CMS Publishes 2023 Proposed Notice on Benefits and Payments Parameters | Manatt, Phelps & Phillips, LLP

This year’s advisory is the first to be fully offered by the Biden administration’s Department of Health and Human Services (HHS), and it reflects the priorities and views of the new leadership, including proposals aimed at:

  • Restore protections against discrimination based on sexual orientation or gender identity. HHS is also proposing several changes and seeking comments on issues related to health equity and climate change;
  • Restore standardized benefit plans, eliminated under the Trump administration, and require standardized plans to be offered in federally facilitated markets. These plans aim to reduce consumer confusion and allow apples-to-apples comparison of plan options;
  • Implement stronger standards for adequacy of health plan provider networks, building on time-and-distance standards and an increased number of essential community providers, and taking over the role of the federal government in reviewing the adequacy of federally facilitated contracts;
  • Revise medical loss ratio regulations to somewhat restrict the costs that can be claimed as incurred claims or quality improvement activities;
  • Require that issuers of individual or small group health insurance be able to refer to peer-reviewed clinical evidence to demonstrate that their benefit designs are non-discriminatory; and
  • Implement new standards for broker conduct, prohibiting the use of scripts or automated interactions with CMS systems or direct registration (DE) pathways unless approved by CMS.

Comments on the proposals are due January 27.

Selection of proposals in the proposed PPNB for 2023

Designs of discriminatory advantages. HHS offers a more comprehensive standard of non-discrimination in benefit design for the individual market and small group health insurance coverage, including qualified health plans (QHPs) sold in Affordable Care markets Act (ACA). Current regulations prohibit these schemes from using a discriminatory benefit design based on “an individual’s age, expected life span, current or expected disability, degree of medical dependence, quality of life or other health problems. The proposed rule specifies that to meet this standard, a benefit design must be “based on clinical evidence” and incorporate “evidence-based guidelines in coverage and programmatic decisions,” including “review articles current and relevant peer-reviewed medical information”, practice guidelines, recommendations from reputable governing bodies or similar sources.

In addition to the proposed settlement, HHS provides illustrations of allegedly discriminatory benefit designs.

Medical loss rate. HHS is proposing changes to the Medical Loss Ratio (MLR) regulations to clarify reporting of incurred claims and expenditures for quality improvement activities (QIA). The MLR rules require issuers of group or individual health insurance coverage to spend a minimum percentage of premium income on incurred claims or QIA, or refund the difference to policyholders. HHS first proposes to change the regulatory definition of incurred claims to clarify that incentive or bonus payments to health care providers are only considered incurred claims if they are “related to clinical standards or clearly defined, objectively measurable and well-documented quality improvement plans that apply to suppliers. Second, HHS proposes to exclude from QIA “indirect” costs of QIA, including plan overheads that could have been attributed to QIA.

Standardized plans and architecture of choice. HHS is proposing to reintroduce standardized plan designs into federally facilitated procurement. Standardized plans are uniform plan templates offered with the same cost-sharing parameters across issuers, making it easier for participants to choose and compare plans. In the 2017 and 2018 payment notices, HHS defined standardized plan parameters and gave them some display and filtering advantages in online searches, but issuers were not required to offer them. The Trump administration abandoned this approach in the 2019 notice of payment, but that decision was later overturned in a federal lawsuit. In 2021, HHS indicated that it did not have enough time to reinstate standardized plans for 2022, leaving the matter for that year’s payment notice. In its new proposal, HHS is reinstating standardized plans on a mandatory basis. The rule requires issuers to offer standardized plans for each product type (e.g., PPO, HMO), metal level (including expanded bronze, and the three Cost Share Reduction (CSR) variants for the money) and the service area where the insurer offers non-standardized plans. some products.

Network adequacy. HHS is proposing new, stricter requirements for reviewing QHP networks, reversing a policy of greater deference to state regulators under the Trump administration.

Under the proposal, the federal government would resume a more active role in reviewing networks for federally facilitated contracts and determining the standard under which plans are reviewed. The 2019 payment notice was deferred to the states, “provided the state has a sufficient network adequacy review process.” As now proposed, HHS will resume review of QHP networks in all federally facilitated market states, except where the state performs plan management functions and the state applies and enforces quantitative standards network adequacy standards that are at least as stringent as the federal network adequacy standard, and conducts its review prior to scheme certification.

As for the standards themselves, HHS will measure networks using quantitative standards that measure time and distance to providers at the most preferred level in the network, county by county, consistent with the metrics used in Medicare. Advantage. The plan would also measure wait times for appointments and require submission of information on telehealth availability. The required standard of participation of essential community suppliers would increase from 20% to 35% of available suppliers.

Agents and Brokers. HHS is proposing to strengthen its regulations governing insurance agents, brokers, and online brokers helping consumers enroll in QHPs.

  • Prohibited Business Practices. HHS is proposing to add new standards of conduct for agents, brokers, and online brokers that help consumers enroll in QHPs. Specifically, HHS is proposing to prohibit the use of scripts and other automated interactions with CMS systems or direct listing pathways that issuers and brokers may use to enroll individuals, unless approved in advance by CMS and d Require agents, brokers, or online brokers to use only an identity that belongs to the consumer when verifying the identity of consumer accounts on
  • Online broker websites. HHS is proposing to change its regulations to include a list of QHP benchmarking information that private web broker websites are required to display, aligning those websites with plan information that is displayed on the Marketplace website itself. same.
  • Submission of Information by Broker. Agents, brokers and online brokers who assist or facilitate the registration of consumers for QHPs are required to submit correct information about the individuals they register with the Marketplace. Recognizing that incorrect information is frequently provided, HHS offers specific examples of what it means to provide “correct information” regarding email address, mailing address, phone number, and projected household income. For example, HHS requires that the email address provided to a registrant be secure (eg, password protected), not disposable/temporary, and owned by the consumer. Likewise, the telephone number provided must belong to the consumer and not to the producer arranging the registration. In addition, only income estimates confirmed by the consumer to be accurate can be provided. This last rule is proposed to avoid situations in which producers provide incorrectly low revenues in order to generate more heavily subsidized premium projections.

Note: More detailed information is available via [email protected], Manatt’s premium information service. [email protected] provides in-depth insights and analysis focused on the legal, policy and market developments that matter to you, keeping you ahead of the trends shaping our evolving healthcare ecosystem.

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