Rule2021-20509
Patient Protection and Affordable Care Act; Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond
Primary source
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Published
September 27, 2021
Effective
November 26, 2021
Issuing agencies
Treasury DepartmentHealth and Human Services Department
Abstract
This final rule sets forth revised 2022 user fee rates for issuers offering qualified health plans (QHPs) through federally- facilitated Exchanges and State-based Exchanges on the Federal platform; repeals separate billing requirements related to the collection of separate payments for the portion of QHP premiums attributable to coverage for certain abortion services; expands the annual open enrollment period and Navigator duties; implements a new monthly special enrollment period for qualified individuals or enrollees, or the dependents of a qualified individual or enrollee, who are eligible for advance payments of the premium tax credit (APTC) and whose household income does not exceed 150 percent of the Federal poverty level, available during periods of time during which APTC benefits are available such that certain applicable taxpayers' applicable percentage is set at zero, such as during tax years 2021 and 2022 under the section 9661 of the American Rescue Plan Act of 2021; repeals the recent establishment of a Direct Enrollment option for Exchanges; and modifies regulations and policies related to section 1332 waivers.
Full Text
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[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Rules and Regulations]
[Pages 53412-53506]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20509]
[[Page 53411]]
Vol. 86
Monday,
No. 184
September 27, 2021
Part II
Department of the Treasury
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31 CFR Part 33
Department of Health and Human Services
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45 CFR Parts 147, 155, and 156
Patient Protection and Affordable Care Act; Updating Payment
Parameters, Section 1332 Waiver Implementing Regulations, and Improving
Health Insurance Markets for 2022 and Beyond; Final Rule
Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 /
Rules and Regulations
[[Page 53412]]
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DEPARTMENT OF THE TREASURY
31 CFR Part 33
RIN 1505-AC78
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Parts 147, 155, and 156
[CMS-9906-F]
RIN 0938-AU60
Patient Protection and Affordable Care Act; Updating Payment
Parameters, Section 1332 Waiver Implementing Regulations, and Improving
Health Insurance Markets for 2022 and Beyond
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS; Monetary
Offices, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This final rule sets forth revised 2022 user fee rates for
issuers offering qualified health plans (QHPs) through federally-
facilitated Exchanges and State-based Exchanges on the Federal
platform; repeals separate billing requirements related to the
collection of separate payments for the portion of QHP premiums
attributable to coverage for certain abortion services; expands the
annual open enrollment period and Navigator duties; implements a new
monthly special enrollment period for qualified individuals or
enrollees, or the dependents of a qualified individual or enrollee, who
are eligible for advance payments of the premium tax credit (APTC) and
whose household income does not exceed 150 percent of the Federal
poverty level, available during periods of time during which APTC
benefits are available such that certain applicable taxpayers'
applicable percentage is set at zero, such as during tax years 2021 and
2022 under the section 9661 of the American Rescue Plan Act of 2021;
repeals the recent establishment of a Direct Enrollment option for
Exchanges; and modifies regulations and policies related to section
1332 waivers.
DATES: This final rule is effective on November 26, 2021.
FOR FURTHER INFORMATION CONTACT: Adrianne Patterson, (410) 786-0686,
Jacquelyn Rudich, (301) 492-5211, or Nora Simmons, (410) 786-1981, for
general information.
Gian Johnson, (301) 492-4323, or Meredyth Woody, (301) 492-4404,
for matters related to Navigator program standards.
Robert Yates, (301) 492-5151, for matters related to the Exchange
Direct Enrollment option for federally-facilitated Exchanges, State-
based Exchanges on the Federal platform, and State Exchanges.
Carly Rhyne, (301) 492-4188, or Aziz Sandhu, (301) 492-4437, for
matters related to the annual open enrollment period.
Carolyn Kraemer, (301) 492-4197, for matters related to special
enrollment periods for Exchange enrollment under parts 147 and 155.
Nikolas Berkobien, (301) 492-4400, for matters related to
standardized options.
Aaron Franz, (410) 786-8027, for matters related to user fees.
Rebecca Bucchieri, (301) 492-4341, for matters related to provision
of essential health benefits and separate billing and segregation of
funds for abortion services.
Erika Melman, (301) 492-4348, Deborah Hunter, (410) 786-0625, or
Emily Martin, (301) 492-4400, for matters related to network adequacy.
Lina Rashid, (202) 260-6098, Michelle Koltov, (301) 492-4225, or
Kimberly Koch, (202) 622-0854, for matters related to section 1332
waivers.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legislative and Regulatory Overview
B. Stakeholder Consultation and Input
C. Structure of the Final Rule
III. Provisions of the Updating Payment Parameters and Improving
Health Insurance Markets for 2022 and Beyond Final Rule and
Responses to Public Comments
A. Part 147--Health Insurance Reform Requirements for the Group
and Individual Health Insurance Markets
B. Part 155--Exchange Establishment Standards and Other Related
Standards Under the Affordable Care Act
C. Part 156--Health Insurance Issuer Standards Under the
Affordable Care Act, Including Standards Related to Exchanges
IV. Provisions of the Final Rule for Section 1332 Waivers and
Responses to Public Comments
A. 31 CFR part 33 and 45 CFR part 155--Section 1332 Waivers
V. Collection of Information Requirements
A. ICRs Regarding Navigator Program Standards (Sec. 155.210)
B. ICRs Regarding Segregation of Funds for Abortion Services
(Sec. 156.280)
C. ICRs Regarding Section 1332 Waivers (31 CFR part 33 and 45
CFR part 155)
VI. Regulatory Impact Analysis
A. Statement of Need
B. Overall Impact
C. Impact Estimates of the Payment Notice Provisions and
Accounting Table
D. Regulatory Alternatives Considered
E. Regulatory Flexibility Act
F. Unfunded Mandates
G. Federalism
H. Congressional Review Act
I. Executive Summary
American Health Benefit Exchanges, or ``Exchanges,'' are entities
established under the Patient Protection and Affordable Care Act (ACA)
\1\ through which qualified individuals and qualified employers can
purchase comprehensive health insurance coverage through QHPs. Many
individuals who enroll in QHPs through individual market Exchanges are
eligible to receive a premium tax credit (PTC) to reduce their costs
for health insurance premiums and to receive reductions in required
cost-sharing payments to reduce out-of-pocket expenses for health care
services. This rule finalizes policies designed to promote greater
access to comprehensive health insurance coverage through the
Exchanges, consistent with applicable law and with the administration's
policy priorities detailed in recent Presidential executive orders.
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\1\ The Patient Protection and Affordable Care Act (Pub. L. 111-
148) was enacted on March 23, 2010. The Healthcare and Education
Reconciliation Act of 2010 (Pub. L. 111-152), which amended and
revised several provisions of the Patient Protection and Affordable
Care Act, was enacted on March 30, 2010. In this proposed rule, HHS
refers to the two statutes collectively as the ``Affordable Care
Act'' or ``ACA.''
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On January 28, 2021, President Biden issued Executive Order 14009,
``Executive Order on Strengthening Medicaid and the Affordable Care
Act'' (E.O. 14009), which stated the Administration's policy to protect
and strengthen the ACA and to make high-quality health care accessible
and affordable for every American.\2\ This Executive Order instructed
the Secretary of Health and Human Services (hereinafter referred to as
``the Secretary'' or the ``Secretary of HHS''), along with the
Secretaries of the Departments of Labor and the Treasury, to review all
existing regulations, guidance documents, and other agency actions to
determine whether they are consistent with the aforementioned policy,
and to consider whether to suspend, revise, or rescind any agency
actions that are inconsistent with it.
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\2\ 86 FR 7793 (Feb. 2, 2021).
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On January 20, 2021, President Biden issued Executive Order 13985,
``On Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government'' (E.O. 13985),\3\ directing that as a
policy matter, the
[[Page 53413]]
Federal Government should pursue a comprehensive approach to advancing
equity for all, including people of color and others who have been
historically underserved, marginalized, and adversely affected by
persistent poverty and inequality. E.O. 13985 also directs HHS to
assess whether, and to what extent, its programs and policies
perpetuate systemic barriers to opportunities and benefits for people
of color and other underserved groups.
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\3\ 86 FR 7009 (Jan. 25, 2021).
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Those who have insurance frequently face barriers to using it
because of affordability concerns related to premiums, deductibles,
copayments, and coinsurance, as well as challenges related to health
literacy and the ability for the insured to find and access in-network
providers. These barriers to using insurance are particularly
problematic for those with chronic conditions and individuals with
social risk factors (such as poverty, minority race and/or ethnicity,
social isolation, and limited community resources),\4\ which also
includes members of underserved communities, people of color, and
others who have been historically underserved, marginalized, and
adversely affected by persistent poverty and inequality. Today, of the
30 million uninsured, half are people of color.\5\ The COVID-19 public
health emergency (PHE) has highlighted the negative effects of these
circumstances as COVID-19 has unequally affected many racial and ethnic
minority groups, putting them more at risk of getting sick and dying
from COVID-19.\6\
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\4\ See ``Social Risk Factors and Medicare's Value-Based
Purchasing Programs,'' HHS Office of the Secretary of Planning and
Evaluation, available at <a href="https://aspe.hhs.gov/social-risk-factors-and-medicares-value-based-purchasing-programs">https://aspe.hhs.gov/social-risk-factors-and-medicares-value-based-purchasing-programs</a>.
\5\ ``Health Insurance Coverage: Early Release of Estimates From
the National Health Interview Survey, January-June 2020,'' National
Center for Health Statistics, February 2021, available at <a href="https://www.cdc.gov/nchs/data/nhis/earlyrelease/insur202102-508.pdf">https://www.cdc.gov/nchs/data/nhis/earlyrelease/insur202102-508.pdf</a>.
\6\ See Centers for Disease Control and Prevention, ``Health
Equity Considerations and Racial and Ethnic Minority Groups,''
updated April 19, 2021, available at <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html#print">https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html#print</a>, <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html#print">https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html#print</a>.
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As part of its review of regulations and policies under the
Executive Orders described in the preceding paragraphs, HHS analyzed
whether certain policies and requirements addressed in this final rule
are consistent with policy goals outlined in the Executive Orders,
including whether they might create or perpetuate systemic barriers to
obtaining health insurance coverage. The results of HHS's analyses led
to the policies and rules finalized in this rule.
In previous rulemakings, HHS established provisions and parameters
to implement many ACA requirements and programs. In this final rule,
HHS amends and repeals some of these provisions and parameters, with a
focus on making high-quality health care accessible and affordable for
consumers. These changes provide consumers greater access to coverage
through, for example, greater education and outreach, improved
affordability for consumers, reduced administrative burden for issuers
and consumers, and improved program integrity. As discussed more fully
later in the preamble, each of these measures strengthen the ACA or
otherwise promote the policy goals outlined in the Executive Orders
described earlier in this preamble.\7\
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\7\ Although many of the policies in this rule support the goals
outlined in recent Executive Orders, as described later in the
preamble discussions related to individual provisions, each of the
provisions is supported by statutory authority independent of the
Executive Orders.
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HHS amends Sec. 147.104(b)(2) to specify that issuers are not
required to provide a special enrollment period in the individual
market with respect to coverage offered outside of an Exchange to
qualifying individuals who would be eligible for the proposed special
enrollment period triggering event at Sec. 155.420(d)(16) described
below.
HHS also amends Sec. 155.210(e)(9) to reinstitute previous
requirements that Navigators in federally-facilitated Exchanges (FFEs)
be required to provide consumers with information and assistance on
certain post-enrollment topics, such as the Exchange eligibility
appeals process, the Exchange-related components of the PTC
reconciliation process, and the basic concepts and rights of health
coverage and how to use it.
HHS also finalizes the removal of Sec. 155.221(j) and repeal of
the Exchange Direct Enrollment option which established a process for
State Exchanges, State-based Exchanges on the Federal platform (SBE-
FPs), and FFEs to work directly with private sector entities (including
QHP issuers, web-brokers, and agents and brokers) to operate enrollment
websites through which consumers can apply for coverage, receive an
eligibility determination from the Exchange, and purchase an individual
market QHP offered through the Exchange with APTC and cost-sharing
reductions (CSRs), if otherwise eligible.
For the 2022 coverage year and beyond, HHS amends Sec. 155.410(e)
to lengthen the annual open enrollment period for coverage through all
individual market Exchanges to November 1 through January 15, as
compared to the current annual open enrollment period of November 1
through December 15, and HHS codifies flexibility for State Exchanges
that operate their own eligibility and enrollment platform to set
annual open enrollment period end dates no earlier than December 15.
HHS adds a new paragraph at Sec. 155.420(d)(16) to establish a
monthly special enrollment period for qualified individuals or
enrollees, or the dependents of a qualified individual or enrollee, who
are eligible for APTC and whose household income does not exceed 150
percent of the Federal poverty line (FPL), in order to provide low-
income individuals who generally will have access to a premium-free
silver plan with a 94 percent actuarial value (AV) with more
opportunities to enroll in coverage. This monthly special enrollment
period will be available during periods of time when APTC benefits are
available such that the applicable taxpayers' applicable percentage is
set at zero, such as during tax years 2021 and 2022, as provided by
section 9661 of the American Rescue Plan Act of 2021 (Pub. L. 117-2)
(ARP). HHS also clarifies, for purposes of the special enrollment
periods provided at Sec. 155.420(d), that a qualified individual who
meets the criteria at Sec. 155.305(f), but who qualifies for a maximum
APTC amount of zero dollars, is not considered APTC eligible. This
approach will ensure that Sec. 155.420 reflects appropriate special
enrollment period eligibility for qualifying individuals who qualify
for a maximum APTC amount of zero dollars and for those who become
eligible for APTC amounts greater than zero.
In addition, to reflect updated analysis of enrollment and the cost
of expanded services offered through the Federal platform, HHS is
finalizing the 2022 user fee rate at 2.75 percent of total monthly
premiums charged by the issuer for each policy under plans offered
through an FFE, and 2.25 percent of the total monthly premiums charged
by the issuer for each policy under plans offered through an SBE-FP
(rather than 2.25 and 1.75 percent of the total monthly premiums
charged by the issuer for each policy under plans offered through an
FFE or SBE-FP, respectively, as finalized in the HHS Notice of Benefit
and Payment Parameters for 2022 (hereinafter referred to as ``part 1 of
the 2022 Payment Notice final rule'').\8\ These finalized 2022 user
[[Page 53414]]
fee rates are still less than the 2021 user fees currently being
collected--3.0 and 2.5 percent of the total monthly premiums charged by
the issuer for each policy under plans offered through an FFE or SBE-
FP, respectively.
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\8\ 86 FR 6138.
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HHS is also finalizing a technical amendment to requirements at
Sec. 156.115(a)(3) pertaining to the provision of the essential health
benefits (EHB), to include a cross-reference to the Public Health
Service (PHS) Act to make clear that health plans subject to EHB
requirements must comply with all of the requirements under Mental
Health Parity and Addiction Equity Act of 2008 (MHPAEA), including any
amendments to MHPAEA.
HHS is repealing the separate billing regulation at Sec.
156.280(e)(2), which requires individual market QHP issuers that offer
coverage of abortion services for which Federal funds are prohibited
\9\ to separately bill for this portion of the policy holder's premium
and to instruct the policy holder to pay for the separate bill in a
separate transaction. Specifically, HHS will revert to, finalize, and
codify the policy finalized in the 2016 Payment Notice \10\ such that
QHP issuers offering coverage of abortion services for which Federal
funds are prohibited again have flexibility in selecting a method to
comply with the separate payment requirement in section 1303 of the
ACA. As finalized, individual market QHP issuers covering abortion
services for which Federal funds are prohibited would still be expected
to comply with all statutory requirements in section 1303 of the ACA
and all applicable regulatory requirements codified at Sec. 156.280.
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\9\ These abortion services refer to abortion coverage that is
subject to the Hyde Amendment's funding limitations which prohibit
the use of Federal funds for such coverage.
\10\ 80 FR 10750 (Feb. 27, 2015).
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This rulemaking also finalizes modifications to the section 1332
Waivers for State Innovation (referred to throughout this rule as
section 1332 waivers) implementing regulations, including changes to
many of the policies and interpretations of the statutory guardrails
recently codified in regulation. The policies and interpretations
finalized in this rule supersede and rescind those outlined in the
October 2018 ``State Relief and Empowerment Waivers'' guidance \11\
(hereinafter referred to as the ``2018 Guidance'') and repeal the
previous codification of the interpretations of the statutory
guardrails in part 1 of the 2022 Payment Notice final rule.\12\ HHS and
the Department of the Treasury (collectively, the Departments) are also
finalizing flexibilities in the public notice requirements and post
award public participation requirements for section 1332 waivers under
certain future emergent situations. The Departments are also finalizing
the processes and procedures for amendments and extensions for approved
waiver plans.
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\11\ 83 FR 53575.
\12\ 86 FR 6138.
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II. Background
A. Legislative and Regulatory Overview
Title I of the Health Insurance Portability and Accountability Act
of 1996 (HIPAA) added a new title XXVII to the PHS Act to establish
various reforms to the group and individual health insurance markets.
These provisions of the PHS Act were later augmented by other laws,
including the ACA. Subtitles A and C of title I of the ACA reorganized,
amended, and added to the provisions of part A of title XXVII of the
PHS Act relating to group health plans \13\ and health insurance
issuers in the group and individual markets. The term ``group health
plan'' includes both insured and self-insured group health plans.
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\13\ The term ``group health plan'' is used in title XXVII of
the PHS Act and is distinct from the term ``health plan'' as used in
other provisions of title I of the ACA. The term ``health plan''
does not include self-insured group health plans.
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Section 2702 of the PHS Act, as added by the ACA, establishes
requirements for guaranteed availability of coverage in the group and
individual markets.\14\
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\14\ Before enactment of the ACA, HIPAA amended the PHS Act
(formerly section 2711) to generally require guaranteed availability
of coverage for employers in the small group market.
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Section 1301(a)(1)(B) of the ACA directs all issuers of QHPs to
cover the EHB package described in section 1302(a) of the ACA,
including coverage of the services described in section 1302(b) of the
ACA, adherence to the cost-sharing limits described in section 1302(c)
of the ACA, and meeting the AV levels established in section 1302(d) of
the ACA. Section 2707(a) of the PHS Act, which is effective for plan or
policy years beginning on or after January 1, 2014, extends the
requirement to cover the EHB package to non-grandfathered individual
and small group health insurance coverage, irrespective of whether such
coverage is offered through an Exchange. In addition, section 2707(b)
of the PHS Act directs non-grandfathered group health plans to ensure
that cost sharing under the plan does not exceed the limitations
described in sections 1302(c)(1) of the ACA.
Section 1302 of the ACA provides for the establishment of an EHB
package that includes coverage of EHBs (as defined by the Secretary),
cost-sharing limits, and AV requirements. Section 1302(b) of the ACA
directs that EHBs be equal in scope to the benefits provided under a
typical employer plan, and that they cover at least the following 10
general categories: Ambulatory patient services; emergency services;
hospitalization; maternity and newborn care; mental health and
substance use disorder services, including behavioral health treatment;
prescription drugs; rehabilitative and habilitative services and
devices; laboratory services; preventive and wellness services and
chronic disease management; and pediatric services, including oral and
vision care.
