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«Department of Health and Human Services has submitted this rule to the Office of the Federal Register. The official version of the rule will be ...»

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Response: This comment is beyond the scope of this rulemaking and we direct the commenter to the open enrollment period rule at 45 CFR 155.410.

Summary of Regulatory Changes We are amending §155.410(d) to state that, starting in 2014, the Exchange must provide written notice of annual open enrollment to each enrollee no earlier than the first day of the month before the open enrollment period begins and no later than the first day of the open enrollment period.

c. Special Enrollment Periods (§155.420) In 45 CFR 155.420, we set forth provisions for special enrollment periods. In the proposed rule, we proposed amending §155.420(b)(2)(ii), (d)(1), (d)(6)(iii) and (e), which pertain to the special enrollment period for loss of coverage; §155.420(b)(2)(i) and (iii), which pertain to effective dates for certain special enrollment periods; and §155.420(c), which pertains to the length of the special enrollment periods.

In paragraph (b)(2)(i), we proposed to provide flexibility for coverage effective dates in the case of birth, adoption, placement for adoption, or placement in foster care. We require the Exchange to ensure that coverage is effective for a qualified individual or enrollee on the date of birth, adoption, placement for adoption, or placement in foster care, unless Exchanges permit the qualified individual or enrollee to elect a later coverage effective date. If the Exchange permits the qualified individual or enrollee to elect a later coverage effective date, the Exchange must ensure coverage is effective on the date elected by the qualified individual or enrollee.

In §147.104(b)(2), we specified that, “a health insurance issuer in the individual market must provide, with respect to individuals enrolled in non-calendar year individual health

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regulations with those of the broader insurance market, in paragraph (d)(1), we proposed that the Exchange permit qualified individuals and their dependents to enroll in or change from one QHP to another if they are enrolled in a non-calendar year individual health insurance policy in 2014 described in §147.104(b)(2), even if issuers of such non-calendar year policies offer to renew the policy. Thus, consumers whose individual health insurance policies would renew outside the Exchange open enrollment period would have an opportunity to enroll in an Exchange, just as they would if their policies were offered for renewal during the Exchange open enrollment period. Without this addition, consumers with individual health insurance policies renewing outside the Exchange open enrollment period would be required to renew such policies, and wait to terminate the policies during the Exchange open enrollment period, should they wish to enroll through the Exchange, thus disadvantaging these consumers as compared to consumers enrolled in calendar year individual market policies.

In 26 CFR 1.5000A-2(b)(1)(ii)(C), the Secretary of the Treasury specified that coverage of pregnancy-related services under section 1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX)) was not minimum essential coverage. In order to ensure that women losing eligibility for coverage of pregnancyrelated services as described above are not left without an option to enroll in a QHP after the conclusion of Medicaid eligibility, in paragraph (d)(1), we proposed that the Exchange permit qualified individuals and their dependents to enroll in a new QHP if they lose eligibility for such pregnancy-related services. We solicited comments regarding whether there are other situations in which an individual loses coverage that is not defined as minimum essential coverage and

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We proposed to add to paragraph (c) to specify that the Exchange must permit qualified individuals and their dependents to access the special enrollment periods described in paragraph (d)(1) for up to 60 days prior to the end of the qualified individual’s or his or her dependent’s existing coverage. This is consistent with existing regulations in paragraph (d)(6)(iii) that are specific to an individual who is enrolled in an eligible employer-sponsored plan who is determined newly eligible for advance payments of the premium tax credit based in part on a finding that such individual is ineligible for qualifying coverage in an eligible employersponsored plan. To improve the clarity and structure of this rule, we proposed to move the language in paragraph (d)(6)(iii) regarding the 60 days prior access to the special enrollment period to paragraph (c). The proposed change, to paragraph (d)(1) that would expand the ability to report a change and select a plan in advance to all individuals who are described in paragraph (d)(1) is designed to allow an individual who is losing eligibility for coverage outside the Exchange to transition to coverage offered through an Exchange without a gap in coverage, but with protections to ensure that advance payments of the premium tax credit are not provided in advance of the loss of eligibility for minimum essential coverage outside the Exchange.

Accordingly, we note that individuals are not eligible for advance payments of the premium tax credit until they are no longer enrolled in minimum essential coverage outside the Exchange.

While consumers will be able to report the loss of coverage and select a QHP offered on the Exchange in advance of the loss, their coverage effective date will be no earlier than the first day of the month following the loss of coverage (for example, if the loss of minimum essential coverage is on May 31, 2014 and the consumer reports the loss on March 5, 2014, coverage will

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paragraphs (b)(2)(ii) and (e) to align with the changes in terminology proposed in paragraph (d)(1).

In paragraphs (d)(4), (d)(5), (d)(9) and (d)(10), we provide special enrollment periods for errors of the Exchange or HHS, contract violations by the QHP, exceptional circumstances and misconduct by a non-Exchange entity. Existing paragraph (b)(2)(iii) specifies that for a plan selection made during one of the special enrollment periods under paragraphs (d)(4), (d)(5), and (d)(9), coverage must be effective on an appropriate date based on the circumstances of the special enrollment period, in accordance with guidelines issued by HHS, and provides two options for that effective date. We proposed to add special enrollment periods triggered under paragraph (d)(10) to those special enrollment periods for which these special coverage effective dates are available. In order to ensure that the Exchange has sufficient flexibility with which to address the types of scenarios that may trigger these special enrollment periods, we proposed to amend paragraph (b)(2)(iii) to remove the restriction to these two options. The resulting proposed regulatory text would allow the Exchange to set an effective date based on what is appropriate to the circumstances, in accordance with any guidelines issued by HHS. Similarly, in order to ensure that the Exchange sets the length of these same special enrollment periods to be appropriate to the circumstances of the specific enrollment period, we proposed to modify paragraph (c) to specify that the Exchange may define the length of these special enrollment periods as appropriate based on the circumstances of the special enrollment period, in accordance with any guidelines issued by HHS. We believe that this flexibility is important to ensure that the special enrollment periods can be implemented as intended.

