IRS Publishes Notice Providing Transition Relief in Response to ACA Delay


As outlined in our prior Alert, the Obama administration recently announced a one-year delay in the effective date of three key provisions of the Patient Protection and Affordable Care Act (ACA): (1) the annual information reporting requirements applicable to insurers, self-insuring employers and certain other providers of minimum essential coverage, (2) the annual information reporting requirements applicable to large employers (i.e., those with 50 or more full-time equivalent employees); and (3) the employer shared responsibility provisions. These provisions of the ACA will now be fully effective for 2015.

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Obama Administration Delays ACA Employer Reporting and Penalties for 2014


In a July 2, 2013, blog posting on the U.S. Department of the Treasury website titled "Continuing to Implement the ACA in a Careful, Thoughtful Manner," the Obama administration announced that it will provide an additional year before the Patient Protection and Affordable Care Act's (ACA) mandatory employer and insurer reporting requirements begin. These reporting requirements, which were originally scheduled to go into effect on January 1, 2014, will now be delayed until January 1, 2015. More significant is the fact that the Obama administration acknowledges that the delay in the reporting requirements will make it impractical to determine which employers owe shared responsibility payments for 2014. Therefore, the employer shared responsibility provisions will also not be applicable until 2015.

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CMS Releases New Medicare Advantage and Medicare Part D Rules, Implements Several Provisions of ACA


On April 12, 2012, the Centers for Medicare & Medicaid Services (“CMS”) released a final rule with comment period (“Final Rules”) implementing changes to the Medicare Advantage program and Medicare’s prescription drug benefit program, referred to as Medicare Parts C and D, respectively. Part C and D plan sponsors and other participants should carefully review the changes, particularly those related to increased transparency and exclusion from Parts C and D. The Final Rules are the latest effort by CMS to improve accountability, transparency, and effectiveness of the Medicare program. 

Included among these regulations are changes to the law under the Affordable Care Act (“ACA”). The Final Rules codify Medicare’s Coverage Gap Discount program, a program enacted in January 2011 through the ACA to eliminate the prescription drug coverage “donut hole.” They also implement section 6005 of the ACA, which requires Medicare Part D sponsors and other entities with pharmacy benefit managers to report certain information and also provides that such reports will remain confidential. Penalties will be imposed for failure to comply with the reporting requirements.

The Final Rules make several additional changes to Medicare Parts C and D including:

  1. CMS’ adoption of the authority to exclude any plan sponsors who fail to achieve at least a 3-star rating for three consecutive years on CMS’ performance quality rating; 
  2. Changing the Part D appeals process to allow prescribers to request a reconsideration on an enrollee’s behalf without first obtaining an appointed representative form;
  3. Allowing dual eligible special needs plans that meet integration and performance standards to expand their supplemental benefit offerings to include benefits such as nonskilled nursing services, personal care services, or other long term care services where CMS finds that the benefit will improve integration of care for the dual eligible population;
  4. Permitting Medicare Advantage plans to limit durable medical equipment to ‘‘preferred’’ brands and manufacturers so long as beneficiary access protections are in place including access to all preferred brands, a transition period during plan changes that allow enrollees to retain durable medical equipment, providing medical necessity exceptions to plan limitations and appeal rights for brand or manufacturer based denials, and full disclosure of plan limitations on durable medical equipment;
  5. Application of a lower, pro-rated cost sharing when prescriptions are dispensed with less than a month’s supply where appropriate; and,
  6. Requiring Part D sponsors to include an active and valid prescriber National Provider Identifier on prescription drug event records submitted to CMS.

Read CMS’ announcement on the changes here

 
 
 
 

Making Insurance Plans Comparable: Regulations Released Requiring Plain-Language Insurance Information


On February 9, 2012, the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury jointly issued final regulations pursuant to the Affordable Care Act regarding plain-language health insurance plan descriptions. Health insurers will soon be required to present health plan benefits and coverage information in a clear, consistent and comparable manner.                

Starting on September 23, 2012, health insurers and group health plans will be required to provide two significant tools to help consumers navigate the health insurance market.  First, a Summary of Benefits Coverage (“SBC”) will outline key features of a plan, such as the covered benefits, cost-sharing provisions, and coverage limitations and exceptions.  The SBC will also include a standardized plan comparison chart, showing common procedures and the corresponding plan coverage.  The second tool, a Uniform Glossary, will explain terms commonly used in health insurance coverage, such as “deductible” and “co-payment”. Insurers must provide the SBC and Uniform Glossary at certain times during the enrollment process, such as when consumers are shopping for coverage, when coverage is renewed, when certain changes occur and upon request.  The Uniform Glossary will also be publicly accessible on government websites, granting consumers easier access to insurance information.   

