility" Payments

June 27, 2013 — CMS Proposes ACA Exchange/Qualified Health Plan Financial Integrity and Oversight Standards

June 27, 2013 — Obama Administration Credits ACA Rules with $3.9 Billion in Insurance Premium Savings, Rebates for 2012

June 27, 2013 — CMS Gears Up for ACA Health Insurance Marketplace/Exchange Launch

June 27, 2013 — GAO Reviews Status of ACA Insurance Exchange Development

June 27, 2013 — Health Policy Hearings

June 11, 2013 — CMS Sets Provider Payment Rates Under the ACA Pre-Existing Condition Insurance Plan Program

June 11, 2013 — CMS Publishes Final ACA Small Business Health Option Program (SHOP) Rule

June 11, 2013 — CMS Finalizes Medicare Advantage/Part D Plan Medical Loss Ratio Rules

June 11, 2013 — CMS Seeks Additional Applicants for Bundled Payments for Care Improvement Program

June 11, 2013 — State DSH Allotments Methodology

June 11, 2013 — DOL Releases Insurance Exchange Notice Guidance and Model Notices

June 11, 2013 — Medicare Trustees Forecast Longer Medicare Solvency

June 11, 2013 — Obama Administration Issues Final ACA Wellness Program Rules

June 11, 2013 — GAO Assesses State Efforts to Establish ACA Insurance Exchanges

June 11, 2013 — Health Policy Hearings

June 11, 2013 — House Approves ACA Repeal Legislation

June 6, 2013 — CMS Hosts Calls on Medicare Shared Savings Program Application Process

June 5, 2013 — HHS-Operated Risk Adjustment Data Validation Stakeholder Meeting (June 25)

May 14, 2013 — CMS Proposes Medicare IPPS and LTCH PPS Rates/Policies for FY 2014

May 13, 2013 — IRS Proposes Regulations to Implement Certain ACA Insurance Premium Tax Credit, Medical Loss Ratio Provisions

May 13, 2013 — CMS Notice Prepares for Termination of Early Retiree Reinsurance Program

May 10, 2013 — Congressional Health Policy Hearings & Markups

May 8, 2013 — CMS Actuary Determines No IPAB Cuts Needed in 2015

May 3, 2013 — CMS Sunshine Act Update: Covered Teaching Hospitals Listing, Industry Efforts, CMS Provider Call

April 15, 2013 — CMS Issues Final Rule on Federal Funding for Medicaid Expansion under the ACA

April 15, 2013 — IRS Proposes Hospital Community Health Needs Assessment Regulations

April 15, 2013 — CMS Letter to Issuers on Federally-Facilitated and State Partnership Exchanges

April 15, 2013 — April Congressional Health Policy Hearings & Markups

April 15, 2013 — HRSA Rule Transitions HIPDB to NPDB

April 15, 2013 — CMS Proposes Rules for Health Insurance Exchange "Navigators"

March 28, 2013 — Administration Proposes ACA Insurance Waiting Period Rule

March 27, 2013 — MACPAC 2013 Report to Congress on Medicaid/CHIP

March 27, 2013 — Recent Reed Smith Analyses of Sunshine Act Rule, ACA Qualified Health Plans, HITECH Final Rule

March 14, 2013 — Reed Smith Alert: ACA Affordable Insurance Exchanges and Qualified Health Plans

March 13, 2013 — HHS Issues Rules to Implement ACA Essential Health Benefit Framework

March 13, 2013 — HHS Issues ACA Benefit, Payment Parameter Rules for 2014

March 13, 2013 — HHS Adopts Final ACA Health Insurance Market Reform Rules

March 13, 2013 — OSHA, IRS, and OPM Release ACA Regulations

March 13, 2013 — HHS Suspends Enrollment in Pre-Existing Condition Insurance Plan (PCIP)

March 12, 2013 — Congressional Hearings

March 5, 2013 — CMS Physician Payment "Sunshine" Final Rule -- Overview and Analysis

February 18, 2013 — CMS, IRS Proposed ACA "Shared Responsibility" Payment/Exemptions Rules

February 18, 2013 — Obama Administration Proposes Revised ACA Contraceptive Coverage Requirements

February 18, 2013 — CMS Moves Forward with ACA Bundled Payments for Care Improvement Initiative

February 1, 2013 — CMS Releases Physician Payments Sunshine Act Final Rule

January 30, 2013 — CMS Proposes Changes to Medicaid Eligibility, Benefits, and Appeals Rules