Section 1302(d) of the ACA describes the various levels of coverage
based on their AV. Consistent with section 1302(d)(2)(A) of the ACA, AV
is calculated based on the provision of EHB to a standard population.
Section 1302(d)(3) of the ACA directs the Secretary to develop
guidelines that allow for de minimis variation in AV calculations.
Section 1303 of the ACA, as implemented in 45 CFR 156.280,
specifies standards for issuers of QHPs through the Exchanges that
cover abortion services for which Federal funding is prohibited. The
statute and regulation establish that, unless otherwise prohibited by
state law, a QHP issuer may elect to cover such abortion services. If
an issuer elects to cover such services under a QHP sold through an
individual market Exchange, the issuer must take certain steps to
ensure that no PTC or CSR funds are used to pay for abortion services
for which public funding is prohibited.
As specified in section 1303(b)(2) of the ACA, one such step is
that individual market Exchange issuers must determine the amount of,
and collect, from each enrollee, a separate payment for an amount equal
to the AV of the coverage for abortions for which public funding is
prohibited, which must be no less than $1 per enrollee, per month. QHP
issuers must also segregate funds collected through this payment for
abortion services for which Federal funds are prohibited into a
separate allocation account used to pay for such abortion services.
Sections 1311(b) and 1321(b) of the ACA provide that each state has
the opportunity to establish an individual market Exchange that
facilitates the purchase of insurance coverage by qualified individuals
through QHPs and meets other standards specified in the ACA. Section
1321(c)(1) of the ACA directs the Secretary to establish and
[[Page 53415]]
operate such Exchange within states that do not elect to establish an
Exchange or, as determined by the Secretary on or before January 1,
2013, will not have an Exchange operable by January 1, 2014.
Section 1311(c)(1) of the ACA provides the Secretary the authority
to issue regulations to establish criteria for the certification of
QHPs, including network adequacy standards at section 1311(c)(1)(B) of
the ACA. Section 1311(d) of the ACA describes the minimum functions of
an Exchange. Section 1311(e)(1) of the ACA grants the Exchange the
authority to certify a health plan as a QHP if the health plan meets
the Secretary's requirements for certification issued under section
1311(c)(1) of the ACA, and the Exchange determines that making the plan
available through the Exchange is in the interests of qualified
individuals and qualified employers in the state. Section 1311(c)(6) of
the ACA establishes authority for the Secretary to require Exchanges to
provide enrollment periods, including special enrollment periods,
including the monthly enrollment period for Indians, as defined by
section 4 of the Indian Health Care Improvement Act, per section
1311(c)(6)(D) of the ACA.
Sections 1311(d)(4)(K) and 1311(i) of the ACA require each Exchange
to establish a Navigator program under which it awards grants to
entities to carry out certain Navigator duties.
Section 1312(c) of the ACA generally requires a health insurance
issuer to consider all enrollees in all health plans (except
grandfathered health plans) offered by such issuer to be members of a
single risk pool for each of its individual and small group markets.
States have the option to merge the individual and small group market
risk pools under section 1312(c)(3) of the ACA.
Section 1312(e) of the ACA directs the Secretary to establish
procedures under which a state may permit agents and brokers to enroll
qualified individuals and qualified employers in QHPs through an
Exchange and to assist individuals in applying for financial assistance
for QHPs sold through an Exchange.
Sections 1313 and 1321 of the ACA provide the Secretary with the
authority to oversee the financial integrity of State Exchanges, their
compliance with HHS standards, and the efficient and non-discriminatory
administration of State Exchange activities. Section 1321 of the ACA
provides for state flexibility in the operation and enforcement of
Exchanges and related requirements.
Section 1321(a)(1) of the ACA directs the Secretary to issue
regulations that set standards for meeting the requirements of title I
of the ACA for, among other things, the establishment and operation of
Exchanges. When operating an FFE under section 1321(c)(1) of the ACA,
HHS has the authority under sections 1321(c)(1) and 1311(d)(5)(A) of
the ACA to collect and spend user fees. Office of Management and Budget
(OMB) Circular A-25 establishes Federal policy regarding user fees and
specifies that a user charge will be assessed against each identifiable
recipient for special benefits derived from Federal activities beyond
those received by the general public.
Section 1321(d) of the ACA provides that nothing in title I of the
ACA must be construed to preempt any state law that does not prevent
the application of title I of the ACA. Section 1311(k) of the ACA
specifies that Exchanges may not establish rules that conflict with or
prevent the application of regulations issued by the Secretary.
Section 1332 of the ACA provides the Secretary of HHS and the
Secretary of the Treasury (collectively, the Secretaries) with the
discretion to approve a state's proposal to waive specific provisions
of the ACA, provided the state's section 1332 waiver plan meets certain
requirements. Section 1332(a)(4)(B) of the ACA requires the Secretaries
to issue regulations regarding procedures for section 1332 waivers.
Section 1402 of the ACA provides for, among other things,
reductions in cost sharing for EHB for qualified low- and moderate-
income enrollees in silver level QHPs offered through the individual
market Exchanges. This section also provides for reductions in cost
sharing for Indians enrolled in QHPs at any metal level.
Section 1411(c) of the ACA requires the Secretary to submit certain
information provided by applicants under section 1411(b) of the ACA to
other Federal officials for verification, including income and family
size information to the Secretary of the Treasury.
Section 1411(d) of the ACA provides that the Secretary must verify
the accuracy of information provided by applicants under section
1411(b) of the ACA for which section 1411(c) of the ACA does not
prescribe a specific verification procedure, in such manner as the
Secretary determines appropriate.
Section 1411(f) of the ACA requires the Secretary, in consultation
with the Secretary of the Treasury, the Secretary of Homeland Security,
and the Commissioner of Social Security, to establish procedures for
hearing and making decisions governing appeals of Exchange eligibility
determinations.
Section 1411(f)(1)(B) of the ACA requires the Secretary to
establish procedures to redetermine eligibility on a periodic basis, in
appropriate circumstances, including eligibility to purchase a QHP
through the Exchange and for APTC and CSRs.
Section 1411(g) of the ACA allows the use or disclosure of
applicant information only for the limited purposes of, and to the
extent necessary to, ensure the efficient operation of the Exchange,
including by verifying eligibility to enroll through the Exchange and
for APTC and CSRs.
Section 5000A of the Internal Revenue Code (``the Code''), as added
by section 1501(b) of the ACA, requires individuals to have minimum
essential coverage (MEC) for each month, qualify for an exemption, or
make an individual shared responsibility payment. Under the Tax Cuts
and Jobs Act (Pub. L. 115-97, December 22, 2017) the individual shared
responsibility payment has been reduced to $0, effective for months
beginning after December 31, 2018. Notwithstanding that reduction,
certain exemptions are still relevant to determine whether individuals
age 30 and above qualify to enroll in catastrophic coverage under 45
CFR 155.305(h) or 156.155.
1. Program Integrity
In the June 19, 2013 Federal Register (78 FR 37031), HHS published
a proposed rule that proposed certain program integrity standards
related to Exchanges and the premium stabilization programs (proposed
Program Integrity Rule). The provisions of that proposed rule were
finalized in two rules, the ``first Program Integrity Rule'' published
in the August 30, 2013 Federal Register (78 FR 54069) and the ``second
Program Integrity Rule'' published in the October 30, 2013 Federal
Register (78 FR 65045). In the December 27, 2019 Federal Register (84
FR 71674), HHS published a final rule that revised standards relating
to oversight of Exchanges established by states and periodic data
matching frequency. It also added new requirements for certain issuers
related to the separate billing and collection of the separate payment
for the premium portion attributable to coverage for certain abortion
services. In the May 8, 2020 Federal Register (85 FR 27550), HHS
published the Medicare and Medicaid Programs, Basic Health Programs and
Exchanges interim final rule with public comment (``May 2020 IFC'') and
postponed the
[[Page 53416]]
implementation deadline for those separate billing and collection
requirements by 60 days. In light of court rulings in the ongoing
litigation in Federal courts in Maryland, Washington, and California
challenging the separate billing regulation,\15\ the separate billing
policy is not currently in effect.
---------------------------------------------------------------------------
\15\ Washington v. Azar, 461 F. Supp. 3d 1016 (E.D. Wash. 2020);
Planned Parenthood of Maryland, Inc. v. Azar, No. CV CCB-20-00361
(D. Md. July 10, 2020); California v. U.S. Dep't of Health & Hum.
Servs., 473 F. Supp. 3d 992 (N.D. Cal. July 20, 2020).
---------------------------------------------------------------------------
2. Market Rules
An interim final rule relating to the HIPAA health insurance
reforms was published in the April 8, 1997 Federal Register (62 FR
16894). A proposed rule relating to ACA health insurance market reforms
that became effective in 2014 was published in the November 26, 2012
Federal Register (77 FR 70584). A final rule implementing those
provisions was published in the February 27, 2013 Federal Register (78
FR 13406) (2014 Market Rules).
A proposed rule relating to Exchanges and Insurance Market
Standards for 2015 and beyond was published in the March 21, 2014
Federal Register (79 FR 15808) (2015 Market Standards Proposed Rule). A
final rule implementing the Exchange and Insurance Market Standards for
2015 and Beyond was published in the May 27, 2014 Federal Register (79
FR 30240) (2015 Market Standards Rule). The 2018 Payment Notice final
rule in the December 22, 2016 Federal Register (81 FR 94058) provided
additional guidance on guaranteed availability and guaranteed
renewability. In the Market Stabilization final rule that was published
in the April 18, 2017 Federal Register (82 FR 18346), HHS released
further guidance related to guaranteed availability. In the 2019
Payment Notice final rule in the April 17, 2018 Federal Register (83 FR
17058), HHS clarified that certain exceptions to the special enrollment
periods only apply with respect to coverage offered outside of the
Exchange in the individual market.
In the 2022 Payment Notice final rule in the May 5, 2021 Federal
Register (86 FR 24140) (hereinafter referred to as the ``part 2 of the
2022 Payment Notice final rule''), HHS made additional amendments to
the guaranteed availability regulation regarding special enrollment
periods and finalized new special enrollment periods related to
untimely notice of triggering events, cessation of employer
contributions or government subsidies to COBRA continuation coverage,
and loss of APTC eligibility.
3. Exchanges
HHS published a request for comment relating to Exchanges in the
August 3, 2010 Federal Register (75 FR 45584). HHS issued initial
guidance to states on Exchanges on November 18, 2010. In the July 15,
2011 Federal Register (76 FR 41865), HHS published a proposed rule with
proposals to implement components of the Exchanges, and a rule in the
August 17, 2011 Federal Register (76 FR 51201) regarding Exchange
functions in the individual market and Small Business Health Options
Program (SHOP), eligibility determinations, and Exchange standards for
employers. A final rule implementing components of the Exchanges and
setting forth standards for eligibility for Exchanges, including
minimum network adequacy requirements, was published in the March 27,
2012 Federal Register (77 FR 18309) (Exchange Establishment Rule).
In the 2014 Payment Notice and in the Amendments to the HHS Notice
of Benefit and Payment Parameters for 2014 interim final rule,
published in the March 11, 2013 Federal Register (78 FR 15541), HHS set
forth standards related to Exchange user fees. HHS established an
adjustment to the FFE user fee in the Coverage of Certain Preventive
Services under the Affordable Care Act final rule, published in the
July 2, 2013 Federal Register (78 FR 39869) (Preventive Services Rule).
In the 2016 Payment Notice in the February 27, 2015 Federal Register
(80 FR 10750), HHS finalized changes related to network adequacy and
provider directories.
In the 2017 Payment Notice in the March 8, 2016 Federal Register
(81 FR 12203), HHS finalized six standardized plan options to simplify
the plan selection process for consumers on the Exchanges and codified
SBE-FPs along with relevant requirements, including the associated user
fee. In the 2017 Payment Notice, HHS also finalized policies relating
to network adequacy for QHPs on the FFEs. In the May 11, 2016 Federal
Register (81 FR 29146), HHS published an interim final rule with
amendments to the parameters of certain special enrollment periods
(2016 Interim Final Rule). HHS finalized these amendments in the 2018
Payment Notice final rule, published in the December 22, 2016 Federal
Register (81 FR 94058). The 2018 Payment Notice also modified the
standardized options finalized in the 2017 Payment Notice and included
three new sets of standardized options.
In the April 18, 2017 Market Stabilization final rule Federal
Register (82 FR 18346), HHS amended standards relating to special
enrollment periods and QHP certification. In the 2019 Payment Notice
final rule, published in the April 17, 2018 Federal Register (83 FR
16930), HHS modified parameters around certain special enrollment
periods and discontinued the designation of standardized options. In
the April 25, 2019 Federal Register (84 FR 17454), the final 2020
Payment Notice established a new special enrollment period. In the May
14, 2020 Federal Register (85 FR 29204), the 2021 Payment Notice final
rule made certain changes to plan category limitations and special
enrollment period coverage effective date rules, allowed individuals
provided a non-calendar year qualified small employer health
reimbursement arrangement (QSEHRA) to qualify for an existing special
enrollment period, and discussed plans for future rulemaking for
employer-sponsored coverage (ESC) verification and non-enforcement
discretion for Exchanges that do not conduct random sampling to verify
whether an employer offers ESC until plan year 2021.
In part 1 of the 2022 Payment Notice final rule, published in the
January 19, 2021 Federal Register (86 FR 6138), HHS finalized a new
Exchange Direct Enrollment (DE) option. In part 2 of the 2022 Payment
Notice final rule in the May 5, 2021 Federal Register (86 FR 24140) HHS
finalized new special enrollment periods related to untimely notice of
triggering events, cessation of employer contributions or government
subsidies to COBRA continuation coverage, loss of APTC eligibility, and
clarified the regulation imposing network adequacy standards with
regard to QHPs that do not use provider networks.
4. Essential Health Benefits
On December 16, 2011, HHS released a bulletin \16\ that outlined an
intended regulatory approach for defining EHB, including a benchmark-
based framework. A proposed rule relating to EHBs was published in the
November 26, 2012 Federal Register (77 FR 70643). HHS established
requirements relating to EHBs in the Standards Related to Essential
Health Benefits, Actuarial Value, and Accreditation Final Rule, which
was published in the February 25, 2013 Federal Register (78
[[Page 53417]]
FR 12833) (EHB Rule). In the 2019 Payment Notice, published in the
April 17, 2018 Federal Register (83 FR 16930), HHS added Sec. 156.111
to provide states with additional options from which to select an EHB-
benchmark plan for plan years 2020 and beyond.
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\16\ ``Essential Health Benefits Bulletin,'' December 16, 2011.
Available at <a href="https://www.cms.gov/CCIIO/Resources/Files/Downloads/essential_health_benefits_bulletin.pdf">https://www.cms.gov/CCIIO/Resources/Files/Downloads/essential_health_benefits_bulletin.pdf</a>.
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5. Section 1332 Waivers
In the March 14, 2011 Federal Register (76 FR 13553), the
Departments published the ``Application, Review, and Reporting Process
for Waivers for State Innovation'' proposed rule to implement section
1332(a)(4)(B) of the ACA. In the February 27, 2012 Federal Register (77
FR 11700), the Departments published the ``Application, Review, and
Reporting Process for Waivers for State Innovation'' final rule
(hereinafter referred to as the ``2012 Final Rule''). In the October
24, 2018 Federal Register (83 FR 53575), the Departments issued the
2018 Guidance, which superseded the previous guidance \17\ published in
the December 16, 2015 Federal Register (80 FR 78131) (hereinafter
referred to as the ``2015 Guidance''), and provided additional
information about the requirements that states must meet for waiver
proposals, the Secretaries' application review procedures, pass-through
funding determinations, certain analytical requirements, and
operational considerations. In the November 6, 2020 Federal Register
(85 FR 71142), the Departments issued an interim final rule
(hereinafter referred to as the ``November 2020 IFC''), which revises
regulations to set forth flexibilities in the public notice
requirements and post award public participation requirements for
waivers under section 1332 during the COVID-19 PHE. In the December 4,
2020 Federal Register (85 FR 78572), the Departments published the
``Patient Protection and Affordable Care Act; HHS Notice of Benefit and
Payment Parameters for 2022 and Pharmacy Benefit Manager Standards;
Updates to State Innovation Waiver (Section 1332 Waiver) Implementing
Regulations'' proposed rule (hereinafter referred to as the ``2022
Payment Notice proposed rule'') to codify certain policies and
interpretations of the 2018 Guidance. In the January 19, 2021 Federal
Register (86 FR 6138), the Departments published part 1 of the 2022
Payment Notice final rule which codified many of the policies and
interpretations outlined in the 2018 Guidance into section 1332
regulations.
---------------------------------------------------------------------------
\17\ <a href="https://www.govinfo.gov/content/pkg/FR-2015-12-16/pdf/2015-31563.pdf">https://www.govinfo.gov/content/pkg/FR-2015-12-16/pdf/2015-31563.pdf</a>.
---------------------------------------------------------------------------
B. Stakeholder Consultation and Input
HHS consulted with stakeholders on policies related to the
operation of Exchanges relevant to the policies in this final rule. HHS
held a number of listening sessions with consumers, providers,
employers, health plans, advocacy groups and the actuarial community to
gather public input. HHS has solicited input from state representatives
on numerous topics, particularly the direct enrollment option for FFEs,
SBE-FPs and State Exchanges.
HHS consulted with stakeholders through monthly meetings with the
National Association of Insurance Commissioners (NAIC), regular contact
with states, and health insurance issuers, trade groups, consumer
advocates, employers, and other interested parties. HHS considered all
public input it received as HHS developed the policies in this rule.
C. Structure of Final Rule
The regulations outlined in this final rule were proposed in the
``Patient Protection and Affordable Care Act; Updating Payment
Parameters, Section 1332 Waiver Implementing Regulations, and Improving
Health Insurance Markets for 2022 and Beyond Proposed Rule'' published
in the July 1, 2021 Federal Register (86 FR 35156 through 35216) and
will be codified in 45 CFR parts 147, 155, and 156. In addition, the
regulations outlined in this final rule governing waivers under section
1332 of the ACA at 45 CFR part 155 subpart N will also be codified in
31 CFR part 33.
The changes to part 147 specify that issuers are not required to
provide a special enrollment period in the individual market with
respect to coverage offered outside of an Exchange to consumers who
would be eligible for the special enrollment period at Sec.
155.420(d)(16).
