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Implementing Health Reform: Regulatory Clarification And Back-End Healthcare.gov Work Continues



February 10th, 2014

It should not be surprising that a program as complicated as the Affordable Care Act would require a great deal of tinkering as its implementation proceeds.  This is quite obviously true with respect to the technical processes through which insurance coverage is effectuated — the healthcare.gov website and the state equivalents.  It is, however, still hard to comprehend that the Centers for Medicare and Medicaid Services could have been so unprepared for the technical difficulties that the healthcare.gov launch in October of 2013 would encounter and that so much still remains to be done at this late date.  Be that as it may, the back-end is still being built, and CMS continues to produce guidance related to implementation of back-end processes.

The legal status of third-party premium and cost-sharing contributions.  CMS also, moreover, continues to release guidance as to ACA regulatory policies, which are still being refined as CMS gains experience.  One such policy concerns third party contributions to pay for qualified health plan enrollee premiums or cost-sharing.  Under federal anti-kickback law it is a felony to provide “remuneration” for referrals for or orders of services if those services are paid for under a federal or state health care program.  Questions have arisen, therefore, as to whether third parties that pay premiums or cost sharing for enrollees in qualified health plans might violate the anti-kickback law if they expect to get anything in return.   Such questionable payments could include, for example, drug discount coupons offered to qualified health plan (QHP) enrollees to be used to pay for drugs covered by a QHP.  Also questionable are hospital payments for QHP premiums of patients.

On October 30, 2013, the Department of Health and Human Services stated in a letter to Congressman Jim McDermott (D-WA) that QHPs were not considered to be federal programs under the fraud and abuse laws.  This seemed to give the green light to such payments.  On November 4, 2013, however, HHS released a frequently asked question (FAQ) noting that it had come to its attention that hospitals and other health care providers were considering paying for QHP premiums and cost-sharing.  HHS expressed a concern that these payments would distort the risk pool and discouraged providers from making such payments and QHPs from receiving them.

On February 7, 2014, HHS issued a further clarification in another FAQ.  HHS clarified that the November 4, 2013 “discouragement” FAQ does not apply to payments for premiums and cost sharing made on behalf of QHP enrollees by Indian tribes, tribal organizations, and urban Indian organizations, as such payments are specifically permitted under federal law.  It was also not meant to preclude state and federal government programs or grantees (including Ryan White HIV/AIDS Programs) from making such payments.  The Health Resources and Services Administration released a separate guidance explaining how Ryan White programs can make such payments.

The February 7, 2014 FAQ clarified that private, not-for-profit foundations can also pay premiums and cost sharing on behalf of QHP enrollees who meet financial need criteria as long as payment is not based on health status considerations and any premium and cost sharing payments cover the entire policy year.  The FAQ does not specifically prohibit hospital-related foundations from making such payments, although that may be implied by the earlier guidance.

Regtap.info information on healthcare.gov back-end processes.  CMS also continues to develop “back-end” processes for healthcare.gov.  Much of the information about evolving processes is released on the www.regtap.info website.  Access to this website requires registration, but registration is free and easily accomplished.  On February 6, 2014, CMS released a series of bulletins on enrollment and termination processes for insurers on the federal and state-based exchanges.

The first Bulletin in the release (Bulleting Number 2) addresses consumer-initiated application and enrollment changes.  Healthcare.gov still lacks the capacity to handle some changes, such as the granting of special enrollment periods (SEPs) for persons who become eligible or ineligible for premium tax credits or cost-sharing reduction payments.  It can handle, however, changes like an address or email address or telephone number change which does not affect eligibility.  (These changes must be reported to both the insurer and exchange.)  It can also handle some life changes that trigger an SEP, such as marriage or the birth of a child.

To make a change, a consumer must report information at the “Report a Life Change” tab at healthcare.gov.  If the change affects eligibility, the report generates a new copy of the consumer’s application, prepopulated with certain information.  The consumer completes the form.  If the information results in the consumer being determined eligible for an SEP, the consumer may be able to select a new plan.  In some instances, however, the consumer will not be able to change plans, but enrollment information will simply be updated.

