OVERVIEW OF PRIVATE INSURANCE MARKET REFORMS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT AND RESOURCES FOR FREQUENTLY ASKED QUESTIONS

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1 OVERVIEW OF PRIVATE INSURANCE MARKET REFORMS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT AND RESOURCES FOR FREQUENTLY ASKED QUESTIONS Brief Prepared by MATTHEW COKE Senior Research Attorney LEGISLATIVE REFERENCE BUREAU January 2014 LRB PPACA BRIEF.doc

2 Table of Contents I. Introduction... 1 II. PPACA Market Reforms... 2 Page Dependent Child Coverage up to Age Essential Health Benefits... 2 Annual and Lifetime Limits... 3 Non-Discrimination in Eligibility and Premium Rates... 3 Guaranteed Issue and Renewability... 3 Prohibiting Discrimination Based on Health Status... 3 Pre-existing Conditions... 4 Premiums Rating... 4 III. Health Benefit Exchanges... 4 Cost-Sharing and "Metal" Categories... 5 IV. Individual Responsibility Requirement and Subsidies... 6 Premium Tax Credits for Individuals... 6 Cost-Sharing Subsidy... 6 Penalties... 7 Open Enrollment Periods... 7 V. Information for Hawaii Businesses and the Small Business Tax Credit... 7 Small Business Tax Credit... 8 VI. Recent Developments Relating to Existing Health Plans... 9 Resources ii

3 OVERVIEW OF PRIVATE INSURANCE MARKET REFORMS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT AND RESOURCES FOR FREQUENTLY ASKED QUESTIONS (The information provided herein is for general information purposes only and is not intended to be legal, accounting, or other professional advice.) I. Introduction This brief was prepared pursuant to the Bureau's authority under section 23G-3(2), Hawaii Revised Statutes (HRS), to provide an overview of key insurance market provisions of the Patient Protection and Affordable Care Act (PPACA). The Bureau cautions that the information provided herein is for general information purposes only and is not intended to be legal, accounting, or other professional advice. In recent weeks, due to the complexity of the PPACA, the U.S. Department of Health and Human Services has initiated multiple transitional policies that were not contemplated by the PPACA or the regulatory agencies and insurance companies charged with implementing it. As the PPACA begins to take effect, it appears likely that there may be additional last-minute adjustments to the PPACA's implementation strategy. While the Bureau attempted to prepare this brief using the latest information available, we note that some policies may change as the Department provides ongoing guidance. This brief also includes links to additional information and resources on the PPACA for further reference. The reader is urged to consult these resources for the most current information on the PPACA. The Patient Protection and Affordable Care Act 1 will introduce a number of reforms in the private insurance market that take effect on January 1, These reforms include mandated coverage, rate restrictions, health benefit exchanges, and various tax provisions. Many of the provisions will have effects across the entire insurance market, while others will be limited to only the individual and small-group insurance markets. For example, individuals are expected to have access to a greater variety of health insurance options with a wider scope of coverage for medical services. On the other hand, employers in Hawaii will continue to be subject to the Prepaid Health Care Act, which requires employers to provide health insurance coverage for their employees. However, the health insurance exchange created by the PPACA will provide a central clearinghouse where small employers may purchase coverage that meets the qualifications of the Prepaid Health Care Act and the PPACA, and which may also qualify for tax credits. 1 Patient Protection and Affordable Care Act of 2010, Pub. Law No

4 II. PPACA Market Reforms Dependent Child Coverage up to Age 26 The PPACA requires all health insurance plans that provide coverage for dependent children to continue to make coverage available for an adult child until the child turns 26 years old. 2 However, health insurance plans are not required to cover a child of the dependent child. Essential Health Benefits Under the PPACA, health insurance plans in the individual and small group markets 3 (whether sold inside or outside a health benefit exchange) must offer coverage for ten broad categories of benefits called "essential health benefits" or "EHB." The ten categories of EHB are: (1) Ambulatory patient services; (2) Emergency services; (3) Hospitalization; (4) Maternity and newborn care; (5) Mental health and substance abuse disorders; (6) Prescription drugs; (7) Rehabilitative and habilitative services and devices; (8) Laboratory services; (9) Preventative and wellness services (including chronic disease management); and (10) Pediatric services (including oral and vision care). 4 The PPACA does not explicitly define the services that must be covered under each EHB category. Rather, the law directs the U.S. Secretary of Health and Human Services to define 2 PPACA, This provision of the PPACA has been in effect since See PPACA, For the purposes of requiring essential health benefits, the PPACA defines the small group market as the health insurance market through which individuals obtain coverage on behalf of themselves and their dependents through a group health plan maintained by a small employer. The PPACA further defines small employer to mean an employer with not more than 100 employees. However, until January 1, 2016, states may elect to define a small employer as an employer with 50 or less employees. Section 431: , Hawaii Revised Statutes, was amended by Act 192, Session Laws of Hawaii 2013, to define "small employer" as an employer with no more than 50 employees for the purposes of complying with this provision of the PPACA. 4 PPACA, 1302(b)(1). 2