The changes to part 155 repeal the establishment of the Exchange DE
option, which established a process for State Exchanges, SBE-FPs, and
FFEs to elect to transition to use direct enrollment technology and
non-Exchange websites developed by approved web brokers, issuers and
other direct enrollment partners to enroll qualified individuals in
QHPs offered through the Exchange. HHS is finalizing an extension of
the annual individual market open enrollment period to end on January
15 of the applicable year, rather than December 15 of the previous year
beginning with the open enrollment period for the 2022 coverage year,
and HHS is codifying flexibility for State Exchanges that operate their
own eligibility and enrollment platform to set individual market annual
open enrollment period end dates no earlier than December 15 and to
adopt accelerated effective dates. HHS is also finalizing the
reinstitution of previous requirements that Navigators in FFEs provide
consumers with information and assistance on certain post-enrollment
topics, such as the Exchange eligibility appeals process, the Exchange-
related components of the PTC reconciliation process, and the basic
concepts and rights of health coverage and how to use it. HHS is
further finalizing the provision of a monthly special enrollment period
for qualified individuals or enrollees, or the dependents of a
qualified individual or enrollee, who are eligible for APTC and whose
household income does not exceed 150 percent of the FPL for periods of
time during which enhanced APTC benefits are also available, such that
certain applicable taxpayers' applicable percentage is set at zero, as
provided by the section 9661 of the ARP or any subsequent statute or
rule. HHS is finalizing a clarification that, for purposes of the
special enrollment periods provided at Sec. 155.420(d), a qualified
individual, enrollee, or his or her dependent who is eligible for APTC
because they meet the criteria at Sec. 155.305(f), but who qualifies
for a maximum APTC amount of zero dollars, is not considered APTC
eligible for purposes of these special enrollment periods.
The changes to part 156 update the user fee rates for the 2022
benefit year for all issuers participating on the Exchanges using the
Federal platform. HHS is also finalizing the repeal of the separate
billing requirement, which required individual market QHP issuers that
offer coverage for abortion services for which Federal funding is
prohibited to separately bill policy holders for the portion of the
premium attributable to coverage of such abortion services and instruct
the policy holder to pay for this portion of their premium in a
separate transaction. Finally, HHS is finalizing an update to cross
reference to mental health parity standards in the provision of EHB
regulations.
The changes in 31 CFR part 33 and 45 CFR part 155 related to
section 1332 waivers rescind the previous incorporation into regulation
of certain policies and interpretations announced in the 2018 Guidance
and are adopting new policies and interpretations for the statutory
guardrails. The Departments are finalizing modifications to the section
1332 implementing regulations, and the proposals related to section
1332 waivers, which include adoption of processes and procedures for
[[Page 53418]]
amendments and extensions for approved waiver plans. Additionally, the
Departments are finalizing the extension of certain flexibilities in
the public notice requirements and post award public participation
requirements for section 1332 waivers during future emergent
situations.
III. Provisions of the Updating Payment Parameters and Improving Health
Insurance Markets for 2022 and Beyond the Final Rule and Analysis and
Responses to Public Comments
In the July 1, 2021 Federal Register (86 FR 35156) HHS published
the ``Updating Payment Parameters, Section 1332 Waiver Implementing
Regulations, and Improving Health Insurance Markets for 2022 and
Beyond'' proposed rule.\18\ HHS received a total of 390 comments,
including 168 comments that were substantially similar to one form
letter. Comments were received from state entities, such as departments
of insurance and State Exchanges, health insurance issuers, providers
and provider groups, consumer groups, industry groups, national
interest groups, and other stakeholders. The comments ranged from
general support for the proposed rule, to specific support of or
opposition to the proposed provisions, to specific questions regarding
proposed changes. HHS also received a number of comments and
suggestions that were outside the scope of the proposed rule. These
out-of-scope comments are not addressed in this final rule.
---------------------------------------------------------------------------
\18\ 86 FR 35156.
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In this final rule, HHS provides a summary of proposed provisions,
a summary of the public comments received that directly related to
those proposals, its responses to these comments and a description of
the provisions HHS is finalizing.
HHS first addresses comments regarding the publication of the
proposed rule and the comment period.
Comment: Some commenters were concerned about the length of the
comment period, stating that a longer comment period is necessary to
allow stakeholders to review the proposed rule and provide thoughtful
comments. Some commenters expressed concern that HHS should not
calculate the comment period from the posting of the public inspection
version, and that HHS would not have time to adequately review and
consider all the comments before issuing a final rule.
Response: HHS disagrees that the comment period was not long enough
to allow stakeholders to provide meaningful comments. HHS found
commenters' submissions to be thoughtful and reflective of a detailed
review and analysis of the proposed rule. HHS notes that in the
interest of providing valuable information for issuers to set their
rates for the 2022 plan year as soon as possible, HHS started the 30-
day comment period with the posting of the rule for public inspection.
HHS further recognizes the importance of Federal agencies reviewing
and considering all the relevant comments before issuing a final rule.
The comment period for the proposed rule closed on July 28, 2021. HHS
has had ample time to review and fully consider comments relevant to
the rules and policies addressed in this final rule.
Comment: HHS received several comments of general support for the
rule and for the proposed provisions which expand access to affordable
health coverage. Some commenters expressed support for EOs 13985 and
14009. Other commenters expressed concern regarding the timing of the
rule and the repeal of policies finalized in part 1 of the 2022 Payment
Notice final rule.\19\ A few commenters stated that this rule is being
published too late in the 2021 plan year for policy implementation and
rate-setting for the 2022 plan year.
---------------------------------------------------------------------------
\19\ 86 FR 24140.
---------------------------------------------------------------------------
Response: HHS recognizes that this rulemaking has occurred later
than usual in the plan year. However, HHS believes that the policies
finalized in this rule align with the goals included in EOs 13985 and
14009.\20\
---------------------------------------------------------------------------
\20\ See 86 FR 7009 (Jan. 25, 2021) and 86 FR 7793 (Feb. 2,
2021).
---------------------------------------------------------------------------
While several of the policies in this final rule do not directly
impact rate-setting, this final rule is being released prior to the
September 21, 2021 deadline for signing final QHP agreements to
participate in FFEs and SBE-FPs during the 2022 plan year. The purpose
of the policies in this final rule is to strengthen the health
insurance markets comprising plans that are subject to the ACA market
reforms, and HHS encourages issuers to continue their participation in
the Exchanges for 2022. HHS also believes that there is sufficient time
to implement the applicable policies in advance of the start of the
2022 plan year.
Comment: One commenter requested that HHS assess and address
systemic barriers to access for American Indian and Alaskan Native
populations and establish guidance to address the social determinants
of health that affect these communities and other communities of color.
Response: While this comment is outside of the scope of this rule,
HHS appreciates this feedback. HHS notes that it is actively seeking
ways to engage with stakeholders in an effort to advance health equity
and address the social determinants of health that disparately impact
communities of color in line with E.O. 13985 as described previously.
A. Part 147--Health Insurance Reform Requirements for the Group and
Individual Health Insurance Markets
1. Guaranteed Availability of Coverage (Sec. 147.104)
a. Special Enrollment Periods (Sec. 147.104(b)(2))
As further discussed in the preamble section regarding the monthly
special enrollment period for APTC-eligible qualified individuals with
an expected household income no greater than 150 percent of the FPL
(Sec. 155.420(d)(16)), HHS is finalizing the proposed special
enrollment period with amendments, so that it is available only during
periods of time during which APTC benefits are available such that the
applicable taxpayers' applicable tax percentage is set at zero, such as
during tax years 2021 and 2022, as provided by section 9661 of the ARP.
HHS is otherwise finalizing this new special enrollment period as
proposed, including adding a new paragraph at Sec. 147.104(b)(2)(i)(G)
to specify that issuers are not required to provide this special
enrollment period in the individual market with respect to coverage
offered outside of an Exchange. HHS proposed to add this paragraph
because eligibility for the special enrollment period is based on
eligibility for APTC, as discussed in the Sec. 155.420(d)(16) preamble
section, and APTC cannot be applied to coverage that is not a QHP
offered through an Exchange.\21\ HHS requested comment on this
proposal. HHS did not receive many comments on this aspect of the
proposed special enrollment period. However, comments that HHS did
receive supported the proposal to not require issuers to provide the
proposed special enrollment period for consumers to enroll in coverage
off-Exchange. HHS appreciates this support and is finalizing the
proposed special enrollment period to specify that issuers are not
required to provide it in the individual market with respect to
coverage offered outside of an Exchange.
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\21\ See IRC 36B(b)(2)(A), (c)(2)(A)(i).
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[[Page 53419]]
B. Part 155--Exchange Establishment Standards and Other Related
Standards under the Affordable Care Act
1. Standardized Options (Sec. 155.20)
On March 4, 2021, the United States District Court for the District
of Maryland decided City of Columbus v. Cochran, No. 18-2364, 2021 WL
825973 (D. Md. Mar. 4, 2021). The court reviewed nine separate policies
HHS had promulgated in the 2019 Payment Notice final rule. The court
vacated four of these policies. One of the policies vacated was the
2019 Payment Notice's cessation of the practice of designating some
plans in the FFEs as ``standardized options.'' \22\ Additionally, in
July 2021, President Biden's Executive Order 14036 on Promoting
Competition in the American Economy directed HHS to standardize plan
options in order to facilitate the plan selection process for consumers
on the Exchanges.\23\
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\22\ See 83 FR 16974-16975.
\23\ See 86 FR 36987 (Jul. 9, 2021).
---------------------------------------------------------------------------
HHS intends to implement the court's decision as soon as possible,
as explained in part 2 of the 2022 Payment Notice final rule.\24\ HHS
will not be able to fully implement those aspects of the court's
decision regarding standardized options in time for issuers to design
plans and for CMS to be prepared to certify such plans as QHPs for the
2022 plan year. With the rule removing standardized options vacated,
HHS will also need to design and propose new standardized options that
otherwise meet current market reform requirements.\25\ HHS will need to
design, propose, and finalize such plans in time for issuers to design
their own standardized options in accord with HHS's parameters and to
submit those plans for approval by applicable regulatory authorities
and for certification as QHPs. This is not feasible for the upcoming
QHP certification cycle for the 2022 plan year. The plan certification
process for that year has already begun as of April 22, 2021. CMS's
planning for the QHP certification cycle for the 2022 plan year has
taken into account the existing policies that the court vacated, and it
is too late now to revisit those factors if the process is to go
forward in time for plans to be certified in time for the annual open
enrollment period later this year.
---------------------------------------------------------------------------
\24\ See 86 FR 24140, 24264-24265.
\25\ See 45 CFR 155.220(c)(3)(i)(H).
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Specifically, in the last iteration of standardized options HHS
finalized in the 2018 Payment Notice, HHS created three sets of
standardized options based on FFE and SBE-FP enrollment data and state
cost-sharing laws. The basis on which HHS created these three sets of
options, as well as a number of other factors in the individual market
(for example, states with FFEs or SBE-FPs transitioning to State
Exchanges), have changed considerably since the last iteration of
standardized options in 2018. Further, HHS does not have sufficient
time to conduct a full analysis of the changes that have occurred in
the last several years necessary to timely design and propose
standardized options suitable for the current environment.
Additionally, in prior years, HHS proposed and finalized standardized
option plan designs prior to the start of the QHP certification cycle
for the following plan year such that issuers had sufficient time to
assess these standardized options and could thus determine if they
wanted to offer them and take the steps necessary to do so. Issuers
will not have a sufficient amount of time to meaningfully assess any
standardized options HHS would propose and decide whether or not to
offer them if such proposals were made effective before the 2023 plan
year.
For these reasons, HHS intends to resume the designation of
standardized options and to propose specific plan designs in more
complete detail in the 2023 Payment Notice. HHS sought the views of
stakeholders regarding issues related to the proposal of new
standardized options, including the views of states with FFEs or SBE-
FPs regarding how unique state cost-sharing laws could affect
standardized option plan designs.
The following is a summary of the comments received and HHS's
responses related to standardized options.
Comment: Some commenters recommended not requiring issuers to offer
standardized options. Some commenters also recommended permitting
issuers to voluntarily offer standardized options in states with State
Exchanges, including SBE-FPs, even if issuers in the FFEs were required
to offer them. Some commenters also noted opposition to limiting the
number of non-standardized plans issuers could offer. Some commenters
also recommended not preferentially or differentially displaying
standardized options on <a href="http://HealthCare.gov">HealthCare.gov</a>.
These commenters explained that issuers are already required to
cover the EHB at specified metal tiers of coverage, which provides
consumers a sufficient degree of standardization. These commenters also
explained that requiring issuers to offer standardized options could
result in an influx of options that fail to provide additional value to
consumers and make it more difficult to compare plan options. These
commenters also explained that limiting the number of non-standardized
plans issuers could offer would inhibit innovative plan designs that
meet diverse coverage needs. These commenters also explained that the
preferential or differential display of standardized options would
appear to favor some plans over others, inadvertently steer consumers
towards standardized plans, and discourage consumers from exploring all
available options. These commenters recommended that CMS identify
issuers with a disproportionately high volume of plan options in a
given geographic region and work with these issuers to ensure there are
actual meaningful differences among the plans.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: Some commenters recommended that CMS should employ a
minimally disruptive approach in designing standardized options and not
design plans to be radically different from those currently offered.
These commenters explained that such plans would be more complicated
for issuers to develop and could be challenging for consumers to
interpret. These commenters recommended that CMS offer standardized
options that are based on the most popular plans currently offered on
the Exchanges, a similar approach to that taken in past iterations.
Several of these commenters also recommended that CMS not be overly
prescriptive in standardizing every aspect of cost sharing, but instead
focus on setting annual deductible and out-of-pocket limits.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: Some commenters explained that plan standardization could
stifle competition. These commenters explained that if cost sharing is
standardized, the only difference between plans will be networks. These
commenters also explained that if standardization strengthens the
importance of networks while deemphasizing other aspects of coverage,
issuers may not stay in markets where network costs exceed their
competitors'. These commenters further explained that with every
additional aspect of coverage that is standardized, issuers will have
to consider their ability to compete as
[[Page 53420]]
potential areas to innovate and differentiate are limited.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: Commenters also expressed support for requiring issuers to
offer standardized options, limiting the number of non-standardized
plans that issuers could offer, and preferentially or differentially
displaying standardized options.
Commenters explained the importance of simplifying the complex
process of purchasing insurance and the important role that
standardized options could play in that simplification. Commenters
explained that there is significant variation in the cost sharing
structures of non-standardized plans, much of which cannot be
identified without a detailed analysis of benefit designs. Commenters
explained that many individuals do not have the time, resources, or
health literacy necessary for this level of analysis. Commenters
explained that enrollees typically choose plans based on more readily
available comparison points, like premiums, rather than factors that
would be illuminated by a more detailed examination of plan designs,
like expected out-of-pocket costs. Commenters explained that selecting
a plan solely based on its premium without taking into consideration
other attributes of its design, such as its cost sharing structure,
deductible, or expected out-of-pocket costs, can result in unexpected
costs and financial harm for consumers.
Commenters explained that barriers to conducting a detailed
analysis of plan designs are particularly pronounced for those whose
resources are already severely constrained, including those with
limited English proficiency, those with inadequate internet access, and
those with complex health needs. Commenters explained that facilitating
consumer understanding and streamlining decision-making would benefit
these populations as well as populations with disproportionately high
rates of chronic diseases.
Commenters also explained that standardized plans could help
individuals more easily identify plans that have potentially
discriminatory benefit designs, such as plans that have coinsurance
subject to the deductible as the cost sharing type for specialty tier
prescription drugs. These commenters explained that discriminatory
benefit designs target individuals with particular disabilities or
health conditions by leaving them with substantial out-of-pocket costs.
Commenters explained that conditions that are typically targeted,
including HIV, diabetes, cancer, and mental health conditions,
disproportionately affect individuals of color. Commenters explained
that discriminatory benefit designs continue to violate the ACA's
protections for people with preexisting conditions and its prohibition
on discrimination based on race, sex, and disability.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: Commenters also recommended taking a more prescriptive
approach beyond requiring issuers to offer standardized plans, limiting
the number of non-standardized plans, and preferentially or
differentially displaying standardized plans. These commenters
recommended requiring issuers to offer standardized options
exclusively, pointing to Covered California's approach, which has
required issuers to offer standardized plans exclusively since 2014.
These commenters explained that in Covered California's approach, to
the extent issuers want to offer non-standardized products, they need
to demonstrate that such designs are also patient-centered. These
commenters explained that issuers in California have not seen the value
in offering non-standardized options to date, suggesting that
California's approach to standardized options has satisfied the needs
of issuers and enrollees alike.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: Commenters also made recommendations regarding specific
aspects of standardized plan designs. Some commenters expressed concern
about the cost-sharing structure in the first set of standardized plans
in the 2018 Payment Notice in particular, which had coinsurance subject
to the deductible as the form of cost sharing for occupational,
physical, and speech therapies. Many commenters also noted a strong
preference for copayments over coinsurance as the form of cost sharing
for as many benefit categories as possible. These commenters explained
that consumers prefer copayments to coinsurance because copayments are
more transparent and make it easier to predict out-of-pocket costs.
Commenters also explained that in the context of prescription drugs,
the use of coinsurance results in patients paying cost sharing amounts
based on a medicine's list price, rather than a medicine's net price,
which accounts for manufacturer discounts and rebates paid to pharmacy
benefit managers (PBMs) and issuers. Some commenters recommended that
standardized plans include a nominal cost-sharing cap in the form of
copayments for all tiers of prescription drug coverage to limit the
amount that consumers spend on prescriptions every month, as several
states have already done.
Commenters also recommended having low deductibles, explaining that
deductibles act as a barrier to access. One commenter pointed to
Washington's standardized plans, which have a deductible that is on
average $1,000 less than non-standard offerings and provide more pre-
deductible services. Commenters also recommended exempting a range of
benefits from the deductible, including primary care visits, specialist
visits, outpatient visits, mental health services, habilitative and
rehabilitative services, pediatric preventative services, preventative
care, chronic condition management, and prescription drug coverage. One
commenter explained that any standardized plan that is also a high
deductible health plan (HDHP) should provide pre-deductible coverage
for preventive care the Internal Revenue Service (IRS) has determined
is permitted to be provided without a deductible pursuant to section
223(c)(2)(C) of the Code.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
Comment: One commenter recommended delaying the implementation of
standardized options requirements until plan year 2024 to allow issuers
sufficient time to prepare for this change.
Response: HHS will take these considerations into account when
designing the standardized options that will be proposed in the 2023
Payment Notice.
2. Navigator Program Standards (Sec. 155.210)
HHS proposed to amend Sec. 155.210(e)(9) to reinstitute the
requirement that Navigators in the FFEs provide information and
assistance with regard to certain post-enrollment topics.
Sections 1311(d)(4)(K) and 1311(i) of the ACA require each Exchange
to establish a Navigator program under which it awards grants to
entities to conduct public education activities to raise awareness of
the availability of
[[Page 53421]]
QHPs; distribute fair and impartial information concerning enrollment
in QHPs, and the availability of PTCs and CSRs; facilitate enrollment
in QHPs; provide referrals to any applicable office of health insurance
consumer assistance or health insurance ombudsman established under
section 2793 of the PHS Act, or any other appropriate state agency or
agencies for any enrollee with a grievance, complaint, or question
regarding their health plan, coverage, or a determination under such
plan or coverage; and provide information in a manner that is
culturally and linguistically appropriate to the needs of the
population being served by the Exchange. The statute also requires the
Secretary, in collaboration with states, to develop standards to ensure
that information made available by Navigators is fair, accurate, and
impartial. HHS has implemented the statutorily required Navigator
duties through regulations at Sec. Sec. 155.210 (for all Exchanges)
and 155.215 (for Navigators in FFEs).