Section 155.420(e) clarifies what qualifies as loss of coverage for purposes of the special

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clarify that voluntary termination does not qualify as loss of coverage for purposes of a special enrollment period, since the intent of this special enrollment period is to ensure that an individual who is losing coverage can transition to the Exchange without interruption, and not to allow an individual to switch from another form of coverage to the Exchange during the year when the other form of coverage remains available and he or she does not qualify for another special enrollment period described in this section. We solicited comments regarding this clarification.

Comment: We received comments both in support of, and opposed to, the proposed language providing flexibility for Exchanges to allow either retroactive coverage back to the date of the birth, adoption, placement for adoption, or placement in foster care, or a coverage effective date later than the date of the birth, adoption, placement for adoption, or placement in foster care.. Some commenters supported providing prospective enrollment at the option of the Exchange, and the consumer. Other commenters opposed allowing retroactive coverage and preferred that Exchanges follow regular effective dates. One commenter suggested we clarify that coverage may be effective no later than the first of the month following the occurrence of the triggering event. Additionally, commenters sought clarification on the length of time before the coverage may become effective following the triggering event Response: Section 1311(c)(6)(C) of the Affordable Care Act which references section 9801 of the Internal Revenue Code of 1986 requires retroactivity for birth, adoption, or placement for adoption, and we received commenter support for allowing retroactive or prospective enrollment at the option of the Exchange. We therefore are finalizing paragraph (b)(2)(i) with the clarification that coverage may be effective no later than the first of the month following the occurrence of the triggering event at the option of the consumer. Without this

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effective date on which they knew services would be utilized. Accordingly, we are finalizing this provision with the clarification. State Exchanges have flexibility when and if they will provide the option.

Comment: One commenter recommended allowing for mid-month coverage effective dates in the case of loss of minimum essential coverage, as described in paragraph (d)(1) of this section.

Response: We do not intend to allow for mid-month coverage effective dates in the case of loss of minimum essential coverage at this time. The language in (c)(2)(i) provides consumers with adequate flexibility to avoid a gap in coverage. We appreciate the comment and may consider mid-month coverage effective dates in future rulemaking.

Comment: Commenters encouraged clarification on effective dates provided in §155.420(b)(2)(iii). Specifically, commenters recommended allowing for retroactive effective dates back to when the triggering event occurred and recommended retroactivity be at the option of the consumer.

Response: The language proposed in this section does not prohibit Exchanges from providing retroactive coverage for special enrollment periods as described in paragraphs (d)(4), (d)(5), (d)(9), or (d)(10) of this section. Rather, the proposed language provides flexibility for Exchanges to determine the appropriate effective date based on the circumstances of the special enrollment period. Exchanges may provide retroactive coverage at the choice of the consumer provided it is deemed appropriate by the Exchange. Accordingly, we are finalized this paragraph as proposed.

Comment: Commenters asked that HHS consistently define and apply effective dates

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commenter requested HHS develop a minimum length of 60 days for all special enrollment periods.

Response: As provided in paragraph (b)(2)(iii) of this section, Exchanges must ensure that coverage is effective on an appropriate date based on the circumstances of the special enrollment period. Due to the unique circumstances of each special enrollment period, it could be harmful to the consumer to implement a general effective date policy. If a consumer does not agree with a special enrollment decision they may request an appeal of the effective date as provided in §155.505(b)(1)(i). Therefore, we are finalizing this paragraph as proposed.

Comment: One commenter recommended that special enrollment periods conclude at the end of the enrollment period, or when an individual selects a QHP, whichever is sooner.

Response: The current regulation at §155.410(a)(1) provides that “The Exchange must provide an initial open enrollment period and annual open enrollment periods consistent with this section, during which qualified individuals may enroll in a QHP and enrollees may change QHPs.” This regulation does not provide for limiting consumers’ opportunity to enroll during the specified enrollment periods. Because the language recommended by the commentator would directly conflict with §155.410(a)(1), we decline to accept this recommendation.

Comment: One commenter requested the length of the special enrollment period provided in §155.420(d)(6)(iii) be extended to allow the employee time to receive the notice of their COBRA rights. The commenter also requested clarification that a consumer could elect COBRA coverage prior to their coverage effective date.

Response: We believe that providing the individual with the flexibility provided in (c)(2)(ii) of this section to select an Exchange QHP based on their anticipated loss of qualifying

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special enrollment period provided in (c)(1) of this section will minimize any potential gap in coverage resulting from a loss of employment notwithstanding the required timeline associated with the employer notifying the group plan administrator and the group plan administration notifying the employee of their COBRA rights. On May 2, 2014 we published a bulletin that provided a special enrollment period for persons eligible or COBRA and COBRA beneficiaries.

Additionally, on May 2, 2014 the Department of Labor released revised model notices for group health plans to provide to covered employees and their families which provides updated information on COBRA benefits and the Exchange. Finally, we note that an individual could elect to enroll in COBRA coverage and enroll in Exchange coverage when he or she loses employer-sponsored coverage, and disenroll from COBRA when Exchange coverage becomes effective. The consumer is not eligible for advance payments of the premium tax credit or CSRs while enrolled in COBRA. Accordingly, we are finalizing as proposed.

Comment: One commenter requested that HHS extend the proposal to allow individuals prior access to a special enrollment period for individuals who are gaining access to a new QHP as a result of a move.



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