Breaking Down The Final 2018 Letter To Issuers

Editor’s note: The final 2018 Letter To Issuers In The Federally Facilitated Maketplaces, discussed below, was issued in conjunction with the final 2018 Benefit and Payment Parameters rule, discussed here and here.

On December 16, 2016, the Centers for Medicare and Medicaid Services (CMS) at the Department of Health and Human Services (HHS) released its final 2018 Letter to Issuers in the Federally Facilitated Marketplaces (FFM). CMS releases a letter each year to insurers that offer coverage through the FFM or through state-based marketplaces that use the Healthcare.gov platform (SBM-FP), laying out the ground rules for qualified health plan (QHP) and standalone dental plan (SADP) coverage for the following benefit year. The letter finalizes a draft letter published for comment in November. It is based on the 2018 benefit and payment parameters rule (the “payment notice”), also released on December 16.

The letter has in earlier years been released in the early spring along with the payment notice. This year the letter and the payment rule are being released early for several reasons. First, releasing the rule and letter early will give marketplace insurers more time to formulate their forms and rates. Second, there are few changes from 2017 so giving time for extended comment was less necessary. And finally, the change of administration in January could have led to a prolonged period of uncertainty just as the insurers were supposed to be finalizing plans for 2018. An early release avoids this problem.

The FFM has been in existence for three years now and has settled into a routine. The pace of development and change of regulations has slowed considerably. The 2018 letter therefore resembles very closely the 2017 letter, but picks up some changes from the 2018 payment notice. Areas where there are perceptible changes include:

• A requirement that QHP insurers offer both gold and silver plans in all service area;
• A requirement that QHPs count out-of-network cost sharing against in-network out-of-pocket limits under some circumstances;
• Additional formulary outlier review standards;
• New standardized plans;
• Standardized plan display requirements for web-brokers;
• A definition of integrated delivery systems for application of network breadth disclosure standards;
• Modified language access requirements, including deemed compliance with certain standards for insurers that comply with the 1557 nondiscrimination rule requirements;
• The addition of different drug list IDs to the criteria for determining whether QHPs are meaningfully different;
• A clarification as to when web-broker websites are misleading;
• A requirement that QHP insurers offer coverage continuously throughout the year;
• New SHOP enrollment period requirements;
• The new summary of benefits and coverage; and
• New requirements for SBM-FPs.

Each of these new or changed requirements is explored further below. The final letter is very similar to the draft letter, but in a few instances programs that HHS proposed in the draft letter to introduce for 2018 are in fact not introduced. This post notes where this occurred.

Application of the Letter

The letter applies to insurers that offer qualified health plans (QHPs) and standalone dental plans (SADPs) through the FFM, SBM-FPs and the federally facilitated SHOP exchange. It applies (although with some differences) in all states that use the Healthcare.gov platform, including states in which the federal government enforces the Affordable Care Act directly; states in which the state enforces general ACA market reform provisions but the federal government performs all marketplace functions; plan-management FFM states in which the state performs plan management functions and makes plan certification recommendations to CMS; and states in which the state-based marketplace uses the FFM platform for eligibility and enrollment functions (SBM-FPs).

In states other than direct enforcement states, CMS relies on state review of policy forms and rate filings for determining compliance with market-wide standards. States with effective rate review programs also bear primary responsibility for reviewing rates, while states with plan management authority must make timely recommendations as to QHP certification. In direct enforcement states (Texas, Oklahoma, Missouri, and Wyoming), insurers must submit their rates and forms to CMS for review.

CMS reviews all applications for QHP certification for the FFM. States exercising plan management responsibility must also review QHP applications. CMS does not review QHP applications for plans offered only off-marketplace except for standalone dental plans (SADPs). States performing QHP certification reviews may exercise reasonable flexibility in their application of some of CMS’ QHP certification guidelines as long as their application of each standard is consistent with CMS regulations and guidance. Multistate plan insurers must also be approved by the Office of Personnel Management. The FFM only offers QHPs and SADPs and will not display ancillary insurance products or plans that are not QHPs.