The Bulletin sets out when certain changes will be effectuated.  For most changes — such as a move or release from incarceration — the change is effective the first day of the following month if the change is made before the 15th day of a month, the first day of the next following month if the change is made after the 15th. (That is, a change made by February 15 is effective March 1; a change after February 15 is effective April 1).  Changes due to the loss of minimum essential coverage (employer coverage or Medicaid, for example) go into effect on the first day of the next month, as does the adding of a dependent through marriage.  Changes due to birth, adoption, or foster care or adoption placement are effective as of the date of the birth, adoption, or placement.  Healthcare.gov currently allows consumers to report changes in income and can recalculate tax credits or cost-sharing reduction payments, but cannot yet allow an SEP for these changes.

A series of frequently asked questions are included at the end of Bulletin Number 2.  These clarify that all SEP events are now to be reported through the exchange website except for those due to exceptional circumstances, misrepresentation, enrollment error, or plan data error, which are addressed by Bulletin Number 3.  Consumers must report these changes directly and cannot do so through an agent or broker.  The system cannot currently support removing an enrolled individual from only a dental or only a medical plan.  All coverage is terminated if an enrolled individual is removed from either type of plan.

Bulletin Number 3 addresses changes that are handled through the call center rather than the website.  These include SEPs for persons that have not been able previously to enroll successfully in a QHP, including situations where there are enrollment errors, exceptional circumstances, or misrepresentation.  These changes also include SEPS that permit a consumer to change QHPs, such as exchange benefit display errors, insurer display errors, or misrepresentations.

Individuals who have not been able to enroll successfully in a QHP because of enrollment errors, exceptional circumstances, or misrepresentations, or who are permitted to change plans, must contact the call center and work through the Health Insurance Casework System (HICS).  Generally they will be allowed to enroll on the first day of the following month.

Where consumers have been harmed by misrepresentations, CMS will usually ask the insurer to honor the representations it has made.  CMS will work with state insurance departments and insurers to this end.  If this is not possible, and the effect of the error is substantial, the consumer may be able to change metal tiers within the same QHP insurer to obtain something closer to representations that were made and still be able to retain crediting of out-of-pocket payments toward deductible and out-of-pocket limits.

A consumer who is the victim of a misrepresentation may also be able to change to a different insurer if this is necessary because of the consumer’s circumstances, but if the consumer wants coverage with a different insurer retroactive to the beginning of coverage, the change must be made within 10 days of the discovery of the error.  Otherwise the consumer has 60 days to make the change.  The former insurer will return premiums and reverse claim payments already made while the new insurer will collect premiums and pay claims.

Bulletin Number 4 addresses terminations.  An enrollee may terminate coverage on healthcare.gov with an effective date no earlier than 14 days after the date termination is initiated.  Enrollees who terminate coverage may not reenroll until the next open enrollment period unless they qualify for an SEP.

Bulletin number 5 permits an enrollee to change QHP during the open enrollment period but after coverage has begun.  Individuals who have paid their first month’s premium and whose coverage is already effective may only change plans if the change meets ALL of the following criteria:
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  • The change is to another plan offered by the same insurer,
  • The change is to another plan offered at the same metal level and cost sharing reduction level, if applicable (i.e. bronze to bronze, silver to silver, 87% actuarial value (AV) silver plan variation to 87% AV silver plan variation, etc.),
  • The change is made to move to a plan with a more inclusive provider network or for other circumstances determined appropriate by CMS, and
  • The change is requested by March 31.

These changes must be made through the insurer, which can make the change retroactive. Out-of-pocket payments already made will count against deductibles and out-of-pocket limits.  The change will not change premium tax credits as enrollment is not redetermined, but could change cost-sharing reduction payments, which are QHP specific.

Bulletin Number 6 addresses premium due dates.  In cases of retroactive enrollment, the insurer should give the enrollee at least seven days to pay after the insurer receives the 834 enrollment transaction and the HICS enrollment record establishing a retroactive enrollment date.  For example, if the insurer receives the information on February 7, the insurer should give the enrollee to February 14 to pay the premium.

Finally, on February 5, 2014, HHS published in the Federal Register a notice of its intent to revise exchange data collection requirements “to ensure that Qualified Health Plans must meet certain minimum certification standards, such as those pertaining to essential community providers, essential health benefits, and actuarial value.”  This data collection will presumably support the enhanced essential community provider requirements HHS has proposed to impose on QHPs in its 2015 letter to issuers.

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