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Comment: Commenters supported using per capita GDP for the purpose of calculating income growth, stating that this is a widely used measure of income. One commenter noted that it would not be technically sound to measure growth in GDP per person under age 65 or per worker, because GDP estimates are not available for those subsets of the population. Another commenter suggested that we consider whether per capita GDP sufficiently accounts for inflation and housing costs, and whether it overstates the income growth rate for lower income populations. Another commenter urged HHS not to use wage growth.
Response: Following consideration of comments received, we believe that growth in per capita GDP provides the most comprehensive and accurate measure of income growth available at this time. This measure is also consistent with the data that the CMS Office of the Actuary uses to project premiums for the NHEA. We may consider revising this measure in the future to account for future circumstances or data availability, including if alternative income measures or subsets of GDP become available.
Comment: One commenter stated that in order to avoid an increase in the required
constrained to equal or exceed zero, and that benchmark revisions should not be allowed to affect the calculation of the rate of income growth. Another commenter suggested that the formula should account for negative income changes, such that in a year where income decreases, there should be a decrease in the affordability threshold. Another commenter opposed negative income growth, because it would increase the required contribution percentage during times of economic decline.
Response: We acknowledge that in a recession a negative change in per capita GDP could result in an increase in the ratio of premiums to income. However, we note that such occurrences have been rare in recent decades, and constraining income growth to be positive would risk the required contribution percentage not fully reflecting the growth rates of premiums and income, which we believe is the general intent of the statute.
Required Contribution Percentage for 2015 The required contribution percentage for 2014 is 8.00 percent. Based on the methodology finalized in this final rule, the rate of premium growth over the rate of income growth for 2015 is 1.04213431463/1.0360845879 or 1.005839028. This results in a required contribution percentage for 2015 of 8.00*1.005839028, or 8.05 percent, when rounded to the nearest one-hundredth of one percent.
Summary of Regulatory Changes We define the required contribution percentage under §155.600(a) to mean the product of eight percent and the rate of premium growth over the rate of income growth for the calendar year, rounded to the nearest one-hundredth of one percent. We are also amending §155.605(g)(5), so that the required contribution percentage for this exemption in future years
b. Options for Conducting Eligibility Determinations for Exemptions (§155.625) In §155.625, we established an option under which a State Exchange could adopt an eligibility determination for an exemption from the shared responsibility payment that was made by HHS, provided that certain conditions were met. We proposed to revise §155.625 to remove the option for a State Exchange to adopt an eligibility determination for an exemption from the shared responsibility payment made by HHS for applications submitted on or after November 15,
2014. Under this proposal, HHS would continue to provide support in this area for applications up until that date.
Comment: We received several comments, many from State Exchanges, urging HHS not to eliminate the option described in §155.625(b). Commenters opposed this change because of the burden, in terms of cost, time and resources it would put on State Exchanges to accommodate the provision of exemption determinations. Several commenters from State Exchanges noted that resources have already been allocated and timelines already established for the systems development and shared the concern that States will not have the resources or administrative capacity to carry out this function by November 15, 2014. Under the proposed timeline, one commenter anticipated that State Exchanges would, at best, only be able to implement a paperbased and manual exemption eligibility determination process. One commenter shared the belief that the current process could be modified to HHS’ concerns by asking the consumer to include the information that only State Exchanges have, such as the lowest cost bronze plan. A majority of commenters agreed that, if HHS proceeds with the proposed change, State Exchanges need additional time to develop their own exemption processes; therefore, commenters suggested that implementation begin November 15, 2015. Finally, one commenter agreed that having a single
provide clear implementation standards to guide State Exchanges and consumers for uniform application of the law.
Response: We appreciate the comments received on this proposed change, particularly those from State Exchanges. We acknowledge the impact of such a change on State Exchanges in terms of administrative costs and development timelines. As noted below, we are providing Exchanges additional time to make this change.
Additionally, and as previously stated in the proposed rule, we support this change because the current procedure introduces significant information technology development and administrative burden into a process that could otherwise be executed at a single entity. For example, it requires coordinated information sharing systems between State Exchanges and HHS to send, receive, and process the information needed to make an exemption determination, particularly for those exemptions that require information only held by the State Exchange, such as the cost of the lowest-cost bronze plan net of advance payments of the premium tax credit.
Furthermore, the current process requires dual customer service responsibilities at both HHS and the State Exchange, which creates challenges for consumers and Exchange customer service representatives. Therefore, we do not believe that there are significant efficiencies to be gained by HHS providing this service to State Exchanges.
HHS is committed to providing technical assistance to State Exchanges to develop the capacity to handle the minimum functions of granting certificates of exemption. HHS has developed and released a set of model paper applications that can be adopted by State Exchanges and will consider providing additional guidance, such as example standard operating procedures, to assist State Exchanges as they develop their own exemption processes. We do understand the
accommodate this change and agree that additional time is needed for State Exchanges to come into compliance with this requirement. Accordingly, we are finalizing the provision with an amendment to eliminate the option for HHS to provide exemption determinations for State Exchanges for applications submitted after the start of open enrollment for the 2016 plan year.
Summary of Regulatory Changes We are amending §155.625(a) and (b) to state that the Exchange may adopt an exemption eligibility determination made by HHS for applications submitted before the start of open enrollment for the 2016 plan year.