5 essential health benefits. In turn, the Secretary directed each state to select its own benchmark health insurance plan that reflects the scope of services offered by a typical employer-based plan in that state. Plans that are required to offer EHB coverage must model their benefits package after the state's benchmark plan. Hawaii has selected the HMSA Preferred Provider Plan 2010 as its benchmark plan for essential health benefits. 5 Annual and Lifetime Limits Beginning in 2014, health insurance plans may not impose annual or lifetime limits on the dollar value of any essential health benefit. 6 This requirement applies to health insurance plans in the individual, small group, and large group markets. Non-Discrimination in Eligibility and Premium Rates In the past, health insurers have adjusted eligibility rules and premiums rates based upon a variety of factors, including health condition, and this has often lead to expensive premiums that may have prevented persons from purchasing health insurance. The PPACA will make significant changes to insurance ratings and eligibility practices that are intended to increase access to affordable health insurance. Guaranteed Issue and Renewability. The PPACA requires each health insurance issuer that offers coverage in individual, small group, or large group markets to accept every employer or individual that applies for coverage. 7 The Act further requires all insurers in these markets to renew coverage for individuals or employers, subject to certain exceptions, such as non-payment of premiums, fraud, or when the insurer ceases to offer a particular type of coverage. 8 Prohibiting Discrimination Based on Health Status. The PPACA prohibits health insurance plans in the individual, small, or large group markets from imposing rules for eligibility in the plan based upon factors relating to health status, including medical condition, claims experience, medical history, evidence of insurability, or disability. Additionally, a health insurance plan may not charge an enrollee a higher premium on the basis of a health-status related factor. Health insurance plans may offer premium discounts or rebates for participating in qualifying disease prevention or wellness programs. 9 5 Centers for Medicare & Medicaid Services, Resources/Downloads/hawaii-ehb-benchmark-plan.pdf. 6 PPACA, PPACA, Id. 9 Id. 3

6 Pre-existing Conditions. For plan years beginning on or after January 1, 2014, health insurance plans that offer coverage in the individual, small group, or large group markets may not impose pre-existing condition exclusions to limit or deny coverage. 10 Premiums Rating. The PPACA requires health insurers in the individual and small group markets to comply with minimum premium rating rules. 11 Health plans will be allowed to adjust premiums based only upon: (1) Individual vs. family enrollment: Rates may vary based upon who is enrolled in the plan, such as an individual and spouse, or an individual and dependents; (2) Geographic area: States shall establish one or more geographic rating areas (subject to review and approval by the U.S. Department of Health and Human Services), and rates may reflect variations in the costs of health care in those areas; (3) Age: Insurers may vary rates based upon age; however, an insurer may not charge an older adult more than three times the rate of a younger person (ratio of 3:1); and 12 (4) Tobacco use: Insurers may vary rates based upon tobacco use; however, an insurer may not charge a tobacco user more than 1.5 times the rate of a nontobacco user (ratio of 1.5:1). III. Health Benefit Exchanges The PPACA requires states to establish health benefit exchanges to provide individuals and small businesses a singular outlet for purchasing health insurance that meets the new federal requirements. 13 In Hawaii, the health benefit exchange is called the Hawaii Health Connector (Connector). 14 The Connector provides an internet portal that allows individual applicants and small businesses to review health insurance plans that meet the new federal requirements, compare premiums and coverage, and enroll in an insurance plan that meets their needs. Individuals who do not receive health insurance through their employer (including selfemployed persons) or through a government program such as Medicaid will be eligible to purchase insurance coverage for themselves and their dependents through the Connector. Use 10 Id. 11 Id. 12 The Department of Health and Human Services Final Rule establishes uniform age bands for age rating purposes. See 45 C.F.R (d). The age rating must be uniform within a jurisdiction, and the Hawaii Insurance Commissioner has established the 3:1 ratio as the age rating for Hawaii. 13 PPACA, See generally Chapter 435H, Hawaii Revised Statutes (Authorizing the creation of the Hawaii Health Connector and describing its duties.) 4

