By Sara Rosenbaum

Introduction

On January 14, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) whose aim is to address a number of issues that arise at the intersection of the three principal federal “insurance affordability programs” established or modified under the Affordable Care Act (ACA): Medicaid; the Children’s Health Insurance Program (CHIP); and the advance premium tax credits and cost sharing reduction assistance available to individuals who apply for coverage in Exchanges.

The proposed rules seeks to more closely align these pathways in several basic respects: the process by which eligibility is determined across insurance affordability programs; the process of enrollment into assistance and renewal of eligibility; the process of enrollment into qualified health plans; coverage design in the case of Medicaid beneficiaries whose coverage is through what CMS terms “alternative benefit plans” and thereby follows the essential health benefit parameter rather than traditional Medicaid coverage parameter; and appeals procedures across the insurance affordability programs. In addition, the proposed rule would re-design Medicaid’s premium and cost-sharing provisions.

Comments will be considered by CMS if received by February 13, 2013.

Highlights of the NPRM: Medicaid

1. Eligibility Determinations and Fair Hearings

The NPRM –

• Provides that in the case of eligibility based on modified adjusted gross income (MAGI), state Medicaid agencies may delegate their eligibility determination and fair hearing duties to an Exchange or an “Exchange appeals entity,” provided that individuals who request fair hearings in connection with adverse actions involving their MAGI eligibility are given the choice of appealing to either Medicaid or the Exchange. The power to delegate exists only if the Exchange is a “governmental agency or public authority which maintains personnel standards on a merit basis.”^[1] The NPRM further provides that Medicaid agencies that elect to delegate must maintain “appropriate oversight” of Exchange eligibility determination and appeals processes; if authority is delegated, the Medicaid agency may establish a review process to review Exchange appeals but only with “respect to conclusions of law.”^[2] The NPRM also specifies the elements of the written agreements that must be in place under such a delegation.^[3]
• Modifies the Medicaid fair hearing regulations to clarify that agency “actions” that trigger fair hearing rights include actions taken for the purpose of imposing premiums, cost-sharing or enrollment fees.^[4] The definition also clarifies situations in which actions by nursing homes constitute an agency action because they involve level of care determinations.
• Specifies that the state Medicaid hearing system in the case of MAGI-related actions includes Exchanges in cases in which fair hearing authority is delegated and preserves the right of individuals to choose either the Medicaid or Exchange appeals system.^[5] The NPRM further specifies that the appeals system must be accessible to persons with limited English Proficiency, in accordance with 42 C.F.R. §435.905 which, as modified under the NPRM, would require the provision of information at no cost to the individual through oral interpretation, written translation, and taglines in non-English languages including the availability of language services.^[6]
• Modifies existing rules regarding provision of information to require agencies to notify individuals regarding any delegation of MAGI fair hearing powers to Exchanges and individuals’ right to request a fair hearing from either agency.^[7]
• Requires agencies to request a fair hearing by telephone, mail, in person, through other “commonly available electronic means” and at state option through the agency internet website.^[8]
• Requires a state agency to establish and maintain an “expedited review process” that can be requested by individuals or their providers, in cases in which the normal time frame for a hearing “could jeopardize the individual’s life or health or ability to attain, maintain, or regain maximum function.”
• Provides that individuals denied such a request orally must be given written notice of the denial within 2 days.^[9]
• Clarifies the obligation of agencies to reinstate services in the case of beneficiaries appealing denials or reductions if the request is made within 10 days of the date on which the beneficiary receives the notice of intended action.^[10] The NPRM also clarifies appeals timelines from local evidentiary hearings in states that use a local evidentiary process and makes additional changes to clarify the conduct and process of the evidentiary hearing.^[11]
• Clarifies the 45-day timeline that applies to the Medicaid fair hearing process in cases in which the same individual has been denied assistance by both Medicaid and the Exchange and has appealed to both the Medicaid agency and the Exchange.^[12]

