Insurers Ask HHS for Grace Period To Comply With Marketplace Regulation

Stay ahead of developments in federal and state health care law, regulation and transactions with timely, expert news and analysis.

By Sara Hansard  


Both associations representing most health insurers in the United States suggested in comment letters that the Department of Health and Human Services give issuers a “good faith compliance period” for regulations on standards for the online insurance marketplaces that open for enrollment Oct. 1 under the Affordable Care Act.

A one-year moratorium on federal enforcement of marketplace compliance requirements should be granted so HHS can be certain that the information technology is working as intended, America's Health Insurance Plans (AHIP) said in its comment letter, filed July 19.


“A moratorium on enforcement will signal a tangible commitment to the collaborative approach,” while ensuring that the FFMs are functioning as intended, AHIP said.  




Both HHS and issuers of qualified health plans (QHPs) that will be sold in the marketplaces, also known as exchanges, “face significant operational and logistical challenges in the first two years, at a minimum, which are dependent in large part on a variety of technical interfaces, data exchanges and program infrastructure,” AHIP said regarding a Centers for Medicare & Medicaid Services proposed rule, Program Integrity: Exchange, SHOP, Premium Stabilization Programs, and Market Standards (CMS-9957-P). The proposed rule was released June 14 (see previous article).

The success of federally facilitated marketplaces (FFMs) “depends on the full participation of various public and private entities, the health plan community and consumer engagement,” AHIP said in its letter, signed by Candy Gallaher, senior vice president, state policy; Jeanette Thornton, vice president, health IT strategies; and Gregory Gierer, vice president, policy. AHIP members cover about 200 million Americans.

“A moratorium on enforcement will signal a tangible commitment to the collaborative approach,” while ensuring that the FFMs are functioning as intended, AHIP said. The regulation also should recognize a two-year enforcement safe harbor for QHP issuers acting in good faith to come into compliance, it said.

The marketplaces are intended to provide competitive rates for standardized, comprehensive health plans. Moderate and low-income individuals must buy QHPs through the marketplaces in order to receive federal premium tax credit subsidies, and small businesses must buy small group plans through the marketplaces as well, in order to take advantage of ACA small business tax credits.

Mississippi Request

HHS will operate FFMs for individual markets in 34 states; 16 states and the District of Columbia are setting up their own state-based marketplaces. However, in a June 26 comment letter, Mississippi Insurance Commissioner Mike Chaney said the Mississippi Insurance Department is interested in pursuing an option in the proposed rule allowing states to operate only a Small Business Health Options Program marketplace while the federal government operates the state's individual marketplace. Utah has been granted conditional approval to operate only a state-based SHOP marketplace.

HHS Feb. 8 denied Mississippi's application to build an individual state-based marketplace because of Gov. Phil Bryant's (R) opposition to its implementation (see previous article).

An HHS spokeswoman, who spoke on condition of anonymity, told BNA in an email that HHS is having “preliminary conversations with the Mississippi DOI about this possibility to help us better understand” DOI's comment letter. “We continue to work toward opportunities for small employers in [Mississippi] to benefit from the SHOP Exchange,” she said.

BlueCross BlueShield Comment

The Blue Cross and Blue Shield Association (BCBSA), which represents plans covering about 100 million enrollees, “strongly” recommended in its July 19 comment letter “inclusion of a clear, two year good faith compliance period in the final rule.” Although CMS said in the proposed rule that it intended to consider good faith efforts, “this will not be adequate to assure issuers that they will not be penalized for good faith efforts to comply unless it is codified in the final regulation,” BCBSA said in its letter, signed by Justine Handelman, vice president, legislative and regulatory policy.

Both BCBSA and AHIP said CMS should change the proposed requirement that QHPs inside and outside the marketplaces be the same to take advantage of the health care reform law's risk corridors program, which protects payers by spreading the risk for covering people with high health care expenses. “CMS must maintain the approach provided in previous guidance, which required that plans be 'substantially the same' inside and outside an exchange to take advantage of the risk corridor program,” BCBSA said.

The CMS guidance that changed the definition of “substantially the same” was issued “well after the deadline for submitting QHP applications, after state product filing deadlines and only one business day before the close of the petition window for correcting submissions,” BCBSA said.

Requiring plans offered outside the marketplaces to have the same benefits “may unnecessarily exclude some plans from risk corridor calculations and hinder the overall goal of the premium stabilization programs,” AHIP said.

States have enacted benefit mandates that apply only to marketplaces outside ACA marketplaces, and QHPs sold through ACA marketplaces are not required to cover pediatric dental services if a stand-alone pediatric dental plan is offered on the marketplace, it said. AHIP recommended that plans be considered the same for purposes of risk corridor calculations when the only differences are the result of federal or state regulatory requirements.

Aetna's Comment

In its July 19 comment letter, health insurer Aetna said issuers should be allowed to introduce new products outside the marketplaces throughout the year to encourage development of new and innovative products such as accountable care organizations (ACOs). ACA promotes ACOs, through which providers are encouraged to better coordinate and reduce the cost of health care.

Massachusetts, which enacted a health care reform law that is the model for ACA, provides a precedent for the approach, Aetna said in its letter, signed by Steven Kelmar, senior vice president, government affairs and public policy. The most common state practice today is to allow insurers to introduce new products throughout the year, Aetna said.

Aetna also said, “Exchange enrollment through an insurer should not be the primary Exchange enrollment method.” To foster choice and competition, HHS and the states should focus on developing exchange-based portals that allow people to compare products from all qualified health plans in the state, it said.

eHealth Comments

It its July 17 comment letter, health insurance web broker eHealth Inc. said HHS “needs to clarify the agent and broker 'arrangements' the agency is seeking to regulate.”

HHS proposed that web brokers ensure that organizations using web broker websites comply with the broker's policies and other requirements imposed by HHS, eHealth said in its letter, signed by Scott Giesler, general counsel. The proposed rule is “overly broad, potentially applying to routine access to an agent or broker's website,” it said.

eHealth also said HHS's proposed regulation governing privacy and security incidents and breaches are inconsistent with the Health Insurance Portability and Accountability Act and are “unworkable in practice.”

Request Health Care on Bloomberg Law