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CMS Issues Final Version of Health Law Marketplace Rule

By Rebecca Adams, CQ HealthBeat Associate Editor

May 16, 2014 -- The final version of a rule outlining how health law marketplaces will operate in 2015 adopted some but not all of the suggested revisions to an earlier draft that consumer advocates recommended. Insurers also won some concessions but did not get all of the additional funding they sought to cushion potential losses in the markets.

The regulation, released late last week, rules that some state laws limiting the kinds of assistance "navigators" and other counselors who help people enroll in the health insurance exchanges can offer are not allowed. Federal officials said the laws violate the health care law (PL 111-148, PL 111-52).

The 436-page regulation drew aggressive lobbying from health care providers, consumer advocates and other interests. No group got everything it wanted.

The Small Business Majority, an ally of the Obama administration, said it was "incredibly disappointing" that the final rule would allow states to decide whether to further delay a requirement that would allow small business workers to be able to choose which health plan they want to enroll in.

The ability of workers to have a choice of plans has already been delayed. Currently, small business owners select insurance for their workers.

"The final rule allowing states to possibly opt-out of it for yet another year could harm small businesses by putting them at a competitive disadvantage to big businesses that are able to offer a choice of plans to their employees," said John Arensmeyer, founder and CEO of the Small Business Majority. He added that the group believes "delaying this rule violates the law and the spirit of the Affordable Care Act."

The rule also sought to clarify if enrollment assisters such as navigators and certified application counselors would face civil fines if they inappropriately released consumers' personal information, or acted in a fraudulent way.

Consumer groups asked that Centers for Medicare and Medicaid Services (CMS) officials cap the fines, prevent the Department of Health and Human Services (HHS) inspector general from having the power to impose fines and say that assisters could not face fines under both the health care law and other federal laws.

Consumer groups also wanted CMS to clarify that the amount of penalty mentioned in the rule —$100 per day per violator—was the maximum amount but that the agency could set lower fines.

CMS did not agree to an overall limit to the fines. But officials did accept the idea that Office of Inspector General (OIG) shouldn't have the authority to penalize people and that violators should not be fined for running afoul of more than one law. CMS officials also agreed that the agency could lower the fines below $100 per offender per day.

Consumer groups won another victory when HHS accepted a Families USA proposal to publicly release full survey results from consumers that rate health plans. The final rule clarifies that HHS will publicly post full survey results for marketplaces run by the federal government in 2016 instead of just a subset of results that would be included in a plan's quality rating.

CMS officials also finalized some provisions that would affect state laws on navigators, but did not include everything proposed in the original draft. CMS officials said they would revisit the issue in a guidance memo.

The original rule sweetened some financial protections for insurers because administration officials said that they realize that the first year of the health care marketplaces has been rocky.

Insurers are slated to get federal payments to offset the expense of complicated medical cases. Under the original rule's reinsurance program, the federal government would have covered half of the expenses for high-cost patients, starting at $70,000. The extra federal funding would be capped at $250,000.

Under the final version, CMS officials said they would take insurers' recommendation of picking up costs above $45,000.

CMS officials said that if reinsurance collections fall short of what they need to pay out in a particular benefit year, federal officials will pay out the reinsurance collections first, and then pay administrative expenses and payments to the U.S. Treasury on a pro rata basis.

But insurers did not get major changes that they had requested under the risk corridor program, which caps insurers' losses and profits.

The original rule said that CMS would increase the amount of allowable costs for insurers and allow insurers to make higher profits.

The Blue Cross and Blue Shield Association asked CMS to boost profits by 5 percentage points instead of the 2 percentage points that CMS proposed in March. The request was turned down.

CMS officials said in the rule that they expect the risk corridors program to be budget-neutral by the end of three years so that the government pays out no more than it collects.

Insurers had asked CMS to be prepared to pay out more than it collects.

Some were concerned that the agency may not take in enough money to make full payments to insurers.

CMS officials said they "appreciate that some commenters believe that there are uncertainties associated with rate setting, given their concerns that risk corridors collections may not be sufficient to fully fund risk corridors payments." CMS said it was "unlikely" that there would be a shortfall in 2015, but if there was, HHS will use "other sources of funding" —if it available under appropriations.

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