2. Third Party Liability

The NPRM –

• Clarifies that pregnant women are exempt from cooperating in establishing paternity and obtaining medical support and payments in the case of children born out of wedlock.^[13]

3. Eligibility

The NPRM –

• Adds numerous definitions to the eligibility regulations. It defines a “combined eligibility notice” as one that informs an individual or multiple family members of a household when feasible of eligibility for each of the insurance affordability programs and enrollment in a qualified health plan through the Exchange, for which a determination of denial was made.
• Provides that the combined notice must be issued by the last agency to make the eligibility determination regardless of which agency actually received the application. The NPRM further defines coordinated content and electronic account for purposes of data transfer among agencies.^[14]
• Adds an extensive definition of “lawfully present”, which clarifies that the individual can be in one of numerous statuses including statuses that are not immigrant statuses but that establish lawful presence.^[15]
• Provides for a 4-month extended eligibility period for families who experience increased income from or hours of employment or increased child support collections and specifies the individuals and families to whom the rule applies (pregnant women, parents, and dependent children).^[16]
• Clarifies the automatic coverage rights of newborns from birth through the first birthday, if the mother received either Medicaid or CHIP coverage.
• Clarifies that eligibility remains regardless of “changes in circumstances” unless the child ceases to be a state resident or the family requests termination.^[17]
• Clarifies that the mother’s ID number is that of the child until replaced while also clarifying the agency’s obligation to issue a separate number “promptly” for children whose mothers’ coverage is limited to emergency care or who were covered through another state.^[19]
• Implements the ACA eligibility provision for former foster care children, defined as individuals who are under age 26, are not otherwise eligible under a mandatory group, and were Title IV-E foster care children until attaining age 18 or a higher age specified by the state or tribe.^[19]
• Clarifies the entitlement to Medicaid of pregnant women during periods of extended or continuous eligibility and specifies that in cases of extended eligibility, coverage may not end until the last day of the month in which the 60th post-partum day occurs. Also clarifies their entitlement to continuous eligibility and entitlement to coverage for pregnancy-related services, regardless of changes in household income, through the last day of the month in which the 60th post-partum day occurs.^[20] Further clarifies that this entitlement does not include periods of presumptive eligibility, when the Medicaid entitlement is limited to ambulatory care.^[21]
• Clarifies continuous eligibility for hospitalized children who were receiving inpatient services covered by Medicaid on the day that their eligibility otherwise would have ended because of age or household income.^[22]
• Clarifies a range of optional Medicaid eligibility categories in accordance with MAGI principles, including parents covered as low income persons under §1931.
• Clarifies optional eligibility for individuals who need treatment for breast or cervical cancer, who have been screened “under” CDC’s breast and cervical cancer screening and detection program (BCCEDP), and who do not otherwise have creditable coverage. Further clarifies that eligibility commences if there is a definitive determination of the need for treatment including “a precancerous condition or early stage cancer” or if “more than routine diagnostic services or monitoring services for a precancerous breast or cervical cancer are needed.”^[23]
• Clarifies optional eligibility for family planning services for individuals (male and female) who are not pregnant and meet the income eligibility standard under the state plan. Coverage under this optional group is limited to family planning and family planning-related services, as defined in the statute.^[24]
• Clarifies optional eligibility for individuals infected with tuberculosis in accordance with state plan eligibility standards. Coverage is limited to prescribed drugs, physician’s services, outpatient hospital and rural health clinic and FQHC services, laboratory and x-ray services, clinic services, case management, and services other than room and board designated to encourage completion of prescribed drug regiments by outpatients including direct observed therapy.^[25]
• Clarifies optional eligibility standards for parents and reasonable classifications of children under 21 as well as for independent foster care adolescents and individuals under 21 who are covered by state adoption assistance agreements.^[26]
• Clarifies eligibility for optional targeted low income children and medically needy persons.^[27]
• Adds a new regulation clarifying eligibility for non-citizens including verification procedures and specifies that verification is not necessary for newborns who are covered automatically.^[28]
• Adds an option to provide Medicaid to legal non-citizen pregnant women and children, with the entitlement to coverage not subject to the 5-year waiting period and other coverage restrictions.^[29]
• Clarifies an extensive range of documentary evidence that can be used as evidence of citizenship and identity.^[30] Among the sources that would be permitted for citizenship are medical and life insurance records, school records, federal or state census records, and attestations under penalty of perjury. Identity also can be established through attestations subject to penalty of perjury. Specifies that no verification of citizenship is needed if another federal or state agency has verified citizenship on or after July 1, 2006.^[31]
• Clarifies the financial methodologies to be used in the case of non-MAGI individuals as well as the financial responsibility of relatives and other individuals in the case of non-MAGI groups.^[32]
• Clarifies the MAGI income standard and its application to certain households. Clarifies the 5 percentage point deduction that is to be applied in determining MAGI.^[33]
• Further clarifies that for MAGI purposes, in the case of family planning coverage, an agency can treat as a separate household the individual who is applying for coverage.^[34]

