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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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We also proposed to allow issuers offering coverage through the State and Federal Exchanges 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 1.0004. These adjustments would only extend to issuers in the individual and / or small group markets that offered transitional coverage or participated in the State Exchanges and FFEs, and only for the 2014 reporting year. A transitional policy cost adjustment to the formula for calculating an issuer’s MLR would not apply in States that did not implement the transitional policy, or in States that

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formula for calculating an issuer’s MLR related to the initial Exchange technical issues would not be available to issuers that did not elect to participate in the Exchanges.

Comment: Some commenters expressed support for adjustments to the MLR formula for plans affected by the transitional policy and plans affected by the technical issues during the launch of the State and Federal Exchanges. These commenters also expressed concern that the adjustments are inadequate, but none provided specific data to support this assertion or suggested specific alternative adjustments. Commenters requested that both adjustments also be provided for 2013; one of these commenters requested that the adjustment related to Exchange technical issues continue in 2015; while two of these commenters requested that the adjustment related to transitional policy continue while transitional coverage remains in force. One commenter additionally recommended that instead of multiplying the MLR numerator by an adjustment factor, CMS permit issuers to deduct actual administrative costs related to Exchange implementation from the MLR denominator. Another commenter recommended this alternative approach (that is, to permit a deduction of actual administrative expenses) for costs related to the transitional policy, and recommended that CMS waive the Exchange user fee for issuers affected by Exchange implementation problems instead of the proposed adjustment. Both these commenters argued that such alternative approaches would benefit issuers who meet or exceed the MLR standard.

In contrast, other commenters expressed concern that adjustments to the MLR formula may undermine the MLR program’s effectiveness in keeping premiums down, and urged CMS not to extend the proposed adjustments beyond 2014. One commenter further requested that

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Response: The proposed adjustments were based on the best data available to us, and the types of expenses we considered were the types of expenses described by the commenters.

Absent more specific and substantiated recommendations with accompanying supporting data, we do not have a basis for increasing the adjustments. Further, the costs issuers incurred in connection with the transitional policy are often one-time and will decline over time, and the same is true of the Exchanges-related costs as the functioning of the Exchanges improves in

2015. Lastly, we recognize that the proposed adjustments to the MLR numerator only provide relief to issuers that did not meet the MLR standard, since such adjustments would merely cause issuers meeting the MLR standard to exceed the standard by a larger percentage than they already did. However, we find that the alternative adjustments to the MLR denominator suggested by some commenters have similar limitations. In addition, such alternative adjustments would be more administratively burdensome to implement than the proposed uniform adjustments, and would be more susceptible to abuse. We believe that the proposed adjustments appropriately account for the special circumstances related to implementation of the transitional policy and initial technical problems of the Exchanges, while still requiring issuers to comply with the statutory MLR requirement.

Summary of Regulatory Changes We are finalizing the amendments proposed in §158.221 of the proposed rule without modification.

c. Distribution of De Minimis Rebates (§158.243) The MLR December 7, 2011 final rule defines the threshold amounts below which rebates are considered to be de minimis and sets forth the provisions for distribution of such

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§158.243 to clarify how issuers must distribute rebates where: (1) all of an issuer’s rebates are de minimis, or (2) distribution of de minimis rebates to enrollee(s) whose rebates are not de minimis would result in an enrollee receiving a rebate that exceeds the enrollee’s annual premium. In these two situations, we proposed requiring the issuer to distribute de minimis rebates to enrollees in the policies that generated the de minimis rebates, and not to aggregate such rebates and distribute them to other enrollees whose rebates are not de minimis.

Comment: We received several comments opposing the proposed amendments to the de minimis provisions. The commenters argue that requiring distribution of any de minimis rebates directly to enrollees is contrary to the rationale behind the MLR de minimis provision. The commenters assert that the administrative burden of directly distributing de minimis rebates would exceed the benefit to consumers. One of these commenters recommended including the total amount of de minimis rebates, when all of an issuer’s rebates are de minimis, in premium rate calculations for the following year. This commenter also recommended that in cases where distribution of de minimis rebates to enrollee(s) whose rebate are not de minimis would result in an enrollee receiving a rebate that exceeds the enrollee’s annual premium, the issuer be allowed to place the excess of the aggregated de minimis rebate over premium in a reserve fund, and use it first toward the cost of operating this fund, and second in premium rate calculations for the following year. Another commenter recommended that issuers be allowed to distribute the de minimis rebates to the State for use in health education.





Response: We acknowledge the commenters’ concern that the administrative costs of directly distributing de minimis rebates may impose administrative costs in excess of the rebate amounts. At this time, few, if any, enrollees are known to be affected by the two situations

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treatment of de minimis rebates in these two situations, we are not finalizing the proposed clarifications and will address this issue in future rulemaking.