Further, section 1311(i)(4) of the ACA requires the Secretary to
establish standards for Navigators to ensure that Navigators are
qualified, and licensed, if appropriate, to engage in the Navigator
activities described in the statute and to avoid conflicts of interest.
This provision has been implemented at Sec. Sec. 155.210(b) (generally
for all Exchanges) and 155.215(b) (for Navigators in FFEs).
HHS has also established under Sec. 155.205(d) and (e) that each
Exchange must have a consumer assistance function, including the
Navigator program, and must conduct outreach and education activities
to educate consumers about the Exchange and insurance affordability
programs to encourage participation.
HHS proposed to amend Sec. 155.210(e)(9) to reinstitute the
requirement that Navigators in the FFEs provide information and
assistance with regard to certain post-enrollment topics rather than
merely being authorized to do so.
Following a reduction in overall funding available to the FFE
Navigator program in 2020, HHS provided more flexibility to FFE
Navigators by making the provision of certain types of assistance,
including post-enrollment assistance, permissible, but not required,
for FFE Navigators under Navigator grants awarded in 2019 or any later
year.\26\ On August 27, 2021, HHS awarded $80 million in grant funding
to 60 Navigator grantees in 30 states with an FFE for the 2022 plan
year.\27\ With this substantially increased funding for the FFE
Navigator program for the 2022 plan year, HHS noted that HHS believes
there will be sufficient Navigator grant funding available to support
the post-enrollment duties HHS proposed to once again require of FFE
Navigators. HHS also noted that HHS believes this proposal aligns with
E.O. 14009 on Strengthening Medicaid and the ACA because it will
improve consumers' access to health coverage information, not only when
selecting a plan, but also throughout the year as they use their
coverage.\28\ In addition, the proposal was designed to ensure that
consumers would have access to skilled assistance beyond applying for
and enrolling in health insurance coverage through the Exchange,
including, for example, assistance with the process of filing Exchange
eligibility appeals, understanding basic information about PTC
reconciliation, and understanding basic concepts and rights related to
health coverage and how to use it, such as locating providers and
accessing care.
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\26\ 84 FR 17511-17514 (April 25, 2019). These post-enrollment
topics included: Understanding the process of filing Exchange
eligibility appeals; understanding and applying for exemptions from
the individual shared responsibility payment that are granted
through the Exchange; understanding the availability of exemptions
from the requirement to maintain MEC and from the individual shared
responsibility payment that are claimed through the tax filing
process and how to claim them; the Exchange-related components of
the PTC reconciliation process; understanding basic concepts and
rights related to health coverage and how to use it; and referrals
to licensed tax advisers, tax preparers, or other resources for
assistance with tax preparation and tax advice on certain Exchange-
related topics.
\27\ <a href="https://www.cms.gov/newsroom/press-releases/biden-harris-administration-quadruples-number-health-care-navigators-ahead-healthcaregov-open">https://www.cms.gov/newsroom/press-releases/biden-harris-administration-quadruples-number-health-care-navigators-ahead-healthcaregov-open</a>.
\28\ 86 FR 7793 (Feb. 2, 2021).
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Section 1311(i)(3)(D) of the ACA and 45 CFR 155.210(e)(4) already
expressly require Navigators to provide post-enrollment assistance by
referring consumers with complaints, questions, or grievances about
their coverage to appropriate state agencies. This suggests that
Congress anticipated that consumers would need assistance beyond the
application and enrollment process, and that Navigators would maintain
relationships with consumers and be a source of such post-enrollment
assistance.
Consistent with the requirements under section 1311(i)(3)(B) and
(C) of the ACA that Navigators distribute fair and impartial
information concerning enrollment in QHPs and facilitate enrollment in
QHPs, and pursuant to the Secretary's authority under section
1321(a)(1)(A) of the ACA, HHS proposed to reinstitute as a requirement
at Sec. 155.210(e)(9)(i) that Navigators in the FFEs must help
consumers with understanding the process of filing appeals of Exchange
eligibility determinations. HHS noted that HHS was once again not
proposing to establish a duty for Navigators to represent a consumer in
an appeal, sign an appeal request, or file an appeal on the consumer's
behalf. HHS noted that HHS believes that helping consumers understand
Exchange appeal rights when they have received an adverse eligibility
determination when applying for health insurance coverage, and
assisting them with the process of completing and submitting appeal
forms, would help to facilitate enrollment through the FFEs and would
help consumers obtain fair and impartial information about enrollment
through the FFEs. HHS discussed that HHS would interpret the proposal
to include helping consumers file appeals of eligibility determinations
made by an Exchange related to enrollment in a QHP, special enrollment
periods, and any insurance affordability program, including eligibility
determinations for Exchange financial assistance, Medicaid, the
Children's Health Insurance Program (CHIP), and the Basic Health
Program.
Currently, pursuant to Sec. 155.210(e)(9)(ii), Navigators in the
FFEs are permitted to provide information and assistance to consumers
with regard to understanding and applying for exemptions from the
individual shared responsibility payment that are granted through the
Exchange, understanding the availability of exemptions from the
requirement to maintain minimum essential coverage and from the
individual shared responsibility payment that are claimed through the
Federal income tax filing process and how to claim them, and
understanding the availability of the IRS resources on this topic. HHS
proposed to amend Sec. 155.210(e)(9)(ii) slightly to reinstitute as a
requirement that Navigators in the FFEs must help consumers understand
and apply for exemptions from the requirement to maintain minimum
essential coverage granted by the Exchange. Although consumers who do
not maintain minimum essential coverage no longer need to receive an
exemption from the individual shared responsibility payment to avoid
having to make such a payment, Navigators can still assist consumers
age 30 or above with filing an exemption to qualify to enroll in
catastrophic coverage under Sec. 155.305(h). HHS noted that HHS
believes that the proposal was consistent with Navigators' duty under
[[Page 53422]]
section 1311(i)(3)(B) and (C) of the ACA to distribute fair and
impartial information concerning enrollment in QHPs, since impartial
information concerning the availability of exemptions for consumers age
30 or above to enroll in catastrophic coverage would help consumers
make informed decisions about whether or not to enroll in such
coverage. This assistance with Exchange-granted exemptions from the
requirement to maintain minimum essential coverage would include
informing consumers about the availability of the exemption; helping
consumers fill out and submit Exchange-granted exemption applications
and obtain any necessary forms prior to or after applying for the
exemption; explaining what the exemption certificate number is and how
to use it; and helping consumers understand and use the Exchange tool
to find catastrophic plans in their area.
In addition, HHS proposed to reinstitute as a requirement at Sec.
155.210(e)(9)(iii) that Navigators must help consumers with the
Exchange-related components of the PTC reconciliation process and with
understanding the availability of IRS resources on this process. As
explained in the proposed rule, this would include ensuring consumers
have access to their Forms 1095-A and receive general, high-level
information about the purpose of this form that is consistent with
published IRS guidance on the topic. The proposal stemmed from the
requirement under section 1311(i)(3)(B) of the ACA that Navigators
distribute fair and impartial information concerning the availability
of the PTC under section 36B of the Code.
Consumers who receive premium assistance through APTC may need help
with a variety of issues related to the requirement to reconcile the
APTC with the PTC allowed for the year of coverage. As explained in the
proposed rule, FFE Navigators would be required to help consumers
obtain IRS Form 1095-A, Health Insurance Marketplace Statement, and
Form 8962, Premium Tax Credit (PTC), and the instructions for Form
8962, and to provide general information, consistent with applicable
IRS guidance, about the significance of the forms. HHS noted that, as
proposed, Navigators would also be required to help consumers
understand (1) how to report errors on the Form 1095-A; (2) how to find
silver plan premiums using the Exchange tool; and (3) the difference
between APTC and PTC and the potential implications for enrollment and
reenrollment of not filing a tax return and reconciling the APTC paid
on consumers' behalf with their PTC for the year.
HHS noted that, as proposed, Navigators would still not be
permitted to provide tax assistance or advice, or interpret tax rules
and forms within their capacity as FFE Navigators. However, their
expertise related to the consumer-facing aspects of the Exchange,
including eligibility and enrollment rules and procedures, would
uniquely qualify them to help consumers understand and obtain
information from the Exchange that is necessary to understand the PTC
reconciliation process. Because the proposal included a requirement
that Navigators provide consumers with information and assistance
understanding the availability of IRS resources, HHS noted that
Navigators would be expected to familiarize themselves with the
availability of materials on <a href="http://irs.gov">irs.gov</a>, including the Form 8962
instructions, IRS Publication 974, Premium Tax Credit, and relevant
FAQs, and to refer consumers with questions about tax law to those
resources or to other resources, such as free tax return preparation
assistance from the Volunteer Income Tax Assistance or Tax Counseling
for the Elderly programs.
To help ensure consumers have seamless access to Exchange-related
tax information beyond the basic information that Navigators can
provide, HHS proposed to reinstitute as a requirement at Sec.
155.210(e)(9)(v) that FFE Navigators must refer consumers to licensed
tax advisers, tax preparers, or other resources for assistance with tax
preparation and tax advice related to consumer questions about the
Exchange application and enrollment process, and PTC
reconciliations.\29\
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\29\ HHS notes that HHS did not propose to reinstitute at Sec.
155.210(e)(9)(v) the requirement that Navigators must provide
referrals to licensed tax advisers, tax preparers, or other
resources for assistance with tax preparation and tax advice related
to consumer questions about exemptions from the requirement to
maintain MEC and from the individual shared responsibility payment
in light of the fact that the individual shared responsibility
payment was reduced to zero for months beginning after December 31,
2018 under the Tax Cuts and Jobs Act (Pub. L. 115-97, December 22,
2017).
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In the proposed rule, HHS discussed that it interprets the
Navigator duties to facilitate enrollment in QHPs in section
1311(i)(3)(C) of the ACA, to distribute fair and impartial information
concerning enrollment in QHPs under section 1311(i)(3)(B) of the ACA,
and to conduct public education activities to raise awareness about the
availability of QHPs in section 1311(i)(3)(A) of the ACA to include
helping consumers understand the kinds of decisions they will need to
make in selecting coverage, and how to use their coverage after they
are enrolled. HHS has previously stated that one of the overall
purposes of consumer assistance programs is to help consumers become
fully informed and health literate.\30\
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\30\ See 79 FR 30276.
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To improve consumers' health literacy related to coverage
generally, and to ensure that individual consumers are able to use
their coverage meaningfully, HHS proposed to reinstitute at Sec.
155.210(e)(9)(iv) the requirement that Navigators in the FFEs must help
consumers understand basic concepts and rights related to health
coverage and how to use it. HHS also proposed to expand its
interpretation of this requirement and the activities that fall within
the requirement's scope. As explained in the proposed rule, these
activities could be supported through the use of existing resources
such as the CMS ``From Coverage to Care'' initiative, which HHS
encourages Navigators to review, and which are now available in
multiple languages.\31\ HHS noted that, as proposed, the provision
would improve consumers' access to health coverage information, not
just when selecting a plan, but also when using their coverage.
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\31\ See <a href="https://marketplace.cms.gov/c2c">https://marketplace.cms.gov/c2c</a>.
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HHS noted that HHS believes expanding its interpretation of the
requirement that Navigators help consumers understand basic concepts
and rights related to health coverage and how to use it and the
activities that fall within the scope of this requirement is vital to
improving health equity and helping to address social determinants of
health, particularly among underserved and vulnerable populations.\32\
Navigators are already required under Sec. 155.210(e)(8) to provide
targeted assistance to underserved or vulnerable populations.
Underserved and vulnerable populations often experience lower levels of
health literacy, which can be a barrier to enrolling in and accessing
care.\33\ Social determinants of health can also create significant
disparities in whether and how an individual is able to afford and
access health coverage and health care services, including primary and
preventive care. As trusted partners and members of local communities,
HHS noted that Navigators are uniquely positioned to establish and
build trust
[[Page 53423]]
with individuals and families as they transition from enrolling in
health coverage to using and maintaining their coverage throughout the
year.
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\32\ 86 FR 7009 (Jan. 25, 2021).
\33\ Access to Health Services: Healthy People 2020. Office of
Disease Prevention and Health Promotion, Department of Health &
Human Services. <a href="https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/access-to-health">https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/access-to-health</a>.
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Additionally, HHS noted that Navigators in FFEs are already
required under Sec. 155.215(c)(1) to develop and maintain general
knowledge about the racial, ethnic, and cultural groups in their
service area, including each group's health literacy and other needs,
and under Sec. 155.215(c)(2) to collect and maintain updated
information to help understand the composition of the communities in
the service area. Because the health literacy needs of consumers will
vary depending on their circumstances, HHS noted that HHS is not
requiring Navigators to help consumers with specific health literacy
topics. Instead, HHS proposed to expand its interpretation of the
Navigator duties to be reinstituted as requirements at Sec.
155.210(e)(9)(iv) to include, for example, helping consumers understand
(1) key terms used in health coverage materials, such as ``deductible''
and ``coinsurance,'' and how they relate to the consumer's health plan;
(2) the cost and care differences between a visit to the emergency
department and a visit to a primary care provider under the coverage
options available to the consumer; (3) how to evaluate their health
care options and make cost-conscious decisions, including through the
use of information required to be disclosed by their health plan as a
result of the Transparency in Coverage Final Rules; \34\ (4) how to
identify in-network providers to make and prepare for an appointment
with a provider--including utilizing tools and resources available
through the No Surprises Act \35\ to make informed decisions about
their care; (5) how the consumer's coverage addresses steps that often
are taken after an appointment with a provider, such as making a
follow-up appointment and filling a prescription; and (6) the right to
coverage of certain preventive health services without cost sharing
under QHPs--including information and resources related to accessing
viral testing and vaccination options supported by Exchange coverage.
HHS noted that, if this proposal were finalized, CMS intends to make
training materials and other educational resources available to
Navigators regarding the proposed expanded interpretation of this
requirement.
---------------------------------------------------------------------------
\34\ 85 FR 72158.
\35\ Title I of Division BB of the Consolidated Appropriations
Act, 2021, Pub. L. 116-260 (Dec. 27, 2020).
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HHS noted that, as proposed, FFE Navigators would continue to be
permitted to perform the Navigator duties specified in Sec.
155.210(e)(9) until this provision, if finalized, became effective. HHS
explained that if the proposal was finalized, FFE Navigators would be
required to perform the Navigator duties specified in Sec.
155.210(e)(9) beginning with Navigator grants awarded after the
effective date of this rule, including non-competing continuation
awards. For example, if the proposal was finalized prior to Navigator
grant funding being awarded in fiscal year (FY) 2022, FY 2021 Navigator
grantees would be required to perform these duties beginning with the
Navigator grant funding awarded in FY 2022 for the second 12-month
budget period of the 36-month period of performance. To the extent FFE
Navigators awarded grant funding in FY 2021 are not already performing
these duties under their year one project plans when the provision, if
finalized, becomes effective, HHS noted that they can revise their
project plans to incorporate performance of the duties specified in
Sec. 155.210(e)(9) as part of their non-competing continuation
application for their FY 2022 funding. HHS also noted that if the
provision was finalized as proposed, HHS would codify in Sec.
155.210(e)(9) the applicability date to make clear when the Navigator
duties specified in Sec. 155.210(e)(9) would once again be required.
HHS discussed in the proposed rule that HHS interprets the
requirement to facilitate enrollment in a QHP under section
1311(i)(3)(C) of the ACA, and the requirement at Sec. 155.210(e)(2) to
provide information that assists consumers with submitting the
eligibility application, to include assistance with updating an
application for coverage through an Exchange, including reporting
changes in circumstances and assisting with submitting information for
eligibility redeterminations. Additionally, HHS noted that Navigators
are already permitted, but not required, to help with a variety of
other post-enrollment issues. For example, HHS noted that HHS
interpreted the requirements in Sec. 155.210(e)(1) and (2) that
Navigators conduct public education activities to raise awareness about
the Exchange and provide fair and impartial information about the
application and plan selection process to mean that Navigators may
educate consumers about their rights with respect to coverage available
through an Exchange, such as nondiscrimination protections,
prohibitions on preexisting condition exclusions, and preventive
services available without cost-sharing. HHS also noted that HHS
interpreted these requirements, together with the requirement in
section 1311(i)(3)(B) of the ACA that Navigators distribute fair and
impartial information concerning enrollment in QHPs, and the
availability of Exchange financial assistance, to mean that Navigators
may assist consumers with questions about paying premiums for coverage
or insurance affordability programs enrolled in through an Exchange.
Finally, HHS noted that HHS interpreted the requirement in section
1311(i)(3)(D) of the ACA and Sec. 155.210(e)(4) to provide referrals
for certain post-enrollment issues to mean that Navigators may help
consumers obtain assistance with coverage claims denials.
Certified application counselors (CACs) do not receive grants from
the FFEs, and thus may have more limited resources than Navigators. As
a result, while HHS did not propose to require CACs to further expand
their required duties, HHS noted that HHS encouraged CACs to help with
activities consistent with their existing regulatory duties and
recognized that many of these CACs may already be participating in
these post-enrollment activities.
The following is a summary of the comments received and HHS's
responses related to Navigator program standards at Sec. 155.210.
Comment: The vast majority of comments HHS received in relation to
this proposal expressed enthusiastic support. Many commenters stated
that they believe it is important that high-quality consumer assistance
to help people find, keep, and use health coverage be free and widely
available. Several commenters emphasized that this was particularly
important for individuals with limited English proficiency (LEP) or
those who lack basic health insurance literacy to reduce health
disparities in rural and underserved communities, including the Black,
Indigenous, and other People of Color (BIPOC) community. Additionally,
several commenters supported and noted the importance of increased
funding for the Navigator program.
Response: HHS appreciates the comments in support of this proposal
and is finalizing the proposal to amend Sec. 155.210(e)(9) to
reinstitute the requirement that Navigators in the FFEs provide
information and assistance with regard to certain post-enrollment
topics as proposed. HHS also appreciates commenters' support of
increased
[[Page 53424]]
funding for the Navigator program, which has funded 60 Navigator
grantees in 30 FFE states for plan year 2022.
Comment: A few commenters said they believe the proposed Navigator
duties duplicate services provided by issuers or agents and brokers. A
few commenters suggested that Navigators be required to be licensed,
carry errors and omissions insurance, and be under the oversight of
state regulators.
Response: HHS believes it is important for consumers to have access
to a variety of assistance options. HHS especially believes it is
important that consumers have access to Navigators who, unlike agents
and brokers, are required under Sec. 155.210(e)(2) to provide
information and services in a fair, accurate, and impartial manner, and
to abide by the conflict of interest provision at Sec. 155.210(d)(4)
prohibiting Navigators from receiving any consideration directly or
indirectly from any health insurance issuer or issuer of stop loss
insurance in connection with the enrollment of any individuals or
employees in a QHP or a non-QHP. Although they are not required by CMS
to carry errors and omissions insurance, Navigators are required to
complete HHS-approved training, achieve a passing score on all approved
certification examinations, and be certified or recertified on at least
an annual basis before carrying out any consumer assistance functions
under Sec. 155.210. Additionally, Navigators in all states are
required under Sec. 155.210(c)(1)(iii) to meet any licensing,
certification, or other standards prescribed by the state or Exchange,
if applicable, so long as the standards do not prevent the application
of the provisions of title I of the ACA.