7. Subpart H—Exchange Functions: Small Business Health Options Program a. Functions of a SHOP (§155.705) Sections 155.705(b)(2) and (3) currently provide that, for plan years beginning on or after January 1, 2015, all SHOPs must make available to qualified employers the option of selecting an actuarial value level of coverage as described in section 1302(d)(1) of the Affordable Care Act and make all QHPs at that level available to qualified employees (“employee choice”).
Additionally, pursuant to section 1312(a)(2) of the Affordable Care Act, qualified employers may provide support for coverage of employees under a QHP by selecting any level of coverage under section 1302(d) to be made available to employees, and each employee of an employer that elects a level of coverage may choose to enroll in a QHP that offers coverage at that level.
Based on communications with issuers and State Insurance Commissioners early in 2014, HHS became concerned that, in some circumstances, implementing employee choice in 2015 might significantly disrupt some small group markets, and it might therefore have a negative effect on
To address these concerns, we proposed to amend §155.705(b)(2) and (3) to provide for a one year transition policy under which a SHOP would be permitted to not implement employee choice in 2015 under specific circumstances: (1) if employee choice would result in significant adverse selection in the State’s small group market that could not be fully remediated by the single risk pool or premium stabilization programs; or (2) if there is an insufficient number of issuers offering QHPs or qualified SADPs to allow for meaningful plan choice among QHPs or qualified SADPs for all actuarial value levels in the State’s SHOP. We proposed that meaningful choice would mean sufficient competition in the market to allow for participation in the SHOP from multiple issuers throughout the State.
We proposed that a State regulatory agency, such as the State Department of Insurance, could submit a recommendation to the State’s SHOP (or in the case of an FF-SHOP, to the Secretary) showing why either of the two proposed circumstances applied in 2015. We sought comment on whether the State regulatory agency recommendation should include a mitigation plan describing the process the State regulatory agency would take to ensure that full implementation of employee choice in 2016 would not result in the occurrence of either proposed circumstance. We proposed that the State would be required to provide in the recommendation to the SHOP concrete evidence that one of the two proposed circumstances applied. The SHOP would then evaluate the State’s recommendation and determine whether the State’s small group market would be significantly adversely affected as a result of the implementation of employee choice.
In the preamble to the proposed rule, we also recognized the importance of the timing of a State regulatory agency’s recommendation and the SHOP’s decision regarding employee
relevant information for issuers to consider as they make QHP submissions, but State regulatory agencies also need time to evaluate market dynamics before they can make a recommendation about whether the SHOP should not implement employee choice in 2015. We considered establishing a deadline for the State regulatory agency’s recommendation to the SHOP. We considered a timeline under which State regulatory agencies would make recommendations prior to the close of the initial QHP certification application window, with sufficient time for issuers to decide whether or not to participate in SHOP for the following plan year. We also considered a second timeline as follows: (1) all issuers interested in participating in SHOP would apply during the initial application window; (2) State regulatory agencies then would have a specific window of time within which to make a recommendation regarding whether to not implement employee choice in 2015 based on the applications received; (3) the SHOP would then have a specific window of time to decide whether to implement employee choice in 2015 based on that recommendation; (4) issuers could, based upon the SHOP’s decision, decide whether to maintain, modify, or withdraw their QHP applications. In the FF-SHOPs, under this second scenario, issuers would be able to submit applications after the initial deadline to apply for QHP certification had passed.
We are finalizing this provision with the following modifications. First, based on a careful re-evaluation of the two conditions under which the State regulatory agency could make the proposed recommendation, we have recognized that some issuers have concerns about the potential for adverse selection in the small group market under employee choice and these concerns might cause them to price their products and plans higher than they might otherwise price them if the SHOP did not offer employee choice. Therefore, in the final rule, we specify
implemented in that State in 2015 if the Commissioner can adequately explain that this would be in the best interest of small employers and their employees and dependents, given the likelihood that implementing employee choice would cause issuers to price their products and plans higher than they would otherwise price them. Second, we are finalizing the first timeline in the proposed rule, and are requiring that a State Insurance Commissioner make its recommendation to the SHOP, and that the SHOP make its decision about implementing employee choice, sufficiently in advance of the end of the QHP certification application window such that issuers can make informed decisions about whether to participate in the SHOP. In the FF-SHOPs, State Insurance Commissioner must submit to HHS their recommendation on or before June 2, 2014.
This will provide HHS (as operator of the FF-SHOPs) sufficient time to review any recommendations. HHS anticipates that its decision regarding the implementation of employee choice in States with an FF-SHOP would be made by June 10, 2014, which would provide sufficient time for issuers to decide whether to participate in the SHOP for the following year.
Comment: We received several comments in support of providing an opportunity for a State to recommend that a SHOP not implement employee choice in 2015, so that States and issuers could develop a Statewide plan for a full and successful implementation of employee choice in 2016. We also received several comments opposing the proposal, stating that employee choice is both statutorily required and is a core element necessary to establish SHOP’s value and attract participation by small employers. One commenter urged HHS to not implement employee choice in 2015 only when there is clear harm that outweighs any of the value presented by employee choice and there is no other way to mitigate such harm. Several commenters expressed concern that an additional year without employee choice will not reduce the ultimate impact of