[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Proposed Rules]
[Pages 45584-45590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18924]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 170
Planning and Establishment of State-Level Exchanges; Request for
Comments Regarding Exchange-Related Provisions in Title I of the
Patient Protection and Affordable Care Act
AGENCY: Office of Consumer Information and Insurance Oversight,
Department of Health and Human Services.
ACTION: Request for comments.
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SUMMARY: This document is a request for comments regarding the
Exchange-related provisions of the Patient Protection and Affordable
Care Act (the Affordable Care Act), enacted on March 23, 2010. The
Department of Health and Human Services (HHS) invites public comments
in advance of future rulemaking and grant solicitations.
DATES: Submit written or electronic comments by October 4, 2010.
ADDRESSES: In commenting, please refer to file code OCIIO-9989-NC.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the instructions under
the ``More Search Options'' tab.
By regular mail. You may mail written comments to the
following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: OCIIO-9989-NC, P.O.
Box 8010, Baltimore, MD 21244-8010.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
By express or overnight mail. You may send written
comments to the following address ONLY: Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Attention: OCIIO-
9989-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD
21244-1850.
By hand or courier. If you prefer, you may deliver (by
hand or courier) your written comments before the close of the comment
period to either of the following addresses:
a. For delivery in Washington, DC--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC
20201.
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.)
b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Donna Laverdiere, Office of Consumer
Information and Insurance Oversight, Department of Health and Human
Services, at (301) 492-4100.
[[Page 45585]]
Customer Service Information: Individuals interested in obtaining
information about the Patient Protection and Affordable Care Act may
visit the Department of Health and Human Services' Web site (http://www.HealthCare.gov).
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments. All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all electronic
comments received before the close of the comment period on the
following public Web site as soon as possible after they have been
received: http://www.regulations.gov. Follow the search instructions on
that Web site to view public comments.
Comments received timely will be available for public inspection as
they are received, generally beginning approximately 3 weeks after
publication of a document, at Room 445-G, Department of Health and
Human Services, Hubert H. Humphrey Building, 200 Independence Avenue,
SW., Washington, DC 20201, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments, call
1-800-743-3951.
I. Background
A. General
Title I of the Patient Protection and Affordable Care Act
(Affordable Care Act, or the Act), Public Law 111-148, enacted on March
23, 2010, expands access to health insurance through the establishment
of American Health Benefits Exchanges (``Exchanges''). Sections 1311(b)
and 1321 (b) of the Affordable Care Act provide that each State may
elect to establish an Exchange that would (consistent with definitions
relating to the individual and group markets and employer size
established in Section 1304 of the Act): (1) Facilitate the purchase of
qualified health plans (QHPs); (2) provide for the establishment of a
Small Business Health Options Program (``SHOP Exchange'') designed to
assist qualified employers in facilitating the enrollment of their
employees in QHPs offered in the SHOP Exchange; and (3) meet other
requirements specified in the Act. Additionally, section 1321(c)(1)
requires the Secretary to establish and operate an Exchange within
States that do not elect to establish an Exchange, or if the Secretary
determines, on or before January 1, 2013, that the State will not have
an Exchange operable by January 1, 2014 or has not taken the actions
necessary to meet required Exchange standards as defined by regulation
or to implement other requirements in Subtitles A and C of the
Affordable Care Act (relating to insurance market reforms). For
purposes of the remainder of this notice, the term ``Exchange'' will
refer to State-operated Exchanges and the Exchange operated by the
Federal government on behalf of States that do not elect to establish
an Exchange.
B. Requirements for Establishing and Operating Exchanges
Section 1311(d) of the Affordable Care Act specifies certain
requirements for Exchanges, and section 1311(e) specifies the
requirements for a plan to be certified by the Exchange as a QHP.
Additionally, Section 1321 of the Affordable Care Act discusses State
flexibility in the operation and enforcement of Exchanges and related
requirements. The Secretary will issue regulations setting standards
for meeting the requirements under Title I of the Act with respect to
the establishment and operations of the Exchanges. Each State electing
to establish and operate an Exchange must have in effect Federal
standards or a State law or regulation that implements the Federal
standards within the State. Also, section 1311(k) specifies that
Exchanges may not establish rules that conflict with or prevent the
application of regulations promulgated by the Secretary under Subtitle
D of the Affordable Care Act.