Comment: A few commenters expressed concern that CMS did not
propose to restore the requirements to have at least two in-person
Navigator organizations in each state and to ensure that at least one
of those organizations was a community and consumer-focused nonprofit
group.
Response: HHS recognizes that trusted community non-profits and in-
person presence are desirable qualities for Navigator organizations,
and that these can be particularly valuable in serving vulnerable
populations such as minorities, individuals with LEP, and individuals
with disabilities. However, the existing Navigator grant process
already gives considerable weight to the capacity of the Navigator
organization to serve vulnerable populations, including those who may
need communications assistance, lack broadband access, or have
specialized needs. Therefore, HHS believes that reinstating these
requirements would not be beneficial to Exchanges, as they currently
have the flexibility to award funding to the number and type of
entities that will be most effective for the specific Exchange, thus
optimizing use of the funding amounts available to direct investments
to effective and efficient Navigators, which may include selecting a
single, high performing grantee in an Exchange.
Additionally, reinstating the requirement that one Navigator
grantee in each Exchange must be a community and consumer-focused
nonprofit group may unnecessarily limit an Exchange's ability to award
grants to the strongest applicants, particularly in an Exchange that
opts to have only one Navigator grantee, and where the strongest
applicant is not a community and consumer-focused nonprofit group.
Reinstating this requirement would effectively exclude any other type
of statutorily eligible entities from becoming Navigators in an
Exchange that opts to have only one Navigator grantee and would limit
an Exchange's ability to target to the highest scoring and performing
entities, regardless of organization type.
Comment: A few commenters suggested HHS reinstate the requirement
that Navigators receiving grants maintain a physical presence in the
Exchange service area.
Response: HHS agrees with commenters who emphasized the importance
of providing more flexibility to each Exchange to structure its
Navigator program to best serve the Exchange's service area. HHS
believes that entities with a physical presence and strong
relationships in their FFE service areas tend to deliver the most
effective outreach and enrollment results. Navigator grant applicants
that demonstrate the ability to maintain these relationships and
establish new relationships through a physical presence in their
proposed service area(s) may receive a higher score on their
application than those who do not. The majority of HHS's 2021 Navigator
grantees will be maintaining a physical presence in the state they are
serving, and there will be at least one physically present Navigator
organization in every FFE state. Additionally, nothing in this final
rule prevents an Exchange from selecting grantees that are physically
present and available to provide a spectrum of in-person, local
outreach, education, and assistance, including directing these services
towards vulnerable and underserved populations, if the Exchange elects
to weight its selection process in that way and its selection process
is consistent with section 1311(i)(2)(A) of the ACA and Sec.
155.210(c)(1)(ii).
After consideration of the comments received, HHS is finalizing the
proposals as proposed. FFE Navigators will continue to be permitted to
perform the Navigator duties specified in Sec. 155.210(e)(9) until
Navigator grants are awarded in 2022. FFE Navigators will be required
to perform the Navigator duties specified in Sec. 155.210(e)(9)
beginning with Navigator grants awarded in 2022, including non-
competing continuation awards. Thus, prior to Navigator grant funding
being awarded in FY 2022, FY 2021 Navigator grantees will be required
to perform these duties beginning with the Navigator grant funding
awarded in FY 2022 for the second 12-month budget period of the 36-
month period of performance.
3. Exchange Direct Enrollment Option (Sec. 155.221(j))
In part 1 of the 2022 Payment Notice final rule, HHS codified Sec.
155.221(j), which established a process for states to elect a new
Exchange Direct Enrollment option (Exchange DE option). Under the
Exchange DE option, State Exchanges, SBE-FPs, and FFE states may work
directly with private sector entities (including QHP issuers, web-
brokers, and agents and brokers) to transition to private-sector
enrollment pathways through which consumers can apply for coverage,
receive an eligibility determination from the Exchange, and purchase an
individual market QHP offered through the Exchange with APTC and CSRs,
if otherwise eligible. These private-sector pathways could be offered
in addition to or instead of a centralized eligibility and enrollment
website operated by an Exchange. Subject to meeting HHS approval
requirements under Sec. 155.221(j)(1) and (2), the Exchange DE option
may be implemented in states with a State Exchange beginning in plan
year 2022 and in SBE-FP or FFE states beginning in plan year 2023. HHS
also finalized a 2023 user fee rate of 1.5 percent of the total monthly
premiums charged by issuers for each policy in FFE and SBE-FP states
that elect the Exchange DE option. Since the publication of part 1 of
the 2022 Payment Notice final rule, there have been significant changes
to policy and operational priorities, as well as the enactment of new
Federal laws. Given these changes, as well as a general lack of
interest expressed by states in the option, and potential for the
Exchange DE option to be misaligned with administration priorities, HHS
proposed to remove Sec. 155.221(j) and repeal the Exchange DE option.
[[Page 53425]]
On January 20, 2021, President Biden issued the E.O. 13985,\36\
directing that as a policy matter the Federal Government should pursue
a comprehensive approach to advancing equity for all, including people
of color and others who have been historically underserved,
marginalized, and adversely affected by persistent poverty and
inequality. On January 28, 2021, President Biden issued E.O. 14009.\37\
Section 3 of E.O. 14009 directs HHS, and the heads of all other
executive departments and agencies with authorities and
responsibilities related to Medicaid and the ACA, to review all
existing regulations, orders, guidance documents, policies, and any
other similar agency actions to determine whether they are inconsistent
with policy priorities described in Section 1 of E.O. 14009, to include
protecting and strengthening the ACA by assisting people who are
potentially eligible for coverage, and eliminating unnecessary
difficulties to obtaining health insurance. Specifically, this agency
review must evaluate whether existing policies or regulations, ``. . .
undermine the Health Insurance Marketplace[supreg] \38\ or the
individual, small group, or large group markets for health insurance .
. .'' or ``. . . present unnecessary barriers to individuals and
families attempting to access Medicaid or ACA coverage . . .'' \39\
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\36\ 86 FR 7009 (Jan. 25, 2021).
\37\ 86 FR 7793 (Feb. 2, 2021).
\38\ Health Insurance Marketplace[supreg] is a registered
service mark of the U.S. Department of Health & Human Services.
\39\ 86 FR 7793 (Feb. 2, 2021).
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Section 2 of E.O. 14009 also requires that the Secretary of HHS
consider whether to implement an Exchange special enrollment period for
exceptional circumstances pursuant to Sec. 155.420(d)(9) and other
existing authorities, for uninsured and underinsured individuals to
obtain coverage in light of the special circumstances caused by the
COVID-19 pandemic. After E.O. 14009 was issued, HHS used its discretion
to make such a special enrollment period available to uninsured and
underinsured consumers through <a href="http://HealthCare.gov">HealthCare.gov</a> from February 15, 2021,
through May 15, 2021. To support outreach, education and enrollment
efforts for this special enrollment period, HHS has provided $2.3
million in additional funding to current Navigator grantees in the
FFEs.\40\
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\40\ <a href="https://www.cms.gov/newsroom/press-releases/cms-announces-additional-navigator-funding-support-marketplace-special-enrollment-period">https://www.cms.gov/newsroom/press-releases/cms-announces-additional-navigator-funding-support-marketplace-special-enrollment-period</a>.
_____________________________________-
All State Exchanges followed suit and implemented corresponding
special enrollment periods on similar timelines. HHS later made a
decision to extend the ability of consumers to access the special
enrollment period through <a href="http://HealthCare.gov">HealthCare.gov</a> through August 15, 2021, and
many State Exchanges extended their special enrollment periods, as
well. As of August 10, 2021, 2.5 million consumers have enrolled in
coverage through <a href="http://HealthCare.gov">HealthCare.gov</a> and the State Exchanges, which
represents a substantial increase from previous years when special
enrollment periods were available primarily for normal qualifying life
events.\41\
---------------------------------------------------------------------------
\41\ <a href="https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period">https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period</a>.
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In addition, Congress recently passed the ARP,\42\ which was signed
into law on March 11, 2021. The ARP establishes new ACA programs,
including a new grant program for Exchange modernization, which
appropriates $20,000,000 in Federal funding, which is available until
September 30, 2022, to State Exchanges to implement Exchange system,
program, or technology updates to ensure compliance with applicable
Federal requirements. It also modifies eligibility criteria for
existing ACA programs. For example, the provisions in the ARP include a
temporary change (for taxable years 2021 and 2022) that allows
consumers with household income above 400 percent of the FPL to be
applicable taxpayers potentially eligible for PTC, an update to
applicable percentage tables to increase the amount of PTC for
qualified individuals in all income brackets, and a modification of
eligibility for PTC for consumers receiving, or approved to receive,
unemployment compensation in 2021. Beginning on April 1, HHS
operationalized these new requirements through <a href="http://HealthCare.gov">HealthCare.gov</a>, and is
providing technical assistance to State Exchanges that are
operationalizing these requirements at the state level. The
approximately 2.5 million consumers that have enrolled in coverage
through <a href="http://HealthCare.gov">HealthCare.gov</a> and the State Exchanges during the COVID-19
special enrollment period have reduced their monthly premiums by $40
per person per month due to the ARP's premium credits, with more than
one-third of consumers finding coverage for $10 or less per month. In
addition, out-of-pockets costs have fallen for new consumers that have
enrolled since April, with the median plan deductible falling by nearly
90 percent from $450 to $50.\43\
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\42\ Public Law 117-2.
\43\ <a href="https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period">https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period</a>.
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There are also new obligations established via other health care-
related legislation for which HHS is responsible to implement in
coordination with states and other Federal Departments. This includes
the No Surprises Act,\44\ which was enacted on December 27, 2020, and
establishes an extensive array of Federal and state requirements and
programs to protect consumers against surprise medical bills.
---------------------------------------------------------------------------
\44\ Title I of Division BB of the Consolidated Appropriations
Act, 2021, Public Law 116-260 (Dec. 27, 2020).
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Given its obligation to review all existing policies and
regulations in line with E.O. 14009, E.O. 13985, and recent actions by
Congress, including the health care-related provisions of the ARP and
other new Federal legislation, for which HHS is now responsible or
centrally involved in implementing, HHS determined that all available
resources should be directed to ensuring HHS is able to efficiently and
effectively meet those obligations. Permitting the establishment of the
Exchange DE option would detract from those efforts. Furthermore,
meeting the new requirements of the health care provisions of the ARP
would add complexity to Exchange operations that could reduce the
prospects for successful implementation of the Exchange DE option, even
if temporarily. For instance, states and DE entities would need to
coordinate and implement new procedures to ensure that consumers
receive eligibility determinations and are enrolled in coverage in line
with the modified PTC eligibility criteria under the ARP, and then take
steps and expend resources to end these new procedures since this
temporary modification no longer applies after taxable year 2022. As
part of this process, HHS would need to ensure the adoption of
appropriate procedures, proper approvals, and ongoing oversight. To
foreclose the possibility that Federal funding and resources will be
diverted from efforts to provide direct benefits to consumers made
available under recent legislation to optional programs, HHS proposed
to repeal the Exchange DE option. As explained in the proposed rule,
this would help ensure that available resources are allocated
consistent with administration health care priorities and dedicated to
implementation of newly-enacted Federal laws that provide greater
financial assistance and protections to consumers.
HHS further explained that repealing the Exchange DE option should
generally have a minimal impact on states and other interested parties.
[[Page 53426]]
States with State Exchanges already could engage with DE entities
preceding the addition of Sec. 155.221(j). In addition, the FFEs have
already implemented the DE program (including classic direct enrollment
and enhanced direct enrollment, or EDE), which provides broad
availability of non-Exchange websites to assist consumers applying for,
or enrolling in QHPs through an FFE or SBE-FP with APTC and CSRs, when
otherwise eligible.\45\ Additionally, HHS noted that nothing in the
previous regulatory framework prohibited State Exchanges from engaging
DE entities similar to the FFEs in order to supplement Exchange
operations in their states should they so choose. HHS also noted that
although HHS understands that several State Exchanges have engaged with
DE entities to discuss possibilities for collaboration, State Exchanges
and other stakeholders nearly universally cautioned against the
Exchange DE option in public comments submitted in response to the
initial proposal to establish the Exchange DE option. HHS further noted
that, to date, no state had expressed interest in implementing the
Exchange DE option.
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\45\ The FFE DE pathways are also available in SBE-FP states.
See 45 CFR 155.220(l) and 155.221(i).
---------------------------------------------------------------------------
Finally, in reviewing Sec. 155.221(j) in line with E.O. 13985 and
E.O. 14009, and after further consideration of public comments received
when the Exchange DE option was proposed, HHS explained in the proposed
rule that HHS determined that the Exchange DE option is inconsistent
with policies described in E.O. 13985 and sections 1 and 3 of E.O.
14009. Consistent with many public comments received when the Exchange
DE option was proposed, HHS noted that HHS believed that shifting away
from <a href="http://HealthCare.gov">HealthCare.gov</a> or State Exchange websites as the primary pathway
to enroll in and receive information about coverage would harm
consumers by unnecessarily fracturing enrollment processes among the
Exchange and possibly multiple DE entities operating in a state. HHS
noted that such a shift would be particularly harmful now when over 2.5
million consumers have relied upon and successfully navigated
<a href="http://HealthCare.gov">HealthCare.gov</a> and State Exchange websites during the COVID-19 special
enrollment period to enroll in Exchange coverage. HHS also agreed with
many commenters who noted that a fractured process could foster
consumer confusion about how to get covered and what coverage options
are available, since consumers could be directed to DE entities that
only offer assistance with a limited selection of products and some of
those products may not provide, for example, MEC for consumers.\46\
Many commenters raised concerns that this consumer confusion or limited
product selection through DE entities could also potentially disrupt
coordination of coverage with other insurance affordability programs,
including Medicaid and CHIP, which is inconsistent with HHS's ``no
wrong door'' policy.\47\ In addition, these consequences could act as
an unnecessary barrier to consumers seeking Medicaid or ACA coverage
rather than facilitating enrollment in comprehensive coverage, and
could have additional downstream impacts including an increased
uninsured or underinsured population, or more consumers enrolling in
less comprehensive coverage options. These downstream impacts could
lead to health inequities by disparately impacting certain vulnerable
groups that tend to have a greater need for comprehensive coverage or
rely more heavily on Medicaid and CHIP. These concerns and the
accompanying risks to the health and well-being of underserved groups
and consumers in general are heightened as the COVID-19 PHE continues.
---------------------------------------------------------------------------
\46\ Multiple commenters cited the following report as support
for their comments related to DE entities offering limited plan
selection and potential disruptions to coordination of coverage with
other insurance affordability programs: <a href="https://www.cbpp.org/research/health/direct-enrollment-in-marketplace-coverage-lacks-protections-for-consumers-exposes">https://www.cbpp.org/research/health/direct-enrollment-in-marketplace-coverage-lacks-protections-for-consumers-exposes</a>.
\47\ This policy is intended to ensure that consumers can
complete a single eligibility application to receive determinations
of eligibility across multiple health insurance affordability
programs, including for QHPs, APTC, CSRs, as well as Medicaid and
CHIP. See, for example, sections 1311(d)(4)(F) and 1413 of the ACA.
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After finding the Exchange DE option inconsistent with recent
Executive Orders, to ensure that resources are not diverted from
fulfilling requirements under the new health care legislation and other
initiatives like the COVID-19 special enrollment period, and because no
state had yet expressed interest in implementing the Exchange DE
option, HHS proposed to remove Sec. 155.221(j) and repeal the Exchange
DE option. As explained in the preamble section regarding user fee
rates for the 2022 benefit year (Sec. 156.50), HHS also proposed to
repeal the accompanying user fee rate for FFE-DE and SBE-FP-DE states
for 2023.
The following is a summary of the comments received and HHS's
responses to the proposed repeal of the Exchange DE option (Sec.
155.221(j)).
Comment: The overwhelming majority of commenters supported the
proposal to repeal the Exchange DE option. These commenters both
endorsed the rationale behind this proposal, and reiterated concerns
about the potential negative ramifications of the Exchange DE option
that were expressed in comments when the Exchange DE option was
originally proposed in the 2022 Payment Notice. These include a lack of
empirical research to quantify potential impacts or demonstrate the
value that would be added by implementation of this option; the
potential for consumer confusion due to fragmentation among multiple DE
entities; the potential for DE entities with misaligned incentives to
steer consumers toward less comprehensive coverage options or fail to
inform consumers that they are eligible for Medicaid or CHIP; an
increase in funding and resources that would be needed to provide
effective oversight; and other downstream impacts, including the
potential for an increase in uninsured and underinsured populations,
particularly within the QHP, Medicaid, and CHIP populations.
Several commenters also raised health equity concerns, asserting
that the Exchange DE option could have a disproportionate impact on
certain underserved or historically-marginalized groups, and others
that face barriers navigating the health care system to get coverage.
Supporting commenters commented on behalf of those with pre-existing
conditions, the LGBTQ+ population, women and children, those with
substance use disorders, young adults, and others. One commenter noted
that the Exchange DE option would disproportionately impact
historically-marginalized populations by making Medicaid less
accessible, asserting that DE entities do not necessarily provide
Medicaid eligibility information to consumers. Another commenter noted
that making Medicaid less accessible would be particularly harmful to
women of color and those in the LGBTQ+ community who, due to
discrimination and depressed wages, are disproportionately eligible for
Medicaid and CHIP. Several commenters expressed concern that the
Exchange DE option would disproportionately impact people with
substance use disorders and mental health conditions given the
increased prevalence of those conditions during the PHE. Commenters
expressed concern that those with limited health literacy also could be
particularly harmed by the Exchange DE option, citing consumers in
underserved communities, young people, people who do not speak English
as a first language, and others. These commenters
[[Page 53427]]
stated that such consumers are particularly susceptible to being harmed
by insufficient information, coverage, and hidden costs. One commenter
also noted that women generally have more health care needs and are
more vulnerable to high health costs, which means enrolling in
substandard coverage could result in care being delayed or denied,
medical debt, and overall worse health outcomes. Commenters also noted
that the potential increase in the number of consumers enrolled in
substandard coverage as a result of the Exchange DE option would be
particularly harmful for consumers with pre-existing conditions, since
through such substandard coverage they could experience a denial of
coverage due to their pre-existing conditions. Most of these commenters
underscored that health equity concerns are heightened by the ongoing
PHE.
Supporting commenters strongly encouraged the repeal to be
finalized as proposed to remedy these concerns and protect consumers,
particularly underserved and historically-marginalized consumers.
