Health Care Reform Insurance Web Portal Requirements, 24470-24482 [2010-10504]
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of the decision. The Secretary sends a
written decision to the sponsor or the
applicable Secretary’s designee upon
request.
Subpart G—Disclosure of Data
Inaccuracies
§ 149.600 Sponsor’s duty to report data
inaccuracies.
A sponsor is required to disclose any
data inaccuracies upon which a
reimbursement determination is made,
including inaccurate claims data and
negotiated price concessions, in a
manner and at a time specified by the
Secretary in guidance.
§ 149.610 Secretary’s authority to reopen
and revise a reimbursement determination.
(a) The Secretary may reopen and
revise a reimbursement determination
upon the Secretary’s own motion or
upon the request of a sponsor:
(1) Within 1 year of the
reimbursement determination for any
reason.
(2) Within 4 years of a reimbursement
determination for good cause.
(3) At any time, in instances of fraud
or similar fault.
(b) For purposes of this section, the
Secretary does not find good cause if the
only reason for the revision is a change
of legal interpretation or administrative
ruling upon which the determination to
reimburse was made.
(c) A decision by the Secretary not to
revise a reimbursement determination is
final and binding (unless fraud or
similar fault is found) and cannot be
appealed.
Subpart H—Change of Ownership
Requirements
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[FR Doc. 2010–10658 Filed 5–4–10; 8:45 am]
BILLING CODE 4150–03–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Office of the Secretary
45 CFR Part 159
Health Care Reform Insurance Web
Portal Requirements
(a) Change of ownership consists of:
(1) Partnership. The removal, addition,
or substitution of a partner, unless the
partners expressly agree otherwise as
permitted by applicable state law.
(2) Asset sale. Transfer of all or
substantially all of the assets of the
sponsor to another party.
(3) Corporation. The merger of the
sponsor’s corporation into another
corporation or the consolidation of the
sponsor’s organization with one or more
other corporations, resulting in a new
corporate body.
(b) Change of ownership; exception.
Transfer of corporate stock or the merger
of another corporation into the
sponsor’s corporation, with the sponsor
surviving, does not ordinarily constitute
change of ownership.
(c) Advance notice requirement. A
sponsor that has a sponsor agreement in
14:33 May 04, 2010
Dated: April 29, 2010.
Jay Angoff,
Director, Office of Consumer Information and
Insurance Oversight.
Dated: April 29, 2010
Kathleen Sebelius,
Secretary.
RIN 0991–AB63
§ 149.700 Change of ownership
requirements.
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effect under this part and is considering
or negotiating a change in ownership
must notify the Secretary at least 60
days before the anticipated effective
date of the change.
(d) Assignment of agreement. When
there is a change of ownership as
specified in paragraph (a) of this
section, and this results in a transfer of
the liability for health benefits, the
existing sponsor agreement is
automatically assigned to the new
owner.
(e) Conditions that apply to assigned
agreements. The new owner to whom a
sponsor agreement is assigned is subject
to all applicable statutes and regulations
and to the terms and conditions of the
sponsor agreement.
(f) Failure to notify the Secretary at
least 60 days before the anticipated
effective date of the change may result
in the Secretary recovering funds paid
under this program.
Office of the Secretary, HHS.
Interim final rule with comment
AGENCY:
ACTION:
period.
SUMMARY: The Patient Protection and
Affordable Care Act (the Affordable Care
Act) was enacted on March 23, 2010. It
requires the establishment of an internet
Web site (hereinafter referred to as a
Web portal) through which individuals
and small businesses can obtain
information about the insurance
coverage options that may be available
to them in their State. The Department
of Health and Human Services (HHS) is
issuing this interim final rule in order
to implement this mandate. This interim
final rule adopts the categories of
information that will be collected and
displayed as Web portal content, and
the data we will require from issuers
and request from States, associations,
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and high risk pools in order to create
this content.
DATES: Effective Date: These regulations
are effective on May 10, 2010.
Comment Date: To be assured
consideration, comments must be
received at the address provided below,
no later than 5 p.m. on June 4, 2010.
ADDRESSES: In commenting, please refer
to file code DHHS–9997–IFC. Because of
staff and resource limitations, we cannot
accept comments by facsimile (FAX)
transmission.
You may submit comments in one of
four ways (please choose only one of the
ways listed):
• Electronically. You may submit
electronic comments on this regulation
to https://www.regulations.gov. Follow
the instructions on the home page.
• By regular mail. You may mail
written comments to the following
address ONLY: Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, Attention:
DHHS–9997–IFC, P.O. Box 8014,
Baltimore, MD 21244–8014.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
• By express or overnight mail. You
may send written comments to the
following address ONLY: Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services, Attention: DHHS–9997–IFC,
Mail Stop C4–26–05, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
• By hand or courier. If you prefer,
you may deliver (by hand or courier)
your written comments before the close
of the comment period to either of the
following addresses:
a. For delivery in Washington, DC—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, Room 445–G, Hubert
H. Humphrey Building, 200
Independence Avenue, SW.,
Washington, DC 20201
(Because access to the interior of the
Hubert H. Humphrey Building is not
readily available to persons without
Federal government identification,
commenters are encouraged to leave
their comments in the CMS drop slots
located in the main lobby of the
building. A stamp-in clock is available
for persons wishing to retain a proof of
filing by stamping in and retaining an
extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
If you intend to deliver your
comments to the Baltimore address,
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please call telephone number (410) 786–
9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses
indicated as appropriate for hand or
courier delivery may be delayed and
received after the comment period.
Submission of comments on
paperwork requirements. You may
submit comments on this document’s
paperwork requirements by following
the instructions at the end of the
‘‘Collection of Information
Requirements’’ section in this document.
For information on viewing public
comments, see the beginning of the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Danielle Harris, (410) 786–1819.
SUPPLEMENTARY INFORMATION: Inspection
of Public Comments: All comments
received before the close of the
comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. We post all comments
received before the close of the
comment period on the following Web
site as soon as possible after they have
been received: https://regulations.gov.
Follow the search instructions on that
Web site to view public comments.
Comments received timely will be
also available for public inspection as
they are received, generally beginning
approximately 3 weeks after publication
of a document, at the headquarters of
the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday
through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an
appointment to view public comments,
phone 1–800–743–3951.
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I. Background
The Patient Protection and Affordable
Care Act (Pub. L. 111–148), hereinafter
referred to as the Affordable Care Act,
was enacted on March 23, 2010. Section
1103(a), as amended by section 10102(b)
of the same act, directs the Secretary to
immediately establish a mechanism,
including an internet Web site, through
which a resident of, or small business
in, any State may identify affordable
health insurance coverage options in
that State.
In implementing these requirements,
we seek to develop a Web site
(hereinafter called the Web portal) that
would empower consumers by
increasing informed choice and
promoting market competition. To
achieve these ends, we intend to
provide a Web portal that provides
information to consumers in a clear,
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salient, and easily navigated manner.
We plan to minimize the use of
technical language, jargon, or excessive
complexity in order to promote the
ability of consumers to understand the
information and act in accordance with
what they have learned. We will engage
in careful consumer testing to identify
the best methods to achieve these goals.
In obtaining information to populate
the Web portal, we will be seeking all
the statutorily required information
from issuers, and we anticipate adopting
electronic submission capabilities. As
we develop the Web portal, and engage
with consumers, this information will
be used to create an effective consumerfriendly presentation of affordable
health coverage option plans. In
addition, we plan to provide
information, consistent with applicable
laws, in a format that is accessible for
use by members of the public, allowing
them to download and repackage the
information, promoting innovation and
the goal of consumer choice.
As we develop the Web portal, we are
also seeking to balance the need to
obtain information that will promote
informed choice with the principles of
the Paperwork Reduction Act and
Executive Order 12866, which call for
minimizing burdens and maximizing
net benefits. To that end, we are seeking
comments on how best to achieve that
balance, and in particular how to reduce
unnecessary burdens on the private
sector.
This is an interim final rule that
becomes effective May 10, 2010. We
invite public comments on all relevant
issues to make improvements.
A. Statutory Basis
As discussed above, Section 1103(a)of
the Affordable Care Act, as amended by
section 10102(b) of the same act, directs
the Secretary to immediately establish a
mechanism, including an internet Web
site, through which a resident of, or
small business in, any State may
identify affordable health insurance
coverage options in that State. To the
extent practicable, the Web site
(hereinafter called the Web portal) is to
provide, at minimum, information on
the following coverage options:
1. Health insurance coverage offered
by health insurance issuers,
2. Medicaid coverage,
3. Children’s Health Insurance
Program (CHIP) coverage,
4. State health benefits high risk pool
coverage,
5. Coverage under the high risk pool
created by section 1101 of the
Affordable Care Act, and
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6. Coverage within the small group
market for small businesses and their
employees.
In order to provide this information in
a standardized format, section 1103(b)
requires the Secretary to develop a
standardized format to present the
coverage information described above.
This format is to provide for, at a
minimum, the inclusion of information
on the percentage of total premium
revenue expended on nonclinical costs
(as reported under section 2718(a) of the
Public Health Service Act), eligibility,
availability, premium rates, and cost
sharing with respect to such coverage
options. The format must be consistent
with the standards that are adopted for
the uniform explanation of coverage
under section 2715 of the Public Health
Service Act. Defining the minimum
content of the format required under
section 1103(b) in effect defines what
we will publish as the minimum
content of the Web portal. This
regulation, therefore, specifies the data
that will be collected and disseminated
through the Web portal in accordance
with 1103(a) as amended by section
10102(b).
B. General Overview
Section 1103(a) of the Affordable Care
Act, as amended by section 10102(b) of
the same act, requires the establishment
of a Web portal through which
individuals can obtain information
about the health insurance options that
may be available to them in their
‘‘State.’’ Section 1304(d) of the
Affordable Care Act defines ‘‘State’’ to
include the fifty states and the District
of Columbia. The territories are not
included in this definition. We therefore
will interpret ‘‘State’’ in the Web portal
context to mean the 50 States and the
District of Columbia.
By statute, the Web portal must be
available for public use no later than
July 1, 2010. We will use the data
collections and processes described in
this rule to make the initial release of
the Web portal available to the public
on July 1, 2010, through a government
sponsored Web site. We intend for the
future development and updating of the
Web portal to be an evolutionary
process that involves all stakeholders,
and we anticipate future updates,
including annual and periodic
revisions, to be released as the result of
a continued refinement of the Web
portal content.
In the July 1, 2010 release we will
provide summary information about
health insurance products that are
available in the individual and small
business markets including issuers of
the products, types of products,
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location, summaries of services offered,
links to provider networks, and contact
information (including Web site links
and customer service telephone contact)
to enable interaction with specific
issuers. In addition, the Web portal will
provide information on eligibility,
coverage limitations and premium
information for existing high risk pools
operating in the States, to the extent that
it is provided to us by the responding
parties. It will also provide introductory
information on eligibility and services
for Medicaid and CHIP. We will include
contact information and Web site links
for the Medicaid and CHIP programs for
individuals who believe that they or
family members may meet eligibility
criteria. In addition, we will provide
information on coverage options for
small businesses, including reinsurance
for early retirees under section 1102 of
the Affordable Care Act (which is being
administered by HHS), and tax credits
available under section 45R of the
Internal Revenue Code, as added by
section 1421 of the Affordable Care Act.
We also will include Web site links to
these programs so that small businesses
can obtain further information.
We note that Section 1103(b)(1)
requires the Secretary to present the
Web portal information in a format that
is consistent with the standards that are
adopted for the uniform explanation of
coverage under section 2715 of the
Public Health Service Act (PHSA) as
added by section 1001(a) of the
Affordable Care Act. Section 2715 of the
PHSA provides for the establishment of
these standards within 12 months of the
Affordable Care Act’s enactment date.
As a result, these standards will not be
in place for the July 1, 2010 release of
the Web portal. We will modify the
format used to present the initial release
of the Web portal to ensure Web portal
consistency with these standards in
accordance with the implementation
schedule that is established for these
standards.
In an effort to make the Web portal as
comprehensive as possible, we will
enhance the content over time to
include more than the statutory
minimum requirements that are
discussed above. We will include any
information that we have that we
believe would be useful to consumers,
such as medical loss ratios, quality and
performance information, links to
appropriate Web sites such as the Web
site of the association that represents
existing State health benefits high risk
pools, and more State-specific
information on Medicaid and CHIP
eligibility and service coverage. Because
of the complexity of pricing information
and the need to incorporate pricing
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engines into the Web site, detailed
pricing and benefit information will be
provided in the second release of the
Web portal on October 1, 2010.
As we discuss in more detail in
section III ‘‘Waiver of Proposed
Rulemaking and the 30-Day Delay in the
Effective Date,’’ the statutory
requirement for a July 1, 2010 Web
portal release does not allow time for
full notice and comment rulemaking.
While this timeframe necessitates going
directly to final, in order to maximize
public input we are using an interim
final rule with comment to establish the
categories of information that we will
collect for inclusion in the Web portal,
including the data production
requirements that we impose on health
insurance issuers, and the data
collection requests for States,
associations, and high risk pools.
II. Provisions of the Interim Final Rule
A. Definitions
For any terms defined by the
Affordable Care Act, including the
definitions in section 1304, as well as
any definitions in the Public Health
Service Act that are incorporated by
reference under sections 1301(b) or 1551
of the Affordable Care Act, we adopt
those definitions. We discuss these
definitions below. The regulatory text
provides cross references to these
provisions. We also explain here how
we are defining the terms that are not
defined in the Affordable Care Act or
the PHSA. These terms are ‘‘State health
benefits high risk pool,’’ ‘‘section 1101
high risk pool,’’ ‘‘health insurance
product’’ and ‘‘portal plan.’’
Section 2791(b)(1) of the PHSA, as
incorporated by reference into the
Affordable Care Act, defines ‘‘health
insurance coverage’’ as ‘‘benefits
consisting of medical care (provided
directly, through insurance or
reimbursement, or otherwise and
including items and services paid for as
medical care) under any hospital or
medical service policy or certificate,
hospital or medical service plan
contract, or health maintenance
organization contract offered by a health
insurance issuer.’’ Section 2791(b)(2) in
turn defines an insurance issuer (also
referred to here as an ‘‘issuer’’) to be an
entity ‘‘licensed to engage in the
business of insurance in a State and
which is subject to State law which
regulates insurance’’ and specifies that it
does not include a group health plan.