Qualified Health Plan Certification and Rate Filing Calendar

In conjunction with the letter, CMS also released a key dates calendar for 2017 and a guidance on the timing of submission and posting of rate filings justifications for the 2017 filing year for single risk pool (individual or small group market non-grandfathered) coverage. QHP insurers must submit QHP applications and rate filings for all plans for which they intend to request 2018 certification between April 5 and May 3, 2017. Applications will not be accepted after this date, although insurers can petition to change service areas until August 9, 2017 and make necessary updates to their applications until August 21, 2017; after this, only limited data corrections requested by CMS or a state will be accepted during a data correction window from September 12 to October 28, 2017. Insurers that fail to meet submission deadlines or send inaccurate information may have their applications denied.

CMS will send first correction notices to insurers between June 12 and 13, 2017 and second notices between August 7 and 8, 2017. Insurers will be able to view plan data in the plan preview environment in order to identify and correct data submission errors and to ensure that they plan display reflects state-approved filings.

Insurers will send QHP insurers a QHP certification agreement and privacy and security agreement for senior officer acknowledgement between September 12 and 15, 2017 together with a list of approved plans. Insurers must confirm to CMS by September 15, 2017 the accuracy of this list. This will be the last opportunity for insurers to withdraw plans. CMS will send a countersigned agreement and certification notice between September 21 and 22, 2017. Unlike in earlier years, a validation notice will not be required.

Insurers seeking to offer QHPs or SADPs in the FFM must submit their application through the federal Health Insurance Oversight System (HIOS). In plan management states, QHP applications are submitted through the National Association of Insurance Commissioners (NAIC) System for Electronic Rate and Form Filing (SERFF) system. The plan management states will transfer the data submitted by insurers to CMS and confirm that the insurers and plans are licensed and in good standing and in compliance with state and federal requirements.

Insurers seeking to offer QHPs in states without an effective rate review program must submit a Unified Rate Review Template (URRT) to the FFM by May 3, 2017. In states with effective rate review programs, insurers must submit proposed rate filings for non-grandfathered individual and small group coverage (QHP and non-QHP) to the state by a date set by the state, but no later than June 17, 2017. (The draft letter and timeline had set this date at June 1.) Insurers offering QHPs must in any event submit their QHP rate tables with their QHP application materials by May 3, 2017, even if the URRT is due later.

Insures must complete all changes to proposed rate filings in the HIOS unified rate review modulate by July 25, 2017. CMS will post proposed rate filings by August 1, 2017 (one month later than the June 30 date in the draft letter and timeline), and states must post proposed rate filings subject to their review no later than this date. Insurers must finalize rate filings that contain QHPs by August 21, 2017 and all rate filings involving only non-QHPs by October 6, 2017. Final rate information for single risk pool coverage will be posted by CMS and the states on November 1, 2017.

Insurers that seek recertification of 2017 plans for 2018 must submit a crosswalk of their 2017 and 2018 QHPs and SADPs to help the FFM passively reenroll 2017 QHP enrollees into similar plans if they do not return to the marketplace to actively reenroll for 2018. Although SADPs are not subject to guaranteed renewability requirements, CMS intends to auto-re-enroll SADP enrollees for plan years beginning with 2018. Where permitted by state law, CMS intends again for 2018 to select an alternate plan with a different insurer for QHP enrollees if their 2017 insurer leaves the market and the enrollee does not return to actively enroll or terminate coverage.

Standardized Plans

The FFM will again in 2018 allow QHP insurers to offer standardized or “simple option” plans. These plans have standardized in-network deductibles, cost-sharing limits, and copayments and coinsurance amounts for a key set of essential health benefits, as well as four tiers of drug benefits. SBM-FPs are not required to differentially display standardized plans, and must inform CMS by March 1, 2017 whether or not they intend to do so.

The 2018 payment rule offers three sets of standardized options, at least one of which complies with each state’s cost-sharing requirements. The payment rule lists which states go with which options. Each set of standardized options includes a plan at the bronze, silver, and gold levels, as well as options for each silver cost-sharing reduction level. A standardized bronze option is also offered that is health savings account (HSA) compatible.

Insurers can choose to offer one or more of the standardized plans, although they must offer all standardized silver plan cost-sharing variations if they offer a silver plan. Insurers may offer more than one standardized plan at a level of coverage if the plans are meaningfully different. Insurers might, for example, offer additional standardized plans with extra benefits or with varying networks or other features.

