New health reform FAQs address annual limit waivers & provider nondiscrimination

New health reform FAQs address annual limit waivers & provider nondiscrimination

The Department of Labor's Employee Benefits Security Administration (EBSA), with IRS and the Department of Health and Human Services (HHS; collectively, the Departments), has issued a 15th set of frequently asked questions (FAQs) regarding the implementation of the Patient Protection and Affordable Care Act (PPACA). In general, the FAQs provide that a change in plan year does not change the expiration date of any waiver granted from the annual limits requirements, and that no regs will be issued on the requirements related to provider nondiscrimination and coverage of individuals in clinical trials.

Annual limit waivers.  In issuing regs under Public Health Service Act (PHSA) §2711, which generally prohibits non-grandfathered group health plans and health insurance issuers from imposing annual limits on the dollar value of health benefits, the Departments established a program allowing temporary waivers for plans with an annual dollar limit below the restricted annual limits, where complying with the restricted annual limit rules would significantly decrease access to benefits under the plan or health insurance coverage, or would significantly increase premiums for the plan or health insurance coverage

The Departments now state that if a plan changes its plan year before the waiver expiration date, that change does not modify the expiration date of the waiver. For example, if a waiver approval letter states that a waiver is granted for an April 1, 2013 plan or policy year, the waiver will expire on March 31, 2014, regardless of whether the plan later amends its plan or policy year. However, the Departments note that waiver recipients may terminate the waiver at any time before its approved expiration date—here, for example, on Dec. 31, 2013 rather than on Mar. 31, 2014. (FAQ 1)

Provider nondiscrimination.  Under PHSA §2706(a), as incorporated by the Code and ERISA, non-grandfathered group health plans and health insurance issuers offering group or individual coverage must not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider's license or certification under applicable state law. However, PHSA §2706(a) doesn't require that a plan contract with any health care provider willing to abide by the terms and conditions for participation established by the plan, nor does PHSA §2706(a) prevent a plan from establishing varying reimbursement rates based on quality or performance measures.

According to the Departments, PHSA §2706(a) is self-implementing, and the Departments do not expect to issue regs before its Jan. 1, 2014 effective date. Until any further guidance is issued, plans and issuers are expected to implement the requirements using a good faith, reasonable interpretation of the law. For this purpose, to the extent an item or service is a covered benefit under the plan or coverage, and consistent with reasonable medical management techniques specified under the plan with respect to the frequency, method, treatment, or setting for an item or service, a plan or issuer must not discriminate based on a provider's license or certification, to the extent the provider is acting within the scope of the provider's license or certification under applicable state law. (FAQ 2)

Coverage of individuals participating in approved clinical trials.  Under PHSA §2709(a), as incorporated by the Code and ERISA, if a non-grandfathered group health plan or health insurance issuer in the group and individual health insurance market provides coverage to a qualified individual, then the plan or issuer: (1) may not deny the qualified individual participation in an approved clinical trial with respect to the treatment of cancer or another life-threatening disease or condition; (2) may not deny (or limit or impose additional conditions on) the coverage of routine patient costs for items and services furnished in connection with participation in the trial; and (3) may not discriminate against the individual on the basis of the individual's participation in the trial. Under PHSA §2709(b), a “qualified individual” is generally a participant or beneficiary who is eligible to participate in an approved clinical trial according to the trial protocol with respect to the treatment of cancer or another life-threatening disease or condition; and either: (a) the referring health care professional is a participating provider and has concluded that the individual's participation in such trial would be appropriate; or (b) the participant or beneficiary provides medical and scientific information establishing that the individual's participation in the trial would be appropriate.

According to the Departments, PHSA §2709(a) is also self-implementing, and they do not expect to issue regs before its Jan. 1, 2014 effective date. Until any further guidance is issued, plans and issuers are expected to implement the requirements using a good faith, reasonable interpretation of the law. The Departments state that they will work together with employers, plans, issuers, states, providers, and other stakeholders to help them come into compliance with the law, and will work with families and individuals to help them understand the coverage for clinical trials provision and benefit from it as intended. (FAQ 3)

Transparency reporting.  Under PPACA §1311(e)(3), health insurance issuers seeking certification of a health plan as a qualified health plan (QHP) must make accurate and timely disclosures of certain information to the appropriate Exchange, HHS, and the state insurance commissioner, and make the information disclosures available to the public. PHSA §2715A, as incorporated by the Code and ERISA, extends these transparency reporting provisions to non-grandfathered group health plans and health insurance issuers offering group or individual coverage, except that a plan or coverage not offered through an Exchange is only required to submit the information to HHS and the state insurance commissioner, and make the information public.

According to the Departments, since QHP issuers will not have some of the data necessary for reporting under this requirement until during or after the first year of operation of their QHPs (e.g., QHP enrollment and disenrollment), QHP issuers will begin submitting information only after QHPs have been certified as QHPs for one benefit year. Since PHSA §2715A simply extends the transparency provisions to covered plans and issuers, the Departments are clarifying that the PHSA §2715A will become applicable no sooner than when the reporting requirements of PPACA §1311(e)(3) become applicable. The Departments will coordinate regulatory guidance on the transparency in coverage standards for coverage offered inside and outside of the Exchanges. (FAQ 4)

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