Response: HHS appreciates the support of this proposal and
generally agrees with commenters' concerns, particularly those
regarding the potential negative impacts to underserved and
historically-marginalized consumers during the PHE. The new enrollment
and coverage opportunities available to consumers, including the
special enrollment period to enroll in Exchange coverage through
<a href="http://HealthCare.gov">HealthCare.gov</a> or their State Exchange website during the COVID-19 PHE,
and the increased financial assistance under the ARP, have proven to be
successful at increasing enrollment in comprehensive coverage options,
such as ACA coverage offered through Exchanges.\48\ HHS believes it is
critical to build on this success by maximizing opportunities for
consumers to get comprehensive ACA coverage through the Exchanges and
to enroll in insurance affordability programs (for example, Medicaid
and CHIP), when eligible. Moreover, HHS believes that this will best
serve underserved and historically-marginalized groups, as well as
support health equity. For example, as raised in comments that are
summarized earlier in this preamble, consumers in these groups tend to
have a greater need for more comprehensive coverage (for example, those
with pre-existing conditions) or to require robust consumer support and
ample opportunity to successfully navigate the health care system (for
example, those with limited health literacy). HHS believes that
focusing resources on the Exchanges and the new health care programs
they are leading is the best approach to support these, and other
consumer needs, for underserved and historically-marginalized groups,
and for consumers in general.
---------------------------------------------------------------------------
\48\ <a href="https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period">https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period</a>.
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HHS also notes that repealing the Exchange DE option will not
foreclose states' option to leverage the existing FFE DE pathways,\49\
nor the ability of State Exchanges to implement DE pathways similar to
the FFEs, should they find that it is appropriate given their specific
market dynamics, priorities, and needs. However, on balance, HHS
believes there is much greater risk that the Exchange DE option could
serve as a barrier to consumers getting comprehensive coverage rather
than facilitate such enrollment. The repeal of the Exchange DE option
also permits HHS to direct available resources to implementation of the
new Federal requirements (for example, the No Surprises Act consumers
protections and the ARP increased subsidies), rather than diverting
resources to implement an optional program. Finally, as detailed
earlier in this preamble, it aligns with the policy goals and
directives in the recent Executive Orders to advance health equity for
all, protect and strengthen the ACA, and eliminate unnecessary
difficulties to obtaining health insurance. After consideration of
comments, HHS is finalizing the repeal of the Exchange DE option and
accompanying user fees, as proposed.
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\49\ The FFE DE pathways are also available in SBE-FP states.
See 45 CFR 155.220(l) and 155.221(i).
---------------------------------------------------------------------------
Comment: Commenters requested clarification regarding the scope of
the proposed repeal and whether HHS's intent is to eliminate the
existing FFE DE pathways or just to eliminate the Exchange DE option.
Response: HHS clarifies that the existing FFE DE pathways,
including both classic DE and EDE, will not be impacted by the repeal
of the Exchange DE option. Those pathways will continue to be available
to consumers shopping for Exchange coverage in FFE and SBE-FP states.
In addition, states with State Exchanges also still have the option to
leverage DE should they choose to do so based on their specific market
dynamics, priorities, and needs. The proposed repeal, which HHS is
finalizing in this rule, is specific to removing the Exchange DE option
codified at Sec. 155.221(j) and the accompanying FFE-DE and SBE-FP-DE
user fees. The other Federal requirements applicable to the FFE DE
pathways, as outlined in Sec. Sec. 155.220, 155.221, and 156.1230,
remain intact.
Comment: Several opposing commenters asserted it is premature to
repeal the Exchange DE option on the grounds of lacking state interest,
given the limited time since the proposal was finalized. They stated
that reliance on this ground was questionable in light of the many
other health care priorities that have occupied states such as
implementing and operationalizing the health care provisions of recent
legislation, including the ARP. Some opposing commenters recommended
that the rollout of the Exchange DE option merely be delayed, rather
than repealed, to give states additional time to explore its
feasibility. Several commenters also expressed general support for the
Exchange DE option, noting that it meets all applicable ACA statutory
and regulatory requirements. One commenter suggested that the lowered
user fee for the Exchange DE option for FFE and SBE-FP states could be
attractive to states and weigh favorably in the balance for those
states who may be interested in pursuing the Exchange DE option, if
given more time to consider it. This commenter noted that another
attractive feature to states is the potential cost savings on consumer
support functions resulting from potentially having more enrollment
channels available to consumers. Other commenters in opposition of the
proposed repeal stated that there would be no cost to the Federal
Government beyond oversight costs in states that elected to implement
the Exchange DE option.
Response: HHS acknowledges that the Exchange DE option was only
recently finalized and it is plausible that but for competing health
care priorities perhaps some states would express interest in the
Exchange DE option. However, HHS clarifies that the lack of interest
from states was just one factor that lead to the proposed repeal of the
Exchange DE option. As detailed earlier in this preamble and in the
proposed rule, HHS was also concerned that permitting the establishment
of the Exchange DE option would detract from efforts to implement new
Federal requirements, including consumer protections against surprise
medical billing, for which HHS is now responsible and centrally
involved in implementing. HHS was also concerned about the additional
complexity to Exchange operations resulting from newly passed
legislation that could impact the successful implementation of the
Exchange DE
[[Page 53428]]
option, which could negatively impact consumers ability to enroll in
comprehensive coverage. Finally, the proposal was made following HHS's
evaluation of the Exchange DE option as directed by EOs 13985 and
14009, which determined the option was inconsistent with the policies
outlined in those Executive Orders to advance health equity for all,
protect and strengthen the ACA, and eliminate unnecessary difficulties
to obtaining health insurance.
HHS appreciates that there are potentially attractive features of
the Exchange DE option both for states and the Federal Government,
particularly from a financial perspective. This was one of the
considerations that led to the proposed establishment of the Exchange
DE option. However, HHS does not believe that a reduced user fee or
potential savings on consumer support costs outweighs the potential
harm to consumers, or other considerations, outlined earlier in this
preamble and in the proposed rule, that HHS considered as part of its
recent evaluation of the Exchange DE option. Delaying the rollout of
the Exchange DE option and giving states more time to evaluate its
feasibility would not assuage the multitude of concerns expressed by
the public or those outlined earlier in this preamble and in the
proposed rule, including the need to focus health care resources on the
emergent needs of struggling vulnerable and historically-marginalized
consumers and the need to focus available Department resources on
implementing new Federal requirements, including the new consumer
protections against surprise medical billing. In part 1 of the 2022
Payment Notice final rule, HHS outlined many potential direct and
indirect costs of startup, approval, and oversight.\50\ HHS therefore
disagrees that the Federal Government would incur only oversight costs
in states that elect to implement the Exchange DE option.
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\50\ See 86 FR 6169-6170.
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Comment: All opposing commenters argued that state flexibility,
particularly the flexibility to tailor enrollment portals, should not
be curtailed, especially during a PHE. Relatedly, these commenters
asserted that consumers universally benefit from an increase in choice.
One of these commenters stated that DE entities would serve to
supplement and extend the reach of Exchanges rather than replacing
them.
Response: HHS agrees that proposals that encourage and promote
state flexibility are important, as states are best suited to tailor
programs to address local health care priorities and the needs of their
residents. HHS also reiterates that the existing FFE DE pathways are
not impacted by the repeal of the Exchange DE option. States using the
<a href="http://HealthCare.gov">HealthCare.gov</a> platform and State Exchanges will still have the option
to leverage DE as a supplement to the Exchange should they find that it
would provide value for their consumers given their specific market
dynamics, priorities, and needs. States that currently use
<a href="http://HealthCare.gov">HealthCare.gov</a> also have flexibility to transition to a State Exchange
model and adapt Exchange functions to their local markets and unique
needs of their residents. HHS also believes that in this situation, on
balance, the potential for expanded choice does not outweigh the
potential consumer harms when there is a danger of fragmenting
consumers' path to getting comprehensive coverage and directing
consumers to less comprehensive coverage options that, in many cases,
will not cover their health care costs. This places an outsized burden
on consumers that, after further evaluation, HHS determined is
unnecessary given their existing choice of multiple enrollment pathways
offered by Exchanges, QHP issuers, web-brokers, agents and brokers,
generally harmful for consumers, and unacceptable during a PHE.
HHS also highlights the recent enrollment increases driven by
<a href="http://HealthCare.gov">HealthCare.gov</a> and State Exchange websites, which are outlined earlier
in this preamble. In particular, HHS reiterates that as of August 10,
2021, approximately 2.5 million consumers have enrolled in coverage
through <a href="http://HealthCare.gov">HealthCare.gov</a> and State Exchange websites during the COVID-19
special enrollment period, and have reduced their monthly premiums by
$40 per person per month due to the ARP's premium credits, with more
than one-third of consumers finding coverage for $10 or less per
month.\51\ In addition, out-of-pockets costs have fallen for new
consumers that have enrolled since April, with the median plan
deductible falling by nearly 90 percent from $450 to $50. This
increased enrollment and cost savings to consumers, which has been
driven by the current Exchange programs, further demonstrates their
importance and effectiveness.
---------------------------------------------------------------------------
\51\ <a href="https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period">https://www.cms.gov/newsroom/press-releases/more-25-million-americans-gain-health-coverage-during-special-enrollment-period</a>.
---------------------------------------------------------------------------
Comment: All opposing commenters asserted that DE entities and
their platforms are better suited than Navigators and centralized,
government-run Exchanges to innovate to meet consumer needs. Relatedly,
they argue that the FFE DE pathways have in many ways surpassed the
consumer support functionality of <a href="http://HealthCare.gov">HealthCare.gov</a>, and that this is
largely driven by competition among DE entities to attract consumers.
They also claim that the success of the FFE DE pathways is evidenced by
the enrollment statistics from the successful plan year 2021 open
enrollment period.\52\ One commenter argued that EOs 13985 and 14009
would actually be better served by maintaining the Exchange DE option
since it would provide more consumer-centric access to coverage,
including for vulnerable populations.
---------------------------------------------------------------------------
\52\ Several commenters cited in particular that CMS data show
that the FFE DE pathways more than doubled enrollments during the
plan year 2021 open enrollment period, increasing from 521,000 to
1,130,000. They also noted that the FFE DE pathways have attracted a
higher proportion of new consumers and increased the number of
consumers who made active plan selections.
---------------------------------------------------------------------------
Response: While HHS does not agree with many of these
characterizations, HHS reiterates again that the FFE DE pathways will
not be impacted by the repeal of Sec. 155.221(j). Those pathways and
their success may continue unimpeded since HHS is only repealing the
Exchange DE option. DE may indeed be the right choice for some states
and certain consumers, and HHS does not intend to diminish its success
or inhibit innovation in this area. However, HHS maintains that the
policy goals outlined in EOs 13985 and 14009 are best served by
repealing the Exchange DE option. More specifically, the dangers that
this optional program that would remove the centralized Exchange
website could fragment consumers' path to getting comprehensive
coverage, direct consumers to less comprehensive coverage options that,
in many cases, will not cover their health care costs, and
disproportionately impact certain underserved and historically
marginalized groups are inconsistent with advancing health equity,
protecting and strengthening the ACA, and eliminating unnecessary
barriers to obtaining health insurance. These dangers are heightened
during a PHE. HHS believes that access to comprehensive coverage
options, including Exchange plans, and advancing health equity among
consumers will be best served by enhancing access to coverage through
proven enrollment channels like the Exchanges or the FFEs' DE pathways,
and eliminating optional programs that have the potential to cause
significant consumer confusion and harm at a time when consumer
protection and enrollment in comprehensive coverage
[[Page 53429]]
is of paramount importance. Notwithstanding the claim that centralized,
government-run Exchanges are not as well equipped to innovate to meet
consumer needs as DE entities and platforms, HHS highlights that
Exchanges do innovate, and are central participants in innovative
programs. For instance, the State Exchanges and <a href="http://HealthCare.gov">HealthCare.gov</a> have
administered innovative new health care programs in 2021 detailed
previously \53\ that have resulted in 2.5 million consumers
successfully enrolling through the Exchanges with significant premium
assistance. In addition, the FFEs have been central participants in
innovating through the Federal DE pathways.\54\ These pathways are
designed to foster innovation of new consumer-based tools and
functionality by approved DE partners.\55\ HHS believes that these and
other examples of Exchange innovation and collaboration with the
private sector help dispel concerns about the ability of centralized,
government-run Exchanges to meet consumer needs.
---------------------------------------------------------------------------
\53\ These include the efforts to administer the health care
provisions of the ARP and the related COVID-19 special enrollment
period.
\54\ One of the critical consumer-centric innovations of the
Federal EDE pathway is to enable consumers to access eligibility and
enrollment information directly through a DE entity's website by
means of various application program interfaces rather than having
to re-direct to <a href="http://HealthCare.gov">HealthCare.gov</a>.
\55\ For instance, DE entities may offer plan comparison tools
with functionality targeted specifically to serve the needs of their
consumer base.
---------------------------------------------------------------------------
Comment: Opposing commenters argued that concerns about consumers
being steered toward non-comprehensive coverage options like short-term
limited duration insurance or association health plans are exaggerated
since there are existing FFE DE requirements and limitations that would
mitigate such concerns. They also highlighted that Sec. 155.221(j)
requires that a State Exchange electing to implement the Exchange DE
option must have at least one DE entity that meets all requirements of
the FFE DE program, including displaying all available QHPs. These
commenters also suggested that concerns about potential disruptions to
coordination of coverage with insurance affordability programs like
Medicaid and CHIP are exaggerated because the DE entities participating
in the FFE DE pathways use the same single, streamlined application and
eligibility notices as <a href="http://HealthCare.gov">HealthCare.gov</a> to assist the Exchange with
rendering an eligibility determination for all insurance affordability
programs in compliance with the ``no wrong door'' policy.
Response: HHS appreciates that there are Federal DE requirements
and operational practices in place designed to protect consumers,
including certain requirements to protect against steering QHP
consumers to less comprehensive coverage options.\56\ The Exchange DE
option also included certain safeguards, including the requirement that
at least one DE entity must meet all of the requirements to participate
in the FFE DE program. However, HHS maintains that the previously
identified dangers that this optional program could harm consumers by
fragmenting the path to comprehensive coverage, directing consumers to
less comprehensive coverage options, and disproportionately impacting
certain underserved and historically marginalized groups are
inconsistent with advancing health equity, protecting and strengthening
the ACA, and eliminating unnecessary barriers to obtaining health
insurance. These dangers are real,\57\ they are heightened during a
PHE, and after further evaluation, HHS determined they place an
unnecessary and unacceptable outsized burden on consumers. HHS believes
that access to comprehensive coverage options, including Exchange
plans, and advancing health equity among consumers will be best served
by enhancing access to coverage through proven enrollment channels,
which includes maintaining a centralized Exchange website for consumers
to apply for an enroll in QHPs and insurance affordability programs.
The increased enrollment through Exchange websites during the COVID-19
special enrollment period underscores the importance of maintaining
these known enrollment pathways for consumers. Finalizing the repeal of
the Exchange DE option also ensures HHS can focus resources and efforts
on implementing new Federal requirements, including consumer
protections against surprise medical billing, for which HHS is now
responsible and centrally involved in implementing, rather than on
implementing and overseeing an optional program, which has the
potential to cause significant confusion and harm at a time when
consumer protection is paramount. Finally, HHS reiterates that the
repeal of the Exchange DE option does not impact or change the other
Federal requirements applicable to the FFE DE pathways, which will
continue to be available in FFE and SBE-FP states. States with State
Exchanges can also still leverage DE as a supplement to the Exchange
website should they find it would provide value for their consumers
given their specific market dynamics, priorities, and needs.
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\56\ See, for example, 45 CFR 155.220(c)(3)(i)(A)--(L),
155.220(j), 155.221(b)(1)-(3) and 156.1230(a) and (b).
\57\ See, e.g., <a href="https://www.cbpp.org/research/health/direct-enrollment-in-marketplace-coverage-lacks-protections-for-consumers-exposes">https://www.cbpp.org/research/health/direct-enrollment-in-marketplace-coverage-lacks-protections-for-consumers-exposes</a>.
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After consideration of these comments, HHS is finalizing the repeal
of the Exchange DE option and the FFE-DE and SBE-FP-DE user fees, as
proposed.
4. Annual Open Enrollment Period Extension (Sec. 155.410(e))
HHS proposed to amend paragraph (e) of Sec. 155.410, which
provides the dates for the annual individual market Exchange open
enrollment period in which qualified individuals and enrollees may
apply for or change coverage in a QHP. The annual individual market
Exchange open enrollment period is extended by cross-reference to non-
grandfathered plans in the individual market, both inside and outside
of an Exchange, under guaranteed availability regulations at Sec.
147.104(b)(1)(ii). HHS specifically proposed to alter the annual open
enrollment period for the 2022 coverage year and beyond so that it
begins on November 1 and runs through January 15 of the applicable
benefit year.
In previous rulemaking, HHS established that the annual open
enrollment period for benefit years beginning on or after January 1,
2018 would begin on November 1 and extend through December 15. In doing
so, HHS indicated a preference for a shorter 6-week annual open
enrollment period, noting HHS's belief that it provides sufficient time
for consumers to enroll in or change QHPs and that an end date of
December 15 carries the benefit of ensuring consumers receive a full
year of coverage and simplifies operational processes for issuers and
the Exchanges.\58\ Accordingly, the annual open enrollment period dates
have been set to November 1 through December 15 for the 2018, 2019,
2020, and 2021 plan years. As discussed in the proposed rule, HHS has
observed several benefits using the present annual open enrollment
period dates. Prior enrollment data suggests that the majority of new
consumers to the Exchange select plans prior to December 15 so as to
have coverage beginning January 1.
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\58\ See 82 FR 18346 at 18381.
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HHS also observed that consumer casework volumes related to
coverage start dates and inadvertent dual enrollment decreased in the
years after the December 15 end date was adopted,
[[Page 53430]]
suggesting that the consumer experience was improved by having a
singular deadline of December 15 to enroll in coverage for the upcoming
plan year. HHS noted that an extension to January 15 may cause some
previously observed consumer confusion to resurface surrounding the
need to enroll by December 15 for a full year of coverage versus the
final deadline of January 15 to enroll for a plan that would begin on
February 1. This confusion could cause some consumers to miss out on
coverage for the month of January altogether. A January 15 end date may
also require enrollment assisters allocate budget resources over a
longer period of time.
However, after observing the effects of a 6-week annual open
enrollment period over these years, HHS has also observed negative
impacts to consumers that may justify an extension of the annual open
enrollment period end date to January 15. In particular, HHS has
observed that consumers who receive financial assistance, who do not
actively update their applications during the annual open enrollment
period, and who are automatically re-enrolled into a plan are subject
to unexpected plan cost increases if they live in areas where the
second lowest-cost silver plan has dropped in price. These consumers
will experience a reduction in their allocation of APTC based on the
second lowest-cost silver plan price, but are often unaware of their
increased plan liabilities until they receive a bill from the issuer in
early January after the annual open enrollment period has concluded.
Extending the annual open enrollment period end date to January 15
would allow these consumers the opportunity to change plans after
receiving updated plan cost information from their issuer and to select
a new plan that is more affordable to them. HHS also noted in the
proposed rule that HHS has also observed concerns from Navigators,
CACs, and agents and brokers that the current annual open enrollment
period does not leave enough time for them to fully assist all
interested Exchange applicants with their plan choices. Extending the
annual open enrollment period end date to January 15 would allow more
time for consumers to seek assistance from one of these entities.
