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.