[Federal Register Volume 76, Number 235 (Wednesday, December 7, 2011)]
[Rules and Regulations]
[Pages 76595-76600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31291]



[[Page 76595]]

Vol. 76

Wednesday,

No. 235

December 7, 2011

Part V





Department of Health and Human Services





-----------------------------------------------------------------------





45 CFR Part 158





Medical Loss Ratio Rebate Requirements for Non-Federal Governmental 
Plans; Interim Final Rule

Federal Register / Vol. 76 , No. 235 / Wednesday, December 7, 2011 / 
Rules and Regulations

[[Page 76596]]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 158

[CMS-9998-IFC2]
RIN 0938-AR35


Medical Loss Ratio Rebate Requirements for Non-Federal 
Governmental Plans

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim final rule with comment period revises the 
regulations implementing medical loss ratio (MLR) requirements for 
health insurance issuers under the Public Health Service Act in order 
to establish rules governing the distribution of rebates by issuers in 
group markets for non-Federal governmental plans.

DATES: Effective date. This rule is effective on January 3, 2012.
    Comment date. To be assured consideration, comments must be 
received at one of the addresses provided below, no later than 5 p.m. 
on February 6, 2012.
    Applicability Date. The amendments to Part 158 generally apply 
beginning January 1, 2012, to health insurance issuers offering group 
health insurance coverage.

ADDRESSES: In commenting please refer to file code CMS-9998-IFC2. 
Because of staff and resource limitations, we cannot accept comments by 
email or facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions under 
the ``More Search Options'' tab.
    2. 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: CMS-9998-IFC2, 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.
    3. 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: CMS-9998-IFC2, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments only to the following addresses prior to 
the close of comment period:
    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 erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period.
    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 comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://regulations.gov. Follow the search instructions on that Web site to 
view public comments.
    Comments received timely will be also available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone (800) 743-3591.

FOR FURTHER INFORMATION CONTACT: Carol Jimenez, (301) 492-4457.

SUPPLEMENTARY INFORMATION: Comment Subject Areas: We will consider 
comments on the rules for providing rebates to group enrollees in non-
Federal governmental plans, as discussed in this interim final rule 
with comment period, that are received by the date and time indicated 
in the DATES section of this interim final rule with comment period.

I. Background

    The Patient Protection and Affordable Care Act (Pub. L. 111-148) 
was enacted on March 23, 2010; the Health Care and Education 
Reconciliation Act (Pub. L. 111-152) was enacted on March 30, 2010. In 
this preamble, we refer to the two statutes collectively as the 
Affordable Care Act. The Affordable Care Act reorganizes, amends, and 
adds to the provisions of Part A of title XXVII of the Public Health 
Service Act (PHS Act) relating to group health plans and health 
insurance issuers in the group and individual markets.
    A request for information relating to the medical loss ratio (MLR) 
provisions of PHS Act section 2718 was published in the Federal 
Register on April 14, 2010 (75 FR 19297). On December 1, 2010, HHS 
published an interim final rule (75 FR 74864) with 60-day public 
comment period, entitled ``Health Insurance Issuers Implementing 
Medical Loss Ratio (MLR) Requirements Under the Patient Protection and 
Affordable Care Act,'' that added a new 45 CFR Part 158. A technical 
correction to the interim final rule was issued on December 30, 2010 
(75 FR 82277). The Department of Health and Human Services (HHS) 
published a final rule entitled ``Medical Loss Ratio Requirements under 
the Patient Protection and Affordable Care Act,'' published elsewhere 
in this Federal Register (hereinafter referred to as the Medical Loss 
Ratio final rule).

II. Provisions of the Interim Final Rule

Rebates to Enrollees in Non-Federal Governmental Plans in Group Markets 
(45 CFR 158.242(b))

    As stated in the Medical Loss Ratio final rule published elsewhere 
in this Federal Register, with respect to non-Federal governmental 
plans, there currently is no legal framework set forth in Federal law 
governing the use of rebates received from an issuer under the MLR 
regulations. However, CMS has direct authority over non-Federal 
governmental plans. Accordingly, for reasons discussed in the preamble 
of the Medical Loss Ratio final rule, under the authority in section 
2792 of the PHS Act to promulgate regulations determined 
``appropriate'' to ``carry out'' the provisions of part A of title 
XXVII of the PHS Act, which include PHS Act section 2718, this interim 
final rule with

