Final Regulations on Health Insurance Exchanges

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1 Health Care Reform Legislative Brief Final Regulations on Health Insurance Exchanges Beginning in 2014, individuals and small businesses will be able to purchase private health insurance through state-based competitive marketplaces, known as Affordable Health Insurance Exchanges (Exchanges). The ACA requires the Exchanges to become operational in 2014, with enrollment beginning Oct. 1, On March 12, 2012, the Department of Health and Human Services (HHS) released a final rule on the Exchanges. The final rule combines policies from two separate Notices of Proposed Rulemaking (NPRMs) published in summer 2011, and sets forth minimum standards for: States that elect to establish and operate an Exchange, including standards related to individual and employer eligibility for and enrollment in the Exchange and insurance affordability programs; Health insurance issuers to participate in an Exchange and offer qualified health plans (QHPs); and Employers to participate in the Small Business Health Options Program (SHOP). In addition, on June 14, 2013, HHS issued a proposed rule on the Exchanges. This proposed rule includes standards for the oversight of state Exchanges, builds on existing standards for agents and brokers assisting consumers in the Exchanges and provides additional state flexibility by allowing a state to operate a state-based SHOP while HHS would operate an individual market federally-facilitated Exchange in that state. EXCHANGE OPTIONS AND APPROVAL OF STATE EXCHANGE PLANS States have three options with respect to their Exchanges. A state may: Establish its own state-based Exchange; Have HHS operate a federally-facilitated Exchange (FFE) for its residents; or Partner with HHS so that some FFE Exchange functions can be performed by the state. ACA provides that a state s plan to operate an Exchange must be approved by HHS no later than Jan. 1, However, the final rule allows for conditional approval if the state is advanced in its preparation but cannot demonstrate complete readiness by Jan. 1, The final rule also allows states that are not ready for 2014 to apply to operate the Exchange for 2015 or any subsequent year. The proposed rule would allow a state that has received conditional approval for its state-based Exchange for 2014 to operate a state-based SHOP and let the federal government run the individual market Exchange as an FFE. Due to implementation time constraints, this option is unavailable for the 2014 plan year to states that have not received conditional approval for a state-based Exchange for For the 2015 plan year and beyond, HHS will consider new applications from states proposing to operate only the SHOP. EXCHANGE FUNCTIONS AND ROLES Exchanges will perform a variety of functions, including: Certifying health plans as QHPs to be offered in the Exchange; Consumer assistance, including operating a website to facilitate comparisons among QHPs for consumers, operating a toll-free hotline for consumer support, providing grant funding to entities called Navigators for consumer assistance and conducting outreach and education to consumers regarding Exchanges;

2 Determining consumer eligibility for enrollment in QHPs and for insurance affordability programs (premium tax credits, Medicaid, CHIP and the Basic Health Plan); and Facilitating enrollment in QHPs. HHS intends to give states substantial discretion in designing and operating their Exchanges. Standardization between states is provided where ACA requires or where there are compelling practical, efficiency or consumer protection reasons. Under the proposed rule, HHS would monitor any individual or entity who would be subject to the privacy and security requirements as established and implemented by an Exchange. Exchanges would also be required to establish accountability standards that would include the development and implementation of policies and procedures, including incident handling and breach notification procedures. The final rule allows states that set up their own Exchanges to have flexibility in a number of areas. For example, states will be able to decide whether their Exchange should be operated by a non-profit organization or a public agency, how to select plans to participate and whether to collaborate with HHS with respect to certain functions. In addition, a state can choose to operate its Exchange in partnership with other states through a regional Exchange or it can operate multiple Exchanges that cover distinct areas within the state. The proposed rule establishes program integrity standards for state-based Exchanges. These standards address oversight of state-based Exchanges through monitoring, reporting and oversight of financial and Exchange activities. These mechanisms are intended to ensure that consumers are properly given their choices of coverage available, that consumers correctly receive advance payments of the premium tax credit or costsharing reductions if they qualify and that Exchanges are meeting ACA s standards in a transparent manner. Navigator Program The final rule also provides standards for Exchanges to build partnerships with, and award grants to, entities known as Navigators. Navigators are intended to work with employers, employees, consumers and selfemployed individuals to: Conduct public education activities to raise awareness about QHPs; Distribute fair and impartial information about enrollment in QHPs, premium tax credits and costsharing reductions; Assist consumers in selecting QHPs; Provide referrals to an applicable consumer assistance program or ombudsman in the case of grievances, complaints or questions regarding health plans or coverage; and Provide information in a manner that is culturally and linguistically appropriate. Navigators will not make eligibility decisions or select QHPs for consumers. Instead, Navigators will help consumers through the enrollment process. The final rule directs states to choose at least two Navigator organizations, one of which must be a community- or consumer-focused non-profit organization. In addition, Navigators must comply with conflict of interest standards. These standards prohibit a Navigator from receiving any kind of compensation from a health insurance or stop loss insurance issuer for enrolling individuals in health insurance plans. This prohibition applies to both plans offered through an Exchange and plans offered outside of an Exchange. However, Navigators who sell other lines of insurance that are not health or stop loss insurance would not be prohibited from receiving consideration from the sale of those other lines of insurance while serving as Navigators, so long as they disclose this to consumers. Exchanges will award grants to Navigators in FFEs and state partnership Exchanges. On April 9, 2013, HHS announced that this funding is now available. Applications are due by June 7, 2013, and must be submitted electronically.

