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HHS Issues Proposed Rule Regarding Program Integrity and the Exchanges

Erin Hertzog

Lindsey Murtagh

Melissa Bianchi

Donna Boswell

Margia K. Corner

Natalie Morris

16 June 2013
On June 14, 2013, HHS released a Notice of Proposed Rulemaking proposing several new policies with respect to the Exchanges, focusing in large part on program integrity, including with respect to qualified health plans (QHPs) offered through both state-run Exchanges and the Federally-facilitated Exchange (FFE).  The rule also addresses the resolution of certain QHP-related grievances and correction of improperly allocated premium tax credits and cost-sharing reductions, provides states with new flexibility to operate just a Small Business Health Options Program (SHOP) Exchange, and makes certain notable technical corrections.  These changes are summarized briefly below.  CMS has also prepared a fact sheet regarding the proposed rule.

Program Integrity

  • State Exchanges: The proposed rule establishes oversight and financial integrity standards for state exchanges, including reporting and audit requirements.  In particular, the rule focuses on establishing program safeguards to ensure that state exchanges have safeguards in place to avoid inaccurate eligibility determinations.
  • FFE: The proposed rule also provides details regarding the oversight functions of the FFE, including records retention requirements and compliance reviews to be conducted by HHS, and proposes the bases and processes for imposing civil monetary penalties in the FFE, as well as for decertifying plans from participation therein. 

Resolution of Grievances

The rule also establishes a process for resolving “cases” received by a QHP issuer operating in an FFE (i.e., grievances regarding the operation of the plan, other than advance benefit determinations).  While these cases generally must be resolved within 15 days, “cases involving the need for urgent medical care” must be resolved no more than 72 hours they are received by the plan (unless a stricter state standard applies).  Notably, a determination regarding benefit tiers or plan design may fall within HHS’ proposed definition of a “case” for these purposes, so long as it is not a claim denial, which is subject to a different process.

Correcting Improper Allocation of Premium Tax Credits and Cost-Sharing Reductions

The proposed rule specifies the actions a QHP must take if it does not provide the appropriate premium tax credit payments or cost-sharing reductions.  Notably, the proposed rule prohibits QHPs from recouping excess funds paid on behalf of the individual or to a provider and requires QHPs to refund any excess payments made by enrollees within certain, specified time frames.

State Flexibility to Operate Just a SHOP Exchange

The proposed rule would allow states to operate just a SHOP exchange, leaving the operation of the exchange serving both the individual and small group markets to the federal government. To implement this change, HHS proposes to allow states that have received conditional approval to operate a state-based exchange to modify their proposal to offer just the SHOP exchange. 

Moreover, those states that have not received conditional approval do not have the option of operating only a SHOP in the 2014 plan year. However, for plan years 2015 and beyond, CMS will consider new Blueprints from states wanting to operate only the SHOP.

Technical Changes

The proposed rule also makes the following two notable “technical” changes:

  • Amends the applicable definitions of “small employer” and “large employer” for purposes of the Exchanges.  This change is significant in that the definitions, as revised, differ from those used under the Public Health Service Act, the Internal Revenue Code, and the Employee Retirement Income Security Act (ERISA). 
  • Makes a “technical correction” to clarify that coverage sold through associations is considered individual coverage under the PHS Act, affecting the application of the Affordable Care Act’s insurance-related consumer protections.

 

Erin Hertzog

Lindsey Murtagh

Melissa Bianchi

Donna Boswell

Margia K. Corner

Natalie Morris

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