Summary of Regulatory Changes We are not finalizing the amendments proposed in §158.243 of the proposed rule at this time.

IV. Provisions of Final Regulations For the most part, this final rule incorporates the provisions of the proposed rule. Those

provisions of this final rule that differ from the proposed rule are as follows:

Changes to §144.103  Adds definitions of “product” and “plan” and clarifies that standards for uniform modification related to benefits and cost sharing apply at the plan-level.

Changes to §146.152  Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the small group market.

 Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

 Adds language to clarify and amend the term “pursuant to applicable Federal or State

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 Deletes the reference to “counties” in the service area criterion.

Changes to §146.180  Adds that an opt-out election for multiple self-funded, non-Federal governmental plans subject to a single collective bargaining agreement must specify each group health plan

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 Adds that a sponsor submitting opt-out elections for multiple self-funded, non-Federal governmental plans that are not subject to a collective bargaining agreement, must submit a separate opt-out election document for each such plan.

 Replaces the special rule for timely filings of opt-out elections by U.S. mail with a special rule for timely filings of opt-out elections in electronic format, and provides that if the latest filing date falls on a Saturday, Sunday, or a State or Federal holiday, CMS accepts filings submitted the next business day.

Changes to §147.106  Applies the definition of uniform modification of coverage and renewal notice requirements only to issuers offering coverage in the individual and small group markets.

 Adds language to clarify and amend the term “pursuant to applicable Federal or State

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 Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

 Deletes the reference to “counties” in the service area criterion.

 Adds that Medicare eligibility or entitlement is not a basis for nonrenewal or termination of an individual's health insurance coverage in the individual market.

Changes to §148.122  Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the individual market.

 Adds language to clarify and amend the term “pursuant to applicable Federal or State

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 Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

 Deletes the reference to “counties” in the service area criterion.

Changes to §148.220  Aligns introductory text with the statutory language.

 Clarifies that, to be an excepted benefit, fixed indemnity insurance in the individual market can be provided only to individuals who attest in their application (1) that they have other health coverage that is minimum essential coverage; or (2). that they are treated as having minimum essential coverage due to their status as a bona fide resident of any possession of the United States pursuant to Code section 5000A(f)(4)(B).

 Clarifies that fixed indemnity insurance pays in a fixed dollar amount per period of hospitalization or illness, per service, or both.

 Requires notice to be displayed in the application for the fixed indemnity insurance (as opposed to the plan materials).

 Adds a new paragraph specifying an applicability date for the minimum essential coverage and notice requirements to policies issued on or after January 1, 2015. For policies issued before that date, this paragraph also specifies an applicability date for the notice requirement to plan years beginning on or after January 1, 2015, and for the attestation requirement, to plan years beginning on or after October 1, 2016.

Changes to the Allocation of Reinsurance Contributions  Modifies our allocation of reinsurance collections if those collections fall short of our

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that benefit year first to the reinsurance payment pool, and second to administrative expenses and the U.S. Treasury.

Changes to §155.120  Makes technical revisions to §155.120(c) to clarify that organizations must comply with other, non-Exchange, applicable non-discrimination statutes.

 Revises §155.120(c)(2) to clarify that organizations that limit their provision of certified application counselor services to a defined population under this exception must still comply with the non-discrimination provisions in paragraph (c)(1)(ii) with respect to the provision of these services to that defined population.

Changes to §155.206  Clarifies that the requirements applicable to consumer assistance entities under this section refer to the applicable Federal regulatory requirements that have been implemented pursuant to section 1321(a)(1) of the Affordable Care Act, including provisions of any agreements, contracts, and grant terms and conditions between HHS and the consumer assistance entity that interpret those statutory and regulatory requirements or establish procedures for compliance with them.

 Clarifies that HHS must provide a written notice to a consumer assistance entity of its investigation, rather than requiring HHS to provide a written notice to an entity each time HHS learns of a potential violation.

 Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence.

 Provides a six-year statute of limitations period.

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 Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as Navigators that would be eligible to participate under standards

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 Renumbers and extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to Navigators. Adds specification for requirements that prevent the Exchange’s implementation of the Navigator program consistent with Federal

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 Revises the provision specifying requirements to carry errors and omissions coverage and replaces it with “any requirement that, in effect, would render all Navigators in the Exchange to be licensed agents and brokers.”  Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as a Navigator solely because it receives consideration from a health insurance issuer for health care services provided.

 Adds that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely on the basis that it does not maintain its principal place of business in the Exchange service area.

 Moves the provision prohibiting compensation on a per-application, per-individualassisted, or per-enrollment basis to §155.215 to apply only in the FFE.

 Adds that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive

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 Adds that Exchange funds cannot be used to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party.



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