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khammond on DSKJM1Z7X2PROD with PROPOSALS2

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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
premium-free silver plan with a 94
percent actuarial value AV with more opportunities to enroll in coverage. We also propose to clarify, for purposes of the special enrollment periods provided at 155.420d, that a qualified individual who meets the criteria at 155.305f, but who qualifies for a maximum APTC amount of zero dollars, is not considered APTC eligible. This approach would ensure that 155.420
very clearly reflects appropriate special enrollment period eligibility for qualifying individuals who qualify for a maximum APTC amount of zero dollars and for those who become eligible for APTC amounts greater than zero.
In addition, to reflect updated analysis of enrollment and the cost of expanded services offered through the Federal platform, we propose to set the 2022 user fee rate at 2.75 percent of total monthly premiums charged by the issuer for each policy under plans offered through an FFE, and 2.25
percent of the total monthly premiums charged by the issuer for each policy under plans offered through an SBEFP
rather than 2.25 and 1.75 percent of the total monthly premiums charged by the issuer for each policy under plans offered through an FFE or SBEFP, respectively, as finalized in part 1 of the 2022 Payment Notice final rule. These proposed 2022 user fee rates are still less than the 2021 user fees currently being collected3.0 and 2.5 percent of the total monthly premiums charged by the issuer for each policy under plans offered through an FFE or SBEFP, respectively.
We also propose a technical amendment to requirements at 156.115a3 pertaining to the provision of the essential health benefits EHB, to include a cross-reference to the Public Health Service PHS Act to make clear that health plans subject to EHB requirements must comply with all of the requirements under Mental Health Parity and Addiction Equity Act of 2008 MHPAEA, including any amendments to MHPAEA.
We also propose to repeal the separate billing regulation at 156.280e2, which requires individual market QHP
issuers that offer coverage of abortion services 8 for which federal funds are prohibited to separately bill for this portion of the policy holders premium and to instruct the policy holder to pay for the separate bill in a separate transaction. Specifically, we are proposing to revert to and codify prior 8 These abortion services refer to abortion coverage that is subject to the Hyde Amendments funding limitations which prohibit the use of federal funds for such coverage.

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policy finalized in the 2016 Payment Notice 9 such that QHP issuers offering coverage of abortion services for which federal funds are prohibited again have flexibility in selecting a method to comply with the separate payment requirement in section 1303 of the ACA.
Under this proposal, individual market QHP issuers covering abortion services for which federal funds are prohibited would still be expected to comply with all statutory requirements in section 1303 of the ACA and all applicable regulatory requirements codified at 156.280.
This proposed rule also proposes modifications to the section 1332
Waivers for State Innovation referred to throughout the preamble to this proposed rule as section 1332 waivers implementing regulations, including changes to many of the policies and interpretations of the guardrails recently codified in regulation. As outlined in this proposed rule, the policies and interpretations proposed in this rule, if finalized, would supersede and rescind those outlined in the October 2018
State Relief and Empowerment Waivers guidance 10 hereinafter referred to as the 2018 Guidance and repeal the previous codification of the interpretations of statutory guidelines in part 1 of the 2022 Payment Notice final rule. HHS and the Department of the Treasury collectively, the Departments also propose to modify regulations to set forth flexibilities in the public notice requirements and post award public participation requirements for section 1332 waivers under certain emergent situations. The Departments also propose in this rule processes and procedures for amendments and extensions for approved waiver plans.
II. Background A. Legislative and Regulatory Overview Title I of the Health Insurance Portability and Accountability Act of 1996 HIPAA added a new title XXVII
to the PHS Act to establish various reforms to the group and individual health insurance markets.
These provisions of the PHS Act were later augmented by other laws, including the ACA. Subtitles A and C of title I of the ACA reorganized, amended, and added to the provisions of part A of title XXVII of the PHS Act relating to group health plans 11 and health 9 80

FR 10750.
FR 53575.
11 The term group health plan is used in title XXVII of the PHS Act and is distinct from the term health plan as used in other provisions of title I
of ACA. The term health plan does not include self-insured group health plans.
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insurance issuers in the group and individual markets. The term group health plan includes both insured and self-insured group health plans.
Section 2702 of the PHS Act, as added by the ACA, establishes requirements for guaranteed availability of coverage in the group and individual markets.12
Section 1301a1B of the ACA
directs all issuers of QHPs to cover the EHB package described in section 1302a of the ACA, including coverage of the services described in section 1302b of the ACA, adherence to the cost-sharing limits described in section 1302c of the ACA, and meeting the actuarial value AV levels established in section 1302d of the ACA. Section 2707a of the PHS Act, which is effective for plan or policy years beginning on or after January 1, 2014, extends the requirement to cover the EHB package to non-grandfathered individual and small group health insurance coverage, irrespective of whether such coverage is offered through an Exchange. In addition, section 2707b of the PHS Act directs non-grandfathered group health plans to ensure that cost sharing under the plan does not exceed the limitations described in sections 1302c1 of the ACA.
Section 1302 of the ACA provides for the establishment of an EHB package that includes coverage of EHBs as defined by the Secretary, cost-sharing limits, and AV requirements. Section 1302b of the ACA directs that EHBs be equal in scope to the benefits provided under a typical employer plan, and that they cover at least the following 10
general categories: Ambulatory patient services; emergency services;
hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs;
rehabilitative and habilitative services and devices; laboratory services;
preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care.
Section 1302d of the ACA describes the various levels of coverage based on their AV. Consistent with section 1302d2A of the ACA, AV is calculated based on the provision of EHB to a standard population. Section 1302d3 of the ACA directs the Secretary to develop guidelines that allow for de minimis variation in AV
calculations.
12 Before enactment of the ACA, HIPAA amended the PHS Act formerly section 2711 to generally require guaranteed availability of coverage for employers in the small group market.

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