7 of the Connector is not limited to low-income individuals; however, low-income individuals may qualify for tax credits to offset premium costs. As part of the application process, the Connector website uses an applicant's income level to calculate an applicant's eligibility for a tax credit. The Connector website also uses an individual's income information to determine whether the applicant qualifies for coverage under Medicaid and, if so, directs that applicant to Hawaii's Medicaid website for assistance. Employers with fifty or fewer employees will also be able to purchase health insurance plans for their employees using the Connector's Small Business Health Options Program ("SHOP"). 15 Enrollment for health insurance through the Connector began on October 1, 2013, for plans that will begin coverage on January 1, Although the Connector's website encountered some initial problems that limited its accessibility, the Hawaii Health Connector website is currently accepting applications for insurance enrollment. Cost-Sharing and "Metal" Categories Insurance plans that are available in the Connector are divided into categories based upon the amount of cost-sharing that is required between the insured and the insurance company. Cost-sharing refers to the percentage of the actuarial value of the plan that is paid by the insured out-of-pocket and the amount that is paid by the health insurance plan. Cost-sharing includes payments such as deductibles, co-pays, and co-insurance (but not premiums). The PPACA specifies cost-sharing limits that are allowed among health insurance plans, and these are referred to by their "metal" level: bronze, silver, gold, or platinum. 16 All health insurance plans sold in the Connector must meet one of these four metal levels of cost-sharing. Bronze plans will have the highest cost-sharing, silver plans will have lower cost-sharing, gold plans will have even lower cost-sharing, and platinum plans will have the lowest cost-sharing. 17 Plans with higher cost-sharing (i.e., higher deductibles, co-pays, etc.), such as bronze plans, may be expected to have lower premiums, because the benefit is less generous and the insured will bear more risk. Accordingly, plans with lower the cost-sharing, such as platinum plans, may be expected to have higher premiums, because the benefit is more generous and insured will bear less risk. On the other hand, an insured under a plan with higher cost-sharing, and thus lower premiums, may ultimately be expected to pay more out-of-pocket for health care services. Individuals will be able purchase plans through the Connector that meet all four metal levels of cost-sharing. Small businesses may also purchase all four metal levels of health insurance plans through the Connector; however, only gold- and platinum-level plans have cost- 15 Supra note 3 and accompanying text. Beginning on January 1, 2016, employers with 100 or fewer full-time employees will be able to purchase insurance through the Hawaii Health Connector. 16 PPACA, 1302(d). 17 Id. A plan in the bronze level must provide a level of coverage that is designed to provide benefits that are actuarially equivalent to 60% of the full actuarial value of the benefits provided under the plan. A silver-level plan provides 70%, a gold-level plan provides 80%, and a platinum plan provides 90%. 5

8 sharing limits that will allow those plans to meet the requirements of the Hawaii Prepaid Health Care Act (Chapter 393, Hawaii Revised Statutes) for employer-sponsored insurance. 18 IV. Individual Responsibility Requirement and Subsidies Beginning January 1, 2014, almost all United States citizens and legal residents will be required to have health insurance coverage or be subject to a tax penalty. 19 An individual may be covered through a government program like Medicare or Medicaid, private insurance purchased through the individual market, or an employer-sponsored insurance plan. 20 Certain individuals may be exempt from the insurance requirement, including qualifying low-income persons who cannot afford insurance, incarcerated persons, and undocumented aliens. Premium Tax Credits for Individuals. Beginning in 2014, tax credits will be available to help lower the cost of insurance premiums for persons who meet certain income requirements or who do not have access to affordable health insurance through their employer. Generally, to be eligible for a premium tax credit, an individual must have an income between 100% and 400% of the federal poverty level. 21 In addition, a person must not have insurance coverage through an employer or be eligible for a public program, such as Medicare, Medicaid, or the Children's Health Insurance Program. 22 Finally, the tax credit may be claimed only for health insurance that is purchased through a health benefit exchange, such as the Hawaii Health Connector. During the application process, the Connector website will calculate the amount of tax credit, if any, for which an individual may qualify. Cost-Sharing Subsidy. In addition to the premium tax credit, persons whose income is between 100% and 400% of the federal poverty level and who enroll in a silver-level plan through a health benefit exchange may qualify for a cost-sharing reduction to reduce total out-ofpocket costs. 23 Lower income individuals with income between 100% and 250% of the federal poverty level may qualify for yet additional cost-sharing reductions that effectively increase the actuarial value of their silver-level plans The Hawaii Department of Labor and Industrial Relations, which administers the Hawaii Prepaid Health Care Act, has determined that the cost-sharing of health plans issued pursuant to section 393-7(a), HRS, are actuarially equivalent to the 90%-10% cost-sharing ratio of platinum plans, and that the cost-sharing of health plans issued pursuant to section 393-7(b), HRS, are actuarially equivalent to the 80%-20% cost-sharing ratio of gold plans. For a discussion of the relationship between the PPACA and the Hawaii Prepaid Health Care Act, see the discussion beginning on page PPACA, Id. 21 See PPACA, 1401(a). The tax credit is calculated on a sliding scale: persons who have a lower income are eligible for a larger tax credit, and persons who have a higher income are eligible for a smaller tax credit. 22 Id. An exception exists for individuals whose employer-sponsored plan does not provide "minimum essential coverage." The PPACA considers "minimum essential coverage" to mean: (1) that the employer sponsored plan is not affordable because the employee's share of the premium exceeds 9.5% of the employee's income; or (2) that the employer-sponsored plan does not provide "minimum value," meaning that the plan's payments cover less than 60% of the total allowed costs of benefits. 23 PPACA, 1402(c)(1). 24 PPACA, 1402(c)(2). 6