For purposes of the Affordable Care
Act and the PHSA, a distinction is made
between health insurance coverage sold
to group health plans, and other health
insurance coverage. The term ‘‘group
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health plan,’’ as defined in section
2791(a)(1) of the PHSA, exclusively
refers to health coverage sold to group
health plans. Section 1304(a)(2) of the
Affordable Care Act, which adopts the
identical definition as section
2791(e)(1)(A) of the PHSA, defines
‘‘individual market’’ as the ‘‘market for
health insurance coverage offered to
individuals other than in connection
with a group health plan.’’
Section 2791(b)(5) of the PHSA in
turn defines ‘‘individual health
insurance coverage’’ as health insurance
coverage ‘‘offered to individuals in the
individual market, but does not include
short-term limited duration insurance.’’
The Affordable Care Act and the
PHSA further divide the group health
insurance market into coverage sold to
large employers (the ‘‘large group
market,’’ and coverage sold to small
employers (the ‘‘small group market’’).
See section 1304(a)(3) of Affordable
Care Act. Section 1304(b)(2) of the
Affordable Care Act defines a ‘‘small
employer’’ as, in connection with a
group health plan with respect to a
calendar year and a plan year, an
employer who employed an average at
least 1, but not more than 100
employees on business days during the
preceding calendar year, and who
employs at least 1 employee on the first
day of the plan year. Section 1304(b)(3)
of the Affordable Care Act allows for a
State to elect the option to define ‘‘small
employer’’ as an employer who
employed on average at least 1, but not
more than 50 employees on business
days during the preceding calendar year
in the case of plan years beginning
before January 1, 2016. As such, for any
State that elects this option, we would
apply this alternate definition of ‘‘small
employer’’ for their State for plan years
beginning before January 1, 2016.
For purposes of this regulation, we
will refer to health insurance coverage
offered to employees of small employers
in the small group market as ‘‘small
group coverage.’’
Sections 1103(a)(2)(D) of the
Affordable Care Act provides for Web
portal reporting of ‘‘State health benefits
high risk pools.’’ For the purpose of this
rule, we define ‘‘State health benefits
high risk pools’’ as nonprofit
organizations created by State law to
offer comprehensive health coverage to
individuals who otherwise would be
unable to secure such coverage because
of their health status. This language was
adopted, with modification, from the
National Association of Comprehensive
Health Insurance Plans (NASCHIP)
annual report. Our understanding is that
this definition is generally understood
to identify existing high risk pools.
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Section 1103(a)(2)(E) provides for
Web portal reporting of pools
established pursuant to section 1101 of
the Affordable Care Act. For purposes of
this regulation, we define ‘‘section 1101
high risk pools’’ as any entity described
in regulations implementing section
1101 of the Affordable Care Act.
The Affordable Care Act and the
PHSA do not include the term ‘‘health
insurance product.’’ We are creating this
term as a short hand reference to the
information that we will publish in the
first release of the Web portal. This term
is needed in order to differentiate the
information that will be collected for the
July 1, 2010 release and the post-July 1,
2010 releases. We define ‘‘health
insurance product’’ (‘‘product’’) as a
package of benefits that an issuer offers
that is reported to State regulators in an
insurance filing.
The Affordable Care Act and the
PHSA also do not define the term
‘‘portal plan.’’ We are creating this term
to describe certain data that we will
collect and disseminate in post-July 1,
2010 releases of the Web portal. We
understand that consumers apply for
coverage under individual health
insurance products that issuers develop
and market to offer a package of
benefits. In applying for a package of
benefits, we further understand that
consumers are offered a range of costsharing arrangements, including
deductibles and copayments but not
including premium rates or premium
rate quotes. As a result, each package of
benefits can be paired with a multitude
of cost sharing options. We will use the
word ‘‘portal plan’’ to refer to the
discrete pairing of a package of benefits
with a particular cost-sharing option
(not including premium rates or
premium rate quotes). We will collect
portal plan information for publication
in post-July 1, 2010 releases of the Web
portal. We believe that portal plan
information is precise enough to
provide a potential consumer with
enough information to discern the
relative costs and benefits of selecting a
particular coverage option.
We welcome comments on the
adequacy of these definitions, and, if
applicable, suggestions to improve
them.
B. Individual and Small Group Market
Data Collection and Dissemination
In order to meet the mandate, we
must collect information on individual
and small group coverage from health
insurance issuers and prepare the
information to be presented publicly in
a clear and concise fashion. We will
have a two part rollout of the Web portal
for 2010, and then annual and periodic
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updates to allow for the inclusion of
updated data as well as consumer
education content.
1. Data Submission Mandate
The Secretary currently regulates
health insurance industry practices for
private insurance plans offered through
public programs such as Medicare,
Medicaid, and CHIP. While she either
has or has access to data on Federal
government sponsored plans, we must
issue regulations to mandate the
production of the necessary information
from issuers in order to fulfill the
statutory mandate as it applies to
private plans not offered through
Federal government programs. To
facilitate the development of a robust
Web portal with comprehensive pricing
and benefit information on individual
and small group coverage, our current
plan is to contract with a vendor that
has a health insurance pricing engine
and a related Web site with portal plan
identification and comparison
functionality through a full and open
competition. The work on this contract
will not be completed in time for the
July 1, 2010 release of the Web portal.
Accordingly, we will collect an initial
set of data (health insurance product
information) from issuers in order to
present basic information on all issuers
and health insurance products in the
July 1, 2010 release of the Web portal.
This release of the Web portal will only
contain the basic information on issuers
and their products in the individual and
small group markets that was
practicable to obtain in the constrained
timeframe for meeting the statutory
requirement that the Web portal be
available for public use by July 1, 2010.
We will provide a second release of the
Web portal on October 1, 2010 with
comprehensive pricing and benefit
information for individual and small
group coverage.
We will communicate to consumers
through the Web portal and other public
communication processes, such as
presentations and reports to
stakeholders, the names of those issuers
who fail to timely meet the reporting
requirements or who provide
incomplete or inaccurate information.
a. July 1, 2010
To meet the July 1, 2010 deadline, we
will require issuers to provide data that
we will use to develop introductory
information for consumers on the
universe of issuers and health insurance
products in their geographic area. By
May 21, 2010 we will require issuers to
submit corporate and contact
information, such as corporate
addresses and Web sites; administrative
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information, such as enrollment codes;
enrollment data by product; product
names and types, such as Preferred
Provider Organization (PPO) or Health
Maintenance Organization (HMO);
whether enrollment is currently open
for each product; geographic availability
information, such as product
availability by zip code or county;
customer service phone numbers; Web
site links to the issuer Web site,
brochure documents such as benefit
summaries, and provider networks; and
financial ratings, such as those offered
by financial rating firms including AM
Best, Standard and Poor, and Moody’s,
if available.
We invite comment on whether
enrollment information is considered by
issuers to be confidential business
information.
We are aware that some issuers are
rated on their financial status and other
performance measures. We considered
excluding issuers with no or low
financial ratings from firms such as AM
Best, Standard and Poor, and Moody.
However, it is our understanding that
not all issuers seek financial ratings, and
that the private firms that conduct them
do not use standardized approaches.
Therefore, we will instead require each
issuer to submit information on whether
they obtained a financial rating, from
which firm, and what the rating is. We
will use this information to help analyze
whether such ratings are or could be
useful in conveying meaningful
differences to consumers. For the same
purpose we will allow, but not require
issuers to report other types of ratings
they have received, such as ratings from
The National Committee for Quality
Assurance (NCQA) Accreditation.
Certain administrative information
that we are collecting, such as an
issuer’s technical contact information
(that is, the person who will work
directly with us and our contractors to
submit and validate data), tax
identification number, and enrollment
count in an issuer’s products, will be
used to support the structure of the
database in which this information will
be warehoused so that the data can be
easily retrieved to support uploading
information to the Web portal test site,
and so that issuers and their portal
plans can be reliably recognized by HHS
and issuers and counted to support
analyses for improving the Web portal.
This information will also be used to
support analysis necessary to improve
the meaningfulness and usefulness of
the Web portal in future releases. In
addition, certain contact information
will allow the Federal government and
its contractors to provide useful updates
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and reminders to issuers and to provide
technical support.
Data submitted under the
requirements contained in this
regulation must be submitted by issuers
in accordance with instructions issued
by the Secretary.
b. October 1, 2010
We will release a more
comprehensive version of the Web
portal on October 1, 2010. This version
will include benefit and pricing
information. Benefit and pricing
information includes data such as
premiums, cost-sharing options, types of
services covered, coverage limitations,
and exclusions.
We note that for States in which
premiums are not community rated, the
premium data that we intend to collect
will include manual rates that represent
only standard risks. As a result of
medical underwriting, issuers may
charge individuals rates that are above
the manual rate based on the applicant’s
health status. We recognize that there is
not a feasible method for collecting or
displaying information on the rate that
an individual who is underwritten
might actually be charged, and in the
absence of that are proposing to provide
information on the manual rates with
the understanding that they do not
represent actual premium rates that an
individual may be charged.
While the initial release of the Web
portal will list all issuers and all health
insurance products, we believe that it
would confuse users if we were to
display portal plans that are not open
for enrollment. Furthermore, we believe
that it is inappropriate to impose a
pricing and benefits information
reporting burden on issuers for products
and portal plans that are not open for
enrollment. Therefore, we will exempt
issuers of products and portal plans that
are not open to new enrollments from
additional pricing and benefits reporting
requirements. Such issuers will be
required to provide the data defined
under the May 21 collection to assure
we have the universe of issuers and
their health insurance products.
In the event that an issuer establishes
new products or new portal plans under
a product, or opens enrollment in
products or portal plans under a
product that was previously closed to
enrollment, we will require the
submission of the pricing and benefits
information within 30 days of offering
new, or newly re-opened to enrollment,
products or portal plans.
We considered excluding issuers with
minimal market share from the benefits
and cost sharing data collection.
However, we believe that some of the
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portal plans offered by these issuers
serve niche markets that would be
particularly appealing to some
consumers. At this time, we will
include portal plans with minimal
market share, but we will collect
enrollment data for use in analyzing the
effect, if any, of market share and our
ability to meet consumer needs.
The intent of the Web portal is to
present consumers with the full range of
meaningful insurance options available
to them. We believe this will be best
accomplished through providing all
plans that have a non-de minimus
portion of the issuer’s enrollment in an
area and allowing for additional plans to
be submitted based on the issuers
perception of need. Our initial overview
of the market indicates that most areas
have coverage which is concentrated in
a limited number of portal plans. One
percent of an issuers’ enrollment in the
service area was seen as a reasonable cut
off balancing the consumer’s right to
know with the burden imposed on
issuers. Therefore, for each zip code,
issuers will be required to submit
information on at least all portal plans
that are open for enrollment and that
represent 1 percent or more of the
issuer’s total enrollment for the
respective individual or small group
market within that zip code.
We invite comments from the public
on what information should be required
from issuers to ensure consumer access
to meaningful information about
coverage options is included in the Web
portal, and on the ways that information
should be presented to allow for sorting
and comparing portal plans. We are
particularly interested in comments
from consumers, to make certain that
the Web portal meets the needs of those
individuals who will use it as part of
their health coverage decision making.
The data submissions for the October
1, 2010 Web portal release will be due
by September 3, 2010. Data must be
submitted by issuers in accordance with
instructions issued by the Secretary.
c. Future Updates
After the initial data collection efforts
described in the prior two subsections,
we will require issuers to perform an
annual verification and update of the
data they submitted. In addition, we
recognize that many issuers update
pricing and benefit information for their
portal plans more frequently than
annually, and we therefore will require
issuers to submit updated data
whenever they change premiums, costsharing, types of services covered,
coverage limitations, or exclusions for
one or more of their individual or small
group portal plans. Furthermore, we
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will require issuers that develop new
health insurance products between
annual verifications to submit pricing
and benefit information for the new
product within 30 days of opening
enrollment.
Finally, while not included in the
statutory list of minimum requirements
for the Web portal, we will collect from
issuers and report on the Web portal in
2011 the following performance ratings:
percent of individual market and small
group market policies that are
rescinded; the percent of individual
market policies sold at the manual rate;
the percent of claims that are denied
under individual market and small
group market policies; and the number
and disposition of appeals on denials to
insure, pay claims and provide required
preauthorizations.
Updated data, including the required
data updates previously discussed and
annual verifications, must be submitted
by issuers in accordance with
instructions issued by the Secretary in
a future Paperwork Reduction Act
Package.
d. Data Validation
All data that is collected for the July
1, 2010, October 1, 2010, and future
releases of the Web portal will be
validated by the issuers to assure the
information they provided is correct.
We will require the issuer’s CEO or CFO
to electronically certify to the
completeness and accuracy of the initial
data collection for the October 1, 2010
release of the Web portal and for any
future updates to these requirements.
Following the submission of the data,
we will provide issuers with access to
preview the data that we will publish on
the Web portal. They will also be
provided with access to edit their data
submissions to update or correct
information.
2. Voluntary Data Submission by States
We are requesting that States submit
data on issuer corporate and contact
information for licensed issuers in their
State, such as corporate addresses and
Web sites; underwriting status, such as
whether or not premium rates in the
individual market are determined based
on medical underwriting or community
rating; and information on any public
Web sites administered by the State that
provide consumer guidance on
individual and small group health
insurance coverage in their State.
It is our understanding that States
possess the issuer corporate and contact
information we are requesting them to
submit as a result of their filing
requirements for regulated issuers. We
are requesting that States voluntarily
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submit issuer corporate and contact
information because we believe that it is
incumbent upon us to ensure that we
provide information on the entire
universe of issuers and health insurance
products. Gathering these data from
both States and issuers will help us in
determining the universe and ensure
that we are not inadvertently excluding
an issuer or product as a result of
incomplete data collection.
The underwriting information and
Web site links we are requesting from
States will be included on the Web
portal in an effort to develop consumer
education content and incorporate (by
way of linking) any State-developed
information on insurance coverage
options in a given State. We recognize
that some States may have already
developed Web portals that provide
comprehensive information about
health insurance coverage in their State,
and we will link to that information if
it is available.
In asking States to provide the data
identified above, we note that the
information would improve the
accuracy and scope of the information
we can provide to consumers in each of
the States. We expect that States will
want to ensure full access to
information about issuers, health
insurance products and portal plans to
their residents. We believe that doing so
would support consumer choice and a
more robust marketplace for insurance.
We therefore anticipate that States will
be responsive to this request because the
information requested will enhance the
ability of the citizens of each State to
identify affordable options for
insurance.