4. Availability of Program Information, Application and Renewal Assistance, and Eligibility Determinations

The NPRM –

• Clarifies a state Medicaid agency’s obligation to provide information to persons who are limited English proficient through the provision of language services at no cost to the individual including oral, written, and tagline (i.e., marketing materials) services.^[35]
• Clarifies the situations under which an agency must reinstate a withdrawn application in situations in which the individual withdrew a Medicaid application and filed with the Exchange.^[36]
• Establishes “certified application assisters,” which is a new category of support services separate and apart from Exchange Navigators. Provides that states may provide for application assisters at their option. Specifies that these individuals are staff and volunteers of state-designated organizations to act as application assisters, authorized to provide assistance to applicants and beneficiaries during the application and renewal processes. Specifies certain federal certification criteria including authorization and registration by the agency to provide assistance, training in eligibility and benefits rules and regulations governing QHP enrollment, and training in confidentiality and conflicts of interest. Defines the term “assistance” to include providing information on insurance affordability programs and coverage options, helping individuals complete an application or renewal, gathering required documentation, submitting applications and renewals to the agency, interaction with the agency around applications and renewals, assisting individuals with agency information requests and managing their cases in between eligibility periods. Permits states to certify assisters for one or more of these services. Further provides that agencies that establish an application assisters program must provide a designated web portal for the provision of application assistance and a secure system to ensure that assisters carry out only the assistance duties for which they are certified. Further provides that the agency must establish procedures to ensure that applicants and beneficiaries are informed of the application assistance program and that they have a means of authorizing assisters to receive confidential information related to applications and renewals.^[37]
• Clarifies that the obligation to provide Medicaid promptly to individuals found eligible extends to individuals found eligible on the basis of MAGI.^[38]
• Provides that eligibility notices affecting eligibility or benefits and services be written in plain language, accessible to persons with limited English proficiency. Specifies the content of eligibility notices to include the basis and effective date of eligibility, reporting requirements and procedures for reporting changes that may affect eligibility, and information on benefits, premiums, enrollment fees and cost sharing.^[39]
• Provides that in the case of approvals, denials, or terminations of eligibility based on MAGI-related determinations, the notice must describe possible Medicaid eligibility categories other than those that are MAGI-based and sufficient information so that an individual can make an “informed choice” as to whether to request an eligibility determination under another category.
• Clarifies that a combined eligibility notice provided by an Exchange or other insurance affordability program under a written combined eligibility determination system satisfies this requirement, while specifying situations in which the Medicaid agency would need to supplement the combined notice with additional information.^[40]
• Requires Medicaid agencies to provide individuals with a choice to receive notices and information electronically and sets out the process that will be required for electronic communication.^[41]
• Requires Medicaid agencies to permit individuals to designate an authorized representative, either at the time of application or other times, and specifies procedures for designation as well as the duties of agencies and authorized representatives.^[42]
• Specifies a state Medicaid agency option to provide for continuous eligibility for children in the case of children under age 19 (or a younger age selected by the state) who are Medicaid eligible on either a mandatory or optional basis. Specifies that the continuous eligibility period cannot exceed 12 months as well as the limited grounds on which continuous eligibility can be terminated (the child dies, exceeds the maximum age or ceases to be a resident of the state, the family requests voluntary termination, or the child’s continuous eligibility was erroneously granted at the most recent determination or renewal of eligibility because of agency error or fraud, abuse or perjury by the child’s representative.^[43]
• Requires Medicaid agencies to establish a case-by-case exception from its normal information request procedures to permit individuals to self-attest “for all eligibility criteria when documentation does not exist at the time of application or is not reasonably available, such as for individuals who are homeless or have experienced domestic violence or a natural disaster.”^[44]
• Requires agencies to verify citizenship and immigration status through the electronic service if available. If the service is not available, requires the agency to use alternative verification methods, as spelled out in the rule.^[45] Provides for a 90-day “reasonable opportunity period” for individuals for whom the agency is unable to promptly verify citizenship or legal status and requires the agency to give notice of such opportunity. During the reasonable opportunity period the agency must assist the individual in obtaining a social security number, and attempt to resolve inconsistencies between the information the individual has and data from electronic sources. Allows the agency to extend the reasonable opportunity period beyond 90 days if the individual “is making a good faith effort to resolve any inconsistences or obtain any necessary information in accordance with the rules or if the agency needs more time to complete the verification process.” Gives states the option of beginning to furnish benefits to otherwise eligible persons during the reasonable opportunity period.” Specifies that the agency must complete a termination action within 20 days if eligibility cannot be verified during the reasonable opportunity period.^[46]