QHP Certification Requirements

To be qualified for certification, QHPs must be licensed and in good standing — that is, without outstanding state sanctions—in each state in which it offers coverage. QHPs must have a service area that covers at least a county, or group of counties, unless the FFM concludes that a smaller service area is necessary, nondiscriminatory, and in the best interest of marketplace enrollees. Service areas must be established without regard to racial, ethnic, language, or health-status related considerations. Under the 2018 payment notice, QHPs must offer both silver and gold coverage throughout the entire service area in which they offer coverage.

Network Adequacy

In 2018, CMS will, for the second year, evaluate applying numerical standards to determine whether QHPs reach a general network adequacy standard of “reasonable access” to contracted providers. It will apply time and distance standards focusing on hospital systems, dental (if applicable), endocrinology, infectious diseases, oncology medical/surgical, oncology radiation/radiology, mental health, primary care, rheumatology, hospitals, and outpatient dialysis.

The letter includes a table of maximum time and distance standards. For example, in a large urban area at least 90 percent of enrollees in a plan should be able to reach a hospital in 10 miles or twenty minutes; in a rural area in 60 miles or 75 minutes. Insurers that cannot meet these standards because of local circumstances may submit a justification explaining how they nonetheless meet the reasonable access standard.

The letter further addresses transitions of network providers. Insurers must give at least 30 days’ notice of termination of providers (for cause or without cause) to patients who receive regular or primary care from the provider. Where 30 days’ notice is not possible, notice should be given as soon as practicable. Insurers should work with providers to obtain lists of their patients or use claims data to identify patients of particular providers. Insurers should notify enrollees of other comparable network providers accessible to the patient.

A patient must be allowed to continue treatment by providers terminated without cause for up to 90 days or until the course of treatment is complete if 1) the patient is in active treatment for life-threatening or serious acute conditions, or in her second or third trimester of pregnancy or postpartum, and 2) a treating physician attests that discontinuance of treatment by the provider would worsen the condition or interfere with the anticipated outcome. Insurers are only required to pay network rates for terminated providers under these circumstances, leaving open the possibility that providers will balance bill.

CMS is implementing for the first time for 2018 a consumer protection to address balance billing, albeit a very weak protection. Under this requirement, QHP insurers must notify enrollees at least 48 hours before the provision of an essential health benefit (EHB) service at an in-network facility (or, if longer, at the time the insurer would typically respond to a prior authorization request) that the enrollee might receive a service from an out-of-network ancillary provider who might balance bill (unless balance billing is prohibited by state law) and whose charges are not subject to the in-network cost sharing limit. If the insurer fails to give timely notice, and the enrollee is charged for out-of-network cost sharing by the ancillary provider, the insurer must count the cost-sharing against the enrollee’s annual out-of-pocket limit.

This provision does not apply to balance billing as such—billing for the difference between the provider’s charge and the amount the insurer is willing to pay. The insurer is not responsible for balance bills (although they may not be legally enforceable against the consumer). Consumers in some states will receive greater protection from state law.

The letter describes CMS’s development of a network breadth label to guide shoppers on healthcare.gov, which is being beta tested in four states for 2017. This measure will focus on adult primary care, pediatric primary care, and hospitals, with separate classifications as to each for 2018. “Narrow,” “standard,” or “broad” classifications will be calculated by comparing the total number of providers available in each of the classifications in a plan’s network in a county to the total number of that classification of providers available in all QHPs in a county. This number is called the Provider Participation Rate, or PPR. All networks within a standard deviation of the median PPR calculated nationally will be labeled as standard. Networks with a PPR more than a standard deviation above the national mean will be labeled “broad,” and those with a PPR more than a standard deviation below the national mean will be labeled “narrow.”

The network information display for 2018 will also disclose to consumers whether a plan is part of an integrated delivery system; a plan will be considered part of an integrated delivery system if it provides a majority of covered professional services through physicians employed by the issuer, or through a single contracted medical group. The letter discusses standards for including essential community providers (ECPs), as well as alternative criteria, that apply to integrated delivery systems.

Finally, CMS had proposed in the draft letter that it would implement a program for 2018 for assessing consumer access to higher-cost specialist providers. CMS recognizes that limiting access to such providers may discourage enrollment of individuals with significant health needs. In the final letter, CMS states that it is continuing to explore this issue. Apparently it will not be implementing a new program for 2018.

