On the evening of June 28, 2021, the Centers for Medicare & Medicaid Services and the Department of the Treasury put a proposed rule on display[1] that includes rules and policies designed to promote greater access to comprehensive health insurance coverage through the Exchanges, consistent with applicable law and recent Presidential executive orders.[2]^,[3],[4] The proposed rule follows the recently revised final Notice of Benefit and Payment Parameters for 2022[5] and addresses items that require a new round of notice and comment rulemaking. The proposed rule includes the following specified policies:

• Repeal the recent Direct Enrollment option, which allowed Exchanges to work directly with private entities to operate enrollment websites;
• Reset user fees for 2022 at an amount less than 2021 (though higher than previously approved);
• Revert to prior policy allowing issuers flexibility in meeting billing requirement for abortion services;
• Expand enrollment periods and navigator duties; and
• Modify regulations related to section 1332 waivers.

The proposed rule is scheduled to be published in the Federal Register on July 1, 2021, and comments are due by 5 p.m. EDT on July 28, 2021.

Repeal of Recently Enacted Direct Enrollment Option

CMS proposes to repeal the controversial Exchange Direct Enrollment option which established a process for State Exchanges, State-based Exchanges on the Federal platform (SBE-FP), and Federally-facilitated Exchanges (FFP) to work directly with private sector entities to operate enrollment websites through which consumers could apply for coverage, receive an eligibility determination from the Exchange, and purchase an individual market QHP offered through the Exchange with advance payments of the premium tax credit (APTC) and cost-sharing reductions (CSRs), if otherwise eligible.

Reduced User Fees for Use of Federal Platform

CMS decreases its user fee for issuers to use the Federal platform in 2022 compared to 2021:

• Federally-facilitated Exchange (FFE): user fee of 2.75 percent of total monthly premiums (increase from previous 2022 rate of 2.25 percent but decrease from 2021 rate of 3.0 percent) and
• State-based Exchange on the Federal Platform (SBE-FP): user fee of 2.25 percent of total monthly premiums (increase from prior 2022 rate of 1.75 percent but decrease from 2021 rate of 2.5 percent).[6]

Repeal of Separate Billing Requirements for Certain Services

CMS proposes to repeal the separate billing requirement that issuers offering coverage of abortion services must separately bill for this portion of the policy holder’s premium and instruct the policy holder to pay a separate amount specific to coverage of these services. In this regard, CMS is reverting to prior policies that allowed issuers offering coverage for these services the flexibility in selecting a method to comply with the separate payment required in section 1303 of the ACA.[7]

Enrollment Periods are Expanded and Tied to Exchange Plans

CMS proposes various changes for enrollment and assistance with enrollment:

• Provide flexibility such that issuers are not required to provide a special enrollment period in the individual market with respect to coverage offered outside of an Exchange to qualifying individuals;
• Reinstitute previous requirements that Navigators in FFEs provide consumers with information and assistance on certain post-enrollment topics, such as the Exchange eligibility appeals process, the PTC reconciliation process, and the basic concepts and rights of health coverage;
• Increase the annual open enrollment period for coverage through all Exchanges to November 1 through January 15 (current annual open enrollment period of November 1 through December 15);
• Establish a monthly special enrollment period for qualified individuals or enrollees (or their dependents) who are eligible for APTC, and whose household income does not exceed 150 percent of the FPL, in order to provide low-income individuals who generally will have access to a premium-free silver plan with a 94 percent actuarial value (AV) with more opportunities to enroll in coverage; and
• Clarify, for purposes of the special enrollment periods provided at § 155.420(d), that a qualified individual who meets the criteria at § 155.305(f), but who qualifies for a maximum APTC amount of zero dollars, is not considered APTC eligible.

Modification of 1332 State Innovation Waiver Guidance

CMS also proposes modifications to the section 1332 Waivers for State Innovation implementing regulations, including changes to many of the policies and interpretations of the guardrails recently codified in regulation. If finalized, these policies and interpretations would supersede and rescind previous policies and guidance.[8]^,[9] HHS and the Department of the Treasury also propose to allow flexibilities in the public notice requirements and post-award public participation requirements for section 1332 waivers under certain emergency situations. The Departments also propose processes and procedures for amendments and extensions to approved waiver plans.

[1] https://www.federalregister.gov/d/2021-13993

[2] American Health Benefit Exchanges, or “Exchanges,” are entities established under the Patient Protection and Affordable Care Act (ACA) through which qualified individuals and qualified employers can purchase comprehensive health insurance coverage through qualified health plans (QHPs). Many individuals who enroll in QHPs through individual market Exchanges are eligible to receive a premium tax credit (PTC) to reduce their costs for health insurance premiums and to receive reductions in required cost-sharing payments to reduce out-of-pocket expenses for health care services.

[3] Executive Order 14009 (https://www.federalregister.gov/d/2021-02252)

[4] Executive Order 13985 (https://www.federalregister.gov/d/2021-01753)

[5] https://www.federalregister.gov/d/2021-09102

[6] Current user fees are already reduced from historical levels (e.g., the FFE user fee was 3.5% between 2014 and 2019).

[7] The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on March 23, 2010. The Healthcare and Education Reconciliation Act of 2010 (Pub. L. 111-152), which revised several provisions of the Patient Protection and Affordable Care Act, was enacted on March 30, 2010. The two statutes collectively are referred to as the “Affordable Care Act” or “ACA.”

[8] https://www.federalregister.gov/d/2018-23182

[9] https://www.federalregister.gov/d/2021-01175