Together, the impacts of providing consumers with more time to react to
updated plan cost information and more time to seek enrollment
assistance may improve access to health coverage. The additional time
for enrollment assistance provided by this proposal may be particularly
beneficial to consumers in underserved communities who may face time or
language barriers in accessing health coverage by extending the period
in which these consumers can seek in-person assistance to enroll.
HHS sought comment on whether a January 15 end date would provide a
balanced approach to providing consumers with additional time to make
informed plan choices and increasing access to health coverage, while
mitigating risks of adverse selection, consumer confusion, and issuer
and Exchange operational burden. HHS invited comments from stakeholders
that would experience specific benefits or adverse effects from a
January 15 end date, and encourage comments on potential impacts to
resources, consumer assistance budgets, overall enrollment numbers,
premiums, and market stability. HHS sought comment on whether this
extension would incentivize consumers who need coverage to begin on
January 1 to still make a choice and enroll by December 15, while also
preserving sufficient time in the remainder of the plan year for
issuers and Exchanges to perform other obligations such as QHP
certification.
HHS further invited comments on alternative approaches to extending
the annual open enrollment period to address coverage gaps or
enrollment challenges facing consumers and stakeholders. HHS also
invited comments to address whether HHS should explore the possibility
of a new special enrollment period, such as for current enrollees who
are automatically re-enrolled and experienced a significant cost
increase, to address concerns for specific consumer challenges as an
alternative to extending the annual open enrollment period. HHS also
noted that HHS is considering whether approaches such as enhanced
noticing or special, targeted outreach would address the needs of
consumers who are automatically re-enrolled in areas where the second
lowest-cost silver plan drops in value, thereby reducing APTC amounts.
HHS sought comment on how HHS may improve communications and consumer
engagement around potential cost changes for consumers who do not
actively re-enroll in coverage. HHS also noted that HHS is considering
if improved education and outreach during the coverage year to raise
awareness of existing special enrollment period opportunities, such as
those for loss of coverage or becoming newly eligible or ineligible for
financial assistance, may serve consumers who do not enroll or change
plans during the annual open enrollment period. HHS sought comment on
whether adoption of these or other outreach approaches would be a
viable alternate approach to finalizing its proposal to extend the
annual open enrollment period end date to January 15.
HHS noted that HHS anticipated that if an annual open enrollment
period end date of January 15 were finalized, this change would apply
to all Exchanges, including State Exchanges for the 2022 coverage year
and beyond. HHS noted that in preceding plan years, a majority of State
Exchanges operating their own eligibility and enrollment platform have
used special enrollment period authority to offer additional enrollment
time beyond the end date of December 15 in the Exchanges on the Federal
platform. HHS invited additional comments on State Exchange
flexibility, as well as operational challenges relating to State
Exchange implementation of the proposed change for 2022 and beyond.
HHS is finalizing this policy for the FFEs and SBE-FPs, and HHS
codifies flexibility for State Exchanges that operate their own
eligibility and enrollment platform to set individual market annual
open enrollment period end dates no earlier than December 15 and to
offer accelerated effective date rules. HHS is clarifying that the
annual open enrollment period end dates chosen by State Exchanges
operating their own eligibility and enrollment platform will apply to
all non-grandfathered plans in the individual market, both inside and
outside of an Exchange, under guaranteed availability regulations at
Sec. 147.104(b)(1)(ii). The following is a summary of the comments
received and HHS's responses to its proposals related to the annual
open enrollment period extension (Sec. 155.410(e)).
Comment: The majority of commenters supported HHS's proposal.
Commenters agreed that lengthening the annual open enrollment period
would provide valuable time to consumers to seek in-person assistance
and make informed plan choices. Many commenters agreed that this time
would be particularly helpful to those who are auto-reenrolled into
coverage, but receive a lower subsidy than the prior year because the
cost of their benchmark plan has dropped. Commenters also noted
additional groups that would benefit from this extension: Consumers
whose coverage is terminated towards the end of the calendar year and
who do not become aware of its termination until after January 1,
consumers whose Medicaid eligibility is ending as the result of the
potential expiration of the continuous enrollment provisions in section
6008(b)(3) of the Families First
[[Page 53431]]
Coronavirus Response Act (Pub. L. 116-127), and consumers whose share
of premiums may increase in plan year 2022 due to the expiration of
extra subsidies provided for under the ARP. A January 15 end date would
provide these consumers extra time and a streamlined process to
understand their eligibility and plan cost changes and enroll in new
coverage.
Several commenters highlighted the complex medical needs of
consumers with chronic and serious medical conditions, noting that a
longer annual open enrollment period would give these consumers more
time to review and compare plan options, provider networks, and
prescription drug offerings. Organizations and individuals providing
application and enrollment assistance commented that there is often not
enough time to provide individual or in-person help to all consumers
who request it at the end of the current 6-week annual open enrollment
period. Other commenters agreed with HHS's proposal that a longer
annual open enrollment period would allow underserved populations more
time to seek in person assistance and reduce barriers to enrollment,
and that the proposal would allow agents and brokers, Navigators, and
other consumer assisters more time to help and serve consumers shopping
for plans. Finally, many commenters noted that the months of November
and December are some of the busiest for consumers, and that holidays
and end of the year activities cause significant time and financial
constraints that are barriers to enrollment. Commenters argued that
many consumers would benefit from additional time in January to
complete plan shopping and enrollment activities.
Response: HHS agrees with these comments and is finalizing the
policy to extend the annual open enrollment period to January 15 of the
applicable benefit year, as proposed, and HHS codifies flexibility for
State Exchanges that operate their own eligibility and enrollment
platform to set individual market annual open enrollment period end
dates no earlier than December 15 and to use accelerated effective date
rules.
Comment: Many commenters noted that the majority of State Exchanges
have already extended their annual open enrollment periods beyond the
current December 15 deadline used by Exchanges on the Federal platform,
and that State Exchanges have achieved enrollment gains in the month of
January without introducing adverse selection into the market. Some
State Exchange commenters noted that a longer annual open enrollment
period allowed new consumers to enroll and resulted in a healthier risk
pool mix. Another commenter noted that while most consumers continued
to choose plans in December in order to have coverage effectuate
January 1, the additional time in January offered flexibility for
consumers who needed more time to weigh coverage options and enroll.
Many state commenters noted that State Exchanges that offered
extended periods for the annual open enrollment period beyond the end
date used by the Exchanges on the Federal platform in some cases
offered more accelerated effective date rules during the annual open
enrollment period such that plan selections made by the last day of the
month are effective the first day of the following month. These
commenters asked that this flexibility be maintained and that January
15 be the minimum end date for the annual open enrollment period in the
State Exchanges. Other commenters noted that not all State Exchanges
have chosen to extend their annual open enrollment periods into January
and requested that State Exchanges maintain an ability to end the
annual open enrollment period earlier than January 15. These commenters
noted that State Exchanges may face operational burdens in adjusting
their systems to accommodate the January 15 end date and that State
Exchanges should maintain autonomy to set annual open enrollment period
dates that best serve their populations.
Response: HHS appreciates the comments highlighting evidence from
State Exchange experiences with longer effective annual open enrollment
periods, and are finalizing the policy to extend the annual open
enrollment period to January 15. HHS agrees with commenters that State
Exchanges are best suited to address the needs of their markets and are
therefore codifying flexibilities for State Exchanges that operate
their own eligibility and enrollment platform to set annual open
enrollment period end dates no earlier than December 15. HHS also is
codifying that these State Exchanges may extend their annual open
enrollment periods beyond the end date of January 15 that will be used
by the Exchanges on the Federal platform and may adopt more flexible
accelerated effective date rules.
Comment: Many commenters encouraged HHS to extend the annual open
enrollment period even further, specifically to January 31. Commenters
also asked that HHS use accelerated effective dates to make coverage
available February 1 for plan selections received by January 31. Other
commenters asked us to consider beginning the annual open enrollment
period earlier in the year, for example on October 15, while still
maintaining an end date of December 15 or December 31, as an
alternative way to extend the total length of the annual open
enrollment period. Still other commenters asked HHS to explore an
October 15 start date in addition to the proposed extension, noting
that the date would align with the beginning of Medicare's annual open
enrollment period and that this alignment would facilitate additional
consumer outreach and enrollments. Another commenter suggested
providing an annual open enrollment period of January 1 through March
31 to avoid the holiday season and end of the calendar year altogether.
Response: HHS recognizes that a January 31 end date would provide
additional time for consumers to enroll, and that some State Exchanges
have adopted this date. However, HHS believes the proposed date of
January 15 sufficiently balances its priorities of allowing consumers
additional time to enroll after the end of the calendar year, while
still promoting full coverage year enrollment and minimizing
administrative burdens on Exchanges and issuers associated with longer
annual open enrollment periods. Given the high volume of transactions
processed by the Federal platform, HHS's operational experience
suggests that adopting accelerated effective dates for the annual open
enrollment period could cause delays in enrollments and claims
processing and would require further study. Accordingly, HHS is not
considering requiring changes to effective date rules at this time, but
as noted earlier, is codifying flexibility for State Exchanges
operating their own eligibility and enrollment platforms to adopt
accelerated effective dates.
While beginning the annual open enrollment period in October
instead of November 1 would effectively lengthen the total annual open
enrollment period timeframe, it would not address the needs of
consumers who receive updated plan cost information or who experience
program eligibility changes after January 1 and would also create
administrative burdens on Exchanges and issuers to complete QHP plan
certification and other pre-enrollment readiness activities. Similarly,
HHS believes a change to begin the annual open enrollment period on
January 1 and end in March would require a shift of the plan year
calendar and create significant administrative burden on Exchanges,
issuers, and state regulators, and HHS is not considering such a change
at this time.
[[Page 53432]]
Comment: Other commenters opposed the proposal to extend the annual
open enrollment period to January 15. Commenters stated that this
change would introduce adverse selection into the market, as more
consumers would delay enrollment and may enroll in January only after
needing care. Others noted that the change would increase
administrative burdens and marketing and operational costs on issuers.
Commenters noted that consumers have become accustomed to a 6-week
annual open enrollment period and some commenters assisting consumers
with enrollment activities noted that in their experience consumers did
not need more time. Other commenters argued that the change would
actually decrease total enrollment figures, as measured by total
coverage months, as more consumers delay enrollment and neglect
coverage for the month of January.
Response: HHS acknowledges commenters' concerns regarding consumer
confusion and coverage gaps, and recognizes that HHS will need to
engage in consumer outreach activities to ensure consumers are aware of
the new deadlines and the implications of signing up by December 15 for
a January 1 effective date. However, HHS notes that the experience from
State Exchanges operating their own eligibility and enrollment
platforms suggests that extending the annual open enrollment period
into January does result in increased consumer enrollments and does not
introduce adverse selection into market. State Exchange commenters
noted that the majority of consumers still enrolled in time to
effectuate coverage for January 1, but that the Exchanges were able to
achieve additional enrollments in January from consumers who simply
missed the deadline or needed more time and help enrolling. The
experience from these State Exchange commenters is also consistent with
other comments received in support of this proposal which noted that
underserved consumers, consumers with complex health needs, and
consumers with unexpected plan cost or eligibility changes at the end
of the year do not have enough time to shop and get in-person
assistance under the current annual open enrollment period timeframe.
Comment: HHS received comments in support of its suggestion to
offer a special enrollment period for current enrollees who are
automatically re-enrolled and experienced a significant cost increase
as an alternative to extending the annual open enrollment period, and a
request that HHS delay offering this special enrollment period until
2023. Other commenters opposed the idea of a targeted special
enrollment period and noted that special enrollment periods create
complexity and costs for issuers and are difficult and burdensome for
consumers to navigate. Commenters stated that an extended annual open
enrollment period offers a much more streamlined approach to achieving
the policy goal of allowing consumers to change plans in response to
updated cost information as compared to a special enrollment period.
Commenters also supported HHS's suggestions to improve consumer
outreach and education activities to address enrollment barriers, but
did not agree this outreach is an adequate substitute for extending the
annual open enrollment period.
Response: While HHS is not aware of increased issuer costs or
consumer burden in the State Exchanges that have used special
enrollment periods to effectively lengthen the annual open enrollment
period, HHS acknowledges that the targeted special enrollment period as
discussed in this rule would be limited to certain consumers meeting
specified criteria and, as such, could require additional
administrative steps for issuers, consumers, and Exchanges. HHS agrees
that an extended annual open enrollment period offers a more
streamlined approach for consumers, and also serves the added benefit
of allowing other consumers, such as those with complex health needs,
those in underserved communities, and those who receive a lower subsidy
than the prior year that they are not aware of until receiving their
January bill more time to determine their best coverage option.
Comment: Other commenters suggested HHS could do more to improve
renewal notices to address the challenges faced by consumers who were
automatically re-enrolled but then experienced a significant cost
increase as an alternative to extending the annual open enrollment
period. Commenters suggested HHS consider aligning operational
timelines and allowing issuers to provide more timely and accurate
premium tax credit and plan cost information to consumers. Commenters
suggested HHS could improve its communications around the automatic re-
enrollment process to better avoid consumers receiving surprising plan
cost information after the benefit year has begun. Another commenter
asked HHS to consider a policy for providing retroactive terminations
to consumers who were automatically re-enrolled into coverage that they
no longer want, and that such a policy could reduce spending on APTC
paid for these months of inadvertent coverage.
Response: HHS agrees that more improvements can be made in this
area, and welcomes the suggestions by commenters to improve renewal
notice processes to provide more accurate plan cost information to
consumers earlier in the annual open enrollment period. However, after
review of the range of public comments received, HHS does not believe
improvements to the renewal noticing and automatic re-enrollment
process alone is a sufficient alternative to providing additional
enrollment time. HHS notes that current HHS policy does allow for
consumers to request retroactive terminations under certain
circumstance after their coverage has been automatically renewed, and
that an extended annual open enrollment period deadline of January 15
will also allow consumers more time to become aware of their enrollment
options after automatic reenrollment has occurred.
5. Monthly Special Enrollment Period for APTC-Eligible Qualified
Individuals With a Household Income No Greater Than 150 Percent of the
Federal Poverty Level Whose Applicable Taxpayer Has an Applicable
Percentage of Zero (Sec. 155.420(d)(16))
In order to make affordable coverage available to more consumers,
HHS proposed to codify a monthly special enrollment period for
qualified individuals or enrollees, or the dependents of a qualified
individual or enrollee, who are eligible for APTC, and whose household
income is expected to be no greater than 150 percent of the FPL.\59\ As
discussed in the proposed rule, HHS proposed making this special
enrollment period available to individuals based on household income
level because enhanced financial
[[Page 53433]]
assistance provided by the ARP for tax years 2021 and 2022 is such that
many individuals with a household income no greater than 150 percent of
the FPL have access to a silver plan with a zero dollar monthly premium
after the application of APTC.\60\ Specifically, section 9661 of the
ARP amended section 36B(b)(3)(A) of the Code to decrease the applicable
percentages used to calculate the amount of household income a taxpayer
is required to contribute to their second lowest cost silver plan for
tax years 2021 and 2022.\61\ The applicable percentages are used in
combination with factors including annual household income and the cost
of the benchmark plan to determine the PTC amount for which a taxpayer
can qualify to help pay for a QHP on an Exchange for themselves and
their dependents.\62\ These decreased percentages generally result in
increased PTC for PTC-eligible taxpayers, and for those with household
incomes no greater than 150 percent of the FPL, the new applicable
percentage is zero. As a result of these changes, many low-income
consumers with a household income no greater than 150 percent of the
FPL whose QHP coverage can be fully paid for with APTC have one or more
options to enroll in a silver-level plan without needing to pay a
premium after the application of APTC. All of these consumers, if
eligible to enroll through an Exchange and to receive APTC, will
qualify for CSRs to enroll in a silver plan with an AV of 94
percent.\63\
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\59\ As noted in the proposed rule, a qualifying individual is
generally not eligible for a PTC if their household income is below
100 percent of the FPL, but there are a small number of consumers
with a household income below 100 percent of the FPL who may qualify
for APTC. Specifically, section 36B(c)(1)(B) of the Code provides
that a taxpayer with a household income which is not greater than
100 percent of the FPL, and who is a lawfully present immigrant and
ineligible for Medicaid due to their immigration status, may qualify
for a PTC. Consumers for whom this is the case would be able to
qualify for the proposed special enrollment period, as well.
Additionally, HHS notes that because individuals would qualify for
this special enrollment period based on their household income
level, household members who apply for coverage with financial
assistance together generally will all qualify for the special
enrollment period. However, it is also possible that one household
member could trigger the special enrollment period based on a change
in their eligibility for APTC--for example, a household member who
loses access to an offer of coverage through an employer that is
considered affordable based on 26 CFR 1.36B-2(c)(3)(v).
\60\ 86 FR 35169.
\61\ Public Law 117-2.
\62\ See 26 CFR 1.36B-3(g) for more information on the
applicable percentage and its relationship to the PTC.
\63\ See Sec. Sec. 155.305(g)(2) and 156.420(a).
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HHS proposed that this special enrollment period be available at
the option of the Exchange, in order to allow State Exchanges to decide
whether to implement it based on their specific market dynamics, needs,
and priorities. Additionally, HHS proposed that Exchanges on the
Federal platform will implement this special enrollment period by
providing qualified individuals who are eligible with a pathway to
access it through the <a href="http://HealthCare.gov">HealthCare.gov</a> application. HHS proposed that
implementation in Exchanges on the Federal platform be consistent with
current special enrollment period policy and operations, in particular
such that there is no limitation on how often individuals who are
eligible for this special enrollment period can obtain or utilize
it.\64\ Consistency in this area will mitigate consumer and other
stakeholder confusion and simplify Exchange operations. To provide
Exchanges with flexibility to prioritize ensuring that qualifying
individuals are able to obtain coverage through this special enrollment
period quickly following plan selection, or to implement this special
enrollment period in keeping with their current operations, HHS
proposed to add a new paragraph at Sec. 155.420(b)(2)(vii) to provide
that the Exchange must ensure that coverage is effective in accordance
with paragraph (b)(1) of this section or on the first day of the month
following plan selection, at the option of the Exchange.
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\64\ For example, those who qualify for the special enrollment
period per Sec. 155.420(d)(8) for qualifying individuals who gain
or maintain status as an Indian, as defined by section 4 of the
Indian Health Care Improvement Act, may change their plan selection
multiple times each month, noting that only the last plan selection
before the applicable cutoff date for coverage each month will take
effect for the month in question.
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HHS also proposed to add a new paragraph at Sec.
155.420(a)(4)(ii)(D) to provide that an Exchange must permit eligible
enrollees and their dependents to change to a silver-level plan, and to
amend paragraph Sec. 155.420(a)(4)(iii), which provides other plan
category limitations for other special enrollment periods, to provide
that these other plan category limitations do not apply to enrollees or
dependents who qualify for the proposed special enrollment period.\65\
Finally, HHS proposed to add a new paragraph at Sec.
147.104(b)(2)(i)(G) to specify that issuers are not required to provide
this special enrollment period in the individual market with respect to
coverage offered outside of an Exchange, because eligibility for the
special enrollment period is based on eligibility for APTC, and APTC
cannot be applied to coverage that is not a QHP offered through an
Exchange.\66\
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\65\ This provision would not prevent enrollees who qualify for
the new special enrollment period from changing to a plan of any
category through a special enrollment period that provides this
flexibility, including the special enrollment periods at Sec.