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3. Data Dissemination
We will disseminate the information
collected as a result of our data
submission mandates as described
above, as well as other information
about health insurance coverage in the
individual and small group market that
may be useful to the public.
a. July 1, 2010
On July 1, 2010 the Web portal will
include information on the data
collected as a result of the May 21, 2010
data submission mandate outlined
above, including information for
consumers on the issuers that sell
individual and small group products in
their area and links to benefit
information for those products. In
addition, we will provide some
consumer education information on the
individual market, including describing
how it operates and why its offerings
might be appropriate for a consumer, as
well as information that will facilitate
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health insurance coverage decisionmaking and increased understanding of
how the Web portal operates in the
context of the Affordable Care Act. We
also will include information for small
businesses on the small group market,
including information on the
reinsurance and tax credit programs
discussed previously.
b. October 1, 2010
On October 1, 2010 the Web portal
will include expanded content that will
incorporate the data collected as a result
of the September 3, 2010 data
submission mandate outlined above
with the data collected for the May 21,
2010 mandate previously discussed.
Using the pricing and benefit
information gathered as a result of the
September 3rd collection, we will
display portal plans as packages of
benefits and cost sharing, with
associated premiums, based on
geographic availability.
The display of portal plans will be
driven by interactive functionality that
accounts for geographic and personal
demographic information such as State
and zip code of residence, sex, family
composition, smoking status and other
health indicators. We intend for the
order and layering of search results to be
based on consumer choice parameters
such as range of premium, high and low
deductibles, ranges of out-of-pocket
maximums, provider network, and
indicators of market interest in the
product including enrollment. We
intend that consumers will also have the
ability to select on all available issuers
and portal plans and view them
alphabetically.
We invite comments on the sort and
selection functionality of the Web
portal, and on the order and layering of
portal plans that we will display.
Certain administrative data collected
for the October 1 Web portal release will
not be displayed directly on the Web
portal but these data are important to
the functionality of a pricing engine,
such as input data that defines the
geographic and demographic variables
that affect premium price and cost
sharing that will be displayed on the
Web portal.
We also will retain and enhance the
consumer education content established
for the July 1, 2010 Web portal release.
c. Future Updates
We will update the portal plan pricing
and benefit information as frequently as
monthly to reflect updates that issuers
submit as a result of changes to their
portal plans. As discussed previously,
because issuers may update pricing and
benefit information more frequently
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24475
than annually, we are requiring updated
data submissions whenever an issuer
changes the premiums, cost-sharing,
types of services covered, coverage
limitations, or exclusions for one or
more of their individual or small group
portal plans. Our monthly updates will
also reflect these updates. Consumer
education content will be updated
periodically in the event that new and
pertinent information about either of
these markets becomes available that
would be beneficial for a consumer to
know.
In addition, we are required by
section 1103(b)(1) to provide
information on the percentage of total
premium revenue expended on
nonclinical costs, as reported under
section 2718(a) of the Public Health
Service Act (PHSA). We will report
medical loss ratios to meet this
requirement, which will provide more
than the minimally required
information and is believed to be more
useful to the public. Section 2718 of the
PHSA requires issuers to report this
information to HHS beginning with plan
years starting on or after September 23,
2010, and the Secretary is promulgating
rules on these reporting requirements.
After the regulations for this provision
are implemented, we anticipate
including medical loss ratio information
on the Web portal.
As discussed previously, we
anticipate including portal plan
performance rating information, such as
percent of individual market and small
group market policies that are
rescinded, the percent of individual
market policies sold at the manual rate,
the percent of claims that are denied
under individual market and small
group market policies, and the number
and disposition of appeals, on the Web
portal in the future.
We also anticipate posting
information derived from standards and
reporting obligations that will apply to
insurance sold under the exchanges. For
example, we might post information on
issuers’ financial stability, trends in
enrollment and disenrollment, appeals
and grievances, and other indicators of
fiscal viability, customer service and
policy-holder satisfaction.
The Affordable Care Act directs the
Secretary to develop quality measures
and standards to inform the public
about quality of care and to drive
improvements in the service delivery
system. When such measures and
standards become available they will be
incorporated into the Web portal.
We invite comments on the content of
futures updates to the Web portal,
including the frequency of updates, the
inclusion of performance rating
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information, and the incorporation of
quality measures and standards.
C. Information to be Collected and
Disseminated on High Risk Pool
Coverage
Sections 1103(a)(2)(D) and (E) of the
Affordable Care Act requires HHS to
include information about State health
benefits high risk pools and high risk
pools established under section 1101 of
the Affordable Care Act. In order to
fulfill this mandate, HHS must establish
a mechanism for collecting and
preparing this information for public
dissemination in a clear and concise
fashion.
1. Data Submission Request
Pursuant to the requirement that the
Web portal include information on
coverage through these high risk pools,
this rule requests that certain
information on State health benefits
high risk pools and high risk pools that
will operate under authority established
in section 1101 of the Affordable Care
Act be reported.
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a. July 1, 2010
We will ask the National Association
of State Comprehensive Health
Insurance Plans (NASCHIP) for
information about State health benefit
high risk pools. This information will
include administrative and contact
information, such as a customer service
phone number and a Web site for pool
information; pool eligibility
information, such as state residency and
health condition requirements; pool
coverage limitations, such as restrictive
riders; and pool premium information,
such as rules and restrictions for
premium subsidy programs. We
understand that this information is
currently collected and maintained by
NASCHIP, and that all of the existing
State health benefits high risk pools are
members of NASCHIP. As such, we
believe that NASCHIP is strategically
equipped to work with the State health
benefits high risk pools to gather and
transmit data to HHS on behalf of State
health benefits high risk pools.
Therefore, we will ask NASCHIP to
provide the data as discussed above by
May 21, 2010.
b. Future Updates
We understand that coverage that is
offered by State health benefits high risk
pools is updated on an annual calendaryear basis. We will therefore ask
NASCHIP to provide annual updates of
the information that we will request for
the May 21, 2010 data collection. If
NASCHIP is unable to provide this
information in the future, we will ask
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State health benefits high risk pools to
provide this information.
Because the initial release of the Web
portal is July 1, 2010, which is in the
middle of a calendar-year, we will
initiate the annual update data
submission requests in the fall of 2010.
In addition, we request that any State
health benefits high risk pool that is
established after May 21, 2010,
including any high risk pool established
pursuant to section 1101 of the
Affordable Care Act, report the
requested information within 30 days of
when the pool begins accepting
enrollment, and then annually
thereafter.
2. Data Dissemination
a. July 1, 2010
The July 1, 2010 release of the Web
portal will include eligibility, coverage
limitations and premium information as
collected under the request as described
above, as well as consumer education
content that would aid consumer
understanding about high risk pools
generally, and whether such pools
might offer a potential source of
coverage for them.
b. Future Updates
Future updates to the high risk pool
content of the Web portal will include
updates to the eligibility, coverage, and
premium information requested above.
These updates may include data for new
high risk pools that are established
subsequent to the July 1, 2010 release of
the Web portal, including those
established pursuant to section 1101 of
the Affordable Care Act. We understand
NASCHIP intends to build a Web site to
contain detailed information that today
is only available in NASCHIP’s hard
copy annual report. We will therefore
also provide a link to a NASCHIP Web
site in a future release in order to
provide even more comprehensive
information on those State health
benefits high risk pools that are
represented by NASCHIP.
D. Information to be Disseminated on
Medicaid and CHIP
Sections 1103(a)(2)(B) and (C) of the
Affordable Care Act require that
Medicaid and CHIP information be
included on the Web portal. Title XIX
of the Social Security Act, the law
governing the Medicaid program, has
allowed States broad discretion over
Medicaid eligibility policy and
therefore, Medicaid eligibility varies
widely across States. In general,
Medicaid eligibility is dependent on
categorical and income requirements.
Title XXI of the Social Security Act
outlines the eligibility rules in CHIP,
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and such eligibility requirements are
generally based on certain income
requirements for children under age 19.
There are instances where pregnant
women and parents can be eligible for
CHIP. The Affordable Care Act
simplifies Medicaid and CHIP income
eligibility rules for most populations
beginning January 2014. In the
meantime, individuals will need to
directly contact their State programs for
definitive determinations of their
eligibility or for their family members.
However, the Web portal can serve as a
resource to educate potential
beneficiaries that they or their family
members may be eligible for Medicaid
and CHIP and provide information
about how they can contact their State
programs to determine eligibility and
services available to them. The portal
will serve as a resource for
understanding what their State
Medicaid and CHIP programs generally
cover and how to apply for benefits.
To implement sections 1103(a)(2)(B)
and (C) we will provide information
guiding consumers on general eligibility
criteria for the individual State
programs in an effort to assist them in
assessing the need to pursue the
application processes for these
programs. There are no new reporting
requirements to support implementation
of this section. The data will come from
existing Federal sources. The Web
portal will also be designed to offer
links to the various State Medicaid and
CHIP agencies in order to facilitate
consumers’ submission of program
applications.
For each eligibility category, the Web
portal will present information
regarding the services that are available
to eligible applicants. General cost
sharing requirements will also be
presented on the Web portal, to the
extent that they are permitted for the
eligibility category in these programs.
In order to provide this information,
data are being compiled within CMS
across all Medicaid and CHIP eligibility
categories regarding the services
available under each program. This
includes both mandatory and optional
Medicaid services for which States
receive Federal funding as defined in
each State Medicaid plan and any
waiver of such plan, as well as the
services available under each State’s
CHIP plan and any waiver of such plan.
Mandatory services are specific services
States are required to cover for certain
groups of Medicaid beneficiaries, both
adults and children under the age of 21.
Each required service is defined in
Federal regulations 42 CFR part 440.
Optional Medicaid services are defined
as those services not required by Federal
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law that States may elect to provide
Medicaid beneficiaries. Optional
services are also defined in Federal
regulation at 42 CFR part 440. CHIP
regulations define mandatory and
optional services at 42 CFR part 457.
The portal will include data elements
for mandatory services for each
mandatory and optional categorical
group defined in each Medicaid State
plan, such as: Inpatient hospital care
(excluding inpatient services in
institutions for mental disease for
working age adults); outpatient hospital
care; physician’s services; nurse
midwife services; pediatric and family
nurse practitioner services; laboratories
and x-ray services; rural health clinic
services including Federally qualified
health centers (‘‘FQHC’’) and if
permitted by State law, rural health
clinic and other ambulatory services
provided by a rural health clinic which
are otherwise included under a State
Medicaid plan; prenatal care and family
planning services, skilled nursing
facility services for persons over age 21,
home health care services for persons
over 21 who are eligible for skilled
nursing services (includes medical
supplies and equipment), early and
periodic screening, diagnosis, and
treatment for persons under age 21
(‘‘EPSDT’’), necessary transportation
services, and vaccines for children.
If States include optional services in
their Medicaid State plan, they must be
provided in a manner that is consistent
with all Federal requirements. The Web
portal will include data elements to
reflect the availability of optional
services such as home health therapy
services, rehabilitative services, case
management services, medical or
remedial care services or other licensed
practitioners (chiropractors, podiatrists,
optometrist, psychologists and nurse
anesthetists), smoking cessation services
and palliative care for children in each
State Medicaid plan. Additional
program specific service information
will be provided with regard to
Demonstration programs designed by
States under the authority of section
1115 of the Social Security Act as well
as services provided through the
Children’s Health Insurance Program.
Appropriate information on a specific
State’s Demonstration programs,
including variations in eligibility,
coverage and service delivery systems
used under the Demonstrations, will
also be provided on the portal.
Demonstrations that are Statewide or
high impact, meaning that they have a
significant penetration in the market
and serve more than a narrow coverage
group, will also be included in the
initial release of the Web portal. Other
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Demonstration programs in Medicaid
and CHIP will be added in future
releases.
Additionally, the Web portal will
provide information to consumers on
the Home and Community-Based
Waiver program (Section 1915(c) of the
Act), including a broad range of State
defined services that enable
independence in a consumer’s own
home.
All of the above data will be derived
from sources internal to CMS and
include Medicaid State Plan
Amendments, CHIP State Plans, CHIP
annual reports, home and community
based waivers applications and
renewals, 1115 Demonstration
documents, and the contacts database
used for https://www.cms.gov which
includes consumer contacts to state
Medicaid and CHIP program offices. We
are not collecting any new data
elements for the Medicaid and CHIP
portions of the Web portal under the
authorities that were granted to us
under section 1103 of the Affordable
Care Act. All information will come
from data that CMS already collects for
program management and
administration purposes.
Certain State-based variations in
Medicaid and CHIP programs, such as
specific income and resource disregards,
and variations in services, such as limits
on the number of visits, cannot be
presented with a high degree of detail in
early releases of the Web portal. We
expect to list the services and note that
there are limitations, giving consumers
enough information to ask questions of
the State program if they pursue an
application to enroll.
Finally, while a significant amount of
data is being compiled to populate the
Web portal, some of the data for the
Medicaid and CHIP portion will be
presented in an aggregated format to
enhance public understanding. For
example, eligibility categories may be
collapsed together for purposes of
maximizing public understanding. By
way of example, there are several
working disabled eligibility categories
in Medicaid that inter-relate. We would
expect, given the complexity of these
definitions, that consumers may have
difficulty fully understanding these
categories. Therefore, we are presenting
the public with summary-level
information, such as collapsing
information about the working disabled
into one category.
III. Waiver of Proposed Rulemaking
and the 30-Day Delay in the Effective
Date
We ordinarily publish a notice of
proposed rulemaking in the Federal
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24477
Register and invite public comment on
the proposed rule in accordance with 5
U.S.C. 553(b) of the Administrative
Procedure Act (APA). The notice of
proposed rulemaking includes a
reference to the legal authority under
which the rule is proposed, and the
terms and substances of the proposed
rule or a description of the subjects and
issues involved. This procedure can be
waived, however, if an agency finds
good cause for concluding that a noticeand-comment procedure is
impracticable, unnecessary, or contrary
to the public interest and incorporates a
statement of the finding and its reasons
in the rule issued. Section 1103(a), as
amended by section 10102(b), and
section 1103(b) of the Affordable Care
Act provide for the establishment by
July 1, 2010 of a Web portal through
which a resident or small business of
any State may identify affordable health
insurance coverage options in that State.
In order to meet this mandate, we have
to collect and prepare for dissemination
a broad array of data on issuers, health
insurance products, and plans,
including administrative and product
information for the individual and small
group markets; information on
eligibility and coverage limits for high
risk pools; and information on eligibility
and services for Medicaid and CHIP.
This cannot be accomplished unless
issuers are made aware of the data
submission requirements in short order
and States, associations and high risk
pools are made aware of opportunities
to aide in this information
dissemination effort within the
established narrow timeframes. In order
to allow sufficient time for data
submission and validation prior to
public presentation, we must be in
possession of the data that is to be
included on the Web portal in the July
1, 2010 release no later than May 21,
2010.