5. Federal Financial Participation (FFP)

The NPRM –

• Clarifies the availability of FFP for presumptive eligibility, regardless of whether the presumptively eligible person files a full eligibility application.^[47]
• Clarifies the availability of FFP during the 90 day “reasonable opportunity period” to complete citizenship/legal status verification.^[48]
• During periods in which SSI or optional state supplement beneficiaries are overcoming certain conditions of eligibility.^[49]
• For payment of premium assistance for qualified health plans sold in the individual market: Provides that this allowance is subject to rules pertaining to Medicaid as a secondary payer, Medicaid coverage for services under the state plan that are not covered by the insurer, limitations on cost-sharing to ensure that cost-sharing does not exceed Medicaid allowable amounts, and to a determination that furnishing premium assistance for individual coverage plus supplemental Medicaid coverage is “comparable to” the cost of providing direct coverage under the State plan.^[50]
• Clarifies that a state Medicaid agency cannot condition Medicaid eligibility on an individual’s willingness to enroll in an individual plan.^[51]

6. Presumptive Eligibility

The NPRM –

• Allows Medicaid agencies to provide coverage for children during a period of presumptive eligibility determined by a qualified entity on the basis of preliminary information showing that the individual has gross income (or a reasonable estimate of household income) that falls within the state’s Medicaid eligibility standard. Allows Medicaid agencies to require as a condition of presumptive eligibility that the individual is attested to be a citizen or legal resident and a resident of the state. Bars other types of verification of presumptive eligibility conditions.^[52]
• Extends the presumptive eligibility option to other groups including caretaker relatives and parents, individuals ages 19 and older and under age 65, former foster care children, pregnant women, persons eligible for family planning benefits, and persons eligible for coverage for the treatment of breast or cervical cancer.^[53]
• Specifies that agencies must provide presumptive eligibility to individuals determined eligible by a qualified hospital, while allowing the agency to limit the presumptive eligibility category to children, pregnant women, parents and caretaker relatives, and other adults. Enables states to establish standards for qualified hospitals related to their performance in making accurate presumptive eligibility determinations and requires states to terminate agreements with hospitals that are unable to make determinations in accordance with required procedures.^[54]