[[Page 76597]]

comment period directs that issuers distribute the entire rebate to the 
group policyholder and the group policyholder is required to use the 
portion of rebates attributable to the amount of premium paid by 
subscribers of non-Federal governmental plans for the benefit of 
subscribers, ensuring that enrollees in such plans receive the benefit 
of rebates. For example, if an issuer whose MLR is lower than the 
applicable MLR standard owes a rebate of $20,000 to the policyholder 
and subscribers of a group health plan, the issuer would provide the 
$20,000 directly to the policyholder. If the non-Federal governmental 
plan's subscribers paid 40 percent of the total premium, then the 
policyholder must use 40 percent of the rebate, or $8,000, for the 
benefit of the subscribers.
    With respect to rebates paid to non-Federal governmental plans, we 
direct in this interim final rule with comment period that the 
subscriber portion of the rebate be used, at the option of the 
policyholder, in one of the following ways--(1) To reduce subscribers' 
portion of the annual premium for the subsequent policy year for all 
subscribers covered under any group health policy offered by the plan; 
(2) to reduce subscribers' portion of the annual premium for the 
subsequent policy year for only those subscribers covered by the group 
health policy on which the rebate was based; or (3) to provide a cash 
refund only to subscribers that were covered by the group health policy 
on which the rebate is based. In all three options, the rebate is used 
to reduce premiums or is paid to subscribers enrolled during the year 
in which the rebate is actually paid, rather than the MLR reporting 
year on which the rebate was calculated. We believe that this results 
in administrative simplicity, as it does not require tracking former 
enrollees or determining who was covered by which issuer the prior year 
while maintaining the law's intent of benefitting enrollees.
    These options were created to provide maximum flexibility to 
policyholders and employers while ensuring that enrollees receive the 
benefits of the rebate. No single option is preferred by CMS. The first 
option allows all subscribers who receive health care coverage through 
the plan, and not just those participants that were covered by the 
policy that produced the rebate, to receive reduced premiums in the 
subsequent policy year. While this option allows some employees to 
benefit from a rebate despite the fact that they did not contribute to 
the premium paid to the particular issuer providing the rebate, we 
believe that this option provides for ease of rebate calculation and 
administration, especially for large employers with enrollees in 
multiple states who offer multiple policy choices and may get rebates 
from several issuers.
    We request comment on the treatment of rebates in the non-Federal 
governmental group market. Since we provide, in this interim final rule 
with comment period, three specific methods for non-Federal 
governmental plans to distribute to current subscribers rebates 
attributable to subscribers' aggregated contribution to premium, we 
request comments specifically on whether the mechanism provided in this 
interim final rule with comment period solves or meaningfully reduces 
the logistical challenges of providing rebates to non-Federal 
governmental plans and distributing them to their subscribers and on 
other potential solutions to these challenges while ensuring that 
enrollees benefit when rebates are paid.

III. Collection of Information Requirements

    This interim final rule with comment period does not impose any new 
reporting requirements and generally conforms to the requirements under 
the interim final regulation published on December 1, 2010.

IV. Response to Comments

    Because of the large number of public comments CMS receives on 
Federal Register documents, CMS is not able to acknowledge or respond 
to them individually. CMS will consider all comments CMS receives by 
the date and time specified in the DATES section of this preamble, and, 
when CMS proceeds with a subsequent document, CMS will respond to the 
comments in the preamble to that document.