As a result of this data collection
timeline, it is impracticable to issue a
notice of proposed rulemaking prior to
publishing a final rule that would
implement these data production
requirements. Therefore, we find good
cause to waive notice and comment
rulemaking, and we are proceeding with
issuing this final rule on an interim
basis. We are providing a 30-day public
comment period.
In addition, we ordinarily provide a
30-day delay in the effective date of the
provisions of an interim final rule.
While the Administrative Procedures
Act (5 U.S.C. 551 et seq.) generally
requires the publication of a substantive
rule not less than thirty days prior to its
effective date, agencies may establish a
shorter time frame based on good cause.
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5 U.S.C. 553(d)(3). In accordance with
the good cause basis explained below,
these regulations are effective on May
10, 2010.
Section 1103(a) of the Affordable Care
Act requires the public release of the
Web portal on July 1, 2010. As shown
below, a sequenced order of activities
must be completed in order to meet this
statutory deadline.
Data will be uploaded into the
database supporting the Web portal to
populate the Web portal test site, and
based on observations adjustments to
the actual Web site may be made. Any
problems with the actual data would be
adjusted as well. This is a four week
iterative process that continues until the
test site is functioning and presenting
data output as expected, which begins
with the first data upload on June 3 and
ends with the release of the Web portal
on July 1.
Prior to this, the data that is submitted
must be formatted in preparation for
upload to the database that supports the
Web portal test site. First upload to the
test site takes approximately two days,
from June 1 to June 3. There can be
subsequent uploads through June 14, as
noted below.
Prior to this, beginning May 21, we
must have time to view the submitted
data to assure it is complete and clean.
At this same time we believe that the
regulated parties should be offered an
opportunity to validate the data they
submit and resubmit any erroneous
data. We believe that the minimum time
required to accomplish such work is
three weeks, which brings us to June 14,
2010. There is a 10 day overlap between
this process and the two processes
described above.
Prior to this, we must afford those
submitting the data with adequate time
to gather and submit the data. We
believe that the minimum time that
should be provided for this work is 7
business days from May 12 through to
May 21, 2010.
In order to submit that data, these
parties will need to establish accounts
that will allow secure data entry into the
data collection tool. This will entail
approximately 3 business days from
May 10 to May 12.
Furthermore, we anticipate that these
parties will need training and guidance
on gathering data, obtaining an account
and entering data. This will include a
webinar on or about May 7 and other
technical support through a help desk.
This collection of activities would take
at least 4 business days which brings us
to May 12, 2010.
Thus, in order to meet the statutory
deadline of July 1, 2010, the processes
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described above must commence no
later than May 10, 2010.
Furthermore, certain activities had to
occur within the agency prior to our
being able to publish a rule to
implement the Web portal requirements,
or enter the contracts necessary to
support work under this rule. The
Affordable Care Act was enacted on
March 23, 2010. We immediately
established a workgroup to analyze
policy options and the contractual and
regulatory needs of the Web portal
program. This work was completed on
April 22. We then commenced taskspecific workgroups to draft the
necessary documents, including this
regulation, and to procure the initial
contractors. While these activities
would usually take at least 6 months we
have accomplished them in just under
six weeks. It was impossible to have
accomplished this work any faster, and
the brief timeframe between the
publication of this document and the
effective date of its provisions could not
have been avoided through more
diligent use of time by the individuals
working to implement this mandate.
To afford a full thirty days between
publication and the effective date we
would be have to hold the parties
submitting the data and ourselves to
inadequate timeframes in which to
accomplish the necessary tasks. The
timeframes and dates described above
therefore establish good cause for an
effective date that is fewer than thirty
days after publication.
We will accept comments on the
content of this regulation until June 4,
2010. This schedule will allow for a ten
day comment period prior to the initial
reporting requirement under these
regulations.
IV. Collection of Information
Requirements
In accordance with section 3507(j) of
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.), the information
collection included in this interim rule
have been submitted for emergency
approval to the Office of Management
and Budget (OMB). OMB has assigned
control number 0938–1086 to the
information collection requirements.
Under the Paperwork Reduction Act
of 1995, we are required to provide 60day notice in the Federal Register and
solicit public comment before a
collection of information requirement is
submitted to the Office of Management
and Budget (OMB) for review and
approval. In order to fairly evaluate
whether an information collection
should be approved by OMB, section
3506(c)(2)(A) of the Paperwork
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Fmt 4700
Sfmt 4700
Reduction Act of 1995 requires that we
solicit comment on the following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of our agency.
• The accuracy of our estimate of the
information collection burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
We are soliciting public comment on
each of these issues for the following
sections of this document that contain
information collection requirements
(ICRs):
ICRs Regarding Data Submission for the
Individual and Small Group Markets
(§ 159.120)
Section 159.120(a) requires health
insurance issuers (issuers), in
accordance with guidance issued by the
Secretary, to submit corporate and
contact information; administrative
information; enrollment data by health
insurance product; health insurance
product name and type; whether
enrollment is currently open for each
health insurance product; geographic
availability information; customer
service phone numbers; and Web site
links to the issuer Web site, brochure
documents, and provider networks; and
financial ratings on or before May 21,
2010, and annually thereafter. The
information must be submitted via a
template furnished by the Secretary.
The burden associated with these
reporting requirements is both the time
and effort necessary to review the
regulations, analyze data, and train
issuer staff and the time and effort
necessary for an issuer to compile the
necessary information, to download and
complete the template, and to submit
the required information. We estimate
that this requirement affects 650 issuers.
We believe it will take each issuer 30
hours to review the regulations, analyze
data, and train its staff on how to
comply with the requirements. The total
one-time burden associated with this
requirement is 19,500 hours. The
estimated cost associated with
complying with this part of the
requirement is $1,950,000.
Based on our experience with
Medicare Part C, we also estimate that
each issuer will submit information on
9 of its portal plans and that it will take
each issuer a total of 19 minutes to
download the information submission
template, complete the template, and
submit the template. The estimated
annual burden associated with the
requirements in § 159.120 is 206 hours.
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The estimate cost associated with
complying with these requirements is
$13,390.
Section 159.120(b) requires issuers, in
accordance with the guidance issued by
the Secretary, to submit pricing and
benefit data for their portal plans on or
before September 3, 2010, and annually
thereafter. The information must be
submitted via a template furnished by
the Secretary. The burden associated
with this requirement is the time and
effort necessary for issuers to compile
and submit pricing and benefit
information. We estimate that it will
take each of the 650 issuers 533 minutes
to comply with these requirements. The
total annual burden associated with
these requirements is 51,968 hours. The
estimated cost associated with
complying with these requirements is
$3,377,920.
Section 159.120(c) requires issuers to
submit updated pricing and benefit data
for their portal plans whenever they
change premiums, cost-sharing, types of
services covered, coverage limitations,
or exclusions for one or more of their
individual or small group portal plans.
Section 159.120(d) requires issuers to
submit pricing and benefit data for
portal plans associated with products
that are newly open or reopened for
enrollment within 30 days of opening
for enrollment. Each submission would
include a certification on the
completeness and accuracy of the
submission. The burden associated with
these requirements is the time and effort
necessary for an issuer to submit the
aforementioned data. While these
requirements are subject to the PRA, we
do not have sufficient data to estimate
the associated burden. We do not know
the frequency with which issuers will
make the aforementioned updates. For
that reason, we are estimating a total
burden of 1 hour for these requirements.
24479
The estimate of one hour acknowledges
that there is a burden associated with
this requirement. The total estimated
annual burden to industry associated
with these updates is 13,000 hours, or
20 hours per issuer. This estimate is
based on a three times a year, 19 minute
per batch response update. The total
cost associated with this requirement is
$845,000.
Section 159.120(e) requires issuers to
annually verify the data submitted
under § 159.120(a) through (d). Section
159.120(f) requires issuers to submit
administrative data on product and
performance rating information for
future releases of the Web portal in
accordance with guidance issued by the
Secretary. While these requirements are
subject to the PRA, we will seek OMB
approval at a later date under notice and
comment periods separate from this
interim final rule with comment.
TABLE 1—RECORDKEEPING AND REPORTING BURDEN
Regulation section(s)
OMB control
No.
§ 159.120(a) ..............................
§ 159.120(b) ..............................
§ 159.120(c) and (d) ..................
Total ...................................
This interim final rule imposes
information collection requirements as
outlined in the regulation text and
specified above. However, this interim
final rule also makes reference to several
associated information collections that
are not discussed in the regulation text
contained in this document. The
following is a discussion of these
information collections.
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State Data Submissions
As previously stated in Section II.B.2
of the preamble of this interim final
rule, we are requesting that States, in
accordance with guidance issued by the
Secretary, submit issuer corporate and
contact information, underwriting
status, and information on any Stateadministered Web sites that provide
consumer information on health
insurance coverage in their State by May
21, 2010. The information must be
submitted via a template furnished by
the Secretary.
The burden associated with these
voluntary reporting requests is both the
time and effort necessary to review the
regulations, analyze data, and train
issuer staff and the time and effort
necessary for an issuer to compile the
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14:33 May 04, 2010
Jkt 220001
Total annual
burden
(hours)
Hourly labor
cost of
reporting ($)
Total labor
cost of
reporting ($)
Total capital/maintenance costs
($)
650
650
650
13,000
30
.317
4
1
19,500
206
52,000
13,000
100
65
65
65
1,950,000
13,390
3,380,000
845,000
0
0
....................
0
1,950,000
13,390
3,380,000
845,000
650
....................
Burden per
response
(hours)
650
650
650
650
0938–1086
....................
0938–1086
0938–1086
Responses
14,950
....................
84,706
....................
....................
....................
6,188,390
Respondents
necessary information, to download and
complete the template, and to submit
the required information. We estimate
that this request affects all 50 States and
the District of Columbia. We believe it
will take each State 10 hours to review
the preamble discussion, analyze data,
and train its staff on how to comply
with the request. The total one-time
burden associated with this request is
500 hours. The total estimated cost
associated with complying with this
part of the requirement is $50,000.
We further estimate that it will take
each State a total of 10 minutes to
download the information submission
template, complete the template, and
submit the template. The estimated
annual burden associated with this
request is 8 hours. The estimated cost
associated with complying with this
request is $520.
Data Submissions for High Risk Pools
As discussed in section II.C.1 of the
preamble of this interim final rule, we
are asking the National Association of
State Comprehensive Health Insurance
Plans (NASCHIP) to provide data
pertaining to the information listed in
section II.C.1., in accordance with
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Fmt 4700
Sfmt 4700
Total cost
($)
guidance issued by the Secretary, no
later than May 21, 2010. In the event
that NSACHIP is unable to provide this
information, State health benefits high
risk pools have been asked to submit it
to HHS. While this request is subject to
the PRA, we anticipate that this
information will be collected from
NASCHIP. Therefore, we are not
assigning any burden to these entities
within the first year of this collection.
In section II.C.1, we also request that
NASCHIP or State health benefits high
risk pools submit annual updates on the
aforementioned information. While
these requests are subject to the PRA,
we will seek OMB approval at a later
date under notice and comment periods
separate from this interim final rule
with comment.
Similarly, in the case of a high risk
pool established under section 1101 of
the Affordable Care Act, we are
requesting that the pool submit to HHS
the aforementioned information within
thirty days of accepting enrollment and
then annually thereafter. While these
requests are subject to the PRA, we will
seek OMB approval at a later date under
notice and comment periods separate
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations
from this interim final rule with
comment.
All of the information collection
requirements contained in this interim
final rule were submitted to the Office
of Management and Budget (OMB) for
emergency review and approval as part
of a single information collection
request (ICR). As part of the emergency
review and approval process, OMB
waived the notification requirements.
The ICR was approved under OMB
control number 0938–1086 with an
expiration date of October 31, 2010.
However, we are still seeking public
comments on the information collection
requirements discussed in this interim
final rule with comment. All comments
will be considered as we continue to
develop the ICR as we must resubmit
the ICR to obtain a standard 3-year
approval.
If you comment on these information
collection and recordkeeping
requirements, please do either of the
following:
1. Submit your comments
electronically as specified in the
ADDRESSES section of this rule; or
2. Submit your comments to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget,
Attention: CMS Desk Officer, DHHS–
9997–IFC.
Fax: (202) 395–6974; or E-mail:
OIRA_submission@omb.eop.gov.
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V. Response to Comments
Because of the large number of public
comments we normally receive on
Federal Register documents, we are not
able to acknowledge or respond to them
individually. We will consider all
comments we receive by the date and
time specified in the DATES section of
this preamble, and, when we proceed
with a subsequent document, we will
respond to the comments in the
preamble to that document.
VI. Regulatory Impact Statement
We have examined the impacts of this
rule as required by Executive Order
12866 (September 1993, Regulatory
Planning and Review), the Regulatory
Flexibility Act (RFA) (September 19,
1980, Pub. L. 96–354), section 1102(b) of
the Social Security Act, the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4), Executive Order 13132 on
Federalism, and the Congressional
Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
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economic, environmental, public health
and safety effects, distributive impacts,
and equity). A regulatory impact
analysis (RIA) must be prepared for
major rules with economically
significant effects ($100 million or more
in any 1 year). As discussed below, we
have concluded that this rule does not
have economic impacts of $100 million
or more or otherwise meet the
definitions of ‘‘significant rule’’ under
EO 12866.
Based primarily on data that we have
obtained from the National Association
of Insurance Commissioners (NAIC), we
believe that there are about 650
insurance firms that sell insurance in
the individual and small group markets
and are hence subject to this interim
final rule. This estimate is consistent
with other data on the size of the health
insurance industry estimated by HHS in
previous rulemakings. In addition,
about 50 States and other governmental
entities will be encouraged to provide
voluntarily administrative data on
Medicaid and CHIP and (as applicable)
data on high risk pool programs. We
estimate that on average these
approximately 700 respondents will
spend 40 hours of time reading this rule,
determining what information sources
will be used to respond, determining
how to provide that information in the
newly required formats, and completing
a certification on the completeness and
accuracy of the information. Assuming
that high level staff (for example,
managers, attorneys, actuaries, and
senior IT professionals) are involved in
these efforts, at an average
compensation cost of $100 an hour, total
one-time costs will be approximately $3
million dollars. Actual provision of data
we estimate to cost approximately $3
million a year both in the first year and
annually thereafter. Federal government
planning, oversight, preparation, and
maintenance of the portal web site we
estimate to cost $11 million in one-time
costs in 2010, and $12 million to
oversee and operate in 2011 and
annually thereafter. In total, we estimate
costs in calendar 2010 to be
approximately $17 million, and annual
costs thereafter to be approximately $15
million. Additional detail on these
estimates can be found in the Paperwork
Reduction Act section of this preamble
and we welcome comment on them.
