Editor’s note: This post was updated on April 25, 2014, to conclude with discussions of a special Affordable Care Act exchange enrollment period for those losing federal high-risk pool coverage and a Missouri court decision denying insurance agents the right to help defend the state’s restrictions on ACA exchange navigators and assisters.
With open enrollment completed and regulations largely in place for 2014 and 2015, implementation efforts at the federal level have quieted down. The Centers for Medicare and Medicaid Services, however, continue to issue technical guidance both to clarify outstanding 2014 issues and to clear the way for 2015. Much of this guidance appears at the CMS REGTAP website.
On April 22, 2014, CMS updated at REGTAP a series of slides, published initially on April 1, 2014, describing their proposed enrollment and payment process for the 2015 federally facilitated SHOP (FF-SHOP), which will begin to offer employee choice and premium aggregation in 2015. These slides expand on information previously provided in the 2015 federal exchange letter to issuers regarding the federal SHOP. CMS states that it intends to update the procedures set out in the slides with formal guidance before QHP certification begins in May.
The slides set out a ten step process for new small group enrollment in the SHOP:
- The employer completes the FF-SHOP application, providing a roster of all full-time employees;
- The FF-SHOP determines if the employer is eligible (and offers an appeal if the employer is determined ineligible);
- The employer chooses a coverage effective date, which must be the 1st of a month and within the coverage quarter (as insurers may change their rates prospectively very quarter);
- The employer selects an end-date for employee enrollment and decides whether to offer stand-alone dental coverage and coverage for dependents (which are not mandatory for small employers);
- The employer decides whether to offer employee choice, and at which single level (bronze, silver, gold, or platinum), and determines the level of employer contribution for medical, dental, and dependent coverage;
- The employer offers coverage to employees and others eligible for coverage (such as business owner and spouse) and specifies the deadline to enroll;
- The FF-SHOP notifies persons offered coverage of their eligibility (and offers an appeal to those determined ineligible);
- Employees select a plan or waive coverage;
- After the employee election period closes, the first month’s premium is determined if the group has met the participation requirement and is thus able to complete enrollment; and, finally,
- An xml file is established for the group reflecting the qualified health plans and stand-alone dental plans chosen by employees. Communications between the FF-SHOP and employers take place online through the employer’s MyAccount.
Employers may apply for coverage at any time during the calendar year (although they must meet participation requirements if they do not apply from November 15 to December 15), and may choose an effective date up to 2 months later, as long as it is in the same quarter. The earliest date coverage can begin is the first day of the following month if an enrollment process is completed between the 1st and 15th of the month, and the first day of the second-following month for enrollments completed between the 16th and the end of the month.
Employers can add new employees after the initial enrollment process is completed. The FF-SHOP portal allows employers to impose waiting periods for new hires of 0, 15, 30, 45, and 60 days, after which the employee must elect coverage within a fixed period of time, such as 30 days. Employers who wish to change their plan or contribution choices once enrollment is completed will need to cancel coverage and start the process over again for a future coverage month.
Employees and dependents may enroll outside of the annual renewal period if they qualify for special enrollment periods because of marriage, loss of minimum essential coverage, relocation that result in access to new QHPs, birth, or for other specified reasons. Employees will not be able otherwise to change QHP selection through the FF-SHOP portal after enrollment is completed, but may be able to do so under some circumstances to be specified by CMS through the call center. CMS is considering allowing employees who do not elect coverage during the initial enrollment process to do so up to a specified point, perhaps before the coverage effective date or during the first coverage month.
Rates charged employers in the FF-SHOP will be based on approved rates for the quarter for which coverage or renewal of coverage begins. Each month, the FF-SHOP will provide each qualified employer with an invoice showing the amount owed by the employer, by employees, and the total amount owed. The FF-SHOP will invoice the employer around the 10th of the month before a coverage month begins. Between the 15th and 26th of the month prior to coverage, the FF-SHOP will post two notifications on the employer’s MyAccount and telephone the employer informing the employer that coverage will not be effectuated for the following month if payment is not received by the 26th.
Employers must pay their first premium to the FF-SHOP before the initial coverage effective date. After initial enrollment, premiums are due on the first of a coverage month and must be paid to the FF-SHOP within 31 days thereafter to avoid termination. Insurers may, subject to applicable law, pend claims prior to receipt of payment from the FF-SHOP. If payment is not received by the 1st, a past due notice will be posted on the employer’s MyAccount. If payment is still not received by the 15th, a second past-due notice will be sent and a letter mailed followed by another phone call on the 20th. If payment is not received by the 30th, coverage will be terminated but can be reinstated by full payment of all premiums due and the premium for the next month’s coverage to the FF-SHOP within 30 days.
Employers may voluntarily terminate coverage. If an employer voluntarily terminates, a notice must be sent to all employees. Employees may also voluntarily terminate coverage. Notice must then be sent to the employer. Insurers may terminate coverage if an enrollee ceases to be eligible or coverage is rescinded because of fraud or misrepresentation.
A separate set of slides posted on April 23, 2014, but dated April 15, 2014, describes the form, content, and method of transmission of the notices described above. It clarifies that insurers must send notices of any termination to employees as well as employers.
