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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: We believe that the 2015 beta testing and 2016 public reporting timeframes are appropriate and consistent with QHP issuer accreditation requirements for the FFE and most State Exchanges to report clinical quality and CAHPS® data in 2016. In addition, we believe the proposed timeframes offer a balanced approach to providing consumers with meaningful, tested QHP quality information and providing issuers ample time to prepare for collection and submission of validated data. The majority of plans already have established processes and experience for similar, existing quality reporting and we acknowledge that new and smaller plans may have increased burden; however, we believe that the phase in implementation of QRS and ESS beginning in 2015 with beta testing is the appropriate approach. We anticipate publishing the finalized QRS measure set soon after the publication of this final rule.

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We are finalizing the proposed provision with the following modification: In paragraph §156.1120(a)(3), we replace “at the reporting level specified by HHS” with “at the level specified by HHS” to better distinguish between the level at which collection of QRS data as well as the level of public display of QRS data that would be required.

c. Enrollee Satisfaction Survey (§156.1125) At §156.1125(a), we proposed to direct QHP issuers to contract with an HHS-approved ESS vendor, as identified by §156.1105, to administer the ESS of the QHP’s enrollees. We also proposed to direct a QHP issuer to authorize its contracted ESS vendor to report survey results to HHS and the Exchange on the issuer’s behalf. In paragraph (b), we proposed several data requirements to clarify the standards for collection and submission of ESS data. At §156.1125(b)(1), we proposed to direct a QHP issuer to collect data of eligible enrollees for each QHP with more than 500 enrollees in the previous year that has been offered in an Exchange for at least one year following a survey sampling methodology provided by HHS. In paragraph (b)(2), we proposed to direct a QHP issuer to submit data, necessary to conduct the ESS, that has been validated in a form and manner specified by HHS.

In paragraph (b)(3), we proposed to direct a QHP issuer to include only those QHP enrollees at the reporting level specified by HHS, for data submitted for the ESS.

In paragraph (d), we proposed to direct a QHP issuer to submit data necessary to conduct the survey to its contracted ESS vendor on a timeline and in a form and manner specified by HHS. We stated our intention to align the timeframes of the proposed reporting requirements for

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We also noted that Multi-State Plans, as defined in 45 CFR 155.1000(a), are subject to providing the data described in paragraph (b). The OPM will provide guidance on ESS reporting to issuers with whom it holds Multi-State Plan contracts.

Comment: The majority of commenters supported the proposed approach of aligning the ESS with existing CAHPS® surveys and processes. Some commenters requested that we leverage the annual, existing CAHPS® survey to meet the ESS requirement. One commenter requested clarification of how the CAHPS® 5.0 Adult Medicaid Survey would be modified for the Exchanges.

Response: We have leveraged existing CAHPS® surveys and processes in the development of the ESS (or QHP Enrollee Survey). In addition, we are considering approaches and will seek comment in future rulemaking for further alignment of QHP issuer accreditation and quality reporting in the Exchanges, including but not limited to ESS reporting. We clarify that the QHP Enrollee Survey includes all of the CAHPS® Health Plan 5.0 (Adult Medicaid) items with additional items based on a comprehensive review of the literature and related surveys, focus groups, stakeholder discussions, and input from a technical expert panel, as we described in the PRA supporting statements available under CMS Form Number 10488 at http://www.cms.gov/Regulations-andGuidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

Comment: One commenter urged HHS to use the term “experience”, rather than “satisfaction” when describing the survey because “experience” is considered a more objective and relevant source of data. A few commenters sought clarification regarding enrollee eligibility

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sample sizes to ensure adequate response rates and to align with commercial CAHPS® or other satisfaction surveys.

Response: We have used the term ESS in this rule to mirror the statutory language of section 1311(c)(4) of the Affordable Care Act. However, the name of the ESS survey that will be administered to enrollees is “QHP Enrollee Experience Survey”. We incorporate the size requirement in 156.1125(b) to align with the statutory language in section 1311(c)(4) that requires the development of an ESS to evaluate enrollee satisfaction with QHPs offered through an Exchange, “for each such qualified health plan that had more than 500 enrollees in the previous year.” We agree that adequate sample sizes and response rates are needed for statistically valid measurement rates. For more information on our approach to adequate sample size and response rates for the survey, we refer commenters to the PRA supporting statements available under CMS Form Number 10488 at http://www.cms.gov/Regulations-andGuidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

Comment: A few commenters supported collecting and reporting ESS measure data at the metal tier level to provide meaningful, disaggregated information to consumers. However, several commenters acknowledged that sample sizes could be too small to ensure valid and reliable measurement, especially in the early years of the Exchanges and therefore urged HHS to follow the same approach as QRS data collection, at the product-level.

Response: We believe that, similar to the approach for QRS data collection and reporting, it is important to have a balanced approach that will allow for us to provide useful information to consumers while ensuring that the data is statistically significant and reliable. We agree with commenters and acknowledge that sample sizes may be too small to report at the metal-tier level

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product-level in alignment with the QRS. However, we note that we believe that there are fewer potential sample size issues with ESS reporting versus QRS reporting based on the populations eligible to participate in the ESS. Most measures for the ESS include the entire enrollee population, while the majority of QRS measures are limited because they would not extend to the entire patient population. Similar to the QRS, we clarify that we intend to require QHPs to submit data at a level specified by HHS that will allow for us to determine the feasibility of using more granular levels for data reporting and public display in the future. At this point in time, we anticipate requiring the submission of ESS data at the more granular metal tier level and will be issuing technical guidance in the near future that provides further details regarding the ESS data reporting process.