All or virtually all of the information
needed for the Web portal is standard
information that is already made
available to individuals, insurance
agents, or existing IT contractors with
pricing engines and other entities that
sell or otherwise provide health
insurance to individuals and small
groups. For example, information on
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Fmt 4700
Sfmt 4700
deductibles, coverage, cost-sharing, and
catastrophic protection limits is
routinely available on all or virtually all
insurance available to individuals or
small groups. Nothing in this rule
requires preparation of entirely new
information. In essence, we simply
require that relatively comprehensive
information be provided in standardized
formats so that plan comparisons can be
automated in ways that present
comparable information in comparable
levels of detail to facilitate consumer
understanding of available choices. We
believe that carriers that offer large
numbers of plans will find that once
they have determined how best to
provide the data for a few of those
plans, adding additional plans will
involve very little if any additional cost.
We have also limited the number of
plans on which carriers will be required
to provide data. Because we appreciate
that the time schedule provided in the
statute is extremely short, and because
the Federal government itself needs
time to prepare and populate its Web
portal, we have provided for two data
submissions in 2010, the first in May
and a second more detailed collection in
September. This will provide the
Federal government with the time
needed to competitively bid for a
contractor that has a sophisticated
pricing engine, as well as for issuers and
States time to plan for and compile
some of the more detailed information
that we are deferring until later in the
year.
Nothing in this interim final rule
prevents other parties from aggregating
and presenting similar information. For
example, the State of Massachusetts
already presents essentially the entire
set of information we will obtain, and
more, on its Connector Web site. Several
online firms aggregate and present
information for some of the policies sold
in all or most States. Many insurance
brokers and agents, and some consumer
organizations, present information on
subsets of plans available to their client
target groups in their geographic areas.
In fact, the Web portal we will provide
may facilitate such efforts and improve
the scope and accuracy of information
provided by alternative sources.
As specified in the statute, our Web
portal will include the range of
insurance coverage options available to
individuals or small businesses,
including both public (for example,
Medicaid, CHIP, and high risk pool) and
private plans, and all types of plans
including health maintenance
organization, preferred provider
organization and indemnity plans. To
the best of our knowledge no web sites
include such a broad range of health
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations
care coverage and specific plan
information on a national scale, with the
intent of serving such a broad range of
consumers needing health insurance
coverage. (There are, however, similarly
broad portals for some specific
population groups, such as Medicare
beneficiaries and Federal employees).
It is difficult if not impossible to
quantify the benefits of such a broad
expansion of consumer information.
Moreover, the benefits of this
information will change over time, most
importantly as State-specific insurance
exchanges expand their presence. We do
believe, however, that the benefits of
improved information will facilitate
informed consumer choices as well as
benefit the insurance market more
broadly. We expect that our Web portal
will inform State decisions on the
design of exchanges both by positive
example and, doubtless, through ideas
on ways to improve on the information
and formats and tools we provide.
Among the likely effects of this effort
will be increased use of State high risk
insurance pools, increased sale of
private policies to uninsured
individuals, increased enrollment in
Medicaid and CHIP, and commensurate
reductions in spending on care for the
uninsured. We believe, however, that
the most important effect of the Web
portal will be to improve health
insurance coverage choices. For
example, private plans that offer better
benefit packages at lower premium costs
are likely to benefit from improved
consumer information.
We have considered a range of
alternatives to the Web portal approach
we describe in this final rule with
comment, including both more and less
ambitious efforts. For example, we
could provide less complete information
on health insurance coverage choices,
and rely on States and private efforts to
provide more complete comparisons. In
our view, however, costs would not be
significantly less were we to require less
plan-specific information. Moreover, the
full range of information we specify is
likely to facilitate other efforts. For
example, we do not believe that any
other service has been able to assemble
in one source information on all
insurance issuers and programs serving
the individual and small group markets
across a broad range of States. One
specific alternative on which we request
comment is on our proposal to limit the
number of plan variations on which we
present information for an issuer in a
particular area to those that represent at
least one percent of their total
enrollment in that area (that is, never
more than 100 variations, and usually
far fewer). Without such a limitation, if
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a particular issuer offers twenty or more
possible products and twenty
alternative cost sharing arrangements
applied to the products in a particular
geographic area, the combinations and
permutations of offerings would be 400
for this one issuer alone. Our use of zip
codes for plan service areas is an
essential simplifying approach to
reducing the number of alternative
plans presented, by eliminating
irrelevant plans, but does not solve this
problem.
We welcome comments on the likely
costs and benefits of this rule as
presented, on alternatives that would
improve the consumer and small
business purchaser information to be
provided, and on our quantitative
estimates of burden. Comments are
welcome to address both regulatory
changes and changes that might be
made through administrative decisions
in planning and implementing the Web
portal. Comments on ways to design our
Internet portal to best meet consumer
information needs are especially
welcome.
The RFA requires agencies to analyze
options for regulatory relief of small
businesses, if a rule has a significant
impact on a substantial number of small
entities. For purposes of the RFA, small
entities include small businesses,
nonprofit organizations, and small
government jurisdictions. Small
businesses are those with sizes below
thresholds established by the Small
Business Administration (SBA). We
examined the health insurance industry
in depth in the Regulatory Impact
Analysis we prepared for the proposed
rule on establishment of the Medicare
Advantage program (69 FR 46866,
August 3, 2004). In that analysis we
determined that there were few if any
insurance firms underwriting
comprehensive health insurance
policies (in contrast, for example, to
travel insurance policies or dental
discount policies) that fell below the
size thresholds for ‘‘small’’ business
established by the SBA. In fact, then and
even more so now, the market for health
insurance is dominated by a relative
handful of firms with substantial market
shares. For example, nationally the
approximately 40 Blue Cross and Blue
Shield companies account for
approximately half of all private
insurance sold in the United States. A
recent GAO study focused on the small
business market and found that the five
largest issuers in the small group
market, when combined, represented
three-quarters or more of the market in
34 of 39 States for which this
information was available (GAO,
February 27, 2009, Private Health
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Sfmt 4700
24481
Insurance: 2008 Survey Results on
Number and Market Share of Issuers in
the Small Group Health Insurance
Market). These firms included Blue
Cross companies, and also other major
insurers such as United HealthCare,
Aetna, and Kaiser. Small government
jurisdictions do not sell insurance in the
individual or small business markets.
There are, however, a number of health
maintenance organizations (HMOs) that
are small entities by virtue of their nonprofit status, including Kaiser, even
though few if any of them are small by
SBA size standards. There are
approximately one hundred such
HMOs. These HMOs and those Blue
Cross and Blue Shield plans that are
non-profit organizations, like the other
firms affected by this interim final rule,
will be required to provide information
on their insurance policies to the
Department. Accordingly, this interim
final rule will affect a ‘‘substantial
number’’ of small entities.
We estimate, however, that the onetime costs of this interim final rule are
approximately $5 thousand per covered
entity (regardless of size or non-profit
status) and about $5 thousand annually
both in the first year and thereafter.
Numbers of this magnitude do not
remotely approach the amounts
necessary to be a ‘‘significant economic
impact’’ on firms with revenues of tens
of millions of dollars (usually hundreds
of millions or billions of dollars
annually). Moreover, the Regulatory
Flexibility Act only requires an analysis
for those final rules for which a Notice
of Proposed Rule Making was required.
Accordingly, we have determined, and
certify, that this rule will not have a
significant economic impact on a
substantial number of small entities and
that a regulatory flexibility analysis is
not required.
In addition, section 1102(b) of the
Social Security Act requires us to
prepare a regulatory impact analysis if
a rule may have a significant economic
impact on the operations of a substantial
number of small rural hospitals. This
analysis must conform to the provisions
of section 604 of the RFA. This interim
final rule would not affect small rural
hospitals. Therefore, the Secretary has
determined that this rule would not
have a significant impact on the
operations of a substantial number of
small rural hospitals.
Section 202 of the Unfunded
Mandates Reform Act of 1195 requires
that agencies assess anticipated costs
and benefits before issuing any rule that
includes a Federal mandate that could
result in expenditure in any one year by
State, local or tribal governments, in the
aggregate, or by the private sector, of
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$100 million in 1995 dollars, updated
annually for inflation. That threshold
level is currently about $135 million.
This interim final rule contains
reporting mandates for private sector
firms, but these will not cost more than
the approximately $6 million that we
have estimated. It includes no mandates
on State, local, or tribal governments.
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule and subsequent final rule
that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This interim final rule does not impose
substantial direct requirement costs on
State and local governments, preempt
State law, or otherwise have Federalism
implications.
In accordance with the provisions of
Executive Order 12866, this interim
final rule was reviewed by the Office of
Management and Budget.
List of Subjects in 45 CFR Part 159
Administrative practice and
procedure, Computer technology,
Health care, Health facilities, Health
insurance, Health records, Hospitals,
Medicaid, Medicare, Penalties,
Reporting and recordkeeping
requirements.
■ For the reasons set forth in the
preamble, the Department of Health and
Human Services amends 45 CFR subtitle
A, subchapter B, by adding a new part
159 to read as follows:
PART 159—HEALTH CARE REFORM
INSURANCE WEB PORTAL
Sec.
159.100 Basis and Scope.
159.110 Definitions.
159.120 Data Submission for the individual
and small group markets.
Authority: Section 1103 of the Patient
Protection and Affordable Care Act (Pub. L.
111–148).
§ 159.100
Basis and scope.
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This part establishes provisions
governing a Web portal that will provide
information on health insurance
coverage options in each of the 50 States
and the District of Columbia. It sets
forth data submission requirements for
health insurance issuers. It covers the
individual market and the small group
market.
§ 159.110
Definitions.
For purposes of part 159, the
following definitions apply unless
otherwise provided:
Health Insurance Coverage: We adopt
the Public Health Service Act (PHSA)
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definition of ‘‘health insurance
coverage’’ found at section 2791(b)(1) of
the Public Health Service Act (PHSA).
Health Insurance Issuer: We adopt the
PHSA definition of ‘‘health insurance
issuer’’ found at section 2791(b)(2) of the
PHSA.
Health Insurance Product: Means a
package of benefits that an issuer offers
that is reported to State regulators in an
insurance filing.
Individual Health Insurance
Coverage: We adopt the PHSA
definition of ‘‘individual health
insurance coverage’’ found at section
2791(b)(5) of the PHSA.
Individual Market: We adopt the
Affordable Care Act definition of
‘‘individual market’’ found at section
1304(a)(2) of the Affordable Care Act
and 2791(e)(1)(A) of the PHSA.
Portal Plan: Means the discrete
pairing of a package of benefits and a
particular cost sharing option (not
including premium rates or premium
quotes).
Section 1101 High Risk Pools: We
define section 1101 high risk pools as
any entity described in regulations
implementing section 1101 of the
Affordable Care Act.
Small Employer: We adopt the
Affordable Care Act definition of ‘‘small
employer’’ found at section 1304(b)(2)
and (3).
Small Group Coverage: Means health
insurance coverage offered to employees
of small employers in the small group
market.
Small Group Market: We adopt the
Affordable Care Act definition of ‘‘small
group market’’ found at section
1304(a)(3).
State Health Benefits High Risk Pools:
Means nonprofit organizations created
by State law to offer comprehensive
health insurance to individuals who
otherwise would be unable to secure
such coverage because of their health
status.
§ 159.120 Data submission for the
individual and small group markets.
(a) Health insurance issuers
(hereinafter referred to as issuers) must,
in accordance with guidance issued by
the Secretary, submit corporate and
contact information; administrative
information; enrollment data by health
insurance product; product names and
types; whether enrollment is currently
open for each health insurance product;
geographic availability information;
customer service phone numbers; and
Web site links to the issuer Web site,
brochure documents, and provider
networks; and financial ratings on or
before May 21, 2010, and annually
thereafter.
PO 00000
Frm 00110
Fmt 4700
Sfmt 4700
(b) Issuers must, as determined by the
Secretary, submit pricing and benefit
information for their portal plans on or
before September 3, 2010, and annually
thereafter.
(c) Issuers must submit updated
pricing and benefit data for their portal
plans whenever they change premiums,
cost-sharing, types of services covered,
coverage limitations, or exclusions for
one or more of their individual or small
group portal plans.
(d) Issuers must submit pricing and
benefit data for portal plans associated
with products that are newly open or
newly reopened for enrollment within
30 days of opening for enrollment.
(e) Issuers must annually verify the
data submitted under paragraphs (a)
through (d) of this section, and make
corrections to any errors that are found.
(f) Issuers must submit administrative
data on products and portal plans, and
these performance ratings, percent of
individual market and small group
market policies that are rescinded; the
percent of individual market policies
sold at the manual rate; the percent of
claims that are denied under individual
market and small group market policies;
and the number and disposition of
appeals on denials to insure, pay claims
and provide required preauthorizations,
for future releases of the Web portal in
accordance with guidance issued by the
Secretary.
(g) The issuer’s CEO or CFO must
electronically certify to the
completeness and accuracy of all data
submitted for the October 1, 2010,
release of the Web portal and for any
future updates to these requirements.
Dated: April 29, 2010.
Jay Angoff,
Director, Office of Consumer Information and
Insurance Oversight.
Dated: April 29, 2010.
Kathleen Sebelius,
Secretary.
[FR Doc. 2010–10504 Filed 4–30–10; 4:15 pm]
BILLING CODE 4150–03–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 100218107–0199–01]
RIN 0648–AY60
Fisheries Off West Coast States; West
Coast Salmon Fisheries; 2010
Management Measures
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
E:\FR\FM\05MYR1.SGM
05MYR1
Agencies
[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24470-24482]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10504]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 159
RIN 0991-AB63
Health Care Reform Insurance Web Portal Requirements
AGENCY: Office of the Secretary, HHS.
ACTION: Interim final rule with comment period.
-----------------------------------------------------------------------
SUMMARY: The Patient Protection and Affordable Care Act (the Affordable
Care Act) was enacted on March 23, 2010. It requires the establishment
of an internet Web site (hereinafter referred to as a Web portal)
through which individuals and small businesses can obtain information
about the insurance coverage options that may be available to them in
their State. The Department of Health and Human Services (HHS) is
issuing this interim final rule in order to implement this mandate.
This interim final rule adopts the categories of information that will
be collected and displayed as Web portal content, and the data we will
require from issuers and request from States, associations, and high
risk pools in order to create this content.
DATES: Effective Date: These regulations are effective on May 10, 2010.
Comment Date: To be assured consideration, comments must be
received at the address provided below, no later than 5 p.m. on June 4,
2010.
