April was a productive month for the agencies guiding us through the implementation of the Affordable Care Act (ACA). New guidance was issued throughout the month and covered issues pertaining to the Summaries of Benefits and Coverage requirements, health insurance market reforms and the Exchanges. On April 29 in the most recent FAQs to be published on the U.S. Department of Labor (DOL) website, the DOL, Health and Human Services (HHS) and the Treasury (collectively the "Departments") address annual limit waiver expiration dates, provider non-discrimination, coverage for individuals participating in approved clinical trials and transparency in reporting coverage.
Annual Limit Waiver Expiration Dates
The first issue discussed in the new FAQs is a response to a question regarding the ACA's health plan annual limit waiver expiration dates. The ACA generally prohibits group health plans and health insurance issuers offering group or individual health insurance coverage from imposing lifetime or annual limits on the dollar value of essential health benefits beginning in 2014 (restrictions on such annual limits are permitted before 2014). Certain group health plans and health insurance issuers were granted waivers from the ACA's annual limit prohibition. The FAQ clarifies that if a plan or issuer has such a waiver, the waiver expiration date does not change if the plan or issuer changes its plan or policy year prior to the waiver's expiration. Providing an example, the FAQ explains that if "a waiver approval letter states that a waiver is granted for an April 1, 2013 plan or policy year, the waiver will expire on March 31, 2014, regardless of whether the plan or issuer later amends its plan or policy year."
Provider Non-Discrimination
Another section of the ACA prohibits group health plans and health insurance issuers from discriminating with respect to participation under the plan or coverage against any health care provider who is "acting within the scope of that provider's license or certification under applicable state law" ("the non-discrimination provision"). This section applies to non-grandfathered group health plans and health insurance issuers offering group or individual health coverage for plan or policy years beginning on or after January 1, 2014. In response to a question asking whether the Departments will be issuing regulations addressing the non-discrimination provision prior to its effective date, the FAQ explains that this section is a "self-implementing" provision, and that the Departments do not expect to issue regulations on this section prior to its effective date. However, the FAQ does provide some clarification by explaining that plans and issuers are expected to implement the requirements of this section using a "good faith, reasonable interpretation of the law," that this provision "does not require plans or issuers to accept all types of providers into a network," and that this provision "also does not govern provider reimbursement rates, which may be subject to quality, performance, or market standards and considerations."
Clinical Trials
As with the above non-discrimination provision of the ACA, the Departments also deemed a provision of the ACA dealing with clinical trials to be "self-implementing." Specifically, the ACA requires nongrandfathered group health plans and issuers offering group or individual coverage, with respect to a "qualified individual" (as that term is defined in the law), to: (1) not deny the qualified individual participation in an approved clinical trial with respect to the treatment of cancer or another lifethreatening disease or condition; (2) not deny (or limit or impose additional conditions on) the coverage of routine patient costs for items and services furnished in connection with participation in the trial; and (3) not discriminate against the individual on the basis of the individual's participation in the trial. The FAQ clarifies that the Departments do not expect to issue regulations on this section in the near future, but do provide that until further guidance is issued, plans and issuers are expected to implement the requirements of this section using a good faith, reasonable interpretation of the law, and that the Departments will "work together with employers, plans, issuers, states, providers, and other stakeholders to help them come into compliance with the law," and with "families and individuals to help them understand the coverage for clinical trials provision and benefit from it as intended."
One problem that is likely to come from the Departments' decision to refrain from issuing regulations on this section is how to interpret the meaning of the prohibition's application to clinical trials with respect to the treatment of "another life-threatening disease or condition." Although the Departments have determined that this section is selfimplementing, this term's meaning is certainly not self-explanatory. A very broad spectrum of diseases and conditions can be "life-threatening" depending on the time frame that is to be considered. Accordingly, additional guidance is likely needed here.
Transparency in Coverage Reporting Requirements
Finally, the FAQ considers the issue of the ACA's requirements pertaining to transparency in coverage reporting. Under the ACA, health insurance issuers seeking certification of a health plan as a qualified health plan ("QHP") are required to make accurate and timely disclosures of certain information to the appropriate Health Insurance Marketplace (also known as the Exchange), HHS and the state insurance commissioner, and to make this information available to the public. The FAQ clarifies that because QHP issuers will not initially have all of the data that will need to be reported (such as QHP enrollment and disenrollment), such issuers need only begin submitting information after they have been certified as QHPs for one benefit year (defined as a calendar year for which a health plan provides coverage for health benefits). In addition, the FAQ notes that the Departments intend to coordinate regulatory guidance on the transparency in coverage standards for coverage offered both inside and outside of the Exchanges.
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Originally published by For Your Benefit
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