Marketplace Survey Sections 1313 and 1321(a) of the Affordable Care Act provide the Secretary with general authority to establish standards and regulations related to Exchanges, QHPs, and other components of title I of the Affordable Care Act. In §155.1200(b)(3), we direct State Exchanges to submit performance monitoring data on an annual basis, which would include information on consumer satisfaction. Pursuant to this legal authority, HHS proposed a consumer experience survey, or the Marketplace survey, to assess consumer experience with the Exchanges39 including obtaining information regarding aspects such as the application and eligibility determination process for Medicaid/Children’s Health Insurance Program (CHIP) coverage and the Insurance Affordability Programs.

Comment: Many commenters supported establishing the Marketplace survey and

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to provide full access to the public of survey results, similar to the ESS. A few commenters recommended inclusion of Medicaid eligibles and data based on various demographics such as gender, language preference, and disability status.

Response: We maintain that the purpose of the Marketplace survey is to inform the quality improvement of Exchanges; we, therefore, intend to provide Exchanges with the results of the Marketplace survey and will consider ways to make this information available to the public. We appreciate the comments regarding suggestions for sampling data criteria which will inform future years of Marketplace survey implementation and may consider directing State Exchanges to submit survey sampling data to HHS. For more information on the Marketplace Survey, we refer commenters to the PRA supporting statements available under the CMS Form Number 10488 at http://www.cms.gov/Regulations-andGuidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

Summary of Regulatory Changes We are finalizing the proposals for ESS and Marketplace Surveys with the following modification: In paragraph §156.1125(b)(3), we replace “at the reporting level specified by HHS” with “at the level specified by HHS” to better distinguish between the level at which collection and submission of ESS data by QHP issuers that would be required, as opposed to the level of public display or reporting of ESS data by Exchanges that would be required.

I. Part 158 – Issuer Use of Premium Revenue: Reporting and Rebate Requirements

1. Subpart A – Disclosure and Reporting a. ICD–10 Conversion Expenses (§158.150) In September 2012, the Secretary changed the date on which issuers are required to adopt

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Subsequently, the Protecting Access to Medicare Act of 2014 (Pub. L. 113-93), enacted on April 1, 2014, mandated that this date be further delayed to October 1, 2015. Because the ICD-10 implementation date has been postponed past 2013, issuers may incur conversion costs beyond 2013 that would otherwise have been incurred only in 2012 and 2013. Therefore, in the proposed rule, we proposed to permit issuers to continue including their ICD-10 conversion costs as activities that improve health care quality (QIA), up to 0.3 percent of an issuer’s earned premium in the relevant State and market, through the MLR reporting year in which ICD-10 implementation is required by the Secretary.

Comment: We received several comments supporting inclusion of ICD-10 conversion costs in QIA past 2013, as well as several comments opposing inclusion of these costs past 2014.

Some commenters supporting the extension also requested that the 0.3 percent cap be raised to

0.4 percent.

Response: Because data continue to show that ICD-10 expenses have not, on average, exceeded 0.3 percent of premium, we are not raising the cap to 0.4 percent. In addition, because we recognize that the recent Congressional delay of the ICD-10 implementation date to 2015 may cause issuers to continue to incur implementation costs, such as concurrently maintaining ICD-9 and ICD-10 systems and performing additional testing, we are continuing to allow inclusion of ICD-10 conversion costs in QIA through the MLR reporting year in which ICD-10 implementation is required by the Secretary.

Summary of Regulatory Changes We are finalizing the changes to §158.150 as proposed.

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a. MLR and Rebate Calculations in States with Merged Individual and Small Group Markets (§§158.211, 158.220, 158.231) In the proposed rule, we proposed to amend §158.220(a) and §158.231(a) to specify that the individual and small group market data must always be aggregated if a State requires these two markets to be merged, and to amend §158.211 to clarify that if a State establishes a higher MLR standard for the merged market, this higher standard must be used to calculate any rebates for the merged market.

Comment: We received one comment supporting the requirement to use the higher State MLR standards in calculating rebates. We received no comments specific to the proposed data aggregation standard in States that require the individual and small group markets to be merged.

Response: We appreciate the comment regarding the higher State MLR standards.

Summary of Regulatory Changes We are finalizing the amendments proposed in §§158.211, 158.220, and 158.231 of the proposed rule without modification.

b. Accounting for Special Circumstances (§158.221) On November 14, 2013, the Federal government announced a policy under which, if certain conditions were met, it would decline to enforce certain specified 2014 market reforms against certain non-grandfathered health insurance coverage in the individual or small group market renewed between January 1, 2014 and October 1, 2014, and requested that States adopt a similar non-enforcement policy.40 CMS noted in the Proposed 2015 Payment Notice (78 FR

72322) that this transitional policy would not have been anticipated by issuers in setting rates for

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2014 and stated that we were exploring modifications to different programs (including but not limited to the MLR program) to help mitigate the impact of this policy.

As we explained in the proposed rule, issuers that provided transitional coverage may have incurred additional administrative costs, such as expenses related to developing and sending required consumers notices, and creating and submitting new policy and rate filings. As further stated in the proposed rule, we also recognize that issuers of QHPs in the individual and small group markets may have incurred costs due to technical issues during the launch of the State Exchanges and FFEs.

Therefore, in the proposed rule, we proposed to account for the special circumstances of plans affected by the transitional policy and plans affected by the technical issues during the launch of the State Exchanges and FFEs by amending §158.221 to allow for an adjustment to the MLR calculation for such issuers. Specifically, we proposed to allow issuers offering transitional coverage in the individual and small group markets to multiply the incurred claims and expenses for quality improving activities incurred in 2014 in the MLR numerator by 1.0001.

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