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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: The Exchange must ensure that appropriate actions are taken following a retroactive termination. Under the policy finalized in this rule, when a retroactive termination and enrollment results in the enrollee changing issuers, the Exchange must ensure that the former issuer refunds or credits any premium paid to the issuer by or for the enrollee for coverage after the retroactive date, reverses any claims for services provided after the retroactive termination date, and recoups payments made to providers for services provided to the enrollee after the retroactive termination date. The former issuer must also ensure that providers refund to the enrollee any cost sharing paid by or for the enrollee (other than CSRs to be reimbursed by the Federal government). CMS will also recoup any advance payments of the premium tax credit and CSRs provided to the issuer for the enrollee back to the retroactive termination date The gaining issuer in turn, should collect the enrollee’s portion of the premium and is responsible for any covered services incurred, in each case for the period following the retroactive effective date of coverage. CMS will also provide the gaining issuer any applicable advance payments of the premium tax credit and CSRs for the enrollee back to the retroactive effective date of coverage. (We intend to provide additional guidance regarding how issuers should handle a claim that spans a period of time in which the enrollee has coverage from two separate issuers in such circumstances.) Providers are responsible for billing the gaining issuer for any covered services incurred back the retroactive enrollment date, and the issuer must ensure that the provider collects only the cost sharing for the covered service to reflect the

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such an adjustment may result in the enrollee owing the provider additional funds, depending on the cost sharing and benefit structure of the new plan. We note that consistent with 45 CFR 156.410(c)(1) and our CMS Bulletin to Exchanges on the Availability of Retroactive Advance Payments of the PTC and CSRs in 2014 Due to Exceptional Circumstances, dated February 27, 2014, any refund or credit for any excess cost sharing or premium paid for or on behalf of the individual must be provided (or begin to be provided in the case of a credit) with 45 calendar days of the date of discovery of the excess cost sharing or premium paid.

If an applicant switches QHP issuers, we do not require out-of-pocket amounts paid under the prior plan to carry over to the new QHP issuer, but defer to issuers and State laws with regard to how out-of-pocket payments under the former issuer’s plan should be accounted for in the deductibles and limitations on cost sharing under the new issuer’s plan. Comment: We received a comment recommending that if a consumer enrolls in a different QHP with the same issuer, the issuer should not be required to reverse claim payments, and should not be required to refund out-of-pocket payments, but could instead apply any cost-sharing paid to the new QHP’s annual limitation on cost sharing. The same commenter also sought clarification on how out-ofpocket payments for prescription drugs, most of which are adjudicated at the point of sale, will be handled in the case of a change in QHP issuers with a retroactive effective date.

Response: We are finalizing the proposed provision as proposed, noting that the processes set forth in the final rule are designed to ensure that consumers are provided the CSRs and advance payments of the premium tax credit for which they determined eligible, and are refunded any excess premiums paid or out-of-pocket payments made by or for the enrollee for covered benefits and services incurred. Applying enrollee cost sharing or other out-of-pocket

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sharing or out-of-pocket spending, will not always be equivalent to providing a refund. For example, for an enrollee that does not exceed the deductible for a benefit year, simply accumulating excess cost sharing already paid may mean the enrollee will have paid more in cost sharing than required under the new plan. However, we recognize that, when the enrollee switch plans within the same issuer (or between variations of the same plan), reversing the claims and providing refunds may not be the most efficient way of adjusting the enrollee’s portion of the premium and any differences in cost sharing. Therefore, in such circumstances, the Exchange and the issuer will be considered to be in compliance with the policy set forth in this rule as long the enrollee’s premium payments and cost sharing are adjusted to reflect the enrollee’s obligations under the new plan or variation and providers are made whole. Thus, the issuer may elect to make the enrollee whole for cost sharing directly through a refund or credit without requiring the provider to provide any refund directly to the enrollee, and may net provider payments to reflect the provider’s obligations and payments due. Furthermore, consistent with 45 CFR 156.425(b), in the case of a change in assignment to a different plan variation (or standard plan without CSRs) of the same QHP in the course of a benefit year under this section, the QHP issuer must ensure that any cost sharing paid by the applicable individual under the previous plan variations (or standard plan without CSRs) for that benefit year is taken into account in the new plan variation.

Under the policy and processes set forth in this final rule, prescription claims should be treated in the same manner as other claims.

Comment: Many commenters supported the new definitions for terminations and cancellations to codify the existing practices included in the enrollment standards as well as the

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issuers to follow operational instructions issued by the Exchange given the limited nature of retroactive effective dates that result in a termination. However, another commenter recommended that that HHS require, not solely permit, Exchanges to establish operational procedures for issuers in these circumstances and place a requirement on issuers to follow the established procedures. In doing so, all issuers participating in the Exchange would be required to comply with similar procedures on terminations, cancellations, and reinstatements to ensure a consistent process. Additionally, the commenter stated that simplifying the procedures among QHP issuers would be in the consumers’ interest and avoid consumer confusion, especially in situations where members of the household may be in different QHPs.

Response: We agree that if an Exchange establishes operational instructions for implementing terminations, cancellations, and reinstatements, then issuers should be required to follow such procedures. However, we still believe it is up to the Exchange to determine whether or not to establish procedures. Therefore, we are finalizing §155.430(e) as proposed, while adding a corresponding paragraph (j) to §156.270, to specify that QHP issuers must follow the transaction rules established by the Exchange in accordance with §155.430(e).

Comment: We received a comment requesting that CMS reconsider the implementation of the 90-day grace period and require that health plans pay any claims during the entire grace period.