ADDRESSES: In commenting, please refer to file code DHHS-9997-IFC.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
Electronically. You may submit electronic comments on this
regulation to https://www.regulations.gov. Follow the instructions on
the home page.
By regular mail. You may mail written comments to the
following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: DHHS-9997-IFC, P.O.
Box 8014, Baltimore, MD 21244-8014.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
By express or overnight mail. You may send written
comments to the following address ONLY: Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Attention: DHHS-
9997-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD
21244-1850.
By hand or courier. If you prefer, you may deliver (by
hand or courier) your written comments before the close of the comment
period to either of the following addresses:
a. For delivery in Washington, DC--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC
20201
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.)
b. For delivery in Baltimore, MD-- Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
[[Page 24471]]
please call telephone number (410) 786-9994 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
Submission of comments on paperwork requirements. You may submit
comments on this document's paperwork requirements by following the
instructions at the end of the ``Collection of Information
Requirements'' section in this document.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Danielle Harris, (410) 786-1819.
SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments
received before the close of the comment period are available for
viewing by the public, including any personally identifiable or
confidential business information that is included in a comment. We
post all comments received before the close of the comment period on
the following Web site as soon as possible after they have been
received: https://regulations.gov. Follow the search instructions on
that Web site to view public comments.
Comments received timely will be also available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Background
The Patient Protection and Affordable Care Act (Pub. L. 111-148),
hereinafter referred to as the Affordable Care Act, was enacted on
March 23, 2010. Section 1103(a), as amended by section 10102(b) of the
same act, directs the Secretary to immediately establish a mechanism,
including an internet Web site, through which a resident of, or small
business in, any State may identify affordable health insurance
coverage options in that State.
In implementing these requirements, we seek to develop a Web site
(hereinafter called the Web portal) that would empower consumers by
increasing informed choice and promoting market competition. To achieve
these ends, we intend to provide a Web portal that provides information
to consumers in a clear, salient, and easily navigated manner. We plan
to minimize the use of technical language, jargon, or excessive
complexity in order to promote the ability of consumers to understand
the information and act in accordance with what they have learned. We
will engage in careful consumer testing to identify the best methods to
achieve these goals.
In obtaining information to populate the Web portal, we will be
seeking all the statutorily required information from issuers, and we
anticipate adopting electronic submission capabilities. As we develop
the Web portal, and engage with consumers, this information will be
used to create an effective consumer-friendly presentation of
affordable health coverage option plans. In addition, we plan to
provide information, consistent with applicable laws, in a format that
is accessible for use by members of the public, allowing them to
download and repackage the information, promoting innovation and the
goal of consumer choice.
As we develop the Web portal, we are also seeking to balance the
need to obtain information that will promote informed choice with the
principles of the Paperwork Reduction Act and Executive Order 12866,
which call for minimizing burdens and maximizing net benefits. To that
end, we are seeking comments on how best to achieve that balance, and
in particular how to reduce unnecessary burdens on the private sector.
This is an interim final rule that becomes effective May 10, 2010.
We invite public comments on all relevant issues to make improvements.
A. Statutory Basis
As discussed above, Section 1103(a)of the Affordable Care Act, as
amended by section 10102(b) of the same act, directs the Secretary to
immediately establish a mechanism, including an internet Web site,
through which a resident of, or small business in, any State may
identify affordable health insurance coverage options in that State. To
the extent practicable, the Web site (hereinafter called the Web
portal) is to provide, at minimum, information on the following
coverage options:
1. Health insurance coverage offered by health insurance issuers,
2. Medicaid coverage,
3. Children's Health Insurance Program (CHIP) coverage,
4. State health benefits high risk pool coverage,
5. Coverage under the high risk pool created by section 1101 of the
Affordable Care Act, and
6. Coverage within the small group market for small businesses and
their employees.
In order to provide this information in a standardized format,
section 1103(b) requires the Secretary to develop a standardized format
to present the coverage information described above. This format is to
provide for, at a minimum, the inclusion of information on the
percentage of total premium revenue expended on nonclinical costs (as
reported under section 2718(a) of the Public Health Service Act),
eligibility, availability, premium rates, and cost sharing with respect
to such coverage options. The format must be consistent with the
standards that are adopted for the uniform explanation of coverage
under section 2715 of the Public Health Service Act. Defining the
minimum content of the format required under section 1103(b) in effect
defines what we will publish as the minimum content of the Web portal.
This regulation, therefore, specifies the data that will be collected
and disseminated through the Web portal in accordance with 1103(a) as
amended by section 10102(b).
B. General Overview
Section 1103(a) of the Affordable Care Act, as amended by section
10102(b) of the same act, requires the establishment of a Web portal
through which individuals can obtain information about the health
insurance options that may be available to them in their ``State.''
Section 1304(d) of the Affordable Care Act defines ``State'' to include
the fifty states and the District of Columbia. The territories are not
included in this definition. We therefore will interpret ``State'' in
the Web portal context to mean the 50 States and the District of
Columbia.
By statute, the Web portal must be available for public use no
later than July 1, 2010. We will use the data collections and processes
described in this rule to make the initial release of the Web portal
available to the public on July 1, 2010, through a government sponsored
Web site. We intend for the future development and updating of the Web
portal to be an evolutionary process that involves all stakeholders,
and we anticipate future updates, including annual and periodic
revisions, to be released as the result of a continued refinement of
the Web portal content.
In the July 1, 2010 release we will provide summary information
about health insurance products that are available in the individual
and small business markets including issuers of the products, types of
products,
[[Page 24472]]
location, summaries of services offered, links to provider networks,
and contact information (including Web site links and customer service
telephone contact) to enable interaction with specific issuers. In
addition, the Web portal will provide information on eligibility,
coverage limitations and premium information for existing high risk
pools operating in the States, to the extent that it is provided to us
by the responding parties. It will also provide introductory
information on eligibility and services for Medicaid and CHIP. We will
include contact information and Web site links for the Medicaid and
CHIP programs for individuals who believe that they or family members
may meet eligibility criteria. In addition, we will provide information
on coverage options for small businesses, including reinsurance for
early retirees under section 1102 of the Affordable Care Act (which is
being administered by HHS), and tax credits available under section 45R
of the Internal Revenue Code, as added by section 1421 of the
Affordable Care Act. We also will include Web site links to these
programs so that small businesses can obtain further information.
We note that Section 1103(b)(1) requires the Secretary to present
the Web portal information in a format that is consistent with the
standards that are adopted for the uniform explanation of coverage
under section 2715 of the Public Health Service Act (PHSA) as added by
section 1001(a) of the Affordable Care Act. Section 2715 of the PHSA
provides for the establishment of these standards within 12 months of
the Affordable Care Act's enactment date. As a result, these standards
will not be in place for the July 1, 2010 release of the Web portal. We
will modify the format used to present the initial release of the Web
portal to ensure Web portal consistency with these standards in
accordance with the implementation schedule that is established for
these standards.
In an effort to make the Web portal as comprehensive as possible,
we will enhance the content over time to include more than the
statutory minimum requirements that are discussed above. We will
include any information that we have that we believe would be useful to
consumers, such as medical loss ratios, quality and performance
information, links to appropriate Web sites such as the Web site of the
association that represents existing State health benefits high risk
pools, and more State-specific information on Medicaid and CHIP
eligibility and service coverage. Because of the complexity of pricing
information and the need to incorporate pricing engines into the Web
site, detailed pricing and benefit information will be provided in the
second release of the Web portal on October 1, 2010.
As we discuss in more detail in section III ``Waiver of Proposed
Rulemaking and the 30[dash]Day Delay in the Effective Date,'' the
statutory requirement for a July 1, 2010 Web portal release does not
allow time for full notice and comment rulemaking. While this timeframe
necessitates going directly to final, in order to maximize public input
we are using an interim final rule with comment to establish the
categories of information that we will collect for inclusion in the Web
portal, including the data production requirements that we impose on
health insurance issuers, and the data collection requests for States,
associations, and high risk pools.
II. Provisions of the Interim Final Rule
A. Definitions
For any terms defined by the Affordable Care Act, including the
definitions in section 1304, as well as any definitions in the Public
Health Service Act that are incorporated by reference under sections
1301(b) or 1551 of the Affordable Care Act, we adopt those definitions.
We discuss these definitions below. The regulatory text provides cross
references to these provisions. We also explain here how we are
defining the terms that are not defined in the Affordable Care Act or
the PHSA. These terms are ``State health benefits high risk pool,''
``section 1101 high risk pool,'' ``health insurance product'' and
``portal plan.''
Section 2791(b)(1) of the PHSA, as incorporated by reference into
the Affordable Care Act, defines ``health insurance coverage'' as
``benefits consisting of medical care (provided directly, through
insurance or reimbursement, or otherwise and including items and
services paid for as medical care) under any hospital or medical
service policy or certificate, hospital or medical service plan
contract, or health maintenance organization contract offered by a
health insurance issuer.'' Section 2791(b)(2) in turn defines an
insurance issuer (also referred to here as an ``issuer'') to be an
entity ``licensed to engage in the business of insurance in a State and
which is subject to State law which regulates insurance'' and specifies
that it does not include a group health plan.
For purposes of the Affordable Care Act and the PHSA, a distinction
is made between health insurance coverage sold to group health plans,
and other health insurance coverage. The term ``group health plan,'' as
defined in section 2791(a)(1) of the PHSA, exclusively refers to health
coverage sold to group health plans. Section 1304(a)(2) of the
Affordable Care Act, which adopts the identical definition as section
2791(e)(1)(A) of the PHSA, defines ``individual market'' as the
``market for health insurance coverage offered to individuals other
than in connection with a group health plan.''
Section 2791(b)(5) of the PHSA in turn defines ``individual health
insurance coverage'' as health insurance coverage ``offered to
individuals in the individual market, but does not include short-term
limited duration insurance.''
The Affordable Care Act and the PHSA further divide the group
health insurance market into coverage sold to large employers (the
``large group market,'' and coverage sold to small employers (the
``small group market''). See section 1304(a)(3) of Affordable Care Act.
Section 1304(b)(2) of the Affordable Care Act defines a ``small
employer'' as, in connection with a group health plan with respect to a
calendar year and a plan year, an employer who employed an average at
least 1, but not more than 100 employees on business days during the
preceding calendar year, and who employs at least 1 employee on the
first day of the plan year. Section 1304(b)(3) of the Affordable Care
Act allows for a State to elect the option to define ``small employer''
as an employer who employed on average at least 1, but not more than 50
employees on business days during the preceding calendar year in the
case of plan years beginning before January 1, 2016. As such, for any
State that elects this option, we would apply this alternate definition
of ``small employer'' for their State for plan years beginning before
January 1, 2016.
For purposes of this regulation, we will refer to health insurance
coverage offered to employees of small employers in the small group
market as ``small group coverage.''
Sections 1103(a)(2)(D) of the Affordable Care Act provides for Web
portal reporting of ``State health benefits high risk pools.'' For the
purpose of this rule, we define ``State health benefits high risk
pools'' as nonprofit organizations created by State law to offer
comprehensive health coverage to individuals who otherwise would be
unable to secure such coverage because of their health status. This
language was adopted, with modification, from the National Association
of Comprehensive Health Insurance Plans (NASCHIP) annual report. Our
understanding is that this definition is generally understood to
identify existing high risk pools.
[[Page 24473]]
Section 1103(a)(2)(E) provides for Web portal reporting of pools
established pursuant to section 1101 of the Affordable Care Act. For
purposes of this regulation, we define ``section 1101 high risk pools''
as any entity described in regulations implementing section 1101 of the
Affordable Care Act.
The Affordable Care Act and the PHSA do not include the term
``health insurance product.'' We are creating this term as a short hand
reference to the information that we will publish in the first release
of the Web portal. This term is needed in order to differentiate the
information that will be collected for the July 1, 2010 release and the
post-July 1, 2010 releases. We define ``health insurance product''
(``product'') as a package of benefits that an issuer offers that is
reported to State regulators in an insurance filing.
The Affordable Care Act and the PHSA also do not define the term
``portal plan.'' We are creating this term to describe certain data
that we will collect and disseminate in post-July 1, 2010 releases of
the Web portal. We understand that consumers apply for coverage under
individual health insurance products that issuers develop and market to
offer a package of benefits. In applying for a package of benefits, we
further understand that consumers are offered a range of cost-sharing
arrangements, including deductibles and copayments but not including
premium rates or premium rate quotes. As a result, each package of
benefits can be paired with a multitude of cost sharing options. We
will use the word ``portal plan'' to refer to the discrete pairing of a
package of benefits with a particular cost-sharing option (not
including premium rates or premium rate quotes). We will collect portal
plan information for publication in post-July 1, 2010 releases of the
Web portal. We believe that portal plan information is precise enough
to provide a potential consumer with enough information to discern the
relative costs and benefits of selecting a particular coverage option.
We welcome comments on the adequacy of these definitions, and, if
applicable, suggestions to improve them.
B. Individual and Small Group Market Data Collection and Dissemination
In order to meet the mandate, we must collect information on
individual and small group coverage from health insurance issuers and
prepare the information to be presented publicly in a clear and concise
fashion. We will have a two part rollout of the Web portal for 2010,
and then annual and periodic updates to allow for the inclusion of
updated data as well as consumer education content.
1. Data Submission Mandate
The Secretary currently regulates health insurance industry
practices for private insurance plans offered through public programs
such as Medicare, Medicaid, and CHIP. While she either has or has
access to data on Federal government sponsored plans, we must issue
regulations to mandate the production of the necessary information from
issuers in order to fulfill the statutory mandate as it applies to
private plans not offered through Federal government programs. To
facilitate the development of a robust Web portal with comprehensive
pricing and benefit information on individual and small group coverage,
our current plan is to contract with a vendor that has a health
insurance pricing engine and a related Web site with portal plan
identification and comparison functionality through a full and open
competition. The work on this contract will not be completed in time
for the July 1, 2010 release of the Web portal. Accordingly, we will
collect an initial set of data (health insurance product information)
from issuers in order to present basic information on all issuers and
health insurance products in the July 1, 2010 release of the Web
portal. This release of the Web portal will only contain the basic
information on issuers and their products in the individual and small
group markets that was practicable to obtain in the constrained
timeframe for meeting the statutory requirement that the Web portal be
available for public use by July 1, 2010. We will provide a second
release of the Web portal on October 1, 2010 with comprehensive pricing
and benefit information for individual and small group coverage.