Essential Community Providers

The letter contains a lengthy section addressing coverage of essential community providers (ECPs) — providers that serve low-income and medically underserved individuals. In general, insurers must have contracts with 30 percent of available ECPs in their service area, as identified by a list maintained by CMS based on petitions from ECP providers; offer contracts in good faith to all Indian health providers in their service area; and offer contracts in good faith to at least one ECP in each of six categories of ECPs (family planning providers, federally qualified health centers, hospitals, Indian health care providers, Ryan White providers, and “other” ECPs). The final 2018 list of ECPs was released on December 16, 2016.

For 2018, multiple ECPs located at a single address will only count as one ECP for calculating the 30 percent ratio. Further provisions on contracting with Indian health providers are included later in the letter.

Insurers that do not meet the 30 percent ECP standard may submit a narrative justification explaining how they adequately meet the needs of their low-income and medically underserved enrollees and how they intend to increase ECP participation in the future. The letter describes in detail the information the narrative justification must include.

The letter further specifies that an SADP must offer good faith provider contracts to at least 30 percent of dental ECPs and to all available Indian dental health care providers in its service area. Unlike QHPs, SADPs need merely make a good faith offers to ECPs, not actually conclude contracts with them. As with health insurers, a SADP unable to satisfy the 30 percent requirement may offer a narrative justification meeting specified standards.

QHPs must pay federally qualified health centers (FQHCs) Medicaid rates or a negotiated rate that is at least equal to the rates generally paid by the QHP insurer. State law may exempt HMO QHPs from contracting for non-emergent services with FQHCs.

Accreditation and Quality Requirements

QHP insurers in their fourth year of FFM participation in 2018 must be accredited by approved accreditation agencies based on local performance of their QHPs. Insurers in their second and third year of FFM participation must at least be accredited for their commercial or Medicaid products, while insurers in their first year must have at least scheduled or planned to schedule an accreditation review. The letter lists accreditation categories that are acceptable, including “provisional,” “interim,” or “conditional” accreditation.

QHP insurers must attest that hospitals with more than 50 beds with which the insurer contracts partner with a patient safety organization or have otherwise implemented an evidence-based initiative to improve health care quality. CMS will rely on insure attestation for fulfillment of this standard and will not request further information as part of the certification process. CMS has recently released guidance on this requirement.

QHP insurers must continue to collect and submit validated clinical quality measurement data. They must also contract with HHS-approved QHP enrollee survey vendors to collect and submit enrollee survey data on their behalf. CMS is using quality and satisfaction survey data to calculate star ratings regarding insurers by product type (e.g. EPO, HMO, POS, and PPO). For the first time, for the 2017 open enrollment period ratings are being displayed on the marketplace website using a five-star scale in two states. QHP insurers may use their star ratings in their plan year marketing materials in a manner specified by CMS. Further information on the quality rating system is available here and here.

Insurers with non-child-only QHP products covering more than 500 enrollees that have offered marketplace coverage for at least two consecutive years must implement a quality improvement strategy (QIS)—offering incentives to providers or enrollees to improve health care quality or outcomes—complying with CMS guidelines. They can either implement a new QIS or provide an update on an existing QIS, and they can implement one QIS or more than one QIS covering their QHPs. Technical QIS guidance for 2018 will be available no later than January of 2017.

State Based Marketplaces (SBMs) as well as the FFM must ensure insurer compliance with QIS requirements. SBMs must follow federal minimum reporting requirements but can use their own forms or evaluation methodologies exceeding the federal standards. In plan management states, the QIS will be reviewed by both the state and the FFM.

Rate Review

QHP insurers must submit justifications for rate increases for all single risk pool products (including new and discontinuing plans) to CMS. CMS does not intend to duplicate rate reviews carried out by states under state law and will integrate state rate review into its certification process. Information supporting all proposed QHP rate increases will be posted on the CMS rate filing website, omitting trade secrets and confidential commercial or financial information. See the section above on rate-filing timelines for more information.

Discriminatory Benefit Design

The letter describes how CMS intends to address discriminatory essential health benefit (EHB) and QHP benefit designs. Non-grandfathered health plans in the individual and small group market may not discriminate in the provision of essential health benefits (EHB) on the basis of age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions.