Section 1321(c) of the Act provides the authority for the Secretary
to establish and operate an Exchange on behalf of a State that does not
elect to establish an Exchange or that the Secretary determines will
not have an Exchange operable by January 1, 2014; or has not taken the
necessary actions to implement the requirements in 1321(a) or other
market reforms specified in Subtitles A and C of Title I of the
Affordable Care Act.
1. General Requirements for Exchanges
Section 1311(d)(1) requires that an Exchange must be a governmental
agency or nonprofit entity established by a State. Section 1311(d)(2)
requires Exchanges to make QHPs available to eligible individuals and
employers. Section 1311(d)(6) requires Exchanges to consult with
various stakeholders relevant to carrying out their responsibilities.
Section 1311(d)(4) identifies the minimum functions that an
Exchange must perform. These functions include, but are not limited to:
Implementing procedures for certification, recertification, and
decertification of QHPs; providing for the operation of a toll-free
telephone hotline to respond to requests for assistance; maintaining an
Internet website containing standardized comparative information on
QHPs; assigning ratings to each QHP offered through the Exchange on the
basis of relative quality and price, in accordance with criteria as
defined by the Secretary; utilizing a standardized format for
presenting health benefits options in the Exchange; consistent with
requirements in Section 1413 of the Act, informing individuals of
eligibility requirements for the Medicaid and CHIP programs or any
applicable State or local public program, and enrolling individuals in
those programs if the Exchange determines they are eligible through
screening of the application by the Exchange; establishing and making
available by electronic means a calculator to determine the actual cost
of coverage after application of any premium tax credit and cost-
sharing reduction; granting certifications to individuals relating to
hardship or other exemptions; and establishing a Navigator program
consistent with the requirements in Section 1311(i).
2. Requirements Relating to Plan Ratings and Internet Portals
Section 1311(c)(3) requires the Secretary to develop a rating
system that would rate QHPs offered through an Exchange on the basis of
the relative quality and price. Additionally, Section 1311(c)(4)
requires the Secretary to develop an enrollee satisfaction system that
would evaluate the level of satisfaction with QHPs that had more than
500 enrollees during the previous year that are offered through an
Exchange. The Act requires Exchanges to include quality and enrollee
satisfaction ratings in the information provided to individuals and
employers through their Internet portals.
Section 1311(c)(5) directs the Secretary to make a model template
available to Exchanges for an Internet portal that may be used to
direct eligible individuals and employers to QHPs; assist individuals
and employers in determining eligibility for participation in
Exchanges, premium tax credits, or cost-sharing reductions; and present
standardized information (including plan ratings) to assist consumers
in making health insurance choices. The Affordable Care Act also
directs the Secretary to continue operating, maintaining and updating
the Federal Internet portal developed under Section 1103(a) and to
assist States in developing and maintaining their own portals.
[[Page 45586]]
3. Requirements Relating to Navigator Programs
Section 1311(i) provides that an Exchange shall establish a
Navigator program under which it awards grants to eligible entities
that meet the law's criteria, including demonstrating to the Exchange
that they have existing relationships or could establish relationships
with employers and employees, consumers, or self-employed individuals
likely to be eligible to enroll in a qualified health plan. The duties
of entities that serve as Navigators under such a grant include:
Conducting public education activities to raise awareness of the
availability of QHPs; distributing fair and impartial information
concerning enrollment in QHPs and the availability of premium tax
credits and cost-sharing reductions; facilitating enrollment in QHPs;
providing referrals to any applicable office of health insurance
consumer assistance, health insurance ombudsman, or other State agency
to address enrollee complaints and questions about their health plans
and coverage determination; and providing information in a manner that
is culturally and linguistically appropriate to the needs of the
population being served by the Exchange. The Affordable Care Act
directs the Secretary, in collaboration with States, to develop
standards to ensure that information made available by Navigators is
fair, accurate and impartial.
4. Other Requirements Relating to Exchanges
Section 1311(c)(6) requires Exchanges to provide for an initial
open enrollment period (as determined by the Secretary no later than
July 1, 2012), annual open enrollment periods (as determined by the
Secretary), and special enrollment periods.
