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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
repeal the separate billing requirement, which requires individual market QHP
issuers that offer coverage for abortion services for which federal funding is prohibited to separately bill policy holders for the portion of the premium attributable to coverage of such abortion services and instruct the policy holder to pay for this portion of their premium in a separate transaction. Finally, we propose to update a cross reference to mental health parity standards in the provision of EHB regulations.
The proposed changes in 31 CFR part 33 and 45 CFR part 155 related to section 1332 waivers would rescind the previous incorporation of certain policies and interpretations announced in the 2018 Guidance into regulation.
The proposals related to section 1332
waivers include proposed processes and procedures for amendments and extensions for approved waiver plans.
Additionally, the Departments propose to extend certain flexibilities in the public notice requirements and post award public participation requirements for section 1332 waivers during future emergent situations.
III. Provisions of the Updating Payment Parameters and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule A. Part 147Health Insurance Reform Requirements for the Group and Individual Health Insurance Markets
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1. Guaranteed Availability of Coverage 147.104
a. Past-Due Premiums On January 28, 2021, President Biden issued E.O. 14009, Strengthening Medicaid and the Affordable Care Act, 21 directing HHS, and the heads of all other executive departments and agencies with authorities and responsibilities related to the ACA, to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions to determine whether such agency actions are inconsistent with this Administrations policy to protect and strengthen the ACA and to make highquality health care accessible and affordable for every American.
In the preamble to the Market Stabilization final rule,22 we stated that, to the extent permitted by applicable state law, an issuer will not violate the guaranteed availability requirements in 147.104 where the issuer attributes a premium payment made for new coverage to any past-due premiums owed for coverage from the same issuer 21 86

FR 7793 February 2, 2021.
22 82 FR 18346, 18349 April 18, 2017.

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or another issuer in the same controlled group within the prior 12-month period before effectuating enrollment in the new coverage. This policy addressed concerns regarding the potential for individuals to take unfair advantage of the guaranteed availability rules. For example, an individual could decline to make premium payments at the end of a benefit year, but still receive periods of unpaid coverage during a grace period before coverage is terminated.
We were concerned that despite such failures to pay, such individuals would be able to immediately sign up for new coverage for the next benefit year during the individual market open enrollment period, without making restitution for the periods of unpaid coverage.
HHS currently is reviewing this policy to analyze whether it may present unnecessary barriers to accessing health coverage. In compliance with E.O. 14009, we intend to address this interpretation of guaranteed availability in the 2023
Payment Notice rulemaking.
b. Special Enrollment Periods 147.104b2
As further discussed in the preamble section regarding the proposed monthly special enrollment period for APTCeligible qualified individuals with an expected household income no greater than 150 percent of the FPL
155.420d16, we propose to add a new paragraph at 147.104b2iG to specify that issuers are not required to provide this special enrollment period in the individual market with respect to coverage offered outside of an Exchange.
We propose to add this paragraph because eligibility for the special enrollment period is based on eligibility for APTC, as discussed in the 155.420d16 preamble section, and APTC cannot be applied to coverage offered outside of an Exchange. We request comment on this proposal.
B. Part 155Exchange Establishment Standards and Other Related Standards Under the Affordable Care Act 1. Standardized Options 155.20
On March 4, 2021, the United States District Court for the District of Maryland decided City of Columbus v.
Cochran, No. 182364, 2021 WL 825973
D. Md. Mar. 4, 2021. The court reviewed nine separate policies we had promulgated in the 2019 Payment Notice final rule. The court vacated four of these policies. One of the policies the court vacated was the 2019 Payment Notices cessation of the practice of
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designating some plans in the FFEs as standardized options. 23
We intend to implement the courts decision as soon as possible, as explained in part 2 of the 2022 Payment Notice final rule.24 We will not be able to fully implement those aspects of the courts decision regarding standardized options in time for issuers to design plans and for CMS to be prepared to certify such plans as QHPs for the 2022
plan year. With the rule removing standardized options vacated, we will also need to design and propose new standardized options that otherwise meet current market reform requirements and alter the Federal Exchange eligibility and enrollment platform system build HealthCare.gov to provide differential display of such plans. Web-brokers that are direct enrollment partners in FFE and SBEFP
states will also need time to adjust their respective systems to provide differential display of such plans on their non-Exchange websites.25 We will need to design, propose, and finalize such plans in time for issuers to design their own standardized options in accord with HHSs parameters and to submit those plans for approval by applicable regulatory authorities and for certification as QHPs. This is not feasible for the upcoming QHP
certification cycle for the 2022 plan year. The plan certification process for that year has already begun as of April 22, 2021. CMS planning for the QHP
certification cycle for the 2022 plan year has taken into account the existing policies that the court vacated, and it is too late now to revisit those factors if the process is to go forward in time for plans to be certified by open enrollment later this year.
Specifically, in the last iteration of standardized options we finalized in the 2018 Payment Notice, we created three sets of standardized options based on FFE and SBEFP enrollment data and state cost-sharing laws. The basis on which we created these three sets of options as well as a number of other factors in the individual market for example, states with FFEs or SBEFPs transitioning to SBEs have changed considerably since the last iteration of standardized options in 2018. Further, we do not have sufficient time to conduct a full analysis of the changes that have occurred in the last several years necessary to timely design and propose adequate standardized options suitable for the current environment.
Additionally, in prior years, we 23 See
83 FR 1697416975.
86 FR 24140, 2426424265.
25 See 45 CFR 155.220c3iH.
24 See
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