Clarifying standards for handling complaints. On April 18, 2014, the Centers for Medicare and Medicaid Services published at the REGTAP website a set of Frequently Asked Questions on Casework. This FAQ supplements the Casework Guidance for Federally Facilitated Marketplace that CMS released on March 13, 2014 and explicates the federal casework regulation, found at 45 C.F.R. 156.1010. A case is a communication from a complainant with respect to an insurance problem other than the appeal of an adverse benefit determination. In the context of the guidance and FAQ, it is a communication brought to the federally facilitated marketplace (FFM) regarding qualified health plan (QHP) coverage or performance. [Editor’s note: The material under this subhead was also published as an update to an earlier post.]
The FAQ is very technical and will not be described in detail here. It portrays an iterative process through which QHPs receive cases through the Health Insurance Casework System (HICS) and, where necessary, refer issues back to the Exchange Operations Support Center (XOSC) Help Desk for resolution. The FAQ addresses a variety of situations, including those involving expedited or retroactive enrollments where a QHP insurer receives enrollment information through a pre-audit file rather than an 834 transaction file or the resolution of duplicate cases or cases that involve general customer service questions or eligibility for coverage under another program or insurer. The FAQ also discusses the timing of initiation of duplicate or reopened cases, as insurers must resolve urgent cases within 72 hours for urgent cases and 15 calendar days for other cases.
In general the FAQ evidences an effort by CMS to work with insurers to impose order on the confusion and stress created by systems that are being rolled out and modified on the fly even as all participants are overwhelmed by a huge volume of new enrollees. Tellingly, the guidance states that CMS is not currently releasing complaint data to the state departments of insurance, as “so many current HICS cases do not appropriately reflect issuer performance, and, furthermore, … additional guidance is needed for issuers.” CMS will notify insurers before it starts releasing data to state departments of insurance, although insurers are still required to comply with all state laws, including those that impose stricter timeframes for case resolution than those found in the federal regulation.
Continued use of interim payment process. In other developments, CMS has indicated, again at REGTAP, that it intends to continue to use its interim payment process through September and will apparently not have its permanent payment process in place before that time. CMS has also posted a frequently asked question that clarifies that technical guidance (and presumably software) is not yet in place for insurers to post data for the premium stabilization (risk adjustment and reinsurance) programs, and that until such guidance is in place, insurers will not be considered out of compliance for failing to submit data for these programs.
Special exchange enrollment period for federal high-risk pool enrollees. On April 24, 2014, CMS announced that a special enrollment period would be available between May 1 and June 30, 2014 for individuals losing coverage under the Preexisting Condition High Risk Pool; this will allow members of this group to enroll in qualified health plans through the federal and state exchanges (CMS also released a fact sheet.) The PCIP was an interim program to provide coverage for individuals with preexisting conditions until the exchanges were in place. It began in 2010 and was supposed to end at the end of 2013, but PCIP coverage was extended through April 30, 2014 because of problems with exchange enrollment. Although the program at one point enrolled over 100,000 high-need individuals, it was down to 21,000 enrollees by the end of January 2014 and is surely much smaller now.
Individuals who enroll in a qualified health plan by June 30 will have coverage retroactive to May 1. CMS is making the special enrollment period available under its authority to provide for special enrollment periods for “exceptional circumstances.”
Insurance agents denied right to help defend Missouri restrictions on ACA navigators and assisters. Also on April 24, 2014, Judge Ortrie Smith of the United States District Court for the Western District of Missouri denied a motion by the Missouri Association of Insurance Agents (MAIA) to intervene in Saint Louis Effort for AIDS v. Huff. The plaintiffs in this case are challenging the provisions of the Missouri Health Insurance Marketplace Innovation Act of 2013 (HIMIA) requiring navigators and assisters to obtain state licenses and restricting their activities.
In January, Judge Smith had entered a preliminary injunction prohibiting Missouri from enforcing the law while the litigation was pending. The agents sought to intervene, claiming that they had an interest in ensuring that “those who promote insurance are properly trained and licensed,” and in protecting their business and professional relationships.
Judge Smith first held that the MAIA had no standing to intervene in the lawsuit because it could now show that any of its members would suffer a concrete injury if the HIMIA was not upheld. The MAIA does not, the judge held, have standing merely to assert the general public interest.
Judge Smith further held that the MAIA did not meet the requirements that must be satisfied to be granted a right to intervene in litigation. The case does not concern any restrictions on agents themselves. Insofar as agents claim to represent the public interest, that interest is adequately represented by the state of Missouri. To the extent that the MAIA is interested in defending the statute to protect the economic interest of its members, its participation is not necessary as the state can adequately defend the statute. The court concluded that either the MAIA would repeat everything the state would say, which would be unnecessary, or sidetrack the litigation, which would not be desirable. Thus the court denied intervention.
Agents and brokers have succeeded in persuading legislatures in a number of states to enact legislation restricting navigators and assisters. Their first attempt to convince a court to uphold such a statute has now been blocked at the starting gate.