The Department of Health and Human Services Releases 2023 Final Exchange Rules & Guidance for Health Issuers

As the deadline for submission of Qualified Health Plans (QHPs) approaches, the Department of Health and Human Services (HHS) released the final 2023 Notice of Benefit and Payment Parameters (NBPP) and the 2023 Final Letter to Issuers in the Federally-facilitated Exchanges (Letter) on April 28^th, 2022.

As always, the NBPP, Letter, and other guidance address key timelines, certification standards, financial parameters, and operational and technical guidance for Exchanges, QHPs, and premium stabilization programs, as well as more significant policy changes. The final guidance largely finalizes proposals that HHS included in the proposed 2023 Notice of Benefit and Payment Parameters and draft Letter to Issuers in the Federally-facilitated Exchanges, and makes few changes to prior years.

Additional technical guidance related to QHP certification timelines, rate review, risk adjustment and cost-sharing limitations was previously released at the end of 2021 and can be found at the following links:

The final certification dates were released on May 18, 2022, via CMS bulletin, and are reflected in PCG’s timeline below.

Timeline of Key Certification and Rate Review Deadlines

Click here to view a larger image.

Below, we provide our updated annual overview of the policy changes from previous years’ guidance, with a focus on key payment parameters and changes that impact state insurance markets and regulators. The summary below is updated with text in red that reflects the final guidance.

Network Adequacy/Essential Community Providers (ECPs)

HHS finalized proposed changes to the Network Adequacy review process and Essential Community Providers standards as proposed, noting that appointment wait time standards will be implemented for Plan Year 2024:

In response to a recent lawsuit, the proposed rule and Letter contain substantial reforms to network adequacy, reinstituting the federal role in a way that mirrors initiatives already in place at the state level to strengthen network adequacy reviews. These reforms include:

Evaluating the adequacy of provider networks for plans seeking certification as Federally-Facilitated Exchange (FFE) QHPs—except for QHPs in FFE states that perform plan management functions and elect to perform their own reviews of network adequacy, so long as 1) the state applies and enforces quantitative network adequacy standards that are at least as stringent as the federal network adequacy standards, and 2) network adequacy reviews are conducted prior to QHP certification.
Standards would include time and distance standards and appointment wait-time standards, which are detailed in the Letter.
The provider specialty list for time and distance standards (with time and distance specific to each provider type and county type) is expanded from previous years and can be found in full in the Letter.
- Issuers would also be required to submit information about whether providers offer telehealth services.
Increasing the ECP threshold from 20 percent to 35 percent of available ECPs in a plan’s network.
For plans with tiered networks, only providers in the network tier with the lowest cost-sharing would be considered toward the satisfaction of network adequacy and ECP standards.

Essential Health Benefits (EHBs)

HHS finalized proposed changes to the Essential Health Benefit requirements:

HHS proposes a standing deadline for states to submit documentation requesting to amend their EHB benchmark plan: the first Wednesday in May two years before the date that the EHB changes would go into effect. The deadline for the 2025 plan year would be May 3, 2023; the deadline for the 2026 plan year would be May 4, 2024.
- HHS believes that the early May deadline has provided states with enough time to submit this information and would like to stop readjusting this deadline each year, which will make it easier for states to plan going forward.
HHS also proposes eliminating the option for states to allow benefit substitution between EHB categories. HHS noted in the preamble that no state has requested this option to
The proposed rule would also eliminate the requirement that states report benefit mandates that exceed the EHB on an annual basis, though the defrayal requirement would remain in place.

Discriminatory Benefit Design

HHS finalized its proposal related to discriminatory benefit design in part, while delaying the effective date to January 1, 2023, and declining to finalize the requirement that plan designs incorporate and be based on evidence-based guidelines:

To further strengthen non-discrimination policies, the administration proposes that EHB design must be based on clinical evidence, supported by evidence-based guidelines, and rely upon current and relevant peer-reviewed medical journal articles, practice guidelines, or other reputable sources.
- Examples of evidence-based guidelines noted include: American Medical Association (JAMA), published by the American Medical Association; Anesthesia, published by the Association of Anesthetists; Pediatrics, published by the American Academy of Pediatrics; Physical Therapy and Rehabilitation Journal, published by the American Physical Therapy Association; the New England Journal of Medicine (NEJM), published by the Massachusetts Medical Society; and the American Journal of Psychiatry, published by the American Psychiatric Association.
- The proposed rule includes examples of “discriminatory” benefit design to assist states as the primary regulators and reviewers of plans.

Non-Discrimination

HHS has released a separate rule that will address the prohibited discrimination based on sex under Section 1557 of the ACA to ensure that nondiscrimination polices are consistent across all guidance. HHS submitted the notice of proposed rulemaking addressing Section 1557 of the ACA to the Office of Management and Budget on March 22, 2022. Due to this, HHS decided to delay the implementation of changes proposed in the 2023 NBPP:

The proposed NBPP rule restores protections from discrimination based on sexual orientation and gender identity, overturning the 2020 rule that eliminated them. The proposed protections are in line with the January 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
The proposed NBPP rule notes that this change is in line with June 15, 2021 ruling by the Supreme Court in Bostock v Clayton County, which found that “because of sex” in Title VII includes discrimination based on sexual orientation and gender identity.

Premium Adjustment Percentage / Cost-Sharing

At the same time that the proposed NBPP was released, HHS issued guidance outlining the premium adjustment percentage and cost-sharing limitations for 2023.