3 Brokers and Agents States have flexibility to determine what role brokers and agents will serve in their Exchanges. Licensed brokers and agents are eligible to serve as Navigators under the final regulations. However, the responsibilities of a Navigator differ from the traditional activities of a broker or agent. Also, the conflict of interest standards would preclude brokers and agents who are serving as Navigators from receiving compensation from an issuer for selling health or stop loss insurance product. Thus, the Navigator role may not be the best fit for brokers and agents under the Exchanges. The final regulations give states the option of permitting brokers and agents to enroll individuals and employers in QHPs offered through the Exchanges. In addition, the regulations permit brokers to assist individuals in applying for advance premium tax credits and cost-sharing reductions for QHPs. Exchanges may provide information about brokers and agents directly on their websites for the convenience of consumers seeking insurance through the Exchange. If an Exchange works with brokers or agents, there must be an agreement in place that requires the brokers and agents to: Register with the Exchange in advance of enrolling individuals; Receive training on the range of QHP options and insurance affordability programs; and Comply with the Exchange s privacy and security standards. There is no overall prohibition on agents or brokers not acting as Navigators receiving commissions through an Exchange. Each state that is operating its own Exchange has the authority to determine how agents and brokers will be involved in the Exchange and how compensation will be structured. HHS has also established a standard for QHP certification in FFEs ensuring that issuers pay the same broker compensation for QHPs in the FFE or FF-SHOP that the issuer pays for similar plans in the outside market. States are permitted to use online brokers and agents for the enrollment process. Online brokers may not provide financial incentives (such as rebates or giveaways) that could potentially steer individuals to a specific QHP or issuer. Online brokers must also provide consumers with the ability to withdraw from the process at any time and enroll directly through an Exchange. QUALIFIED HEALTH PLANS Health plans offered through the Exchange must be certified as qualified health plans (QHPs). To be certified by the Exchange, health plans must meet minimum standards that are primarily defined in the law. The final rule gives Exchanges the flexibility to establish additional standards for health plans offered in their Exchanges. In addition, the proposed rule prescribes standards for QHP issuers in FFEs regarding maintenance of records, compliance reviews and enforcement. Number and Type of Health Plan Choices The final rule allows Exchanges to work with health insurers on structuring QHP choices. This could mean that the Exchange allows any health plan meeting the standards to participate or that the Exchange creates a competitive process for health plans to gain access to customers on the Exchange. Standards for Health Plans The final rule allows Exchanges, working with state insurance departments, to set specific standards to ensure that each QHP gives consumers access to a variety of providers within a reasonable amount of time. Exchanges will also establish marketing standards that prohibit discrimination against people with illnesses. It also gives Exchanges flexibility to set the timeframes in which health issuers need to become accredited for their quality performance.

