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HHS final rule aims to stabilize health insurance marketplace

April 2017

On April 18, 2017, the Department of Health and Human Services (HHS) issued a final rule in an attempt to address certain issues with the health insurance marketplace and, according to HHS, to “provide needed flexibility to issuers to help attract healthy consumers to enroll in health insurance coverage, improve the risk pool and bring stability and certainty to the individual and small group markets, while increasing the options for patients and providers.”

Guaranteed availability of coverage

The Affordable Care Act requires health insurance providers to offer coverage to and accept every individual and employer in each state that applies for such coverage, unless an exception applies. Individuals and employers are typically required to pay the first month’s premiums before new coverage would take effect.

Under the final rule, HHS clarified its policy on the guaranteed availability of coverage provision. Specifically, a health insurance provider would not violate the guaranteed availability requirement if the provider applies a premium payment to an outstanding balance to that same issuer accrued during the prior 12 months and refuses to begin new coverage. If a health insurance provider chooses to adopt such a policy of attributing payments, it will be required to apply its premium payment policy uniformly to all employers and all individuals in similar circumstances “in the applicable market regardless of health status, and consistent with applicable non-discrimination requirements.”

HHS noted that its finalized policy on the guaranteed availability of coverage would not allow health insurance providers to condition the beginning of new coverage on payment of past-due premiums owed to a different health insurance provider or permit a health insurance provider to condition providing new coverage on payment of past-due premiums by any individual other than the person who is contractually required to make such payments.

Enrollment dates

The final rule also makes significant changes to the enrollment period for the 2018 benefit year. In its attempt to address various problems plaguing the current health insurance marketplace, HHS shortened the enrollment period from Nov. 1, 2017 through Jan. 31, 2018, to Nov. 1 through Dec. 15, 2017.

The shortened enrollment period was originally scheduled to go into effect for the 2019 enrollment period, but HHS believes implementing the shortened enrollment period one year ahead of schedule would not “increase the burden on consumers or make it harder to enroll” for the 2018 benefit year. HHS believes requiring individuals to enroll in coverage prior to the beginning of the year, unless eligible for a special enrollment period, will improve individual market risk pools by disallowing individuals to enroll for health care coverage should they learn of new medical services in late December and January.

According to HHS, the shortened enrollment period will also encourage healthier individuals to enroll for coverage for the full year. The enrollment effective date will be Jan. 1, 2018. HHS intends to conduct outreach to consumers to ensure that they are aware of the newly shortened open enrollment period before Nov. 1, 2017.

Special enrollment periods

Before the final rule, individuals could enroll for health care coverage during special enrollment periods if they had a qualifying event such as marriage or the birth or adoption of a child without providing “further verification of their eligibility or without submitting proof of prior coverage.” Through its final rule, HHS will begin to require pre-enrollment verification of eligibility for these special enrollment periods. Under the pre-enrollment verification process, HHS would verify eligibility for new consumers to the Affordable Health Benefit Exchanges who seek to enroll during the special enrollment period. Once an individual enrolls, the enrollment will be considered as “pending” until the Exchanges complete verification of the special enrollment eligibility. Consumers would have 30 days from the date of selecting their coverage to provide applicable documentation. HHS believes requiring verification of qualifying events would further aid in stabilizing the health insurance marketplace.

In the final rule, HHS also expressed concerns that the current processes for existing Exchanges customers, as they relate to special enrollment periods, may be contributing to the instability of the Exchanges. One such concern is that special enrollment periods may give individuals an opportunity to switch levels of coverage such as choosing a lower or higher level depending on their health care needs, in addition to adding or removing an individual. The final rule has processes in place to prevent enrollees from making any changes to their coverage levels.

With the health care insurance marketplace in a state of constant flux, the final rule may accomplish HHS’ goals in ensuring that everyone has access to health care coverage. If you have any questions or need specific advice on how the final rule may apply to your specific situation, please contact one of our health care attorneys.

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