To view the final rule, visit: http://ofr.gov/OFRUpload/OFRData/2012-03228_PI.pdf.

 
 
 
 

CMS Now Allows Physician Assistants to Perform Skilled Nursing Facility Level of Care Certifications and Recertifications


On January 13, 2012 CMS issued Transmittal 153, implementing section 3108 of the Affordable Care Act which now allows physician assistants to perform level of care certifications and recertifications in skilled nursing facilities.  The physician assistant may perform the certification or recertification if the physician assistant collaborates with the physician but does not have a direct or indirect employment relationship with the facility.  The new transmittal will be implemented on February 13, 2012 and the changes will be effective with items and services furnished on or after January 1, 2011. 

Read CMS’ full transmittal here

 
 
 
 

SCOTUS Sets Date to Hear Health Care Reform Challenge


On December 20, 2011 the Supreme Court of the United States set the date to hear challenges to the health care reform law.  On March 26 – 28 the Court will hear five-and-a-half hours of oral argument on the several challenges to the Affordable Care Act that are currently pending before the Court.  The first day is reserved for oral argument on the federal anti-injunction act’s effect on commerce clause challenges to the Affordable Care Act, and on the second day the Court will hear the long-anticipated argument on the constitutionality of the Affordable Care Act’s individual mandate.  The final day is reserved for argument on the severability of the individual mandate and the constitutionality of the Medicaid expansion created through the Affordable Care Act.

 
 
 
 

HHS Issues Guidance on ‘Essential Health Benefits’ under ACA


On December 16, 2011, the Department of Health and Human Services (HHS) recently issued a guidance bulletin detailing its current thinking on the implementation of ‘essential health benefits’ (EHB) under the Affordable Care Act (ACA).  Specifically, the bulletin addresses covered services under the ACA’s mandate that certain insurers provide EHB by 2014. [Read More]
 
 
 
 

CMS Issues Final Rule on ACA’s Consumer Operated and Oriented Plans


The Centers for Medicare & Medicaid Services (CMS) issued its final rule today establishing the Affordable Care Act’s (ACA’s) Consumer Operated and Oriented Plan (CO-OP) program.  The CO-OP program was established to provide financial support, in the form of loans, for the creation of non-profit, private, consumer-governed health insurance companies that will be qualified to offer insurance plans through the ACA’s health insurance exchange markets.  As CMS described in the final rule, the goal of the CO-OP plans is to increase the number of plans that are focused on integrated care and plan accountability, as well as to increase competition and promote efficiencies, premium reductions, and improve enrollee services and benefits.  This final rule establishes a two-year time frame for CO-OP plans to transition to member-elected boards, clarifies that certain existing insurers are ineligible for funding, and sets forth the instances in which CO-OP plans may receive state or local government funding.  The final rule likewise describes the CO-OP’s obligation to remain compliant with state and federal standards for insurers.

Read the full text of the rule here

 
 
 
 

CMS Issues Final Rule on ACA’s New Medical Loss Ratio


The Centers for Medicaid & Medicare Services (“CMS”) recently released a final rule establishing the new medical loss ratio requirements under the Affordable Care Act (“ACA”).   Under the ACA, individual and small group market insurers are required to spend at least 80 percent of premium dollars on medical care and quality improvement, and large group market insurers must spend at least 85 percent of premium dollars on the same services.  The final rule describes the technical process for calculating medical loss ratio and also provides details on insurers’ annual medical loss ratio reporting requirements, as well as the ACA’s requirement that insurers grant rebates to consumers in the event the insurer fails to meet the required medical loss ratio. 

Read the full text of the rule here, or HHS’ fact sheet on the ACA’s changes to medical loss ratios here

 
 
 
 

HHS Finds Pennsylvania Insurance Rate Increase of 12% is Excessive


The Department of Health and Human Services (HHS) recently cited as “excessive” a 12% insurance rate increase proposed by Everest Insurance under a Pennsylvania insurance plan.   HHS’ finding that the rate increase was excessive was the first such move under the Affordable Care Act, which gives HHS the authority to review insurance rate increases over 10% and cite them as excessive.  Although the Affordable Care Act does not give HHS the authority to sanction insurers attempting to push through excessive rate increases, the hope is that publicizing the excessive rate increases will increase transparency and accountability.   