9 Penalties. Beginning in 2014, individuals will be required to pay a penalty if they do not have minimum essential health insurance coverage for themselves and their dependents. 25 In taxable year 2014, the penalty will be calculated as the greater of $95 per adult (up to $285 for a family) or 1% of income. In taxable year 2015, the penalty will be calculated as the greater of $325 per adult (up to $975 for a family) or 2% of income. In taxable year 2016, the penalty will be calculated as the greater of $695 per adult (up to $2,085 for a family) or 2.5% of income. 26 After 2016, the amount of the penalty will be indexed to the cost of living. 27 Open Enrollment Periods. The initial open enrollment period to sign up for qualified health plans through health benefit exchanges began on October 1, 2013, and will run through March 31, In future years, the annual open enrollment period will begin on October 15 and will extend through December V. Hawaii Businesses and the Small Business Tax Credit For more than forty years, the Hawaii Prepaid Health Care Act has required employers in the State to provide health insurance coverage to their employees. 30 Generally speaking, the Hawaii Prepaid Health Care Act requires that most employers in Hawaii provide health insurance to their employees who work at least twenty hours per week 31 and that the employersponsored health insurance include certain basic benefits. 32 The PPACA does not affect Hawaii employers' obligation under the Hawaii Prepaid Health Care Act to provide health insurance to their employees. 33 However, because the PPACA requires health insurance plans in the small group markets to cover essential health benefits that exceed the benefits required by Hawaii law, 25 This can include employer-provided insurance, coverage that someone buys on their own, or insurance coverage through a government program such as Medicare or Medicaid. 26 PPACA, 1501(b) (amending Subtitle D of the Internal Revenue Code of 1986). See also Frequently Asked Questions about Health Reform, Kaiser Family Foundation, 27 PPACA, 1501(b) C.F.R, (b) C.F.R (e). 30 See generally Chapter 393, Hawaii Revised Statutes. See also PPACA, The PPACA specifically preserves the Hawaii Prepaid Health Care Act's exemption from ERISA. In implementing the PPACA, the Hawaii Department of Labor and Industrial Relations and the Insurance Division of the Department of Commerce and Consumer Affairs have adopted an approach that preserves the requirements of the Hawaii Prepaid Health Care Act, while supplementing those requirements with elements of the PPACA, as needed. 31 The Hawaii Prepaid Health Care Act covers most employers in the State. Excluded employers and eligible employment may be found in sections and 393-5, Hawaii Revised Statutes, respectively. 32 Section 393-7, Hawaii Revised Statutes, describes the basic coverage requirements that employer-sponsored health insurance must include. 33 Unlike the Hawaii Prepaid Health Care Act, the PPACA does not specifically require employers to provide health insurance for their employees. However, with regard to employers outside of Hawaii, section 1513 of the PPACA requires employers with 50 or more employees to pay a penalty if the employer fails to offer full-time employees and their dependents the opportunity to enroll in an employer-sponsored plan and any of their employees enroll in an individual plan through a health exchange and receive a tax subsidy. scheduled to take effect in 2014, but has been delayed until The penalty provision was originally 7

