Today, led by Chief Justice John Roberts, the Supreme Court upheld the constitutionality of the Affordable Care Act in almost all respects. While upholding the controversial individual mandate to purchase health insurance, the Court did alter one important aspect of the law, however, in that it limited the government’s ability to withhold all Medicaid funds from a state contingent on the states’ acceptance of the significant Medicaid expansion called for under the Act. Under the Court’s ruling, a state must be allowed to opt out of the Medicaid expansion without threatening the state’s current Medicaid coverage and federal funding. The text of the decision can be found here.
On February 14, 2010, CMS issued a Proposed Rule to implement the Affordable Care Act’s requirement that any person who receives a Medicare or Medicaid overpayment report and return the overpayment within 60 days of the date on which the overpayment was identified or the date of any corresponding cost report due, if applicable. The Proposed Rule would apply only to Medicare Part A and Part B providers and suppliers. CMS plans to issue further guidance for other stakeholders, including Medicaid managed care organizations and Prescription Drug Plans. CMS proposes to require providers to report and return overpayments identified within ten years of the date the overpayment as received.
Under the Proposed Rule, CMS will consider a provider to have identified an overpayment if it has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the overpayment. CMS provided several examples of reckless disregard or deliberate ignorance, including a provider’s failure to make a “reasonable inquiry” when it experiences a “significant increase in Medicare revenue and there is no apparent reason” to be of the existence of an overpayment.
CMS proposes to require providers and suppliers to report and return overpayments through existing reporting processes that Medicare Administrative Contractors (MAC) currently administer. Under the proposed “self-reported overpayment refund process,” Medicare providers and suppliers would report overpayments using forms that each MAC makes available on its website. CMS stated that it plans to develop a uniform reporting form in the future.
Comments on the proposed rule are due by April 16, 2011.
On February 9, 2012, the departments of Health and Human Services, Labor and Treasury published final regulations implementing the Affordable Care Act’s Summary of Benefits and Coverage (SBC) and Uniform Glossary requirements. The final rule requires that health insurers provide certain standardized information on benefits ad coverage, as well as a uniform glossary of common coverage terms. According to the agencies, the final rule standards “ensure this information is presented in clear language and in a uniform format that helps consumers to better understand their coverage and better compare coverage outcomes.”1
The final rule requires that the SBC be provided by: (1) a group health insurance issuer to a group health plan; (2) a group health insurance issuer and a group health plan to participants and beneficiaries; and (3) a health insurance issuer to individuals and dependents in the individual market. Depending on the scenario, the SBC must be provided in different circumstances, such as on application for coverage, by the first day of coverage (if information in the SBC has changed), upon renewal or reissuance and upon request.2
The final rule requires that SBC’s have a total of 12 content elements, including standard definitions of coverage terms, a description of coverage (including cost-sharing requirements) and information regarding exceptions and limitations to coverage.
The final rule also provides that failure to provide required information may result in a fine of up to $1,000 for each such failure.3
Although the agency had initially proposed implementation of this requirement on March 23, 2012, the final rule delays the start date of the requirement by six months, to September 23, 2012.4
The Center for Consumer Information and Insurance Oversight (CCIIO) has provided a number of tools on its website related to the SBC, including an SBC template, sample SBC, and instructions for completing the SBC.
1 Internal Revenue Service, Department of the Treasury, Department of Labor and Department of Health and Human Services, Summary of Benefits and Coverage and Uniform Glossary, Final Rule, Prepublication copy, at 4.
2 Id. at 5.
3 Id. at 134.
4 Id. at 135; 149; 150.
The Center for Consumer Information and Insurance Oversight within the Department of Health and Human Services (HHS) issued a bulletin on December 16 to provide information and solicit comments on HHS’s approach to defining Essential Health Benefits (EHB) under the Patient Protection and Affordable Care Act (ACA). The ACA requires non-grandfathered plans in the individual and small group markets, Medicaid benchmark and benchmark-equivalent, and Basic Health Programs to cover EHB beginning in 2014. The scope of EHB, as defined by HHS, must equal the scope of benefits provided under a “typical” employer plan. In the bulletin, HHS stated that it intends to define EHB through a benchmark plan that each state selects. Significantly, HHS intends to allow states to select a benchmark plan from among the following existing health plans:
- One of the three largest small group plans in the state;
- One of the three largest state employee health plans;
- One of the three largest federal employee health plan options; or
- The largest health maintenance organization in the state’s commercial market.
If a state fails to select a benchmark, the default would be the state’s largest small group market plan. Comments on the intended approach are due by January 31, 2012.