Read HHS’ full news release here

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United States Supreme Court to Hear Affordable Care Act Cases


In a highly anticipated decision, on November 14, 2011 the United States Supreme Court granted certiorari in three cases on the constitutionality of the Affordable Care Act (“ACA”): National Federation of Independent Business v. Kathleen Sebelius, Secretary of HHS, et al.; Florida, et al. v. Department of Health and Human Services; and Department of Health & Human Services et al. v. Florida, et al.  The Court’s review will address four fundamental questions: (1) whether the ACA’s individual mandate is constitutional, (2) whether the individual mandate may be severed from the ACA if it is unconstitutional, (3) whether the claim brought by the opponents to the mandate is barred by another federal statute, and (4) whether the ACA’s expansion to Medicaid coverage was valid.  The Court has granted a total of four and a half hours of oral argument for the three issues, which is highly unusual.  This decision will be monumental for the future of the ACA, and will be closely followed by Duane Morris attorneys. 

View the United States Supreme Court’s order here

 
 
 
 

DC Circuit Court of Appeals Upholds Individual Mandate


On November 8, 2011, in the latest scrimmage regarding the Affordable Care Act’s (ACA’s) individual mandate, the D.C. Circuit Court of Appeals upheld the mandate’s constitutionality.  The Court found that Congress could create “national solutions to national problems, no matter how local–or seemingly passive–their individual origins,” and that the individual mandate was therefore constitutional because it was within Congress’ authority. 

On November 10, 2011, the United States Supreme Court will hold a private conference to decide whether to hear the challenges to the ACA.     

Read the entire decision here

 
 
 
 

IRS Releases Proposed Rules on Health Insurance Premium Tax Credit


On August 12, 2011, the Internal Revenue Service (“IRS”) released proposed regulations regarding the health insurance premium tax credit available to certain individuals who enroll in insurance plans through the state-based Affordable Insurance Exchanges (“Exchanges”). The tax credit is designed to make health insurance purchased through the Exchanges more affordable. The proposed regulations outline eligibility for and calculation of the tax credit, providing several examples for explanation and clarification. The proposed regulations were published in the Federal Register on August 17, 2011. Comments are due October 31, 2011, and a public hearing is scheduled for November 17, 2011.

To read the text of the Proposed Rule, please go to http://www.gpo.gov/fdsys/pkg/FR-2011-08-17/pdf/2011-20728.pdf.

 
 
 
 

Interim Final Rule Released Allowing HRSA to Exempt Religious Employers From Covering Contraception


Interim final regulations released on August 3, 2011 by the Department of Health and Human Services, the Department of the Treasury and the Department of Labor (DOL) give the Health Resources and Services Administration (HRSA) the discretion to exempt religious employers that offer insurance to their employees from the requirement to cover contraception. These regulations amended the previous interim final regulations addressing coverage of preventive services by new insurance plans. The Interim Final Rule sets forth a definition of “religious employer” based on the most commonly used definition in those states that exempt religious employers from state law requirements to cover contraception.  HHS is accepting comments on this definition.

To read the Interim Final Rule, please go to: http://www.gpo.gov/fdsys/pkg/FR-2011-08-03/pdf/2011-19684.pdf.

 
 
 
 

Amendment to the Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the PPACA


This regulation, issued on November 15, 2010, amends an earlier regulation published in June that outlined rules governing whether group health plans and health insurance coverage in both the individual and group markets can maintain “grandfathered” health plan status. The grandfathered status allows plans to retain an exemption from some new requirements under the Patient Protection and Affordable Care Act. Under the amended regulation, a group health plan may now switch insurance companies and maintain its grandfathered plan status as long as it adheres to other requirements outlined in this and the original regulation. This amendment affords employers more flexibility in shopping for health plans that offer coverage at a lower cost. Additional information regarding this provision is available at: http://www.hhs.gov/news/press/2010pres/06/20100614e.html.
 
 
 
 
 

Duane Morris Health Law

Reporting legal developments in the healthcare industry and the latest on the implementation of
the Healthcare Reform Act impacting providers, employers and physicians.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.