10 such as prescription drugs, habilitative care, and pediatric dental and vision care, 34 the cost of purchasing insurance may increase for small employers in Hawaii whose existing health plan offering does not already include the federally-required coverage. Like individual purchasers of health insurance, small businesses will be able to purchase health insurance for their employees through health benefit exchanges. In Hawaii, employers with fifty or fewer employees 35 will be able to use the Hawaii Health Connector's Small Business Health Options Program ("SHOP") to compare and choose from among a variety of health plans offered by private insurers that meet the new federal requirements and comply with the Hawaii Prepaid Health Care Act. 36 Small Business Tax Credit The PPACA creates a federal tax credit that qualified small employers may claim against contributions to their employees' health insurance premiums. The credit is available to eligible for-profit and non-profit 37 employers with fewer than twenty-five full-time equivalent employees whose average annual wages are less than $50,000. The amount of the tax credit is calculated on a sliding scale that varies depending upon the number of employees and the amount of the employees' average taxable wages. The tax credit is potentially available for six years: the initial credit period from tax year 2010 through tax year 2013, plus the two-year credit period beginning in From 2010 to 2013, the maximum credit is 35% of premiums paid for small business employers and 25% of premiums paid for small non-profit employers. If necessary, qualifying employers may file an amended tax return to claim the credit for past years. Beginning in tax year 2014, the maximum allowable tax credit will increase to 50% of premiums paid for small business employers and 35% of premiums paid for small non-profit employers. However, beginning in 2014, an employer must pay premiums on behalf of employees enrolled in a qualified health plan purchased through the small business side of a health benefit exchange in order to claim the tax credit. Additionally, beginning in 2014, the tax credit will only be available for two consecutive years. It is unknown at this time whether Congress will extend the tax credit for additional years. 34 Supra note 4 and accompanying text. 35 Supra note 3 and accompanying text. Beginning on January 1, 2016, employers with 100 or fewer full-time employees will be able to purchase insurance through the Hawaii Health Connector. 36 See supra note 18 and accompanying text. 37 The credit is refundable for tax-exempt employers but is limited to the amount of the tax exempt employer's payroll taxes withheld during the calendar year in which the taxable year begins. See Small Business Health Care Tax Credit Questions and Answers: Who Gets the Tax Credit? Internal Revenue Service, Credit. See also Small Business Health Care Tax Credit Questions and Answers: Calculating the Credit, Internal Revenue Service, Calculating-the-Credit. 8

11 VI. Recent Developments Relating to Existing Health Plans In recent weeks, nationally, some individuals and small businesses with health insurance coverage have been notified by health insurance issuers that their health insurance coverage will soon be terminated because, after January 1, 2014, it will not comply with certain market reforms required by the PPACA. In response to this development, the President and the U.S. Center for Consumer Information and Insurance Oversight recently announced a transitional policy under which health insurers may choose to continue coverage that would otherwise be cancelled, and enrollees may choose to renew their coverage under these health insurance plans. 38 Specifically, for this transitional policy to apply, a health insurance plan must have been in effect on October 1, 2013, and renewed for a policy year starting between January 1, 2014, and October 1, It is not clear at this time whether this transitional policy will extend beyond this timeframe. 40 In Hawaii, the Insurance Commissioner has requested that insurance carriers comply with this transitional policy by continuing health insurance plans that would have faced nonrenewal by the end of the year. 41 Because these plans do not comply with PPACA, they will not be available for purchase through the Hawaii Health Connector and are not eligible for the premium tax credits allowed by the PPACA Advisory letter from Director of U.S. Center for Consumer Information and Insurance Oversight to Insurance Commissioners (Nov. 14, 2014), 39 Id. 40 Id. 41 News release from Hawaii Department of Commerce and Consumer Affairs, Insurance Division, Nov. 15, 2013, 42 Id. 9

12 RESOURCES Numerous websites are available with information on the PPACA and its requirements; however, we recommend the following as reliable sources for fact-based, easily understood information on the new law. Health Insurance Reform, Generally: Federal Health Insurance Marketplace U.S. Center for Consumer Information and Insurance Oversight Reforms/index.html Kaiser Family Foundation PPACA Statute and Federal Regulations: Compilation of the Patient Protection and Affordable Care Act (U.S. House of Representatives, Office of Legislative Counsel) (as amended by subsequent acts) P.L , Patient Protection and Affordable Care Act (Government Printing Office, March 23, 2010) (as originally passed) Federal regulations and guidance relating to the PPACA Fact sheets and frequently asked questions on the PPACA PPACA in Hawaii: Hawaii Department of Commerce and Consumer Affairs - Insurance Division 10

13 Hawaii Health Connector: Apply for insurance through the Connector Frequently asked questions about the Connector Subsidy Calculator Small Business Health Tax Credit Calculator Small Business Tax Credit, Generally: Affordable Care Act Tax Provisions (Internal Revenue Service) Small Business Health Care Tax Credit for Small Employers (Internal Revenue Service) 11

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