On October 7, 2011, the Institute of Medicine (IOM) released a report setting forth the methodology it recommends that the Department of Health and Human Services (HHS) use to determine the essential health benefits package. The Affordable Care Act requires plans participating in the insurance exchanges to, at minimum, provide coverage for a defined set of benefits, known as essential health benefits. While the statute provides a set of ten broad categories of services to be included in the benefits package, HHS asked the IOM to recommend a process by which the Secretary could define and update the essential health benefits. In its report, the IOM concluded that the federal government should consider cost as a factor in deciding what benefits should be included. Although HHS is not bound by the IOM recommendations, Secretary Sebelius said in a statement that HHS would consider IOM’s report and anticipates issuing its proposed rule on the benefits package “soon.” Before publication of such rule, however, HHS plans to hold a series of listening sessions to gain input from relevant stakeholders. The IOM report is available through the IOM web site: http://www.nap.edu/catalog.php?record_id=13234
On August 23, 2011, the Center for Medicare & Medicaid Innovation (Innovation Center) announced a new initiative regarding bundled payments for care improvement. The new bundled payment models combine payments for physician, hospital, and other provider services into a single, predetermined payment amount for all services furnished to a beneficiary during a defined episode of care. The Innovation Center offers four different payment models for interested applicants. Akin Gump has put together a Comparison of Bundled Payment Models Chart comparing some of the features of each of these models. Further detail is available in the full request for applications (RFA), available at the Innovation Center website.
Entities interested in applying for any of these models should note the following program deadlines:
- Interested organizations must submit a non-binding letter of intent by September 22, 2011
- Applications must be submitted to the Innovation Center by October 21
- Interested organizations must submit a non-binding letter of intent by November 4, 2011
- Organizations who want to be considered for receipt of data must submit a Research Request Packet containing specific information about their study design (including how they will use data to construct an episode definition and develop care episode redesign protocols) by November 4, 2011
- Potential applicants must also submit a Data Use Agreement by November 4, 2011
- Applications must be submitted by March 15, 2012
The Department of Health and Human Services (HHS) recently issued a proposed rule regarding the establishment of non-profit CO-OP insurance plans as required by the Affordable Care Act. CO-OPs must operate with a strong consumer focus and use profits to lower premiums, improve benefits or improve the quality of care delivered to plan members. The proposed rule sets forth the eligibility standards to become a CO-OP, stating that health insurance issuers and government entities are not eligible to directly participate in the program. The proposed rule also provides standards for CO-OP governance and describes loan eligibility criteria that will help achieve the agency’s goal of having at least one CO-OP in every state.
Organizations seeking to establish a CO-OP are also eligible to apply for a portion of the $3.8 billion in repayable loans available to cover start-up and capitalization costs. Along with the proposed rule, CMS announced a funding opportunity that provides two types of loan opportunities: 1) joint start-up and solvency loans; or 2) solvency loans only. Loan recipients will be allowed to draw down funds as they reach “milestones” proposed in their loan application. HHS anticipates that the first round of loans will be awarded to 51 applicants by January 12, 2012. All CO-OP loans must be repaid with interest and loan recipients will be subject to audits and reporting requirements. Start-up loans must be repaid within five years and solvency loans must be repaid within 15 years.
Link to proposed rule.
Link to funding opportunity.
The Department of Health and Human Services and the Department of the Treasury issued three Notices of Proposed Rulemaking (“NPRMs”) on August 12, 2011 on eligibility and enrollment in Insurance Exchanges and the Small Business Health Options Program (“SHOP”), health insurance premium tax credits, and eligibility changes to Medicaid and the Children’s Health Insurance Program (“CHIP”).
- The Exchange Functions in the Individual Market: Eligibility Determinations and Exchange Standards for Employers (“Exchange Eligibility and Employers”) NPRM proposes processes for individual enrollment in qualified health plans (“QHPs”) and insurance affordability programs as well as standards for employer participation in SHOP.
- The Health Insurance Premium Tax Credit (“Tax Credit”) NPRM outlines proposed eligibility standards for the premium tax credits for coverage purchased through the Exchanges (available to taxpayers with household incomes between 100 percent and 400 percent of the Federal Poverty Level (“FPL”) starting in 2014) and explains how such tax credits will be calculated.
- The Medicaid Program: Eligibility Changes under the Affordable Care Act of 2010 (“Medicaid Eligibility”) NPRM proposes to expand Medicaid to most adults under the age of 65 with incomes up to 133 percent of the FPL and consolidate eligibility categories into four groups: children, pregnant women, parents, and a new adult group. The NPRM would also increase the Federal Matching Assistance Percentage (“FMAP”) for newly eligible individuals and to states that expanded Medicaid coverage for adults before enactment of the Affordable Care Act.
Together, the three NPRMs establish coordination across Medicaid, CHIP and the Exchanges and create a system in which Exchanges would conduct eligibility determinations for Medicaid and premium tax credits as well as facilitate enrollment in insurance affordability program. Comments on all three NPRMs are due by October 31, 2011.