7. Coordination of Eligibility and Enrollment Across Insurance Affordability Programs

The NPRM –

• Implements the ACA by establishing new coordination of eligibility and enrollment responsibilities with other “insurance affordability programs”^[55] which encompass Medicaid, CHIP, advance premium tax credits and cost sharing reductions available through Exchanges, the Basic Health Program (if applicable) and any other programs offered by the state to make insurance more affordable.
• Provides that state agencies must certify their Medicaid eligibility criteria to the Exchange.^[56]
• Requires state Medicaid agencies to enter into necessary agreements with the Exchange, the Exchange appeals entity, and agencies administering other insurance affordability programs, that contain a “clear delineation of responsibilities of each program to “ (i) minimize burdens on individuals seeking to obtain or renew eligibility or appeal a determination of eligibility for an affordability program or QHP enrollment; (ii) ensure compliance; (iii) ensure prompt eligibility determinations based on date of application to any insurance affordability program; and (iv) provide for a combined eligibility notice to individuals as well as multiple members of the same household to the maximum extent feasible.^[57]
• Requires state agencies to provide Medicaid to any individual determined eligible by the Exchange or the Exchange appeals entity if the Medicaid agency has entered into an agreement to allow Exchanges and Exchange appeals entity to make eligibility determinations.^[58]
• Requires state Medicaid agencies to
  • provide for the electronic transfer of individual information from Exchanges or Exchange appeals entities in cases in which the state Medicaid agency has agreed to assessments only by the Exchange or the appeals entity;
  • utilize the electronic information and bars them from requesting information or documentation already provided electronically;
  • “promptly” determine Medicaid eligibility without requiring submission of another application;
  • effective January 1, 2015, provide a combined eligibility notice; and
  • to take additional steps in cases in which an agency determines ineligible an individual whose application for other programs has been transferred to the Medicaid agency, as if the individual had applied directly to the Medicaid agency.^[59]
• Where an individual is found ineligible or whose renewal is denied (either by the agency or as a result of a Medicaid fair hearing), requires that agencies promptly determine the individual’s potential eligibility for other insurance affordability program, transfer the files electronically, and prior to January 1 2015, provide a coordinated content notice (coordinated eligibility notices begin after January 1).^[60]
• In the case of individuals undergoing Medicaid determinations on a basis other than MAGI (e.g., on the basis of disability or the need for institutional care), provides that agencies must take additional actions to assure coordination with other insurance affordability programs. In the case of individuals whose incomes exceed the Medicaid MAGI cutoff, provides that agencies must determine eligibility for other insurance affordability programs and notify the individual that the Medicaid application is still pending for review of other eligibility bases for Medicaid. Further provides that agencies complete the Medicaid eligibility review under all possible bases, notify the applicant of the results of the review, and notify the other program.^[61]
• Requires Medicaid agencies to coordinate the exchange of information across the fair hearing and Exchange appeals processes.^[62]

8. Alignment With Exchange Initial Open Enrollment Period

The NPRM –

• Requires that during the initial October – December open enrollment period, state Medicaid agencies accept the single streamlined application as well as electronic accounts transferred from other programs.^[63]
• Requires agencies to carry out coordinated enrollment activities in the case of persons for whom the MAGI methodology applies.^[64]
• Requires agencies to either accept the determination of another program or determine eligibility promptly in cases in which the agreement is to assess and refer, as well as to transfer electronically to other programs files that involve individuals not determined eligible.^[65]

