ACA Round-Up: Mental Health And Substance Use Parity, Premium Tax Credits, And A New Marketplace Reinsurance Proposal

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) requires that the financial requirements and treatment limitations imposed on mental health and substance use disorder (MH/SUD) benefits must not be more restrictive than the predominant financial requirements and treatment limitations imposed on substantially all medical and surgical benefits. The MHPAEA requires plans and insurers to disclose their criteria for making medical necessity determinations with respect to MH/SUD to any current or potential participant, beneficiary, or contracting provider, and to make available the reasons for denial of payment with respect to MH/SUD benefits to any participant or beneficiary.

To evaluate MH/SUD parity, disclosures are also needed respecting medical/surgical services, particularly with respect to non-quantitative treatment limitations (NQTLs) such as medical necessity determinations or step therapy requirements. Thus, previous regulations and guidances have recognized broad NQTL disclosure requirements under the MHPAEA, the Employee Retirement Income Security Act, and the Affordable Care Act. In October of 2016, the Departments that administer these acts (Labor, Treasury, and Health and Human Services) requested comments on model forms that could be used by participants and beneficiaries to seek information respecting NQTLs, and by state regulators overseeing compliance with MHPAEA requirements. The Twentieth Century Cures Act further required the Departments to solicit public comments on how to improve the MHPAEA disclosure request process and to make the comments it received publicly available by December 13, 2017.

On June 16, 2017, Labor, Treasury, and HHS released a frequently asked question (FAQ) document requesting public comments on a proposed form that participants, enrollees, and their authorized representatives (including providers) could use to request information from their health plan or insurer regarding NQTLs, or to obtain documentation after an adverse determination regarding MH/SUD benefits. A paperwork reduction act notice was also released.

The form would request that the plan or insurer within 30 days:

1. Provide the specific plan language regarding the limitation and identify all of the medical/surgical and mental health and substance use disorder benefits to which it applies in the relevant benefit classification;
2. Identify the factors used in the development of the limitation and the evidentiary standards used to evaluate the factors;
3. Identify the methods and analysis used in the development of the limitation; and
4. Provide any evidence to establish that the limitation is applied no more stringently, as written and in operation, to mental health and substance use disorder benefits than to medical and surgical benefits.

The FAQ also clarifies that eating disorders are mental health conditions and treatment for an eating disorder is a mental health benefit within the meaning of the MHPAEA. Comments on the disclosure form and respecting eating disorder coverage are requested by September 13, 2017.

House Tweaks To AHCA/ACA Tax Credits Include Veterans’ Eligibility, Purchase Of COBRA Coverage, And Verification Of Citizenship Or Lawful Alien Status

Two bills intended to tweak the American Health Care Act and one to tweak the current Affordable Care Act and the AHCA have passed the House. On June 15, the House passed by voice vote HR 2372, which would clarify that veterans who are eligible for but not enrolled in Veterans Affairs health care programs would be eligible for AHCA tax credits, as they are now for ACA tax credits. It also passed, 267-144, HR 2579, which would allow AHCA tax credits to be used to purchase unsubsidized COBRA continuation coverage. This was the case with the original AHCA, but the option was dropped in the amendment process.

A third bill, HR 2581, was passed on June 13 on a largely party-line 238 to 184 vote. It would require the verification of citizenship or lawful alien status by the Social Security Administration or Department of Homeland Security before an individual could be determined eligible for advance premium tax credits, “using a process that includes the appropriate use of information related to citizenship or immigration status, such as social security account numbers (but not individual taxpayer identification numbers).” The provision would effectively require individuals to have social security numbers before they could get premium tax credits under the ACA for now, and then under the AHCA once it becomes law. The bill would not count the time taken for verification as a gap in coverage for continuous coverage requirements and would allow individuals to defer their retroactive premium payment obligation for a month if delays in verification would have otherwise required them to pay two or more months in retroactive premium payments.

All three tweaks could be incorporated into a Senate version of the AHCA, but otherwise could be filibustered by Democrats in the Senate.

Democratic Senators Propose To Shore Up Individual Market With New Reinsurance Program

As Congress debates a rewrite of the Affordable Care Act, the stability of the individual health insurance markets in several states is a serious concern. Many states are now down to one insurer in the marketplace while a handful of counties do not at this point have any individual market insurer available for 2018 (although the situation is very fluid and some insurers are expanding their territory while others are leaving).

On June 14, five Democratic Senators (Carper, Kaine, Shaheen, Nelson, and Hassan) introduced legislation that, if adopted, would go a long way toward providing stability. The legislation would provide reinsurance for 80 percent of high-cost claims—exceeding $50,000 for 2018, 2019, and 2020 (up to $450,000) and exceeding $100,000 thereafter (up to $400,000) for qualified health plans. Reinsurance would not be available for grandfathered or transitional plans. Payments would be conditional upon insurers providing information to support their claims, but the information would be subject to HIPAA privacy protections. Threshold and maximum amounts could be adjusted for inflation and HHS would have discretion to increase these amounts if doing so would not increase or decrease the total amount paid.

Reinsurance is a consensus approach to the problem of marketplace instability. As the bill’s findings recite, the transitional reinsurance program in effect during 2014, 2015, and 2016 helped stabilize the marketplaces and reduced premiums by as much as 10 percent. The Medicare Part D reinsurance program is still in place a decade after that program began and has contributed significantly to the success of that program. Alaska’s reinsurance program has also dramatically reduced premiums. The American Health Care Act contains $123 billion over ten years that could be used for reinsurance.

The bill would also provide $500 million a year for grants for 2018, 2019, and 2020 to states and nonprofit entities for public education, outreach, and enrollment activities to increase awareness of and encourage enrollment in qualified health plans. The funds could also be used to help people move from transitional plans to qualified health plan coverage and enroll in Medicare and Medicaid, and to raise awareness of the availability of premium tax credits and cost-sharing reductions. Priority would be given to awarding grants in states at risk of having areas where no qualified health plans are available.

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