Age limits may be considered discriminatory if they are applied to EHB services found to be clinically effective at all ages. Discrimination requirements should not be circumvented by labeling a benefit clinically appropriate for adults as a pediatric service. Drug formulary exclusions and/or tier structures can also be discriminatory. Enforcement of the non-discrimination requirement with respect to EHB is largely the responsibility of state regulators, although civil rights laws that apply are also enforced by the Office of Civil Rights of HHS. HHS will consult with the Departments of Labor and Treasury, which also regulate EHB plans, in developing further guidance in this area.

CMS will assess compliance of QHPs with nondiscrimination requirements. It will conduct cost-sharing outlier analysis of QHPs to identify outliers based on QHP benefits and cost sharing and analyze plans and benefits information to identify discriminatory features or wording. It will continue to review QHPs to identify outliers based on estimated out-of-pocket costs associated with standard treatment regimens based on nationally recognized clinical guidelines. For 2018, this outlier analysis will address bipolar disorder, diabetes, Hepatitis C, HIV, multiple sclerosis, opioid dependence, rheumatoid arthritis, and schizophrenia. CMS can identify a benefit design as discriminatory even if the design does not appear to be an outlier.

Drug Formularies

QHP formularies must meet EHB standards, which is to say they must cover the greater of one drug in every USP category and class and the same number of drugs in each category and class as the state’s EHB benchmark plan. As of 2017 they must cover Naloxone as an opioid reversal agent.

CMS will perform several reviews of drug formularies. First, CMS will perform an outlier analysis comparing plan formularies to formularies at both the state and national level to ensure that QHPs meet outlier threshold levels. QHPs that subject an unusually high number of drugs in a class or category to prior authorization or step therapy would be identified as outliers. For 2018, CMS will be adding review of Antivirals/Anti-cytomegalovirus (CMV) Agents, Antivirals/Anti-hepatitis B (HBV) Agents, Antivirals/Anti-hepatitis C (HCV) Agents, Antivirals/Antiherpetic Agents, and Antiemetics/Emetogenic Therapy Adjuncts to the drugs on which it focused outlier analysis in 2017.

Second, CMS will review each QHP’s drug coverage to ensure the availability of drugs recommended by nationally recognized clinical guidelines. In some cases it will evaluate whether first-line therapies are available without step therapy or prior authorization. The drug review for 2018 will include, but not be limited to, drugs used to treat bipolar disorder, breast cancer, diabetes, hepatitis C, HIV, multiple sclerosis, prostate cancer, rheumatoid arthritis, and schizophrenia.

Finally, in the draft letter, CMS said that it would review formularies to identify “adverse tiering,” in which drugs to treat certain chronic, high-cost conditions are assigned consistently to high cost-sharing tiers. In the final letter, CMS indicates that it has decided to postpone implementing this review until it can further refine its methodology.

Meaningful Difference

CMS will continue to review plans to ensure that they are “meaningfully different,” to support consumer choice. CMS will first group together plans that are of the same plan type, child-only-plan offering status, metal level, and service area. Within these groups, CMS will consider plans meaningfully different only if they have:

• Or do not have an integrated medical and drug maximum-out-of pocket limit;
• Or do not have an integrated medical and drug deductible;
• Multiple-in-network provider tiers instead of one;
• $500 or more difference in maximum out-of-pocket limits;
• $250 or more difference in deductibles;
• A different provider network with a different network ID;
• Differences in additional benefits that display on the healthcare.gov website, such as acupuncture or bariatric surgery; or
• Differences in drug list IDs.

If a plan is flagged as not meaningfully different, an insurer must modify it or provide a justification to CMS.

Third-Party Payments and Cost-Sharing Reductions

The letter notes that insurers offering QHPs or SADPs are required under the 2017 proposed payment rule to accept third-party payments for premiums or cost sharing from federal or state government programs, including Ryan White HIV/AIDs programs and from their grantees or sub-grantees. The letter does not address other third party premium payment arrangements, although these were dealt with by a recent CMS rule on renal dialysis facilities.

QHP insurers must offer plans meeting the standard reduced cost-sharing variations for low-income enrollees. The letter contains guidelines to ensure that reduced cost-sharing plans meet the prescribed actuarial value and maximum out-of-pocket limits, and that they under no circumstances provide less generous coverage than higher cost-sharing plan variations. It also describes the 2018 data integrity tool that plans must use and data integrity reviews CMS will conduct.