9. Benefits and Coverage

The NPRM –

• Revises the definition of preventive services in order to broaden the classes of health care providers (beyond physicians and other licensed clinical providers) who can furnish preventive services (e.g., certified asthma counselors).^[66]
• Revises the 2006 benchmark benefit plan program by renaming it the Alternative Benefit Plan and by clarifying the categories of individuals who are exempt from the state option to offer such Plans because they are Title IV-E foster care or adoption children or medically frail persons or persons with special needs.^[67]
• Clarifies the parameters of the “benchmark health benefits coverage” that is to be furnished through alternative benefit plans, including the ACA amendments that modified benchmark benefits to conform to the law’s essential health benefits requirements.^[68]
• Clarifies that EPSDT and family planning benefits are included in alternative benefit plans and further, that mental health parity considerations apply to alternative benefit plans.^[69]
• Clarifies that the full range of essential health benefits applies to alternative benefit plans and notes (in the Preamble) that the benefit package includes the full range of preventive benefits with no cost sharing delineated in federal guidelines.^[70]
• Clarifies that states can supplement coverage offered through alternative benefit plans but not in the case of newly eligible low income adults covered under 42 U.S.C. §1396a(a)(10)(A)(i)(VIII).^[71] Further clarifies that states that supplement their alternative benefit plans must describe the populations covered and the payment methodologies used. In addition, clarifies that additional benefits covered must fall within the classes of essential health benefits or within the definition of medical assistance under the Medicaid statute.^[72]

10. Premiums and Cost sharing

The NPRM –

• Revises cost sharing rules for services other than drugs and emergency departments to increase state cost sharing options for beneficiaries, with higher costs permitted for outpatient services as well as inpatient stays.^[73]
• Permits states to allow providers to deny coverage for failure to pay cost-sharing in the case of beneficiaries who are not exempt from cost-sharing and whose incomes exceed 100 percent FPL.^[74]
• Permits states to target certain individuals with family incomes above 100% FPL for higher cost sharing.^[75]
• Permits hospital EDs to refuse service in the case of non-emergency care furnished in the emergency department if certain conditions are met. Permits cost sharing for non-emergency care to apply to all individuals, including individuals otherwise exempt from cost-sharing (low-income children, Title IV-E foster care children, disabled children, pregnant women, individuals in institutions, Indians, individuals in hospice care and individuals with breast and cervical cancer)^[76] and allows cost sharing to rise in such cases to $8 in the case of beneficiaries with incomes below 150% FPL (double the normal allowed $4 rate for outpatient care for poor beneficiaries) and removes all charge limits in the case of beneficiaries with incomes over 150% FPL. Permissible cost sharing will rise by the CPI-U annually, beginning October 2015. Provides that states that opt to permit hospitals to refuse treatment for non-emergency care unless payment is made must assure that hospitals doing so
  • conduct an appropriate screening in accordance with the EMTALA rules;
  • before imposing cost sharing requirement, provide the individual with the name and location of an available and accessible alternative non-emergency services provider who actually can provide services to the individual in a timely fashion and at the lower allowed cost-sharing, or at no cost sharing if the individual is otherwise exempt from cost sharing;
  • coordinate scheduling and provide a referral for treatment.
• Revises Medicaid drug cost sharing rules to permit higher cost-sharing for “non-preferred” drugs as identified by the agency on a publicly available schedule. In the case of agency-identified non-preferred drugs, allows $8 cost sharing in the case of persons with incomes <150% FPL and 20% of the cost paid by the agency in the case of persons with incomes over 150% FPL. Provides that CMS will presume that all drugs are preferred drugs unless non-preferred drugs are identified by the agency.^[77] Provides that in cases in which a physician identifies a non-preferred drug within a therapeutic class as needed because it is more effective, the agency must limit cost-sharing to the preferred drug amount.^[78]
• Provides that in the case of cost-sharing, agencies must reduce payments to providers (other than Indian providers for services received by Indians) by the amount of the cost sharing charged.^[79]
• Provides that aggregate cost sharing cannot exceed 5% of family income on either a quarterly or monthly basis.^[80]
• Revises Medicaid premium requirements to clarify the permissibility of premiums in the case of non-exempt individuals with family incomes that exceed 150% FPL.^[81]