Section 1311(d)(5)(A) specifies that States must ensure that their
Exchanges are self-sustaining on or after January 1, 2015, including
allowing Exchanges to charge assessments or user fees to participating
health insurance issuers, or otherwise generate funding to support
their operations. Section 1311(d)(5)(B) prohibits wasteful use of funds
by Exchanges. Additionally, Section 1313 requires Exchanges to keep an
accurate accounting of all activities, receipts, and expenditures, and
annually submit to the Secretary a report concerning such accounting.
Section 1313(a) also specifies that the Secretary has certain
enforcement authority if an Exchange or a State has engaged in serious
misconduct related to compliance with Title I of the Act.
5. Establishment of Exchanges in the Territories
Section 1323 of the Affordable Care Act provides an opportunity for
U.S. Territories to elect to establish Exchanges and appropriates a
fixed amount of funds to reduce the cost of coverage provided through
an Exchange in the Territories. The Act stipulates that Territories'
elections related to establishing Exchanges must be consistent with
Section 1321, relating to standards for establishing and operating
Exchanges, and received not later than October 1, 2013.
II. Solicitation of Comments
Section 1321(a)(2) of the Affordable Care Act requires the
Secretary to consult with stakeholders to ensure balanced
representation among interested parties. HHS is inviting public comment
to aid in the development of standards for establishment and operation
of the Exchanges, to address other Exchange-related provisions in Title
I of the Affordable Care Act, and to inform for the awarding of grants
to the States to assist them in planning and developing Exchanges. The
Department is interested in comments from all interested parties. To
assist interested parties in responding, this request for comments
describes specific areas in which the Department is particularly
interested.
Commenters should use the questions below to provide the Department
with relevant information for the development of regulations regarding
the Exchange-related provisions in Title I of the Affordable Care Act.
However, it is not necessary for commenters to address every question
below and commenters may also address additional issues under the
Exchange-related provisions in Title I of the Affordable Care Act.
Individuals, groups, and organizations interested in providing comments
may do so at their discretion by following the above mentioned
instructions.
Specific areas in which HHS is particularly interested include the
following:
A. State Exchange Planning and Establishment Grants
Section 1311(a) directs the Secretary to make planning and
establishment grant awards to States for activities related to
establishing an Exchange. For each fiscal year, the Secretary must
determine the total amount that will be made available to each State.
Grants awarded under this Section may be renewed if a State is making
sufficient progress toward establishing an Exchange, implementing other
insurance market reforms, and meeting other benchmarks. The Secretary
must make the initial grant awards under this Section no later than one
year after enactment, and no grants shall be awarded after January 1,
2015.
1. What factors are States likely to consider in determining
whether they will elect to offer an Exchange by January 1, 2014? To
what extent are States currently planning to develop their own
Exchanges by 2014 (e.g., become electing States) versus choosing to
opt-in to an Exchange operated by the Federal government for their
State? When will this decision be made? Can planning grants assist in
identifying and assessing relevant factors and making this decision?
2. To what extent have States already begun to plan for
establishment of Exchanges? What kinds of activities are currently
underway (e.g., legislative, regulatory, etc.)? What internal and/or
external entities are involved, or will likely be involved in this
planning process?
a. What kinds of governance structures, rules or processes have
States established or are they likely to establish related to operating
Exchanges (e.g., legal structure (such as placement in State agency or
nonprofit organization), governance structure, requirements relating to
governing board composition, etc.)?
b. To what extent have States begun developing business plans or
budgets relating to Exchange implementation?
3. What are some of the major factors that States are likely to
consider in determining how to structure their Exchanges (e.g.,
separate or combined individual Exchanges and SHOP Exchanges; regional
or interstate Exchanges; subsidiary Exchanges, State agency versus
nonprofit entity)? What are the pros and cons of these various options?
4. What kinds of factors are likely to affect States' resource
needs related to establishing Exchanges?
a. What is the estimated range of costs that States are likely to
incur during the upcoming year (e.g., calendar 2010 through calendar
2011) for each of the major categories of Exchange activities? Which of
these expenses are fixed costs, and which costs are variable?
b. To what extent do States have existing resources that could be
leveraged as a starting point for Exchange operations (e.g., existing
information technology (IT) systems, toll-free hotlines, Web sites,
business processes, etc.)?
