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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
danger of death unless an abortion is performed. Abortion coverage beyond those limited circumstances is subject to the Hyde Amendments funding limitations which prohibit the use of federal funds for such coverage.
Section 1303 of the ACA outlines requirements that issuers of individual market QHPs covering abortion services for which federal funds are prohibited must follow to ensure compliance with these funding limitations. Section 1303b2 prohibits QHPs from using any amount attributable to PTC
including APTC or CSRs including advance payments of those funds to an issuer, if any for coverage of abortion services for which federal funds are prohibited. Under sections 1303b2B
and b2D of the ACA, as implemented in 156.280e2i and e4, QHP issuers must collect a separate payment from each enrollee without regard to the enrollees age, sex, or family status, for an amount equal to the greater of the actuarial value of coverage of abortion services for which public funding is prohibited, or $1 per enrollee per month. Section 1303b2D of the ACA establishes certain requirements with respect to a QHP issuers estimation of the actuarial value of abortion services for which federal funds are prohibited including that a QHP issuer may not estimate such cost at less than $1 per enrollee, per month. Section 1303b2C of the ACA, as implemented at 156.280e3, requires that QHP issuers segregate funds for coverage of such abortion services collected from enrollees into a separate allocation account used to pay for such abortion services. Thus, if a QHP issuer disburses funds for an abortion for which federal funds are prohibited on behalf of an enrollee, it must draw those funds from the segregated allocation account.
Notably, section 1303 of the ACA
does not specify the method a QHP
issuer must use to comply with the separate payment requirement under section 1303b2Bi of the ACA. In the 2016 Payment Notice, we provided guidance with respect to acceptable methods that an issuer of individual market QHPs could use to comply with the separate payment requirement.79 We stated that QHP issuers could satisfy the separate payment requirement in one of several ways, including by sending the enrollee a single monthly invoice or bill that separately itemized the premium amount for coverage of abortion services for which federal funds are prohibited;
sending the enrollee a separate monthly bill for these services; or sending the 79 80

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enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge. We also stated that an enrollee could make the payment for coverage of such abortion services and the separate payment for coverage of all other services in a single transaction.80 On October 6, 2017, we released a bulletin that discussed the statutory requirements for separate payment, as well as this previous guidance on the separate payment requirement.81
The 2019 Program Integrity Rule 82
prohibited the compliance options that the 2016 Payment Notice previously provided to QHP issuers with regard to the separate payment requirement.
Specifically, the 2019 Program Integrity Rule finalized a policy requiring issuers of individual market QHPs offering coverage of abortion services for which federal funds are prohibited to send an entirely separate monthly bill to policy holders just for the portion of the premium attributable to coverage of such abortion services. QHP issuers were required to either send separate paper bills which could be sent in the same envelope or mailing, or send separate bills electronically which were required to be in separate emails or electronic communications. The separate billing regulation also required also required QHP issuers to instruct the policy holder to pay for the portion of their premium attributable to coverage of abortion services for which federal funds are prohibited through a separate transaction from any payment made for the portion of their premium not attributable to this coverage. It also required QHP issuers to make reasonable efforts to collect the payments separately. QHP issuers were to begin complying with these billing requirements on or before the QHP
issuers first billing cycle following June 27, 2020. Although HHS recognized that the previous methods of itemizing or providing advance notice about the amounts noted as permissible in the preamble of the 2016 Payment Notice arguably identifies two separate amounts for two separate purposes, HHS also reasoned that the separate billing policy would better align the regulatory requirements for QHP issuer billing of enrollee premiums with the intent of the separate payment 80 80

FR 10750 February 27, 2015.
Bulletin Addressing Enforcement of Section 1303 of the Patient Protection and Affordable Care Act October 6, 2017, available at https www.cms.gov/CCIIO/Resources/Regulationsand-Guidance/Downloads/Section-1303-Bulletin10-6-2017-FINAL-508.pdf.
82 84 FR 71674 December 27, 2019.
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requirement in section 1303 of the ACA.83
HHS announced in the 2019 Program Integrity Rule that it would exercise enforcement discretion to mitigate risk of inadvertent coverage terminations that might result from enrollee confusion in connection with receiving two separate bills for one insurance contract. HHS explained that it would not take enforcement action against a QHP issuer that implemented a policy under which the issuer would not place an enrollee into a grace period and would not terminate QHP coverage based solely on the policy holders failure to pay the separate bill. The 2019
Program Integrity Rule provided that HHS was adopting this enforcement posture effective June 27, 2020.
In response to the proposal to adopt the separate billing requirement finalized in the 2019 Program Integrity Rule, HHS also received comments expressing concern that lack of transparency into whether QHPs provided coverage of abortion services for which federal funds are prohibited presented the risk that consumers could unknowingly purchase such coverage.
To address this risk, HHS announced that as of the effective date of the final rule, February 25, 2020, it would not take enforcement action against QHP
issuers that allowed enrollees to opt out of coverage of such abortion services by not paying the separate bill for such services the opt-out non-enforcement policy. The opt-out non-enforcement policy effectively gave issuers the flexibility to modify the benefits of a plan during a plan year based on an enrollees desire to opt out of a plans coverage of such abortion services.
In light of the immediate need for QHP issuers to divert resources to respond to the COVID19 PHE, HHS
published an interim final rule with comment in May 2020 for Medicare and Medicaid Programs, Basic Health Programs and Exchanges 85 FR 27550
May 2020 IFC. The rule delayed by 60 days the date when individual market QHP issuers would be required to begin separately billing policy holders. As finalized at 156.280e2ii, QHP issuers were expected to comply with the separate billing regulation beginning on or before the QHP issuers first billing cycle following August 26, 2020. The May 2020 IFC noted that a 60-day delay was justified in light of the ongoing litigation in the federal courts of Maryland, Washington, and California challenging the separate billing regulation. The May 2020 IFC also noted that the extended 83 84

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FR 71674, 71693 December 27, 2019.

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