Key Issues

• Will state Medicaid agencies establish coordination and alignment agreements with Exchanges to transfer cases involving eligibility determinations?
• Will state Medicaid agencies be ready to do electronic exchange as of October 1, 2013?
• Will states opt for higher cost sharing for non-preferred drugs and hospital non-emergency care, which essentially includes all treatments other than EMTALA stabilization? How will hospitals develop triage arrangements with community health providers for non-emergency care, and what will happen in communities that are designated as medically underserved and that lack alternative treatment sources for non-emergency care?
• How will hospitals and other providers deal with non-payment by state agencies in states that opt to impose higher cost-sharing for non-emergency care and that therefore refuse to pay providers for amounts that fall within patients’ cost sharing obligations?
• How will pharmacies respond to Medicaid participation in states that impose higher cost sharing for non-preferred drugs and withhold payment of the cost-sharing amount?
• How will states implement the physician prescribed exception requirement for non-preferred drugs that are more effective for individual patients than preferred drugs?

Highlights from the NPRM: CHIP

The NPRM –

• Specifies the same range of alignment and coordination rules on state CHIP agencies in their relationships with Exchanges and Medicaid programs, including the appeals process.^[82]
• Creates the same exception for non-citizen pregnant women and children allowed in Medicaid.^[83]
• Allows the same continuous eligibility for children allowed in Medicaid.^[84]
• Specifies that states must coordinate their CHIP waiting lists with their obligations to identify other insurance affordability programs for which children may be eligible.^[85]
• Establishes parallel standards for presumptively eligible children and newborns who are deemed eligible.^[86]
• Establishes disenrollment protections for CHIP beneficiaries that give enrollees reasonable notice and the opportunity to pay past due premiums, copayments, coinsurance, deductibles and similar fees prior to disenrollment that give families a chance to show that family income has declined prior to disenrollment for non-payment.^[87]
• Establishes similar notice requirements to those provided under Medicaid.^[88]
• Bars states from substituting CHIP for group health plan coverage.^[89]
• Bars uninsurance waiting periods of more than 90 days for children who are otherwise eligible for CHIP and who are disenrolled from a group health plan; further provides that if a state elects to impose a waiting period prior to the loss of group health coverage, the waiting period cannot be imposed in the case of families that paid more than 5% of family incomes for children’s coverage under the group health plan or whose group health plan costs for their child exceeded 9.5% of family income, or in cases in which the employer has ceased to offer group coverage.^[90]
• Requires that premium assistance programs follow the same waiting periods as direct health coverage under CHIP and recognize the same exemptions.^[91]

Key Issues

• Will CHIP agencies be able to coordinate and align eligibility and electronically exchange information by the effective date under the proposed rule?

