[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24470-24482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10504]
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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.
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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 http://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: http://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 http://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 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 $845,000.
Section 159.120(e) requires issuers to annually verify the data
submitted under Sec. 159.120(a) through (d). Section 159.120(f)
requires issuers to submit administrative data on product and
performance rating information for future releases of the Web portal in
accordance with guidance issued by the Secretary. While these
requirements are subject to the PRA, we will seek OMB approval at a
later date under notice and comment periods separate from this interim
final rule with comment.
Table 1--Recordkeeping and Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly
Burden per Total labor cost Total labor Total
Regulation section(s) OMB control Respondents Responses response annual of cost of capital/ Total cost
No. (hours) burden reporting reporting maintenance ($)
(hours) ($) ($) costs ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 159.120(a).................. 0938-1086 650 650 30 19,500 100 1,950,000 0 1,950,000
........... 650 650 .317 206 65 13,390 0 13,390
Sec. 159.120(b).................. 0938-1086 650 650 4 52,000 65 3,380,000 ........... 3,380,000
Sec. 159.120(c) and (d).......... 0938-1086 650 13,000 1 13,000 65 845,000 0 845,000
-------------------------------------------------------------------------------------------------------
Total.......................... ........... 650 14,950 ........... 84,706 ........... ........... ........... 6,188,390
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
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 State-
administered 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 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 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
[[Page 24480]]
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: [email protected].
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 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 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
[[Page 24481]]
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 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 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 non-profit 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 one-time 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
[[Page 24482]]
$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.
0
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).
Sec. 159.100 Basis and scope.
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.
Sec. 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) 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.
Sec. 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.
(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