4 Eligibility and Enrollment The Exchange final rule establishes a web-based system through which an individual may apply for and receive a determination of eligibility for enrollment in a QHP through the Exchange and for insurance affordability programs. One goal of this system is reducing administration by eliminating the need for individuals to submit information to multiple programs. The final rule requires Exchanges to coordinate with Medicaid, CHIP and the Basic Health Program when making eligibility determinations. The Exchanges will use an integrated enrollment system to allow individuals to enroll in health coverage. The final rule outlines the enrollment process, which will incorporate websites and toll-free call centers, along with other consumer tools. Exchanges may also decide whether to use the single application that will be made available or design one on their own that is comparable. The final rule imposes high standards for the privacy and security of personal information during the eligibility and enrollment processes. Enforcement Under the proposed rule, QHP issuers who do not comply with FFE standards will be subject to penalties. In certain circumstances, including where the QHP no longer meets the conditions of the general certification criteria, the QHP will be decertified and no longer offered through an FFE. In the case of misconduct in the FFE or substantial non-compliance with Exchange standards applicable to issuers offering QHPs in the FFE, the proposed rule would allow HHS to impose monetary penalties. Penalties will be assessed per violation in an amount up to $100 per day for each QHP issuer, for each individual adversely affected by the non-compliance. ENROLLEE SATISFACTION SURVEY ACA requires HHS to develop an enrollee satisfaction survey that evaluates the level of enrollee satisfaction with each QHP that is offered through an Exchange, for QHPs that had more than 500 enrollees in the previous year. The survey will be available to the public and is intended to allow for the easy comparison of enrollee satisfaction levels among comparable plans in the Exchange. The proposed rule sets forth a process for approving and overseeing survey vendors to administer the survey on behalf of QHP issuers in the Exchange. SMALL BUSINESS HEALTH OPTIONS PROGRAM (SHOP) ACA directs each state that chooses to operate an Exchange to establish insurance options for small businesses through a Small Business Health Options Program (SHOP). States that choose to operate an Exchange may merge the SHOP with the individual market Exchange. According to HHS, SHOPs will allow small employers to provide their employees with a choice of health plan options and will give small businesses the same purchasing power as large businesses. Each Exchange will decide how a SHOP is structured. Eligible Small Employers The final rule provides flexibility with regard to the size of small businesses that can participate in SHOP. Until 2016, states can set the size of the small group market at either 1 to 50 or 1 to 100 employees. In 2016, employers with between 1 and 100 employees will be allowed to participate in a SHOP. Starting in 2017, states have the option to let businesses with more than 100 employees buy large group coverage through the SHOP. Employer Choice Model and Transition Policy A SHOP must allow employers the option to offer employees all QHPs at a level of coverage chosen by the employer bronze, silver, gold or platinum. This is called the employee choice model. Under the employee choice model, the employer chooses a level of coverage and a contribution amount and employees then select any QHP at that level.

5 In addition, SHOPs may allow a qualified employer to choose one QHP for its employees. HHS has indicated that the FF-SHOP will give employers the option of offering only a single QHP, as many employers do today, in addition to the employee choice model. The final rule allows minimum participation rules to be met through coverage in any SHOP plan, not a single one. On May, 31, 2013, HHS issued a final rule that will delay implementation of the employee choice model as a requirement for all SHOPs for one year, until According to HHS, this approach provides all SHOPs (both state SHOPs and the FF-SHOP) with additional time to prepare for the employee choice model. Under the transition approach: Tax Credit State-run Exchanges: A state-run Exchange s SHOP may provide the employee choice model for small employers in 2014, but is not required to provide this model until FF Exchanges: The FF-SHOP will not provide the employee choice model for small employers until For 2014 plan years, the FF-SHOP will assist employers in choosing a single QHP to offer their qualified employees. Starting in 2014, small employers purchasing coverage through SHOP may be eligible for a tax credit of up to 50 percent of their premium payments if they have 25 or fewer employees, pay employees an average annual wage of less than $50,000, offer all full-time employees coverage and pay at least 50 percent of the premium. Source: Department of Health and Human Services The information contained in this document is presented solely in the capacity of Cobbs Allen as an insurance broker/consultant. Nothing contained herein should be construed as tax or legal advice or opinion or used as a substitute for consultation with professional legal counsel. Cobbs Allen is not authorized to practice law, is not an attorney or law firm, and is not rendering legal advice.

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