Highlights from the NPRM: Exchanges

The NPRM –

• Specifies that the Exchange must have a consumer assistance function that includes (and therefore is not limited to) the Navigator program.^[92]
• Requires Exchanges to offer certified application counselors who comply with the required certification process, are registered with the Exchange, are trained regarding QHP options, insurance affordability programs, and eligibility and benefits rules and regulations applicable to all programs, and are trained with respect to disclosure of conflicts, privacy and security standards, and provide information in a manner that assures reasonable accommodation under the Americans with Disabilities Act.^[93]
• Requires Exchanges to recognize authorized representatives.^[94]
• Clarifies that applications for advance premium tax credits are not considered withdrawn if an individual appeals the determination and the appeals entity finds that the individual is potentially eligible for Medicaid or CHIP.^[95]
• Bars Exchanges from denying coverage for temporary absences from the service area.^[96]
• Requires Exchanges to have a certification program for employers that are determined to have a liability for shared responsibility payments and that must be notified when one or more employees enrolls in a QHP to which premium assistance or cost-sharing can be paid.^[97]
• Requires Exchanges to have a system under which applicants can attest to the fact that their circumstances have not changed over the course of a prior enrollment period during which they either did not enroll in a QHP or were determined not to be eligible for enrollment.^[98]
• Expands the verification process Exchanges will be expected to use to encompass verification of social security numbers, verifications related to enrollment in a catastrophic plan (i.e., age under 30); verification of certificates of exemption; verification related to household income and MAGI-based income; and verification of enrollment in an employer-sponsored plan.^[99]
• Expands on the procedures to be used for eligibility redetermination during a benefit year, including data matching requirements and timelines for making adjustments in enrollment or in the level of premium tax payments and cost-sharing reductions permitted.^[100]
• Establishes expanded standards for annual eligibility redeterminations including maintaining processes for reporting and verifying changes.^[101]
• Provides for transmission of information to HHS in cases in which individuals receive advance premium tax credits and cost sharing reductions because their employers are determined either not to provide minimum essential coverage or to provide coverage that is unaffordable.^[102]
• Requires Exchanges to enter into alignment and coordination agreements with Medicaid and CHIP agencies, including exchange of information, combined eligibility notices, coordination of appeals, and other matters addressed in the Medicaid NPRM.^[103]
• Clarifies that special eligibility standards for Indians apply to individuals with family incomes not exceeding 300% FPL.^[104]
• Revises special enrollment period rules to clarify effective date and to allow QHP issuers to effectuate an earlier effective date; further revises the rule to require qualified individuals and dependents to enroll in or change QHPs if the individual loses minimum essential coverage, the QHP is decertified, the individual gains a dependent or becomes a dependent, the qualified individual becomes a citizen, the QHP enrollment is shown to have been erroneous, or the QHP is shown to have substantially violated a material provision of the contract; and further provides special enrollment periods for individuals found to be newly eligible or ineligible for premium or cost sharing assistance.^[105]

Exchange Appeals Procedures for Individuals and Employers^[106]

• Establishes an appeals system for eligibility determinations for exchange participation and insurance affordability programs specifying as follows:
  • The right to appeal eligibility determinations, including initial determinations of eligibility, redeterminations of eligibility, eligibility for premium assistance and cost sharing reductions, and eligibility for exemptions;
  • The ability to use an HHS appeals process if the Exchange does not establish its own process; and
  • The right to judicial review of an eligibility determination.^[107]
• Requires Exchanges to enter into appeals coordination agreements with other insurance affordability programs.
• Sets forth appeal rights notification requirements both at the point of application and when an eligibility determination is made and specifies the general content for such notices, including:
  • an explanation of appeal rights;
  • a description of the process for requesting an appeal, information regarding the right to represent oneself or seek counsel or an authorized representative, an explanation of the circumstances under which eligibility may be maintained or reinstated pending an appeal decision; and
  • an explanation of the effects that an appeals decision for one household member may have for other household members.
• Specifies procedures for handling appeals requests, the right to a 90-day appeal timeline following notice, and procedures for transferring an appeal to the HHS appeals entity.
• Provides that “after a valid appeal request or notice”, the Exchange, Medicaid, or CHIP agency, as applicable, must continue to consider the appellant eligible while the appeal is pending and specifies that the Exchange must “continue the appellant’s eligibility for enrollment in a QHP, advance payments of the premium tax credit, and cost-sharing reductions, as applicable, in accordance with the level of eligibility immediately before the redetermination being appealed.”
• Specifies procedures for dismissal of appeals that allow for dismissal if the appeal is withdrawn, the individual fails to appear at a scheduled hearing, fails to submit a valid appeal request, or dies.
• Specifies an informal resolution process through the HHS appeals process as well as procedures for the appeals process and expedited appeals.
• Specifies the standards for appeals decisions, providing that they must be based exclusively on the evidence and information presented during the appeal and that they must clearly state the decision in plain language, along with the facts, legal basis, and effective date.
• Provides that individuals may appeal to the HHS appeals entity if an adverse determination is handed down by a state-based appeals process.
• Provides a 90-day time period from the appeal request to written decision and provides standards for implementing appeals decisions as well as for redetermining the situation of household members whose status may be affected by the appeal decision.
• Sets standards for the appeals record.
• Establishes parallel standards for the employer appeals process.