[[Page 45587]]
c. For what kinds of activities are States likely to seek funding
using the Exchange establishment and planning grants?
5. What kinds of questions are States likely to receive during the
initial planning and start-up phase of establishing Exchanges? How can
HHS provide technical assistance, and in what forms, in helping States
to answer these questions?
B. Implementation Timeframes and Considerations
Section 1321(b) requires each State that elects to establish an
Exchange meeting the Secretary's requirements to have an Exchange
operational by January 1, 2014. Section 1321(c) directs the Secretary
to establish and operate an Exchange within each State that: (1) Does
not elect to establish an Exchange; or (2) the Secretary determines
will not have an Exchange operational by January 1, 2014, or has not
taken the actions the Secretary determines necessary to implement the
requirements in Section 1321(a) or the other insurance market reform
requirements in Subtitles A and C of Title I of the Act.
Additionally, the Affordable Care Act includes several statutory
deadlines for the Secretary related to establishment of Exchanges,
including:
Issuing regulations and/or guidance relating to
requirements for Exchanges, requirements for QHPs, and risk adjustment
as soon as practicable;
Awarding State planning grants no later than one year
after enactment (March 23, 2011);
Determining the dates of the initial open enrollment
period by July 1, 2012;
No later than January 1, 2013, determining States'
readiness to have Exchanges operational and implement required
insurance market reforms by January 1, 2014;
No later than July 1, 2013, issuing regulations for health
choice compacts and the CO-OP program, and awarding CO-OP program
grants; and
Having in place additional insurance market reforms and
providing cost-sharing reductions beginning on January 1, 2014.
In order to carry out the Federal implementation activities to
ensure Exchanges are fully operational on January 1, 2014, the
Department is seeking comments from stakeholders relating to
implementation timeframes.
1. What are the key implementation tasks that need to be
accomplished to meet Exchange formation deadlines and what is the
timing for such tasks? What kinds of business functions will need to be
operational before January 1, 2014, and how soon will they need to be
operational?
2. What kinds of guidance or information would be helpful to
States, plans, employers, consumers, and other groups or sectors as
they begin the planning process?
3. What potential criteria could be considered in determining
whether an electing State is making sufficient progress in establishing
an Exchange and implementing the insurance market reforms in Subtitles
A and C of Title I of the Affordable Care Act? What are important
milestones for States to show they are making steady and sufficient
progress to implement reforms by the statutory deadlines?
4. What other terms or provisions require additional clarification
to facilitate implementation and compliance? What specific
clarifications would be helpful?
C. State Exchange Operations
Section 1311(b) requires an Exchange to be established in each
State not later than January 1, 2014 that: Facilitates the purchase of
QHPs; provides for the establishment of a SHOP Exchange that assists
small employers in facilitating the enrollment of their employees in
QHPs offered in the small group market in the State; and meets
additional requirements for Exchanges outlined in Section 1311(d). The
Act requires the Secretary to publish regulations relating to the
requirements for operating State Exchanges as soon as practicable, and
provides various types of flexibility for States.
A number of additional programs established by the Act are closely
related to the establishment of health insurance Exchanges, such as the
Navigator program in Section 1311(i) and other consumer assistance
programs. In addition, the insurance reforms, consumer protection
provisions, and premium rating requirements will apply to plans both
inside and outside the Exchanges.
1. What are some of the major considerations for States in planning
for and establishing Exchanges?
2. For which aspects of Exchange operations or Exchange standards
would uniformity be preferable? For which aspects of Exchange
operations or Exchange standards is State flexibility likely to be
particularly important?
3. What kinds of systems are States likely to need to enable
important Exchange operational functions (e.g., eligibility
determination, plan qualification, data reporting, payment flows,
etc.), to ensure adequate accounting and tracking of spending, provide
transparency to Exchange functions, and facilitate financial audits?
What are the relative costs and considerations associated with building
Exchange operational, financial, and/or IT systems off of existing
systems, versus building new stand-alone Exchange IT systems?