Response: We note that the comment is outside the scope of this rulemaking.

Requirements for issues regarding grace periods are addressed at 45 CFR §156.270.

Summary of Regulatory Changes We are finalizing the provisions proposed in §155.430 of the proposed rule without

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transaction rules established by the Exchange in accordance with §155.430(e) based on comments we solicited and ensuring a consistency of operational procedures among issuers in the Exchange.

5. Subpart F—Appeals of Eligibility Determinations for Exchange Participation and Insurance Affordability Programs a. General Eligibility Appeals Requirements (§155.505) In §155.505, we proposed a technical correction to paragraph (b)(4) by removing “; and” at the end of the paragraph and adding a period in its place.

Summary of Regulatory Changes We receive no comments on this proposal and are finalizing the provision as proposed.

b. Dismissals (§155.530) In §155.530, we proposed to amend paragraph (a)(1) to provide an additional method for appellants to withdraw appeal requests. The existing provision requires an appellant who wishes to withdraw his or her appeal request to do so in writing (hard copy or electronic). We proposed to include the alternative for an appellant to withdraw his or her appeal by telephone, if the appeals entity is capable of accepting telephonic withdrawals. In paragraphs (a)(1)(i)(A) and (B), we proposed the requirements for providing a telephonic withdrawal process. Specifically, we proposed that the appeals entity must record in full the appellant’s statement and telephonic signature made under penalty of perjury, and provide a written (in hard copy or electronically) confirmation to the appellant documenting the telephonic interaction. We sought comment on this proposed amendment, including the proposed requirements for accepting telephonic withdrawals and the potential misalignment with Medicaid fair hearing rules caused by this

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Comment: Nearly all the comments we received in response to the proposal to provide the option for telephonic withdrawals were supportive. This included many positive comments from State Exchanges. Commenters noted the additional method to withdraw appeals would ease the burden on appeals entities by protecting resources while providing an efficient means for consumers to end their appeal at their discretion. We also received support from consumer advocate groups for the proposed provision requiring written documentation of the telephonic interaction as well as the proposed requirement that the appellant’s telephonic statement be recorded in full and include a telephonic signature made under penalty of perjury. However, we also received a comment requesting that we not finalize the provisions requiring the appellant’s telephonic statement be recorded in full and a written confirmation because they are burdensome and duplicative. The commenter suggested that simply providing written documentation of a telephonic withdrawal with an option for the appellant to request to vacate the withdrawal within a specific period of time is sufficient.

Response: We agree with commenters that incorporating this option for telephonic withdrawals will assist appeals entities in maintaining an efficient process by providing a convenient method for appellants to end an appeal at their option, thereby, protecting resources for other appeals-related activities. We understand the concern that the requirements for providing a telephonic withdrawal process are significant and call for both a full recording of the appellant’s telephonic withdrawal and a confirmation of the telephonic withdrawal sent in writing. However, the appellant’s right to a hearing is the central concern of the appeals process and any mechanism for relinquishing the right to the hearing must include sufficient safeguards.

The requirement for both a recording and a written confirmation of the telephonic withdrawal are

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preamble to the proposed rule acknowledged that the requirement to provide confirmation of a telephonic withdrawal can be met through issuance of the dismissal notice, which is required to contain instructions on how to request to vacate the dismissal in accordance with §155.530(b)(3).

Therefore, we finalize the provision for telephonic withdrawal as proposed.

Comment: A few commenters cited the potential vulnerabilities of appellants under a telephonic withdrawal process. For instance, appellants may be vulnerable to coaching by appeals entity staff to withdraw their appeal over the telephone. Similarly, an appellant may feel pressured to withdraw an appeal prematurely after an informal resolution if the appeals entity initiates such a discussion with the appellant by telephone. However, the commenter also acknowledged that if an appellant initiates the call to withdraw the appeal, no such concern exists. One commenter recommended that HHS create scripted information about the significance of withdrawing an appeal that includes an attestation of understanding by the consumer to be used by Exchange appeals entities to help protect appellants.

Response: While there is potential for undue influence on an appellant to close an appeal in some cases, we also realize that appeals entities aim to run an efficient process. As noted above, we believe the process we have proposed fairly balances these concerns and provides sufficient protections for appellants, including the requirement that telephonic withdrawals be recorded in full, made under penalty of perjury, and confirmed in writing. In addition, withdrawals result in dismissal notices under §155.530(b), which provide for the opportunity to request to vacate a dismissal for good cause. With these protections in place, we are confident that appellant’s interests will be safeguarded.

Comment: We received one comment on the alignment of our proposed policy with

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proposed provision and noted that only permitting a written withdrawal, as in the current rule and in Medicaid fair hearing rules, is a strong consumer protection measure.

Response: Although the option to implement telephonic withdrawals will put the Exchange rules out of alignment with the Medicaid fair hearing rules, it is our intent to provide a modernized appeals process that can take advantage of technology and still safeguard appellant rights, as noted above. CMS is considering its policy regarding written and telephonic withdrawals in Medicaid and may issue future guidance on this issue. However, we note that as a result of this current incongruence in rules, appeals entities must ensure that appellants are afforded the appropriate rights. Individuals appealing denials of Medicaid eligibility may not withdraw their appeal via telephone, even if the appeals entity meets the requirements for providing such a process under the Exchange rule. Current appellants of Medicaid eligibility determinations may only withdraw an appeal in writing in accordance with 42 CFR 431.223(a).

Comment: Some commenters suggested that the written confirmation of the telephonic withdrawal should include a mechanism for challenging the validity of the telephonic signature.

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