We will communicate to consumers through the Web portal and other
public communication processes, such as presentations and reports to
stakeholders, the names of those issuers who fail to timely meet the
reporting requirements or who provide incomplete or inaccurate
information.
a. July 1, 2010
To meet the July 1, 2010 deadline, we will require issuers to
provide data that we will use to develop introductory information for
consumers on the universe of issuers and health insurance products in
their geographic area. By May 21, 2010 we will require issuers to
submit corporate and contact information, such as corporate addresses
and Web sites; administrative information, such as enrollment codes;
enrollment data by product; product names and types, such as Preferred
Provider Organization (PPO) or Health Maintenance Organization (HMO);
whether enrollment is currently open for each product; geographic
availability information, such as product availability by zip code or
county; customer service phone numbers; Web site links to the issuer
Web site, brochure documents such as benefit summaries, and provider
networks; and financial ratings, such as those offered by financial
rating firms including AM Best, Standard and Poor, and Moody's, if
available.
We invite comment on whether enrollment information is considered
by issuers to be confidential business information.
We are aware that some issuers are rated on their financial status
and other performance measures. We considered excluding issuers with no
or low financial ratings from firms such as AM Best, Standard and Poor,
and Moody. However, it is our understanding that not all issuers seek
financial ratings, and that the private firms that conduct them do not
use standardized approaches. Therefore, we will instead require each
issuer to submit information on whether they obtained a financial
rating, from which firm, and what the rating is. We will use this
information to help analyze whether such ratings are or could be useful
in conveying meaningful differences to consumers. For the same purpose
we will allow, but not require issuers to report other types of ratings
they have received, such as ratings from The National Committee for
Quality Assurance (NCQA) Accreditation.
Certain administrative information that we are collecting, such as
an issuer's technical contact information (that is, the person who will
work directly with us and our contractors to submit and validate data),
tax identification number, and enrollment count in an issuer's
products, will be used to support the structure of the database in
which this information will be warehoused so that the data can be
easily retrieved to support uploading information to the Web portal
test site, and so that issuers and their portal plans can be reliably
recognized by HHS and issuers and counted to support analyses for
improving the Web portal. This information will also be used to support
analysis necessary to improve the meaningfulness and usefulness of the
Web portal in future releases. In addition, certain contact information
will allow the Federal government and its contractors to provide useful
updates
[[Page 24474]]
and reminders to issuers and to provide technical support.
Data submitted under the requirements contained in this regulation
must be submitted by issuers in accordance with instructions issued by
the Secretary.
b. October 1, 2010
We will release a more comprehensive version of the Web portal on
October 1, 2010. This version will include benefit and pricing
information. Benefit and pricing information includes data such as
premiums, cost-sharing options, types of services covered, coverage
limitations, and exclusions.
We note that for States in which premiums are not community rated,
the premium data that we intend to collect will include manual rates
that represent only standard risks. As a result of medical
underwriting, issuers may charge individuals rates that are above the
manual rate based on the applicant's health status. We recognize that
there is not a feasible method for collecting or displaying information
on the rate that an individual who is underwritten might actually be
charged, and in the absence of that are proposing to provide
information on the manual rates with the understanding that they do not
represent actual premium rates that an individual may be charged.
While the initial release of the Web portal will list all issuers
and all health insurance products, we believe that it would confuse
users if we were to display portal plans that are not open for
enrollment. Furthermore, we believe that it is inappropriate to impose
a pricing and benefits information reporting burden on issuers for
products and portal plans that are not open for enrollment. Therefore,
we will exempt issuers of products and portal plans that are not open
to new enrollments from additional pricing and benefits reporting
requirements. Such issuers will be required to provide the data defined
under the May 21 collection to assure we have the universe of issuers
and their health insurance products.
In the event that an issuer establishes new products or new portal
plans under a product, or opens enrollment in products or portal plans
under a product that was previously closed to enrollment, we will
require the submission of the pricing and benefits information within
30 days of offering new, or newly re-opened to enrollment, products or
portal plans.
We considered excluding issuers with minimal market share from the
benefits and cost sharing data collection. However, we believe that
some of the portal plans offered by these issuers serve niche markets
that would be particularly appealing to some consumers. At this time,
we will include portal plans with minimal market share, but we will
collect enrollment data for use in analyzing the effect, if any, of
market share and our ability to meet consumer needs.
The intent of the Web portal is to present consumers with the full
range of meaningful insurance options available to them. We believe
this will be best accomplished through providing all plans that have a
non-de minimus portion of the issuer's enrollment in an area and
allowing for additional plans to be submitted based on the issuers
perception of need. Our initial overview of the market indicates that
most areas have coverage which is concentrated in a limited number of
portal plans. One percent of an issuers' enrollment in the service area
was seen as a reasonable cut off balancing the consumer's right to know
with the burden imposed on issuers. Therefore, for each zip code,
issuers will be required to submit information on at least all portal
plans that are open for enrollment and that represent 1 percent or more
of the issuer's total enrollment for the respective individual or small
group market within that zip code.
We invite comments from the public on what information should be
required from issuers to ensure consumer access to meaningful
information about coverage options is included in the Web portal, and
on the ways that information should be presented to allow for sorting
and comparing portal plans. We are particularly interested in comments
from consumers, to make certain that the Web portal meets the needs of
those individuals who will use it as part of their health coverage
decision making.
The data submissions for the October 1, 2010 Web portal release
will be due by September 3, 2010. Data must be submitted by issuers in
accordance with instructions issued by the Secretary.
c. Future Updates
After the initial data collection efforts described in the prior
two subsections, we will require issuers to perform an annual
verification and update of the data they submitted. In addition, we
recognize that many issuers update pricing and benefit information for
their portal plans more frequently than annually, and we therefore will
require issuers to submit updated data whenever they change premiums,
cost-sharing, types of services covered, coverage limitations, or
exclusions for one or more of their individual or small group portal
plans. Furthermore, we will require issuers that develop new health
insurance products between annual verifications to submit pricing and
benefit information for the new product within 30 days of opening
enrollment.
Finally, while not included in the statutory list of minimum
requirements for the Web portal, we will collect from issuers and
report on the Web portal in 2011 the following performance ratings:
percent of individual market and small group market policies that are
rescinded; the percent of individual market policies sold at the manual
rate; the percent of claims that are denied under individual market and
small group market policies; and the number and disposition of appeals
on denials to insure, pay claims and provide required
preauthorizations.
Updated data, including the required data updates previously
discussed and annual verifications, must be submitted by issuers in
accordance with instructions issued by the Secretary in a future
Paperwork Reduction Act Package.
d. Data Validation
All data that is collected for the July 1, 2010, October 1, 2010,
and future releases of the Web portal will be validated by the issuers
to assure the information they provided is correct. We will require the
issuer's CEO or CFO to electronically certify to the completeness and
accuracy of the initial data collection for the October 1, 2010 release
of the Web portal and for any future updates to these requirements.
Following the submission of the data, we will provide issuers with
access to preview the data that we will publish on the Web portal. They
will also be provided with access to edit their data submissions to
update or correct information.
2. Voluntary Data Submission by States
We are requesting that States submit data on issuer corporate and
contact information for licensed issuers in their State, such as
corporate addresses and Web sites; underwriting status, such as whether
or not premium rates in the individual market are determined based on
medical underwriting or community rating; and information on any public
Web sites administered by the State that provide consumer guidance on
individual and small group health insurance coverage in their State.
It is our understanding that States possess the issuer corporate
and contact information we are requesting them to submit as a result of
their filing requirements for regulated issuers. We are requesting that
States voluntarily
[[Page 24475]]
submit issuer corporate and contact information because we believe that
it is incumbent upon us to ensure that we provide information on the
entire universe of issuers and health insurance products. Gathering
these data from both States and issuers will help us in determining the
universe and ensure that we are not inadvertently excluding an issuer
or product as a result of incomplete data collection.
The underwriting information and Web site links we are requesting
from States will be included on the Web portal in an effort to develop
consumer education content and incorporate (by way of linking) any
State-developed information on insurance coverage options in a given
State. We recognize that some States may have already developed Web
portals that provide comprehensive information about health insurance
coverage in their State, and we will link to that information if it is
available.
In asking States to provide the data identified above, we note that
the information would improve the accuracy and scope of the information
we can provide to consumers in each of the States. We expect that
States will want to ensure full access to information about issuers,
health insurance products and portal plans to their residents. We
believe that doing so would support consumer choice and a more robust
marketplace for insurance. We therefore anticipate that States will be
responsive to this request because the information requested will
enhance the ability of the citizens of each State to identify
affordable options for insurance.
3. Data Dissemination
We will disseminate the information collected as a result of our
data submission mandates as described above, as well as other
information about health insurance coverage in the individual and small
group market that may be useful to the public.
a. July 1, 2010
On July 1, 2010 the Web portal will include information on the data
collected as a result of the May 21, 2010 data submission mandate
outlined above, including information for consumers on the issuers that
sell individual and small group products in their area and links to
benefit information for those products. In addition, we will provide
some consumer education information on the individual market, including
describing how it operates and why its offerings might be appropriate
for a consumer, as well as information that will facilitate health
insurance coverage decision-making and increased understanding of how
the Web portal operates in the context of the Affordable Care Act. We
also will include information for small businesses on the small group
market, including information on the reinsurance and tax credit
programs discussed previously.
b. October 1, 2010
On October 1, 2010 the Web portal will include expanded content
that will incorporate the data collected as a result of the September
3, 2010 data submission mandate outlined above with the data collected
for the May 21, 2010 mandate previously discussed. Using the pricing
and benefit information gathered as a result of the September 3rd
collection, we will display portal plans as packages of benefits and
cost sharing, with associated premiums, based on geographic
availability.
The display of portal plans will be driven by interactive
functionality that accounts for geographic and personal demographic
information such as State and zip code of residence, sex, family
composition, smoking status and other health indicators. We intend for
the order and layering of search results to be based on consumer choice
parameters such as range of premium, high and low deductibles, ranges
of out-of-pocket maximums, provider network, and indicators of market
interest in the product including enrollment. We intend that consumers
will also have the ability to select on all available issuers and
portal plans and view them alphabetically.
We invite comments on the sort and selection functionality of the
Web portal, and on the order and layering of portal plans that we will
display.
Certain administrative data collected for the October 1 Web portal
release will not be displayed directly on the Web portal but these data
are important to the functionality of a pricing engine, such as input
data that defines the geographic and demographic variables that affect
premium price and cost sharing that will be displayed on the Web
portal.
We also will retain and enhance the consumer education content
established for the July 1, 2010 Web portal release.
c. Future Updates
We will update the portal plan pricing and benefit information as
frequently as monthly to reflect updates that issuers submit as a
result of changes to their portal plans. As discussed previously,
because issuers may update pricing and benefit information more
frequently than annually, we are requiring updated data submissions
whenever an issuer changes the premiums, cost-sharing, types of
services covered, coverage limitations, or exclusions for one or more
of their individual or small group portal plans. Our monthly updates
will also reflect these updates. Consumer education content will be
updated periodically in the event that new and pertinent information
about either of these markets becomes available that would be
beneficial for a consumer to know.
In addition, we are required by section 1103(b)(1) to provide
information on the percentage of total premium revenue expended on
nonclinical costs, as reported under section 2718(a) of the Public
Health Service Act (PHSA). We will report medical loss ratios to meet
this requirement, which will provide more than the minimally required
information and is believed to be more useful to the public. Section
2718 of the PHSA requires issuers to report this information to HHS
beginning with plan years starting on or after September 23, 2010, and
the Secretary is promulgating rules on these reporting requirements.
After the regulations for this provision are implemented, we anticipate
including medical loss ratio information on the Web portal.
As discussed previously, we anticipate including portal plan
performance rating information, such as percent of individual market
and small group market policies that are rescinded, the percent of
individual market policies sold at the manual rate, the percent of
claims that are denied under individual market and small group market
policies, and the number and disposition of appeals, on the Web portal
in the future.
We also anticipate posting information derived from standards and
reporting obligations that will apply to insurance sold under the
exchanges. For example, we might post information on issuers' financial
stability, trends in enrollment and disenrollment, appeals and
grievances, and other indicators of fiscal viability, customer service
and policy-holder satisfaction.
The Affordable Care Act directs the Secretary to develop quality
measures and standards to inform the public about quality of care and
to drive improvements in the service delivery system. When such
measures and standards become available they will be incorporated into
the Web portal.
We invite comments on the content of futures updates to the Web
portal, including the frequency of updates, the inclusion of
performance rating
[[Page 24476]]
information, and the incorporation of quality measures and standards.
C. Information to be Collected and Disseminated on High Risk Pool
Coverage
Sections 1103(a)(2)(D) and (E) of the Affordable Care Act requires
HHS to include information about State health benefits high risk pools
and high risk pools established under section 1101 of the Affordable
Care Act. In order to fulfill this mandate, HHS must establish a
mechanism for collecting and preparing this information for public
dissemination in a clear and concise fashion.
1. Data Submission Request
Pursuant to the requirement that the Web portal include information
on coverage through these high risk pools, this rule requests that
certain information on State health benefits high risk pools and high
risk pools that will operate under authority established in section
1101 of the Affordable Care Act be reported.
a. July 1, 2010
We will ask the National Association of State Comprehensive Health
Insurance Plans (NASCHIP) for information about State health benefit
high risk pools. This information will include administrative and
contact information, such as a customer service phone number and a Web
site for pool information; pool eligibility information, such as state
residency and health condition requirements; pool coverage limitations,
such as restrictive riders; and pool premium information, such as rules
and restrictions for premium subsidy programs. We understand that this
information is currently collected and maintained by NASCHIP, and that
all of the existing State health benefits high risk pools are members
of NASCHIP. As such, we believe that NASCHIP is strategically equipped
to work with the State health benefits high risk pools to gather and
transmit data to HHS on behalf of State health benefits high risk
pools. Therefore, we will ask NASCHIP to provide the data as discussed
above by May 21, 2010.
b. Future Updates
We understand that coverage that is offered by State health
benefits high risk pools is updated on an annual calendar-year basis.
We will therefore ask NASCHIP to provide annual updates of the
information that we will request for the May 21, 2010 data collection.
If NASCHIP is unable to provide this information in the future, we will
ask State health benefits high risk pools to provide this information.
Because the initial release of the Web portal is July 1, 2010,
which is in the middle of a calendar-year, we will initiate the annual
update data submission requests in the fall of 2010.
In addition, we request that any State health benefits high risk
pool that is established after May 21, 2010, including any high risk
pool established pursuant to section 1101 of the Affordable Care Act,
report the requested information within 30 days of when the pool begins
accepting enrollment, and then annually thereafter.