4. What are the tradeoffs for States to utilize a Federal IT
solution for operating their Exchanges, as compared to building their
own unique systems to conform to the current State environment? For
what kinds of functions would it make more sense for States to build
their own systems, or modify existing systems?
5. What are the considerations for States as they develop web
portals for the Exchanges?
6. What factors should Exchanges consider in reviewing
justifications for premium increases from insurers seeking
certification as QHPs? How will States leverage/coordinate the work
funded by the rate review grants to inform the decisions about which
plans will be certified by QHPs?
7. To what extent are Territories likely to elect to establish
their own Exchanges? What specific issues apply to establishing
Exchanges in the Territories?
8. What specific planning steps should the Exchanges undertake to
ensure that they are accessible and available to individuals from
diverse cultural origins and those with low literacy, disabilities, and
limited English proficiency?
9. What factors should the Secretary consider in determining what
constitutes as wasteful spending (as outlined in Section 1311
(d)(5)(B))?
D. Qualified Health Plans (QHPs)
Section 1311(d)(2)(A) requires Exchanges to make QHPs available to
qualified individuals and employers, and Section 1311(d)(4)(A) requires
Exchanges to implement procedures for the certification,
recertification, and decertification of health plans as QHPs,
consistent with criteria developed by the Secretary under section
1311(c). This certification criteria include, at a minimum: Meeting
marketing requirements; ensuring a sufficient choice of providers and
providing information on the availability of providers; including
essential community providers within health insurance plan networks;
receiving appropriate accreditation; implementing a quality improvement
strategy; utilizing a uniform enrollment form and a standard format to
present health benefit plan options; and providing quality information
to enrollees and prospective enrollees.
[[Page 45588]]
1. What are some of the major considerations involved in certifying
QHPs under the Exchanges, and how do those considerations differ in the
context of individual and SHOP State Exchanges, subsidiary Exchanges,
regional or interstate Exchanges, or an Exchange operated by the
Federal government on behalf of States that do not elect to establish
an Exchange?
2. What factors should be considered in developing the Section
1311(c) certification criteria? To what extent do States currently have
similar requirements or standards for plans in the individual and group
markets?
a. What issues need to be considered in establishing appropriate
standards for ensuring a sufficient choice of providers and providing
information on the availability of providers?
b. What issues need to be considered in establishing appropriate
minimum standards for marketing of QHPs and enforcement of those
standards? What are appropriate Federal and State roles in marketing
oversight?
3. What factors are needed to facilitate participation of a
sufficient mix of QHPs in the Exchanges to meet the needs of consumers?
a. What timeframes and key milestones will be most important in
assessing plans' participation in Exchanges?
b. What kinds of factors are likely to encourage or discourage
competition among plans in the Exchanges based on price, quality,
value, and other factors?
4. What health plan standards and bidding processes would help to
facilitate getting the best value for consumers and taxpayers?
5. What factors are important in establishing minimum requirements
for the actuarial value/level of coverage?
6. What factors, bidding requirements, and review/selection
practices are likely to facilitate the participation of multiple plans
in Exchanges? To what extent should the Exchanges accept all plans that
meet minimum standards or select and negotiate with plans?
7. What are some important considerations related to establishing
the program to offer loans or grants to foster the promotion of
qualified nonprofit health plans under CO-OP plans? How prevalent are
these organizations today? What is the likely demand for these loans
and grants? What kinds of guidance are they likely to need from HHS and
what legislative or regulatory changes are they likely to need from
States?
8. Are there any special factors that are important for
consideration in establishing standards for the participation of multi-
State plans in Exchanges?
9. To what extent are States considering setting up State Basic
Health Plans under Section 1331 of the Act?
E. Quality
The Affordable Care Act requires the Secretary to develop a health
plan rating system on the basis of quality and prices that would be
used by the Exchanges and to establish quality improvement criteria
that health plans must meet in order to be qualified plans for
Exchanges.
1. What factors are most important for consideration in
establishing standards for a plan rating system?
a. How best can Exchanges help consumers understand the quality and
cost implications of their plan choices?
b. Are the measures and standards that are being used to establish
ratings for health plans in the Medicare Advantage program appropriate
for rating QHPs in the Exchanges? Are there other State Medicaid or
commercial models that could be considered?
c. How much flexibility is desirable with respect to establishing
State-specific thresholds or quality requirements above the minimum
Federal thresholds or quality requirements?