155.420(d)(4), (8), (9), (10), (12), and (14).
\66\ See IRC 36B(b)(2)(A), (c)(2)(A)(i).
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In consideration of public comments that HHS received, HHS is
finalizing this monthly special enrollment period for APTC eligible
consumers with a projected annual household income no greater than 150
percent of the FPL with coverage effective dates and other eligibility
parameters as proposed, but is finalizing it so that the special
enrollment period is only available during periods of time during which
PTC benefits are available such that the applicable taxpayers'
applicable percentage is set at zero. HHS is also finalizing a revision
to the language of proposed paragraph Sec. 155.420(a)(4)(ii)(D) to
reflect that an enrollee who is adding a qualified individual or
dependent through this special enrollment period may add the newly-
enrolling household member to their current QHP; or, change to a
silver-level QHP and add the newly-enrolling household member to this
silver-level QHP; or, change to a silver-level QHP and enroll the
newly-enrolling qualified individual or dependent in a separate QHP. In
consideration of concerns raised by commenters as further discussed
below, HHS believes that this modification is appropriate to provide
clarity on options and limitations for enrollees whose household
members newly enroll through this special enrollment period. In
particular, this change makes clear that while newly-enrolling
qualified individuals and dependents are not subject to plan category
limitations, enrollees with a newly-enrolling dependent or other
household member may not use the new monthly special enrollment period
to change to a plan of a different metal level other than a silver-
level QHP to enroll together with their newly-enrolling household
member, but can stay in the same plan or change to a silver plan to
enroll together with the newly-enrolling household member. This
limitation will help to mitigate adverse selection. Also, the revision
HHS is finalizing makes clear that the limitation that applies to this
new special enrollment period functions similarly to other plan
category limitations, such as those at Sec. 155.420(a)(4)(iii)(B) and
(C) for enrollees who are adding one or more newly-enrolling dependents
or household members to their Exchange coverage.
In addition to finalizing the previously stated modifications, HHS
is also finalizing conforming updates to regulatory text at Sec.
155.420(a)(4)(ii)(C). HHS proposed to add new paragraph (a)(4)(ii)(D)
which provided that where an enrollee ``or'' his or her dependents
qualify for a special enrollment period underSec. 155.420(d)(16) and
is not enrolled in a silver-level QHP, the Exchange must allow the
enrollee and their dependents to change to a silver-level QHP if they
elect to change their QHP enrollment. HHS also proposed to align
existing regulatory text at Sec. 155.420(a)(4)(ii)(C) with this new
paragraph, and with the related special enrollment period triggering
event at Sec. 155.420(d)(6)(i) and (ii), by updating a sentence
reading ``if an enrollee and his or her dependents'' to ``if an
enrollee or his or her dependents.'' These edits align with
corresponding special
[[Page 53434]]
enrollment period triggering events at Sec. 155.420(d) to which plan
category limitations at (a)(4) refer.
As discussed in previous rulemaking, certain provisions under Sec.
155.420(d) defining special enrollment period triggering events refer
both to a qualified individual and the qualified individual's
dependents, and use ``or'' (rather than ``and'') to be clear that when
a qualified individual or enrollee, or his or her dependent,
experiences the special enrollment period triggering event, all members
of a household generally may enroll in or change plans together in
response to the event experienced by one member of the household,
subject to the limitations in Sec. 155.420(a)(4).\67\ Therefore, HHS
is finalizing as proposed this change to Sec. 155.420(a)(4)(ii)(C).
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\67\ See 78 FR 42262. Also, the 2017 Market Stabilization Rule
used the phrase ``if an enrollee or his or her dependent'' when
describing the rule that would be finalized at what is now paragraph
Sec. 155.420(a)(4)(ii)(A), See 82 FR 18359.
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Although HHS proposed revisions to Sec. 155.420(a)(4)(ii)(C) to
align with the text of triggering event provisions underSec.
155.420(d), HHS neglected to propose similar but necessary changes to
the text of Sec. 155.420(a)(4)(ii)(A) and (B). HHS intends to propose
these changes in future rulemaking. Because this is a technical change,
HHS does not anticipate that it will impact Exchanges' operations or
messaging. However, if the change does affect an Exchange's operations,
CMS will not consider the Exchange to be out of compliance with the
rule due to interpreting the plan category limitations rules as
aligning with the related special enrollment period qualifying events
at Sec. 155.420(d).
This new monthly special enrollment period will be available at the
option of the Exchange, as proposed, in order to allow State Exchanges
to decide whether to implement it based on their specific market
dynamics, needs, and priorities. HHS is also finalizing that Exchanges
on the Federal platform will implement this special enrollment period
by providing qualified individuals who are eligible with a pathway to
access it through the <a href="http://HealthCare.gov">HealthCare.gov</a> application.
The APTC benefit changes under the ARP make affordable coverage
available to more uninsured people. However, as discussed in the
proposed rule, if past trends continue, HHS believes that some
consumers who qualify for these benefits under the ARP may continue to
forgo enrollment in premium-free coverage due to a lack of awareness of
the opportunity to enroll or a misconception about what the coverage
would cost, and that low-income consumers who have lacked coverage for
more than a year may be especially difficult to reach.\68\ Therefore,
while HHS will undertake extensive outreach and engagement efforts to
promote enrollment during the open enrollment period for 2022 coverage
and to help ensure consumer awareness of existing special enrollment
periods for which they may qualify, given the established challenges
with promoting awareness of access to coverage among low-income
consumers, HHS believes additional enrollment opportunities for low-
income consumers are appropriate and in the best interest of low-income
consumers. Additionally, as noted in the proposed rule, the monthly
special enrollment period policy would align with E.O. 14009, which
requires Federal agencies to identify and appropriately address
policies that create barriers to accessing ACA coverage, including
access through mid-year enrollment.
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\68\ Key Facts about the Uninsured Population: Kaiser Family
Foundation; Nov. 6, 2020, <a href="https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/">https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/</a>.
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In addition to providing certain low-income individuals with
additional opportunities to newly enroll in free or low-cost coverage
that is available to them, HHS believes this special enrollment period
may help consumers who lose Medicaid coverage to regain health care
coverage. While, as discussed in the proposed rule, these consumers can
already qualify for a special enrollment period due to their loss of
Medicaid coverage per Sec. 155.420(d)(1), and may also have access to
other flexibilities, whether members of this group of consumers are
able to benefit from existing enrollment periods and flexibilities may
vary, and may require Exchanges to assess eligibility on a case-by-case
basis. This may also require consumers who generally have low household
income and who therefore may face other barriers to accessing health
care coverage, such as low health insurance literacy levels and lack of
internet access, to be aware of the potential for an extended
enrollment timeframe and to request it from their Exchange. As also
discussed in the proposed rule, after the COVID-19 PHE comes to an end,
HHS expects to see a higher than usual volume of low-income individuals
transitioning from Medicaid coverage to the Exchanges for at least
several months as states begin to catch up on a backlog of
redeterminations and terminations for Medicaid beneficiaries after
having generally suspended Medicaid disenrollments since March 2020 to
comply with the continuous enrollment provisions in section 6008(b)(3)
of the Families First Coronavirus Response Act.\69\ Therefore, while
this special enrollment period would not be limited to qualified
individuals who have lost Medicaid coverage, HHS noted that providing
access to a monthly enrollment opportunity could help some consumers
who lose Medicaid coverage to regain health insurance coverage,
especially those who do not initially realize that loss of Medicaid is
a special enrollment period triggering event. This special enrollment
period could help mitigate the risk of long-term coverage disruptions
due to the potentially high volume of Medicaid terminations following
the end of the COVID-19 PHE, by giving qualifying individuals who lose
Medicaid and who may miss or misunderstand notifications about their
coverage loss more time to enroll in Exchange coverage.\70\
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\69\ Public Law 116-127. These provisions enabled states to
receive the temporary Federal Medical Assistance Percentage increase
under that section.
\70\ See 86 FR 35170 for discussion of this issue in the
proposed rule.
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As proposed, Exchanges that elect to provide this special
enrollment period would have the option to require consumers to submit
documentation to confirm their eligibility in accordance with their
pre- or post-enrollment verification programs. However as discussed in
the proposed rule, CMS will determine eligibility for this special
enrollment period in Exchanges on the Federal platform based on
consumers' attested household income. Once an Exchange on the Federal
platform grants this special enrollment period to a consumer based on
their attested household income, the Exchange will then verify
applicants' projected annual household income consistent with 45 CFR
155.320(c).\71\ Specifically, CMS will continue to require consumers
whose projected annual household income cannot be verified using a
trusted electronic data source to submit documentation to confirm their
annual income (currently approved under OMB control number 0938-1207/
Expiration date February 29, 2024). CMS will not require submission of
household income documentation prior to enrollment, and will not pend
the enrollment as part of a pre-enrollment verification process, in
part because CMS's experience administering the verification processes
for Exchanges on the Federal platform in accordance with Sec.
155.320(c) shows that submitting documentation quickly to verify income
can be especially onerous for those at
[[Page 53435]]
the lowest income levels who may not have ready access to a computer or
smartphone, the internet, a copier or scanner, or funds for postage.
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\71\ Section 1411(c)(3) of the ACA.
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In addition to outreach and education efforts, HHS noted that HHS
believed that applying plan category limitations to this special
enrollment period would help to mitigate adverse selection because it
would limit the ability of enrollees to change to a higher metal level
plan based on a new health care need and then change back to a silver
plan once the health issue is resolved. However, HHS acknowledged that
enrollees may still choose to enroll in a silver-level plan that is
more expensive than their zero dollar option, and, while HHS believes
that enrollees will likely be deterred from changing plans mid-year
because such a change will generally mean they lose progress they have
made toward meeting their deductible and other accumulators, HHS
acknowledged that through a monthly special enrollment period,
enrollees could change plans mid-year based on differences in provider
networks or prescription drug formularies. HHS sought comment on this
proposal and on whether, alternatively, plan category limitations
should not be applied. For example, HHS sought comment on whether to
instead exempt the proposed special enrollment period at Sec.
155.420(d)(16) from plan category limitations in order to alleviate the
implementation burden on Exchanges, or due to a lack of concern that
eligible enrollees would use the proposed special enrollment period to
change to a plan category other than silver.
HHS also sought comment on the degree to which the risk of adverse
selection increases due to the fact that not all qualifying individuals
who have a household income no greater than 150 percent of the FPL and
whose applicable percentage is therefore set at zero will have access
to a silver plan with a zero-dollar premium, and therefore might be
more inclined to enroll in coverage due to a health care need and end
coverage once this need has been met rather than pay even a relatively
small premium.
HHS estimated that this adverse selection risk may result in
issuers increasing premiums by approximately 0.5 to 2 percent, and a
corresponding increase in APTC outlays and decrease in income tax
revenues of approximately $250 million to $1 billion, when the enhanced
APTC provisions of the ARP are in effect (currently, plan year 2022).
HHS described this impact in more detail in the regulatory impact
analysis (RIA) section in the proposed rule.\72\ HHS also discussed
some of the reasons adverse selection can be mitigated, but not
altogether eliminated.
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\72\ See the proposed rule at 86 FR 35206 through 35207 for more
detail on this discussion.
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HHS sought comment from health insurance issuers and other
stakeholders on its position that adverse selection related to this
special enrollment period will be mitigated by the availability of free
or very low-cost coverage with a 94 percent AV and the application of
plan category limitations to this new special enrollment period, or
whether the adverse selection risk created by this new special
enrollment period cannot be sufficiently mitigated such that its
creation may result in significant rate increases. HHS also solicited
comment regarding whether health insurance issuers and other
stakeholders have concerns that the policy could cause any adverse
selection among higher-income individuals with variable hours and
income. HHS sought comment on whether the requirement that Exchanges
verify applicants' projected annual household income post-enrollment,
consistent with 45 CFR 155.320(c), is sufficient, or if there are other
measures HHS should put in place to further protect program integrity.
HHS also solicited comment on estimated implementation burdens for
Exchanges that elect to provide this additional enrollment opportunity,
including whether implementation of this special enrollment period will
be possible in time for consumers to benefit from it during the 2022
plan year. HHS requested comment on whether issuers will have
sufficient time to adjust rate filings to account for any increased
risk and whether state regulators will have sufficient time to review
those filings after a final rule is issued.
HHS further requested comment on whether this proposed special
enrollment period should be available indefinitely (as proposed), or
whether it should be time-limited. For example, HHS sought comment on
whether HHS should finalize the proposed special enrollment period to
be available only for coverage during years when enhanced APTC benefits
are also available, as provided by the section 9661 of the ARP or any
subsequent statute. Finally, HHS requested comment on strategies for
providing outreach and education for consumers who may be eligible for
this special enrollment period, in particular to help qualifying
individuals understand and take advantage of the free or very low-cost
coverage that is available to them. Within this group, HHS requested
comments on strategies for educating consumers who qualify to enroll in
a 94 percent AV silver plan about the benefits of enrolling in such a
plan even if they are required to pay a small premium, as opposed to
electing a premium-free bronze plan with a lower AV.
The following is a summary of the comments received and HHS's
responses regarding the proposals related to the monthly special
enrollment period for APTC-eligible qualified individuals with a
household income no greater than 150 percent of the FPL and whose
applicable percentage therefore is zero (Sec. 155.420(d)(16)).
Comment: Many commenters supported the proposal to provide a
monthly special enrollment period to APTC-eligible individuals with
projected annual household income no higher than 150 percent of the
FPL, and a number of them agreed with and expanded upon HHS's position
that it would positively impact health equity. For example, several
commenters agreed that lower-income individuals often face greater
barriers to enrollment, such as a lack of an internet connection or
other computer equipment, limited available time due to working
multiple jobs, and LEP. Commenters also noted that this group of
consumers is disproportionately made up of people of color. Several
commenters noted that they expected this special enrollment period to
be especially helpful to individuals in their area whose income is
under 100 percent of the FPL, but who do not qualify for Medicaid
because of their immigration status, and who therefore may qualify for
APTC. They noted that this group can be difficult to reach through
outreach and education, and therefore may benefit significantly from
additional opportunities to enroll throughout the year. Several
commenters voiced support for outreach and education to promote
awareness of this special enrollment period as well as other special
enrollment period qualifying events. Some added that currently-
available enrollment opportunities are underutilized due to their
complexity and due to the challenges associated with learning about and
enrolling in coverage. Some commenters encouraged CMS to focus outreach
and education efforts on vulnerable communities, individuals with LEP,
immigrants, and the LGBTQ+ community. A few commenters specified
potential outreach strategies, such as engaging schools and community
health workers.
Response: As discussed in the proposed rule, HHS agrees that
[[Page 53436]]
providing a monthly enrollment opportunity for certain low-income
consumers will increase the likelihood that more of these consumers are
able to access coverage in spite of barriers that this group, which
disproportionately includes people of color, often face. A May 2021
report by the Kaiser Family Foundation estimates that there are
approximately 10.9 million uninsured people who are both eligible for
coverage through the Exchange and eligible for subsidies under the ACA
and ARP.\73\ The report found that compared to the general non-elderly
population in the U.S., this population is more likely to be Hispanic,
people with a high school diploma or less, and young adults ages 19 to
34. Additionally, it found that uninsured people eligible for subsidies
are more likely to live in rural areas and lack internet access than
the general non-elderly population in the U.S. The report also noted
that the estimated 6 million uninsured people who may be eligible for a
zero-dollar premium plan through the Exchange after application of APTC
are more likely to be non-English speakers at home. Providing a monthly
enrollment opportunity will give this population of uninsured people
more opportunities to access coverage and provide more time for
targeted outreach to consumers who may be harder to reach and enroll,
such as those who are non-English speakers at home. HHS agrees with
commenters' support for robust outreach and education efforts targeted
in particular to ensuring awareness and understanding of this special
enrollment period and other enrollment opportunities, and will continue
to work with stakeholders to develop and optimize targeted messaging.
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\73\ Kaiser Family Foundation. A closer look at the uninsured
marketplace eligible population following the American Rescue Plan
Act. May 2021. <a href="https://www.kff.org/private-insurance/issue-brief/a-closer-look-at-the-uninsured-marketplace-eligible-population-following-the-american-rescue-plan-act/">https://www.kff.org/private-insurance/issue-brief/a-closer-look-at-the-uninsured-marketplace-eligible-population-following-the-american-rescue-plan-act/</a>.
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Comment: Some commenters who supported the proposed special
enrollment period were skeptical that it would pose a significant
adverse selection risk, citing as mitigating factors the high rate of
subsidization for qualifying individuals and the likelihood that
younger, healthier individuals would enroll. Many of these commenters
also cited comparable state experiences as evidence of the low
likelihood of adverse selection and high likelihood of a positive
impact on reducing uninsured rates should CMS finalize the proposed
special enrollment period. Some commenters said that State Exchange
data on risk factors associated with enrollees who accessed coverage
through a special enrollment period, including the special enrollment
period that State Exchanges provided during the 2020 or 2021 plan years
due to the COVID-19 pandemic, indicated that these enrollees did not
pose significant additional risk. One of these commenters asked that
CMS analyze data on special enrollment period enrollees in states that
use the <a href="http://HealthCare.gov">HealthCare.gov</a> platform, and suggested that such analysis would
yield a similar result.
For example, multiple commenters cited the Massachusetts State
Exchange's enrollment opportunity for individuals with a household
income no higher than 300 percent of the FPL, and the ability of
consumers up to 200 percent of the FPL to enroll in the Basic Health
Program year-round in Minnesota and New York. Specifically, one
commenter noted that in Massachusetts, consumers with household incomes
up to 300 percent of the FPL may qualify for coverage with low or no
monthly premiums, low copays, and no deductibles through the state's
Health Connector's ConnectorCare program, and that these individuals,
once determined eligible for ConnectorCare, qualify for a 60-day
special enrollment period to enroll in coverage at any point during the
plan year. The commenter added that in spite of this flexible
enrollment opportunity, the state has not experienced individual market
adverse selection within the program, and enrollment in the program has
remained stable over time. In fact, the commenter noted that the
average risk score for insurers participating in ConnectorCare is lower
than the risk score for insurers in their individual market outside of
ConnectorCare. Finally, the commenter noted a low rate of changes in
plans among current enrollees during the mid-2021 enrollment period
that the state established due to the COVID-19 pandemic, adding that
this experience suggests less risk of adverse selection due to current
enrollees changing plans in response to an emerging medical need.\74\
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\74\ Specifically, the commenter stated that 0.23 percent of
Health Connector members changed plans from June to July 2021.
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Another commenter cited reports that indicated issuers had not
found evidence of adverse selection due to the ability of individuals
with a household income up to 200 percent of the FPL to enroll year-
round in a Basic Health Program in New York or Minnesota.\75\ This
commenter also cited a report that suggested, based on data from states
that offered a mid-year special enrollment period in 2020 due to the
COVID-19
[…truncated; see source link]Indexed from Federal Register on September 27, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.