V. Waiver of Proposed Rulemaking

    This interim final rule with comment period includes in Sec.  
158.242(b) a provision governing how a non-Federal governmental plan is 
required to distribute rebates. A non-Federal governmental plan would 
not have had any reason to believe that the MLR regulations would 
impose any requirements on them, as this possibility was not discussed 
in the interim final rule published on December 1, 2010. Thus, 
ordinarily, before imposing such a requirement, the Administrative 
Procedure Act (APA) would require that they be provided with an 
opportunity for prior public comment.
    Section 2792 of the PHS Act, however, authorizes the Secretary of 
HHS to promulgate interim final rules determined appropriate to carry 
out the provisions of part A of title XXVII of the PHS Act, which 
include PHS Act section 2718, without subjecting the rules to prior 
notice and comment. CMS accordingly is relying on the authority in 
section 2792 to implement this provision on an interim final basis 
without a prior opportunity for public comment. CMS will consider 
public comments received on this provision.
    CMS notes that under the APA (5 U.S.C. 551 et seq.), while an 
opportunity for public comment is generally required before 
promulgation of regulations, this is not required when an agency, for 
good cause, finds that notice and public comment thereon are 
impracticable, unnecessary, or contrary to the public interest. The 
provisions of the APA that ordinarily require a notice of proposed 
rulemaking do not apply here because of the specific authority in 
section 2792 of the PHS Act cited above.
    However, even if the APA requirements for notice and comment were 
applicable to the revisions to Sec.  158.242(b), regarding permissible 
distribution of rebates by non-Federal governmental plans, these APA 
requirements have been satisfied. This is because the Secretary finds 
that providing an additional opportunity for public comment on this 
provision would be impractical and contrary to the public interest, for 
the reasons set forth below.
    Specifically, the Department waives notice and comment for Sec.  
158.242(b)(1) and (2), regarding permissible distribution of rebates by 
non-Federal governmental group plan policyholders, due to the immediate 
problematic operational impact a failure to put these changes in place 
would have on issuers and non-Federal governmental group plan 
policyholders (that is, mostly employers).
    As stated in the Medical Loss Ratio final rule published 
contemporaneously with this interim final rule with comment period, the 
Department received many comments expressing significant concern with 
the requirement that issuers in the group markets distribute the 
enrollee portion of the rebate directly to the subscriber. 
Additionally, there are tax implications to distributing rebates 
directly to subscribers. To address these concerns, both the Medical 
Loss Ratio final rule and this interim final rule with comment period 
require issuers to send group policyholders the entire rebate 
attributable to the group health plan.
    However, as noted in the preamble to the separate Medical Loss 
Ratio final rule, a provision that simply permits issuers to pay 
rebates to a non-Federal

[[Page 76598]]

governmental plan would not ensure that enrollees in those plans would 
benefit from the rebate, as is ensured under Federal law in the case of 
plans governed by the Employee Retirement Income Security Act of 1974 
(ERISA), as amended (29 CFR 1001 et seq.). The new provisions 
eliminating burdens for making rebate payments in 2012 put in place by 
the Medical Loss Ratio final rule published today thus could not 
effectively be implemented for non-Federal governmental plans without 
measures to ensure that rebates are used for the benefit of enrollees. 
CMS has authority to regulate non-Federal governmental plans and, 
therefore, is setting requirements that are necessary in order to 
combine the efficiencies of paying rebates to the non-Federal 
governmental plan with the assurance that enrollees of the plan will 
benefit from such payments.
    Informing issuers and non-Federal governmental plans of these 
changes as soon as possible is necessary so that they may take them 
into account in negotiating their group health insurance contracts for 
the 2012 MLR reporting year, as those preparations are currently 
underway. In addition, issuers are pricing their insurance products and 
the regulatory requirement regarding disbursement of rebates is a 
component of their pricing structure.
    The changes CMS makes in this interim final rule with comment 
period are necessary in order for the provisions of the Medical Loss 
Ratio final rule simplifying the procedures that issuers must follow to 
work effectively, and thus are necessary in order to reduce 
administrative burdens. Issuers and policyholders will welcome and 
support these changes, which need to be communicated immediately, 
providing just cause for waiving the notice of proposed rulemaking. 
Therefore, CMS finds good cause to waive prior notice and comment with 
respect to the new rules governing distribution of rebates by non-
Federal governmental plans. CMS is providing a 30-day public comment 
period on provisions in this interim final rule.

VI. Regulatory Impact Statement

A. Summary

    This interim final rule with comment period is designed to address 
a specific issue that has arisen regarding section 2718 of the PHS Act, 
which sets forth standards for reporting of certain medical loss ratio 
(MLR) related data to the Secretary on an annual basis by issuers 
offering coverage in the individual and group markets, and calculating 
and providing rebates to policyholders in the event that an issuer's 
MLR fails to meet or exceed the statutory standard. This interim final 
rule with comment period establishes rules for the distribution of 
rebates in non-Federal governmental plans in the group market. These 
provisions are generally effective beginning January 1, 2012.
    CMS is publishing this interim final rule with comment period to 
implement the protections intended by the Congress in the most 
economically efficient manner possible. CMS has examined the effects of 
this rule as required by Executive Order 12866 (58 FR 51735, September 
1993, Regulatory Planning and Review), Executive Order 13563 on 
Improving Regulation and Regulatory Review (January 18, 2011), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
section 1102(b) of the Social Security Act, section 202 of the Unfunded 
Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104-4), Executive 
Order 13132 on Federalism (August 4, 1999), and the Congressional 
Review Act (5 U.S.C. 804(2)).

B. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects; distributive impacts; and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as an action that is likely to result in a rule (1) 
Having an annual effect on the economy of $100 million or more in any 
one year, or adversely and materially affecting a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or Tribal governments or communities 
(also referred to as ``economically significant''); (2) creating a 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    A regulatory impact analysis (RIA) must be prepared for major rules 
with economically significant effects ($100 million or more in any one 
year); and a ``significant'' regulatory action is subject to review by 
the Office of Management and Budget (OMB). CMS has concluded that this 
interim final rule with comment period is not likely to have economic 
impacts of $100 million or more in any one year, and therefore does not 
meet the definition of ``economically significant rule'' under 
Executive Order 12866.
1. Need for Regulatory Action
    Consistent with the provisions in Section 2718 of the PHS Act, this 
interim final rule with comment period establishes rules for providing 
rebates to enrollees in non-Federal governmental group health plans 
when the MLR standard is not met by an issuer. Section 2718(b) of the 
PHS Act (captioned ``ensuring that consumers receive value for their 
premium payments'') requires issuers to provide an annual rebate to 
each enrollee if the ratio of the amount of premium revenue expended on 
reimbursement for clinical services and activities that improve quality 
is less than the applicable minimum standard and specifies how the 
rebate is to be calculated. This interim final rule with comment period 
directs that issuers distribute the entire rebate to the group 
policyholder and the group policyholder is required to use the portion 
of rebates attributable to the amount of premium paid by subscribers of 
non-Federal governmental plans for the benefit of subscribers, ensuring 
that enrollees in such plans receive the benefit of rebates.
2. Summary of Impacts
    This interim final rule with comment period provides for a more 
efficient and cost effective way for issuers to disburse rebate 
payments to subscribers of non-Federal governmental plans by allowing 
issuers in group markets to provide rebates to the policyholders for 
distribution. As stated in the Medical Loss Ratio final rule published 
contemporaneously with this interim final rule with comment period, it 
is estimated that for the years 2012 and 2013, 0.8 million enrollees in 
the small group market and 1 million enrollees in the large group 
market would receive rebates each year. Only a fraction of these 
enrollees will be in non-Federal governmental plans. This provision 
will lower administrative costs related to rebate disbursement for 
issuers of group health plans and will largely eliminate the tax burden 
on employers and consumers inherent in the prior rebate

[[Page 76599]]

mechanism as explained in the Medical Loss Ratio final rule published 
contemporaneously with this interim final rule with comment period. 
Policyholders will experience an increase in administrative costs 
related to the disbursement of rebates, although these administrative 
costs will be offset by eliminating the administrative burden and tax 
consequences inherent in the prior rebate mechanism that directed 
issuers to pay rebates directly to policyholders and each of their 
subscribers. As a result, CMS has concluded that the impacts are not 
economically significant.
    An alternative to the rebate distribution methodology set forth in 
this interim final rule with comment period is to require issuers to 
send rebate payments directly to subscribers of non-Federal 
governmental group health plans. As described previously, this would 
result in increased tax burden for consumers and for their employers, 
as well as increased administrative costs for issuers associated with 
rebate payments.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires agencies that issue a 
regulation to analyze options for regulatory relief of small businesses 
if a rule has a significant impact on a substantial number of small 
entities. The RFA generally defines a ``small entity'' as: (1) A 
proprietary firm meeting the size standards of the Small Business 
Administration (SBA); (2) a nonprofit organization that is not dominant 
in its field; or (3) a small government jurisdiction with a population 
of less than 50,000 (States and individuals are not included in the 
definition of ``small entity''). HHS uses as its measure of significant 
economic impact on a substantial number of small entities a change in 
revenues of more than 3 to 5 percent.
    CMS has estimated that the provisions of the interim final rule 
with comment period do not impose any additional costs on small 
entities. Therefore, the Secretary has determined that this interim 
final rule with comment period will not have a significant impact on a 
substantial number of small entities. In addition, section 1102(b) of 
the Social Security Act requires us to prepare a regulatory impact 
analysis if a rule may have a significant economic impact on the 
operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 604 of the RFA. This 
interim final rule with comment period would not affect small rural 
hospitals. Therefore, the Secretary has determined that this interim 
final rule with comment period would not have a significant impact on 
the operations of a substantial number of small rural hospitals.

D. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that includes a Federal mandate that could result in 
expenditure in any one year by State, local or Tribal governments, in 
the aggregate, or by the private sector, of $100 million in 1995 
dollars, updated annually for inflation. In 2011, that threshold level 
is approximately $136 million. This interim final rule with comment 
period has no consequential effect on State, local, or Tribal 
governments in the aggregate, or by the private sector.
    UMRA does not address the total cost of a rule. Rather, it focuses 
on certain categories of cost, mainly those ``Federal mandate'' costs 
resulting from: (1) Imposing enforceable duties on State, local, or 
Tribal governments, or on the private sector; or (2) increasing the 
stringency of conditions in, or decreasing the funding of, State, 
local, or Tribal governments under entitlement programs.

E. Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has Federalism implications. This interim final rule 
with comment period does not impose substantial direct requirement 
costs on State and local governments, and also does not have effects on 
the distribution of power and responsibilities among the State and 
Federal governments.
    Throughout the process of developing this interim final regulation 
the Department has attempted to balance the States' interests and 
Congress' intent to provide uniform minimum protections to consumers in 
every State. By doing so, it is the Department's view that we have 
complied with the requirements of Executive Order 13132. Pursuant to 
the requirements set forth in section 8(a) of Executive Order 13132, 
and by the signatures affixed to this regulation, the Department 
certifies that the Centers for Medicare & Medicaid Services has 
complied with the requirements of Executive Order 13132 for the 
attached interim final regulation in a meaningful and timely manner.

F. Congressional Review Act

    This interim final regulation is not subject to the Congressional 
Review Act provisions of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (5 U.S.C. 801 et seq.).

List of Subjects in 45 CFR Part 158

    Administrative practice and procedure, Claims, Health care, Health 
insurance, Health plans, Penalties, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 45 CFR part 158 as set forth below:

PART 158--ISSUER USE OF PREMIUM REVENUE: REPORTING AND REBATE 
REQUIREMENTS

0
1. The authority citation for part 158 continues to read as follows:

    Authority: Section 2718 of the Public Health Service Act (42 
U.S.C. 300gg-18), as amended.

0
2. Section 158.242 is amended by--
0
a. Adding new paragraphs (b)(1) and (2).
0
b. Revising paragraph (b)(3).
    The additions and revision read as follows:


Sec.  158.242  Recipients of rebates.

* * * * *
    (b) * * *
    (1) In the case of a policyholder that is a non-Federal 
governmental group health plan, the policyholder must use the amount of 
the rebate that is proportionate to the total amount of premium paid by 
all subscribers under the policy, for the benefit of subscribers in one 
of the following ways, at the option of the policyholder:
    (i) For all subscribers covered under any option offered under the 
policyholder's group health plan at the time the rebate is received by 
the policyholder, to reduce the subscribers' portion of premium for the 
subsequent policy year;
    (ii) For subscribers covered, at the time the rebate is received by 
the policyholder, under the group health plan option for which the 
issuer is providing a rebate, to reduce the subscribers' portion of 
premium for the subsequent policy year;
    (iii) A cash refund to subscribers enrolled in the group health 
plan option, at the time the rebate is received by the policyholder, 
for which the issuer is providing a rebate; and
    (iv) The reduction in future premium or the cash refund provided 
under paragraphs (b)(1)(i), (ii), or (iii) of this

[[Page 76600]]

section may, at the option of the policyholder, be: Divided evenly 
among such subscribers; divided based on each subscriber's actual 
contributions to premium; or apportioned in a manner that reasonably 
reflects each subscriber's contributions to premium.
    (2) In the case of a policyholder that is a non-Federal 
governmental group health plan, the portion of a rebate based upon 
former subscribers' contributions to premium must be aggregated and 
used for the benefit of current subscribers in the group health plan in 
any manner permitted by paragraph (b)(1) of this section.
    (3) If the policyholder is a group health plan that is not a 
governmental plan and not subject to the Employee Retirement Income 
Security Act of 1974, as amended (29 U.S.C. 1001 et seq.) (ERISA), 
rebates may only be paid to the policyholder if the issuer receives a 
written assurance from the policyholder that the rebates will be used 
as provided in paragraphs (b)(1) and (2) of this section; otherwise, 
the issuer must distribute the rebate directly to the subscribers of 
the group health plan covered by the policy during the MLR reporting 
year on which the rebate is based by dividing the entire rebate, 
including the amount proportionate to the amount of premium paid by the 
policyholder, in equal amounts to all subscribers entitled to a rebate 
without regard to how much each subscriber actually paid toward 
premiums.
* * * * *

    Dated: December 1, 2011.
Donald M. Berwick,
 Administrator, Centers for Medicare & Medicaid Services.
    Approved: December 1, 2011.
 Kathleen Sebelius,
 Secretary, Department of Health and Human Services.
[FR Doc. 2011-31291 Filed 12-2-11; 11:15 am]
BILLING CODE 4120-01-P