2. What are some minimum standards or other factors that could be
considered with respect to establishing quality measurement and
improvement thresholds or quality requirements that should be met by
QHPs? What other strategies, including payment structures, could be
used by plans to improve the practices of plan providers?
F. An Exchange for Non-Electing States
Section 1321(c) requires that in the case of States that do not
elect to establish Exchanges, or that the Secretary determines will not
have Exchanges operational by January 1, 2014 or have not taken the
necessary actions to implement the requirements in Section 1321(a) or
other insurance market reforms specified in Subtitles A and C of Title
I of the Act, the Secretary shall establish (directly or through
agreement with a not-for-profit entity) and operate an Exchange within
the State.
1. How can the Federal government best work to implement an
Exchange in States that do not elect to establish or are unable to
establish their own Exchanges?
2. Are there considerations for an Exchange operated by the Federal
government on behalf of States that do not elect to establish an
Exchange that would be different from the State-run Exchanges?
G. Enrollment and Eligibility
Section 1411 of the Affordable Care Act requires the Secretary to
establish a program for determining whether an individual meets certain
eligibility requirements for Exchange participation, premium tax
credits and cost-sharing reductions, and individual responsibility
exemptions. Additionally, Sections 1412, 1413 and 2201 contain
additional requirements to assist Exchanges by making advance
determinations regarding income eligibility and cost-sharing
reductions; providing for residents of each State to apply for
enrollment in, receive a determination of eligibility for participation
in, and continue participation in applicable State health subsidy
programs; and simplifying and coordinating enrollment in the Exchanges,
Medicaid and the Children's Health Insurance Program (CHIP).
1. What are the advantages and issues associated with various
options for setting the duration of the open enrollment period for
Exchanges for the first year and subsequent years? What factors are
important for developing criteria for special enrollment periods?
2. What are some of the key considerations associated with
conducting online enrollment?
3. How can eligibility and enrollment be effectively coordinated
between Medicaid, CHIP, and Exchanges? How could eligibility systems be
designed or adapted to accomplish this? What steps can be taken to ease
consumer navigation between the programs and ease administrative
burden? What are the key considerations related to States using
Exchange or Medicaid/CHIP application information to determine
eligibility for all three programs?
4. What kinds of data linkages do State Medicaid and CHIP agencies
currently have with other Federal and State agencies and data sources?
How can the implementation of Exchanges help to streamline these
processes for States, and how can these linkages be leveraged to
support Exchange operations?
5. How do States or other stakeholders envision facilitating the
requirements of Section 1411 related to verification with Federal
agencies of eligibility for enrollment through an Exchange?
6. What are the verification and data sharing functions that States
are capable of performing to facilitate the determination of Exchange
eligibility and enrollment?
7. What considerations should be taken into account in establishing
[[Page 45589]]
procedures for payment of the cost-sharing reductions to health plans?
H. Outreach
Section 1311(i) provides that Exchanges shall establish grant
programs for Navigators, to conduct public education activities,
distribute enrollment information, facilitate enrollment, and provide
referrals for grievances, complaints, or questions.
1. What kinds of consumer enrollment, outreach, and educational
activities are States and other entities likely to conduct relating to
Exchanges, insurance market reforms, premium tax credits and cost-
sharing reductions, available plan choices, etc., and what Federal
resources or technical assistance are likely to be beneficial?
2. What resources are needed for Navigator programs? To what extent
do States currently have programs in place that can be adapted to serve
as patient Navigators?
3. What kinds of outreach strategies are likely to be most
successful in enrolling individuals who are eligible for tax credits
and cost-sharing reductions to purchase coverage through an Exchange,
and retaining these individuals? How can these outreach efforts be
coordinated with efforts for other public programs?
I. Rating Areas
Section 2701(a)(2) of the Public Health Service Act, as added by
Section 1201 of the Affordable Care Act requires each State to
establish one or more rating areas within the State for purposes of
applying the requirements of Title I of the Affordable Care Act
(including the Exchange provisions), subject to review by the
Secretary.