Decision Support Tools

For the 2018 open enrollment period, CMS will offer again on HealthCare.gov the provider lookup, formulary lookup, and out-of-pocket cost comparison consumer support tools that it premiered in 2015. The letter sets out the requirements that QHP insurers must meet to make their provider network directories and drug formularies accessible to consumers.

QHP and SADP provider directories and QHP formularies must be provided to the FFM to facilitate the provision of data for the lookup tools. Provider directories must be updated at least monthly. Provider directories and formulary drug lists must be viewable on an insurer’s website in machine-readable form without a consumer having to create or access an account or enter a policy number. Insurers with multiple provider networks must clearly show which providers are associated with which plans. Insurers that maintain tiered provider networks or formularies must clearly identify which providers or drugs are in which tier.

QHP insurers must provide the inputs necessary for the out-of-pocket cost calculator. QHP insurers are also required to meet transparency reporting requirements which will be made available for 2018 in late spring; they will largely mirror 2017 requirements.

Standalone Dental Plans

Standalone dental plans are only required to comply with a subset of the requirements that apply to QHPs and their application requirements are truncated accordingly. The letter identifies the requirements that they must meet. It also references the payment letter’s provisions on SADP annual cost-sharing limit updates, which remain $350 for one child and $700 for two or more children. Finally, the letter clarifies that, although marketplace enrollment in SADPs is limited to marketplace open or special enrollment periods, SADPs may enroll individuals off-marketplace outside of these periods.

Compliance Issues, Including Agent and Broker Oversight

The letter contains a substantial chapter dealing with oversight of QHPs and agents and brokers. Each insurer participating in the FFM will be assigned an account manager to serve as its point of contact with CMS. CMS will continue to monitor compliance of QHP insurers with program requirements and expects them to monitor their own compliance. CMS will conduct risk-based and targeted compliance reviews, which may be desk or on-site reviews, and coordinate with state regulatory authorities.

QHP insurers are responsible for ensuring compliance with regulatory requirements by their downstream and delegated entities, including agents and brokers. In particular they must confirm that affiliated agents and brokers are licensed and comply with training and registration requirements.

To assist consumers in the FFMs and FF-SHOP, agents and brokers must sign general and privacy and security agreements with the FFMs. Web brokers must sign web broker agreements. CMS can terminate these agreements for sufficiently serious noncompliance or material breach. CMS will maintain a list of agents and brokers whose agreements and registration have been suspended or terminated by CMS.

The 2017 payment rule established the authority of CMS to suspend or terminate broker participation for various causes. If CMS reasonably suspects that an agent or broker may have engaged in fraud or abusive conduct that may result in imminent or ongoing consumer harm using personally identifiable information of FFM applicants or enrollees, or in connection with an FFM enrollment, CMS may impose an immediate 90-day suspension. If a state or federal agency determines that an agent or broker has engaged in such conduct, CMS may immediately terminate the agent or broker’s FFM agreements. States, of course, retain primary disciplinary authority over agents and brokers, but CMS will notify states of disciplinary action it takes.

The letter describes the responsibilities of web brokers, including their responsibility to differentially display standardized plans. Web-brokers are not required to display standardized plans the same way the FFM does, but must get approval from HHS for other means of display. The letter briefly mentions the enhanced direct enrollment pathway, described in greater detail in the 2018 payment notice. It also references enhanced web-broker direct enrollment consumer protections and CMS oversight provided for in the 2018 payment notice.

The letter notes that agents and brokers must be paid the same compensation for the sale of QHPs in the marketplace as for similar plans outside the marketplace, and it describes how similarity of plans will be judged. CMS does not get involved in agent and broker compensation issues and is not taking any action to address the fact that many insurers are no longer paying brokers and agents commissions for QHP enrollments. CMS leaves to the states the question of whether brokers and agents can charge consumers directly for their services and how such charges should be disclosed. Of course, broker and agent charges to consumers are not covered by advance premium tax credits and can make coverage much less affordable for low-income consumers.

The letter describes how brokers and agents are identified for enrollments, including passive reenrollments. It suggests that insurers should withhold commissions from brokers and agents who fail to register or otherwise fail to comply with federal requirements. Finally, it describes the program under which HHS-approved vendors offer training to agents and brokers for assisting consumers on the FFM.

