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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules administration has a priority to increase accessibility and affordability of health care for every American. Consistent with increasing accessibility for every American an expanded budget for consumer support activities and Navigators was developed, and HHS
conducted additional analytic review which revealed that the user fee rates established in part 1 of the 2022
Payment Notice final rule 74 need to be increased to sustain essential Exchangerelated activities. Based on this new analysis of the increased contract costs and projected premiums and enrollment including changes in FFE enrollment resulting from anticipated establishment of State Exchanges or SBEFPs in certain states in which FFEs currently are operating for the 2022 plan year, we are proposing to establish the SBEFP
user fee for all participating SBEFP
issuers at 2.25 percent of the monthly premium charged by the issuer for each policy under plans offered through an SBEFP for benefit year 2022. We seek comment on the SBEFP user fee rate for 2022.

khammond on DSKJM1Z7X2PROD with PROPOSALS2

c. 2023 Exchange DE Option User Fee Rate In the January 19, 2021 Federal Register 86 FR 6138, we published part 1 of the 2022 Payment Notice final rule that codified 155.221j, which established a process for states to elect a new Exchange DE option. When finalizing this new Exchange option, we also finalized a 2023 user fee rate of 1.5
percent of the total monthly premiums charged by issuers for each policy in FFE and SBEFP states that elect the Exchange DE option. As explained above, we propose to repeal the Exchange DE option, accordingly we also propose to repeal the user fee rate associated with 155.221j for the FFEDE and SBEFPDEs for 2023. We seek comment on this proposal.
2. Provision of EHB 156.115
We propose a technical amendment to 156.115. Section 156.115a3
provides that, to satisfy the requirement to provide EHB, a health plan must provide mental health and substance use disorder services, including behavioral health treatment services required under 156.110a5, in a manner that complies with the parity standards set forth in 146.136, implementing the requirements under MHPAEA. Instead of referencing the regulation implementing MHPAEA, we propose to reference section 2726 of the PHS Act and its implementing regulations. We propose this change to 74 86

FR 6138 at 6152.

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make clear that health plans must comply with all the requirements under MHPAEA, including any amendments to MHPAEA, such as those made by the Consolidated Appropriations Act, 2021,75 in order to satisfy the EHB
requirements.
3. Network Adequacy 156.230
As discussed in more detail in the preamble to 155.20, on March 4, 2021, the United States District Court for the District of Maryland decided City of Columbus v. Cochran, 2021 WL 825973
D. Md. Mar. 4, 2021. One of the policies the court vacated was the 2019
rules elimination of the federal governments reviews of the network adequacy of QHPs offered through the FFE in certain circumstances by incorporating the results of the states reviews.76
As we explained in part 2 of the 2022
Payment Notice final rule,77 we intend to implement the courts decision through rulemaking as soon as possible.
However, we also will not be able to fully implement the aspects of the courts decision regarding network adequacy in time for issuers to design plans and for CMS to be prepared to certify such plans as QHPs for the 2022
plan year. We instead intend to address these issues in time for plan design and certification for plan year 2023.
Specifically, with the rule vacated, HHS
would need to set up a new network adequacy review process, and issuers would need sufficient time before the applicable plan year to assess that their networks meet the new regulatory standard, submit network information, and have the information reviewed by applicable regulatory authorities to have their plans certified as QHPs. Issuers might also have to contract with other providers in order to meet the standard.
This is not feasible for the upcoming QHP certification cycle for the 2022
plan year, which began April 22, 2021.
We plan to propose specific steps to address federal network adequacy reviews in future rulemaking. We request comments and input regarding how the federal government should approach network adequacy reviews.
75 See section 203 of Title II of Division BB of the Consolidated Appropriations Act, 2021, Public Law 116260 Dec. 27, 2020.
76 This policy was first announced in the 2018
Letter to Issuers in the Federally-facilitated Marketplaces, December 16, 2016, available at https wayback.archive-it.org/2744/
20200125161008/ https www.cms.gov/CCIIO/
Resources/Regulations-and-Guidance/Downloads/
Final-2018-Letter-to-Issuers-in-the-Federallyfacilitated-Marketplaces-and-February-17Addendum.pdf. See also 83 FR 1702417026.
77 86 FR 24140.

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4. Segregation of Funds for Abortion Services 156.280
Section 1303 of the ACA, as implemented in 45 CFR 156.280, specifies standards for issuers of QHPs through the Exchanges that cover abortion services for which federal funding is prohibited. The statute and regulation establish that, unless otherwise prohibited by state law, a QHP issuer may elect to cover such abortion services. If an issuer elects to cover such services under a QHP sold through an individual market Exchange, the issuer must take certain steps to ensure that no PTC or CSR funds are used to pay for abortion services for which public funding is prohibited, as required by statute.
Upon consideration of federal district court decisions invalidating the policy, we are proposing to repeal the separate billing regulation at 156.280e2ii that requires individual market QHP
issuers to send a separate bill for that portion of a policy holders premium that is attributable to coverage for abortion services for which federal funds are prohibited and to instruct such policy holders to pay for the separate bill in a separate transaction.
Specifically, we propose to revert to and codify in amended regulatory text at 156.280e2ii the prior policy announced in the preamble of the 2016
Payment Notice under which QHP
issuers offering coverage of abortion services for which federal funds are prohibited 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 such abortion services 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.
Since 1976, Congress has included language, commonly known as the Hyde Amendment, in the Labor, Health and Human Services, Education and Related Agencies appropriations legislation.78
The Hyde Amendment, as currently in effect, permits federal funds subject to its funding limitations to be used for abortion services only in the limited cases of rape, incest, or if a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in 78 Accordingly, the Hyde Amendment is not permanent federal law, but applies only to the extent reenacted by Congress from time to time in appropriations legislation.

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