1. To what extent do States currently utilize established premium
rating areas? What are the typical geographical boundaries of these
premium rating areas (e.g., Statewide, regional, county, etc.)? What
are the pros and cons associated with interstate, statewide, and sub-
State premium rating areas? What insurance markets are typically
required to utilize these premium rating areas?
2. To the extent that States utilize premium rating areas, how are
they established? What kinds of criteria do States and other entities
typically consider when determining the adequacy of premium rating
areas? What other criteria could be considered?
J. Consumer Experience
1. What kinds of design features can help consumers obtain coverage
through the Exchange? What information are consumers likely to find
useful from Exchanges in making plan selections? Which kinds of
enrollment venues are likely to be most helpful in facilitating
individual enrollment in Exchanges and QHPs?
2. What kinds of information are likely to be most useful to
consumers as they determine whether to enroll in an Exchange and which
plans to select (within or outside of an Exchange)? What are some best
practices in conveying information to consumers relating to health
insurance, plan comparisons, and eligibility for premium tax credits,
or eligibility for other public health insurance programs (e.g.,
Medicaid)? What types of efforts could be taken to reach individuals
from diverse cultural origins and those with low literacy,
disabilities, and limited English proficiency?
3. What are best practices in implementing consumer protections
standards?
4. Given that consumer complaints can be an important source of
information in identifying compliance issues, what are the pros and
cons of various options for collecting and reporting Exchange-related
complaints (e.g., collecting complaints at the Federal level, versus at
the State or Exchange level)?
K. Employer Participation
Section 1311(b)(1)(B) provides for the establishment of Small
Business Health Options Programs, referred to as SHOP Exchanges, which
are designed to assist qualified employers in the State who are small
employers in facilitating the enrollment of their employees in QHPs
offered in the small group market in the State. Section 1304(b)
provides that for plan years beginning before January 1, 2016, States
have the option to define ``small employers'' as those with (1) 100 or
fewer employees, or (2) 50 or fewer employees. Section 1312(f)(2)(B)
specifies that beginning in 2017, States may elect to include issuers
of health insurance coverage in the large group market to offer QHPs
through the Exchange, and for large employers to purchase coverage
through the Exchange.
In addition, employers that do not offer affordable coverage to
their employees will also interact with the Exchanges including where
their employees purchase coverage through the Exchange.
1. What Exchange design features are likely to be most important
for employer participation, including the participation of large
employers in the future? What are some relevant best practices?
2. What factors are important for consideration in determining the
employer size limit (e.g., 50 versus 100) for participation in a given
State's Exchange?
3. What considerations are important in facilitating coordination
between employers and Exchanges? What key issues will require
collaboration?
4. What other issues are there of interest to employers with
respect to their participation in Exchanges?
L. Risk Adjustment, Reinsurance, and Risk Corridors
Sections 1341, 1342, and 1343 of the Act provide for the
establishment of transitional reinsurance programs, risk corridors, and
risk adjustment systems for the individual and small group markets
within States.
1. To what extent do States and other entities currently risk-
adjust payments for health insurance coverage in order to counter
adverse selection? In what markets (e.g., Medicaid, CHIP, government
employee plans, etc.) are these risk adjustment activities currently
performed? To the extent that risk adjustment is or has been used, what
methods have been utilized, and what are the pros and cons of such
methods?
2. To what extent do States currently collect demographic and other
information, such as health status, claims history, or medical
conditions under treatment on enrollees in the individual and small
group markets that could be used for risk adjustment? What kinds of
resources and authorities would States need in order to collect
information for risk adjustment of plans offered inside and outside of
the Exchanges?
3. What issues are States likely to consider in carrying out risk
adjustment for health plans inside and outside of the Exchanges? What
kinds of technical assistance might be useful to States and QHPs?
4. What are some of the major administrative options for carrying
out risk adjustment? What kinds of entities could potentially conduct
risk adjustment or collect and distribute funds for risk adjustment?
What are some of the options relating to the timing of payments, and
what are the pros and cons of these options?
5. To what extent do States currently offer reinsurance in the
health insurance arena (e.g., Medicaid, State employee plans, etc.) or
in other arenas? How is that reinsurance typically structured in terms
of contributions, coverage levels, and eligibility? How much is
typically taken in and paid out? Is the reinsurance fund capped in any
way?