CMS has authority to monitor QHP marketing practices, including ensuring that QHP insurers do not discriminate based on race, color, national origin, disability, age, sex, gender identity, or sexual orientation. QHP insurers must comply with the recently issued section 1557 non-discrimination rules. Agreements with agents and brokers and marketing materials should contain a statement that the insurer does not discriminate. Marketing materials and information provided by agents and brokers must also be accurate and not misleading. The use of the terms “exchange” or “marketplace” in websites must be avoided. Direct enrollment websites must not mislead consumers into believing they are visiting Healthcare.gov.

The 2018 proposed payment rule requires QHP insurers to make their QHPs available for enrollment for the full plan year for which the plan was certified unless a basis for suppression applies, such as financial incapacity. QHPs who do not comply with this requirement are subject to civil penalties and can be excluded from the marketplace for up to two years.

The Federally Facilitated SHOP

The 2018 payment rule changes and clarifies many of the rules governing federally facilitated SHOPs. In particular, it modifies the process and timelines for enrolling newly qualified employees in SHOP coverage. As the letter notes, the requirement that insurers that are part of an insurer group with more than a 20 percent market share in a state’s small group market must participate in the SHOP in order to sell QHPs in the individual FFP is being repealed, effective January 1, 2018. The letter also provides technical information on SHOP enrollment reconciliation procedures.

Consumer Support and Meaningful Access

The letter next deals with consumer support and related issues. It describes how “cases” involving consumer issues are handled in the FFM, as well as the responsibilities of QHP insurers for helping to resolve cases. Most cases involve enrollment, cancellation or termination, payment, application of premium tax credits and cost sharing reduction payments, and effective date issues. The letter notes that although cases usually involve specific identified consumers, CMS intends to address complaints that it receives about machine readable provider or formulary data on an anonymous basis as the identity of the complaint is not relevant to resolving these issues. It does not consider these issues to be “cases.”

The letter addresses in great detail meaningful access requirements for non-English (LEP) speakers. Federal rules impose a number of different language access requirements on web brokers, marketplaces, and QHP insurers, including oral interpretation, document and website translation, and tagline requirements. Additional requirements apply to summaries of benefits and coverage and appeal documents. The section 1557 rule layers further requirements on those otherwise imposed by the QHP and marketplace rules.

Language access rules as updated in the spring of 2017 were described in detail in an earlier post. The final 2018 payment notice additionally provides that insurers subject to the 1557 nondiscrimination rule will be deemed to be in compliance with QHP language access requirements if they comply with the language access rules of the 1557 rule. The Payment notice further clarifies that insurers that are part of a common control group and sell coverage in multiple states will be able to aggregate language data across the states in which they market to determine the top 15 languages in the aggregated states. It also allows web-brokers licensed to sell in several states to aggregate the top-15 languages. It notes, however, that the aggregation policy does not apply to the summary of benefits and coverage and internal claims and appeals taglines.

The 2018 payment notice further specifies the rules for language taglines with respect to web content. It notes that QHP insurers and web-brokers must translate critical documents into any language spoken by an LEP population that reaches 10 percent or more of the population of a state. As far as I can tell, only Spanish reaches this percentage in any state.

QHP insurers are required to provide summaries of benefits and coverage (SBC) compliant with federal requirements. A new “2017 SBC” was finalized in 2016 and must be used by plans for the first open enrollment period that begins on or after April 1, 2017. It will thus apply for 2018 plans. SBCs must disclose whether or not the QHP pays for abortions for which federal funding is not available. QHP insurers are required to make SBCs available that accurately reflect each cost-sharing plan variation. Insurers must provide an appropriate SBC for a plan variation within seven business days after receiving notice that a marketplace has assigned an enrollee to a new plan variation.

The letter concludes with sections addressing tribal relations and services and the responsibilities of state-based marketplaces using the FFM (SBM-FM) for certain functions. While the state-based marketplace retains primary responsibility for enforcing QHP requirements, the FFM can suppress plans in these states that do not comply with program requirements to ensure that consumers only have access to compliant plans. Requirements that apply to SBM-FMs were described at great length in the 2017 payment rule and are further developed in the proposed 2018 payment rule. They will not be explored further here.

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