2. Data Dissemination
a. July 1, 2010
The July 1, 2010 release of the Web portal will include
eligibility, coverage limitations and premium information as collected
under the request as described above, as well as consumer education
content that would aid consumer understanding about high risk pools
generally, and whether such pools might offer a potential source of
coverage for them.
b. Future Updates
Future updates to the high risk pool content of the Web portal will
include updates to the eligibility, coverage, and premium information
requested above. These updates may include data for new high risk pools
that are established subsequent to the July 1, 2010 release of the Web
portal, including those established pursuant to section 1101 of the
Affordable Care Act. We understand NASCHIP intends to build a Web site
to contain detailed information that today is only available in
NASCHIP's hard copy annual report. We will therefore also provide a
link to a NASCHIP Web site in a future release in order to provide even
more comprehensive information on those State health benefits high risk
pools that are represented by NASCHIP.
D. Information to be Disseminated on Medicaid and CHIP
Sections 1103(a)(2)(B) and (C) of the Affordable Care Act require
that Medicaid and CHIP information be included on the Web portal. Title
XIX of the Social Security Act, the law governing the Medicaid program,
has allowed States broad discretion over Medicaid eligibility policy
and therefore, Medicaid eligibility varies widely across States. In
general, Medicaid eligibility is dependent on categorical and income
requirements. Title XXI of the Social Security Act outlines the
eligibility rules in CHIP, and such eligibility requirements are
generally based on certain income requirements for children under age
19. There are instances where pregnant women and parents can be
eligible for CHIP. The Affordable Care Act simplifies Medicaid and CHIP
income eligibility rules for most populations beginning January 2014.
In the meantime, individuals will need to directly contact their State
programs for definitive determinations of their eligibility or for
their family members. However, the Web portal can serve as a resource
to educate potential beneficiaries that they or their family members
may be eligible for Medicaid and CHIP and provide information about how
they can contact their State programs to determine eligibility and
services available to them. The portal will serve as a resource for
understanding what their State Medicaid and CHIP programs generally
cover and how to apply for benefits.
To implement sections 1103(a)(2)(B) and (C) we will provide
information guiding consumers on general eligibility criteria for the
individual State programs in an effort to assist them in assessing the
need to pursue the application processes for these programs. There are
no new reporting requirements to support implementation of this
section. The data will come from existing Federal sources. The Web
portal will also be designed to offer links to the various State
Medicaid and CHIP agencies in order to facilitate consumers' submission
of program applications.
For each eligibility category, the Web portal will present
information regarding the services that are available to eligible
applicants. General cost sharing requirements will also be presented on
the Web portal, to the extent that they are permitted for the
eligibility category in these programs.
In order to provide this information, data are being compiled
within CMS across all Medicaid and CHIP eligibility categories
regarding the services available under each program. This includes both
mandatory and optional Medicaid services for which States receive
Federal funding as defined in each State Medicaid plan and any waiver
of such plan, as well as the services available under each State's CHIP
plan and any waiver of such plan. Mandatory services are specific
services States are required to cover for certain groups of Medicaid
beneficiaries, both adults and children under the age of 21. Each
required service is defined in Federal regulations 42 CFR part 440.
Optional Medicaid services are defined as those services not required
by Federal
[[Page 24477]]
law that States may elect to provide Medicaid beneficiaries. Optional
services are also defined in Federal regulation at 42 CFR part 440.
CHIP regulations define mandatory and optional services at 42 CFR part
457.
The portal will include data elements for mandatory services for
each mandatory and optional categorical group defined in each Medicaid
State plan, such as: Inpatient hospital care (excluding inpatient
services in institutions for mental disease for working age adults);
outpatient hospital care; physician's services; nurse midwife services;
pediatric and family nurse practitioner services; laboratories and x-
ray services; rural health clinic services including Federally
qualified health centers (``FQHC'') and if permitted by State law,
rural health clinic and other ambulatory services provided by a rural
health clinic which are otherwise included under a State Medicaid plan;
prenatal care and family planning services, skilled nursing facility
services for persons over age 21, home health care services for persons
over 21 who are eligible for skilled nursing services (includes medical
supplies and equipment), early and periodic screening, diagnosis, and
treatment for persons under age 21 (``EPSDT''), necessary
transportation services, and vaccines for children.
If States include optional services in their Medicaid State plan,
they must be provided in a manner that is consistent with all Federal
requirements. The Web portal will include data elements to reflect the
availability of optional services such as home health therapy services,
rehabilitative services, case management services, medical or remedial
care services or other licensed practitioners (chiropractors,
podiatrists, optometrist, psychologists and nurse anesthetists),
smoking cessation services and palliative care for children in each
State Medicaid plan. Additional program specific service information
will be provided with regard to Demonstration programs designed by
States under the authority of section 1115 of the Social Security Act
as well as services provided through the Children's Health Insurance
Program.
Appropriate information on a specific State's Demonstration
programs, including variations in eligibility, coverage and service
delivery systems used under the Demonstrations, will also be provided
on the portal. Demonstrations that are Statewide or high impact,
meaning that they have a significant penetration in the market and
serve more than a narrow coverage group, will also be included in the
initial release of the Web portal. Other Demonstration programs in
Medicaid and CHIP will be added in future releases.
Additionally, the Web portal will provide information to consumers
on the Home and Community-Based Waiver program (Section 1915(c) of the
Act), including a broad range of State defined services that enable
independence in a consumer's own home.
All of the above data will be derived from sources internal to CMS
and include Medicaid State Plan Amendments, CHIP State Plans, CHIP
annual reports, home and community based waivers applications and
renewals, 1115 Demonstration documents, and the contacts database used
for https://www.cms.gov which includes consumer contacts to state
Medicaid and CHIP program offices. We are not collecting any new data
elements for the Medicaid and CHIP portions of the Web portal under the
authorities that were granted to us under section 1103 of the
Affordable Care Act. All information will come from data that CMS
already collects for program management and administration purposes.
Certain State-based variations in Medicaid and CHIP programs, such
as specific income and resource disregards, and variations in services,
such as limits on the number of visits, cannot be presented with a high
degree of detail in early releases of the Web portal. We expect to list
the services and note that there are limitations, giving consumers
enough information to ask questions of the State program if they pursue
an application to enroll.
Finally, while a significant amount of data is being compiled to
populate the Web portal, some of the data for the Medicaid and CHIP
portion will be presented in an aggregated format to enhance public
understanding. For example, eligibility categories may be collapsed
together for purposes of maximizing public understanding. By way of
example, there are several working disabled eligibility categories in
Medicaid that inter-relate. We would expect, given the complexity of
these definitions, that consumers may have difficulty fully
understanding these categories. Therefore, we are presenting the public
with summary-level information, such as collapsing information about
the working disabled into one category.
III. Waiver of Proposed Rulemaking and the 30-Day Delay in the
Effective Date
We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite public comment on the proposed rule in
accordance with 5 U.S.C. 553(b) of the Administrative Procedure Act
(APA). The notice of proposed rulemaking includes a reference to the
legal authority under which the rule is proposed, and the terms and
substances of the proposed rule or a description of the subjects and
issues involved. This procedure can be waived, however, if an agency
finds good cause for concluding that a notice-and-comment procedure is
impracticable, unnecessary, or contrary to the public interest and
incorporates a statement of the finding and its reasons in the rule
issued. Section 1103(a), as amended by section 10102(b), and section
1103(b) of the Affordable Care Act provide for the establishment by
July 1, 2010 of a Web portal through which a resident or small business
of any State may identify affordable health insurance coverage options
in that State. In order to meet this mandate, we have to collect and
prepare for dissemination a broad array of data on issuers, health
insurance products, and plans, including administrative and product
information for the individual and small group markets; information on
eligibility and coverage limits for high risk pools; and information on
eligibility and services for Medicaid and CHIP. This cannot be
accomplished unless issuers are made aware of the data submission
requirements in short order and States, associations and high risk
pools are made aware of opportunities to aide in this information
dissemination effort within the established narrow timeframes. In order
to allow sufficient time for data submission and validation prior to
public presentation, we must be in possession of the data that is to be
included on the Web portal in the July 1, 2010 release no later than
May 21, 2010.
As a result of this data collection timeline, it is impracticable
to issue a notice of proposed rulemaking prior to publishing a final
rule that would implement these data production requirements.
Therefore, we find good cause to waive notice and comment rulemaking,
and we are proceeding with issuing this final rule on an interim basis.
We are providing a 30-day public comment period.
In addition, we ordinarily provide a 30-day delay in the effective
date of the provisions of an interim final rule. While the
Administrative Procedures Act (5 U.S.C. 551 et seq.) generally requires
the publication of a substantive rule not less than thirty days prior
to its effective date, agencies may establish a shorter time frame
based on good cause.
[[Page 24478]]
5 U.S.C. 553(d)(3). In accordance with the good cause basis explained
below, these regulations are effective on May 10, 2010.
Section 1103(a) of the Affordable Care Act requires the public
release of the Web portal on July 1, 2010. As shown below, a sequenced
order of activities must be completed in order to meet this statutory
deadline.
Data will be uploaded into the database supporting the Web portal
to populate the Web portal test site, and based on observations
adjustments to the actual Web site may be made. Any problems with the
actual data would be adjusted as well. This is a four week iterative
process that continues until the test site is functioning and
presenting data output as expected, which begins with the first data
upload on June 3 and ends with the release of the Web portal on July 1.
Prior to this, the data that is submitted must be formatted in
preparation for upload to the database that supports the Web portal
test site. First upload to the test site takes approximately two days,
from June 1 to June 3. There can be subsequent uploads through June 14,
as noted below.
Prior to this, beginning May 21, we must have time to view the
submitted data to assure it is complete and clean. At this same time we
believe that the regulated parties should be offered an opportunity to
validate the data they submit and resubmit any erroneous data. We
believe that the minimum time required to accomplish such work is three
weeks, which brings us to June 14, 2010. There is a 10 day overlap
between this process and the two processes described above.
Prior to this, we must afford those submitting the data with
adequate time to gather and submit the data. We believe that the
minimum time that should be provided for this work is 7 business days
from May 12 through to May 21, 2010.
In order to submit that data, these parties will need to establish
accounts that will allow secure data entry into the data collection
tool. This will entail approximately 3 business days from May 10 to May
12.
Furthermore, we anticipate that these parties will need training
and guidance on gathering data, obtaining an account and entering data.
This will include a webinar on or about May 7 and other technical
support through a help desk. This collection of activities would take
at least 4 business days which brings us to May 12, 2010.
Thus, in order to meet the statutory deadline of July 1, 2010, the
processes described above must commence no later than May 10, 2010.
Furthermore, certain activities had to occur within the agency
prior to our being able to publish a rule to implement the Web portal
requirements, or enter the contracts necessary to support work under
this rule. The Affordable Care Act was enacted on March 23, 2010. We
immediately established a workgroup to analyze policy options and the
contractual and regulatory needs of the Web portal program. This work
was completed on April 22. We then commenced task-specific workgroups
to draft the necessary documents, including this regulation, and to
procure the initial contractors. While these activities would usually
take at least 6 months we have accomplished them in just under six
weeks. It was impossible to have accomplished this work any faster, and
the brief timeframe between the publication of this document and the
effective date of its provisions could not have been avoided through
more diligent use of time by the individuals working to implement this
mandate.
To afford a full thirty days between publication and the effective
date we would be have to hold the parties submitting the data and
ourselves to inadequate timeframes in which to accomplish the necessary
tasks. The timeframes and dates described above therefore establish
good cause for an effective date that is fewer than thirty days after
publication.
We will accept comments on the content of this regulation until
June 4, 2010. This schedule will allow for a ten day comment period
prior to the initial reporting requirement under these regulations.
IV. Collection of Information Requirements
In accordance with section 3507(j) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection included
in this interim rule have been submitted for emergency approval to the
Office of Management and Budget (OMB). OMB has assigned control number
0938-1086 to the information collection requirements.
Under the Paperwork Reduction Act of 1995, we are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
We are soliciting public comment on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs):
ICRs Regarding Data Submission for the Individual and Small Group
Markets (Sec. 159.120)
Section 159.120(a) requires health insurance issuers (issuers), in
accordance with guidance issued by the Secretary, to submit corporate
and contact information; administrative information; enrollment data by
health insurance product; health insurance product name and type;
whether enrollment is currently open for each health insurance product;
geographic availability information; customer service phone numbers;
and Web site links to the issuer Web site, brochure documents, and
provider networks; and financial ratings on or before May 21, 2010, and
annually thereafter. The information must be submitted via a template
furnished by the Secretary. The burden associated with these reporting
requirements is both the time and effort necessary to review the
regulations, analyze data, and train issuer staff and the time and
effort necessary for an issuer to compile the necessary information, to
download and complete the template, and to submit the required
information. We estimate that this requirement affects 650 issuers. We
believe it will take each issuer 30 hours to review the regulations,
analyze data, and train its staff on how to comply with the
requirements. The total one-time burden associated with this
requirement is 19,500 hours. The estimated cost associated with
complying with this part of the requirement is $1,950,000.
Based on our experience with Medicare Part C, we also estimate that
each issuer will submit information on 9 of its portal plans and that
it will take each issuer a total of 19 minutes to download the
information submission template, complete the template, and submit the
template. The estimated annual burden associated with the requirements
in Sec. 159.120 is 206 hours.
[[Page 24479]]
The estimate cost associated with complying with these requirements is
$13,390.
Section 159.120(b) requires issuers, in accordance with the
guidance issued by the Secretary, to submit pricing and benefit data
for their portal plans on or before September 3, 2010, and annually
thereafter. The information must be submitted via a template furnished
by the Secretary. The burden associated with this requirement is the
time and effort necessary for issuers to compile and submit pricing and
benefit information. We estimate that it will take each of the 650
issuers 533 minutes to comply with these requirements. The total annual
burden associated with these requirements is 51,968 hours. The
estimated cost associated with complying with these requirements is
$3,377,920.
Section 159.120(c) requires issuers to submit updated pricing and
benefit data for their portal plans whenever they change premiums,
cost-sharing, types of services covered, coverage limitations, or
exclusions for one or more of their individual or small group portal
plans. Section 159.120(d) requires issuers to submit pricing and
benefit data for portal plans associated with products that are newly
open or reopened for enrollment within 30 days of opening for
enrollment. Each submission would include a certification on the
completeness and accuracy of the submission. The burden associated with
these requirements is the time and effort necessary for an issuer to
submit the aforementioned data. While these requirements are subject to
the PRA, we do not have sufficient data to estimate the associated
burden. We do not know the frequency with which issuers will make the
aforementioned updates. For that reason, we are estimating a total
burden of 1 hour for these requirements. The e