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6. What kinds of non-profit entities currently exist in the
marketplace that could potentially fulfill the role of an ``applicable
reinsurance entity'' as defined in the Act?
7. What methods are typically used to determine which individuals
are deemed high-risk or high cost for the purposes of reinsurance?
8. What challenges are States likely to face in implementing the
temporary reinsurance program?
9. How do other programs (e.g., Medicaid) use risk corridors to
share profits and losses with health plans or other entities? How are
the corridors defined and monitored under these programs? What
mechanisms are used to collect and disburse payments?
10. Are there non-Federal instances in which reinsurance and/or
risk corridors and/or risk adjustment were used together? What kinds of
special considerations are important when implementing multiple risk
selection mitigation strategies at once?
M. Comments Regarding Economic Analysis, Paperwork Reduction Act, and
Regulatory Flexibility Act
Executive Order 12866 requires an assessment of the anticipated
costs and benefits of a significant rulemaking action and the
alternatives considered, using the guidance provided by the Office of
Management and Budget. These costs and benefits are not limited to the
Federal government, but pertain to the affected public as a whole.
Under Executive Order 12866, a determination must be made whether
implementation of the Exchange-related provisions in Title I of the
Affordable Care Act will be economically significant. A rule that has
an annual effect on the economy of $100 million or more is considered
economically significant.
In addition, the Regulatory Flexibility Act may require the
preparation of an analysis of the economic impact on small entities of
proposed rules and regulatory alternatives. An analysis under the
Regulatory Flexibility Act must generally include, among other things,
an estimate of the number of small entities subject to the regulations
(for this purpose, plans, employers, and in some contexts small
governmental entities), the expense of the reporting, recordkeeping,
and other compliance requirements (including the expense of using
professional expertise), and a description of any significant
regulatory alternatives considered that would accomplish the stated
objectives of the statute and minimize the impact on small entities.
The Paperwork Reduction Act requires an estimate of how many
``respondents'' will be required to comply with any ``collection of
information'' requirements contained in regulations and how much time
and cost will be incurred as a result. A collection of information
includes recordkeeping, reporting to governmental agencies, and third-
party disclosures.
Furthermore, Section 202 of the Unfunded Mandates Reform Act of
1995 (UMRA) requires that agencies assess anticipated costs and
benefits and take certain other actions before issuing a final rule
that includes any Federal mandate that may result in expenditure in any
one year by State, local, or tribal governments, in the aggregate, or
by the private sector, of $135 million.
The Department is requesting comments that may contribute to the
analyses that will be performed under these requirements, both
generally and with respect to the following specific areas:
1. What policies, procedures, or practices of plans, employers and
States may be impacted by the Exchange-related provisions in Title I of
the Affordable Care Act?
a. What direct or indirect costs and benefits would result?
b. Which stakeholders will be affected by such benefits and costs?
c. Are these impacts likely to vary by insurance market, plan type,
or geographic area?
2. Are there unique effects for small entities subject to the
Exchange-related provisions in Title I of the Affordable Care Act?
3. Are there unique benefits and costs affecting consumers? How
will these consumer benefits be affected by States' Exchange design and
flexibilities and the magnitude and substance of provisions mandated by
the Act? Please discuss tangible and intangible benefits.
4. Are there paperwork burdens related to the Exchange-related
provisions in Title I of the Affordable Care Act, and, if so, what
estimated hours and costs are associated with those additional burdens?
N. Comments Regarding Exchange Operations
The Exchange-related provisions in Title I of the Affordable Care
Act may affect/will involve various stakeholders. HHS wants to ensure
receipt of all comments pertaining to the operations of the Exchanges.
1. What other considerations related to the operations of Exchanges
should be addressed? If your questions related to the operations of
Exchanges have not been asked, or you would like to add additional
comments, you may do so here.
Signed at Washington, DC, this 27th day of July 2010.
Jay Angoff,
Director, Office of Consumer Information and Insurance Oversight,
Department of Health and Human Services.
[FR Doc. 2010-18924 Filed 7-29-10; 11:15 am]
BILLING CODE 4150-65-P