This guidance was final as released and includes the final cost-sharing limitations for QHPs for 2023:

In the final Letter, HHS finalized its proposal for cost-sharing limitations for Standalone Dental Plans:

The Letter proposes the cost-sharing limitations for Standalone Dental Plans in 2023 of $375 for one child and $750 for 2 or more children, which is the same as 2022.In the final Letter, HHS finalized its proposal for cost-sharing limitations for Standalone Dental Plans:

Actuarial Value Levels

HHS finalized the changes to the range of permitted de minimis variation to actuarial value levels as proposed:

The NBPP proposes to change the range of de minimis variation permitted for QHPs. Starting in 2023, it would be +2 / -2 percentage points for individual and small group QHPs in all metal levels other than the expanded bronze plans (which would be permitted a variation of +5 / -2) and individual market silver plans (which would be limited to a variation of +2 / 0). Income-based cost-sharing reduction (CSR) plans would be limited to a de minimis variation range of +1 / 0.

Standardized Plans

HHS finalized the standardized plan requirements as proposed, clarifying that they apply to carriers offering individual market plans in the FFEs and SBE-FPs:

As a follow-up to a recent lawsuit and an executive order, HHS proposes to reinstate standardized plans on FFEs and state-based exchanges that use the federal platform (SBE-FPs), with the goal of supporting consumers’ comparison of plan options. Per the draft guidance, starting in 2023, QHP insurers in those Exchanges would be required to offer a standardized plan at every product network type and metal level and throughout every service area at which they offer non-standardized plans.
- Based on the most popular QHPs in the FFEs and SBE-FPs in 2021, HHS proposes: a standard bronze plan, a standard expanded bronze plan, a standard silver plan (including standard versions for each of the income-based CSR variations), a standard gold plan, and a standard platinum plan.
  - A second set of plans is proposed to accommodate the state-specific cost-sharing rules in Delaware and Louisiana.
- Any state-mandated standardized plans from prior to 2020 would apply instead of the federal standard plans.
The number of non-standardized plans would not be limited in 2023, but HHS is considering instituting a limit in future years and is seeking comments to that end.
In the final rule, HHS announced that it will resume differential display of standardized plans on the federal platform and will enforce “existing standardized plan options display requirements” for web-brokers and QHP issuers using direct enrollment in the regulations. Those entities will be required to apply differential display similar to healthcare.gov unless HHS approves a deviation.

HHS is “considering” implementing differential display of standardized plans on healthcare.gov and requiring web-based brokers and issuers doing direct enrollment to do the same. Issuers would not be required to display standardized plans of other issuers.
A report issued by the Office of the Assistant Secretary for Planning and Evaluation on the same day as the rule outlines the benefits of standardized plans.

User Fees

HHS finalized the FFE and SBE-FP user fees for 2023 as proposed:

HHS proposes maintaining the user fees currently in place for 2022:

75 percent for the FFE and
25 percent for SBE-FPs.

HHS notes that this remains at a lower level than 2021 and the fees will be used, in part, to support consumer outreach and education, eligibility determinations, and enrollment activities. It also mentions that these fees balance the need for adequate funding against the need to mitigate premium increases, particularly if the enhanced premium tax credits under the American Rescue Plan Act are not extended.

Repayment of Past-Due Premiums

HHS finalized the past-due premium restrictions as proposed and confirmed they apply in both the individual and group markets:

As expected, HHS addressed past-due premiums in the draft guidance, proposing to rescind the policy that allows issuers to apply first premium payments to past-due premiums and then refuse to effectuate coverage in a new product for failure to make first premium payments, or to otherwise deny coverage based on failure to pay a prior premium owed.
- Under the proposed policy change, denying coverage based on past-due premiums would again be considered a violation guaranteed issue, which requires health insurance issuers offering non-grandfathered coverage in the individual or group market to accept every individual and employer in the state that applies for such coverage unless an exception applies.
- HHS is proposing this change because it believes that the current policy’s negative impact on access to health coverage, particularly for low-income individuals, outweighs concerns that—if they do not have to repay premiums—enrollees will take advantage of grace periods when dropping coverage mid-year and re-enrolling during the Open Enrollment Period.
  - In particular, HHS is concerned that the impact is greatest for those individuals who receive advance premium tax credits. Because they are eligible for a three-month grace period for non-payment of premiums, it is more likely that they will owe back-premiums.
- Issuers can continue to use the collections process to collect debts.

Display Standards for Web Brokers

HHS finalized the proposed web broker standards as proposed:

Under proposals included in the NBPP, web brokers that do not support enrollment in all QHPs would be required to have disclaimer language on their websites disclosing that, as well as the fact that enrollment support for other QHPs is available on the Exchange website and provide a link to the Exchange website. The broker websites would also be required to provide specific comparative information about QHPs.
- Specifically, the following minimum information for QHPs would need to be included: metal level; premium and cost-sharing information; summaries of benefits and coverage; the results of enrollee satisfaction surveys; quality ratings and provider directories; and a clear explanation of the default display of QHPs on the website.

Other

In addition to considering limiting non-standardized plan options, HHS is considering resuming the “meaningful difference” standard in 2024. HHS is also considering operating the FFE under an “active purchaser model” to negotiate with insurers, limit the number of insurers, prohibit non-standardized plans, and/or exclude plans based on value.

HHS declined to adopt meaningful difference standards or an active purchaser mode for 2023 but will continue to evaluate doing so.

In the final Letter, HHS noted that it will consider continuing to provide flexibility with regard to reviews by accrediting entities due to the COVID-19 public health emergency.