In the Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond proposed rule released today, the Centers for Medicare & Medicaid Services (CMS) proposed standards for issuers, Exchanges, and Navigators. This rule is a continuation of the recent rulemaking process, as seen in part 1 and part 2 of the Health & Human Services (HHS) Notice of Benefit and Payment Parameters for 2022 final rule published on January 19 and May 5, 2021.

Overall, the proposed rule would expand access to health insurance coverage through the Exchanges by lengthening the annual open enrollment period, expanding Navigator duties, and minimizing burden and confusion for consumers. These changes further the Biden-Harris Administration’s goals of providing greater access to coverage, improving affordability for consumers, and reducing burden for issuers and consumers.

Improving Access to Coverage

Navigator Duties

The Federally-facilitated Exchange (FFE) Navigator Program reaches vulnerable and underserved populations and is important to increasing awareness of coverage options available through the Exchanges, helping new consumers find affordable coverage that meets their needs, and narrowing health disparities. We propose to reinstate previous requirements that FFE Navigators provide consumers with information and assistance on post-enrollment topics, such as the eligibility appeals process, the Exchange-related components of the premium tax credit reconciliation process, and the basic concepts and rights of health coverage and how to use it. In addition, we propose to expand the interpretation of what activities are encompassed in the duty to provide consumers with information and assistance related to the basic concepts and rights of health coverage and how to use it.

2022 Open Enrollment

We are proposing an extension of the annual individual market open enrollment period for 2022 and future benefit years to allow consumers more time to review plan choices, seek in-person assistance, and enroll in a plan that best meets their needs. We are proposing to amend the dates of the upcoming annual open enrollment period for all individual market Exchanges and off-Exchange individual market plans to November 1, 2021-January 15, 2022, and to apply these dates to future benefit years after 2022.

Monthly Special Enrollment Period (SEP) for Consumers with Household Income up to 150% of the Federal Poverty Level

To provide more opportunities for certain low-income consumers to access premium-free or very low-cost coverage made available by the American Rescue Plan Act of 2021, we are proposing to provide Exchanges the option to implement a monthly SEP for advance payments of the premium tax credit (APTC)-eligible consumers with a household income no greater than 150% of the federal poverty level.

Federally-facilitated Exchange and State-based Exchange on the Federal Platform (SBE-FP) User Fees

For the 2022 benefit year, we propose to increase the FFE user fee rate to 2.75% of premiums and the SBE-FP user fee rate to 2.25% of premiums. This increase from the rates currently finalized in part 1 of the 2022 Payment Notice – 2.25% and 1.75%, respectively – would account for an increase in funding for consumer information and outreach and the FFE Navigator program. These proposed rates are still lower than the current 2021 benefit year user fee rates.

Ensuring Affordability

SEP Clarification

To ensure consistent application of SEPs based on APTC eligibility across the Exchanges, we propose to clarify that, for purposes of the § 155.420 SEPs, an enrollee with a maximum APTC amount of zero dollars is not considered APTC-eligible, and an enrollee is not considered newly APTC-eligible when they become eligible for zero APTC after having previously been APTC-ineligible for another reason, such as having other minimum essential coverage. This clarification will mitigate the potential risk of inconsistent interpretation of this eligibility requirement across different Exchanges and other stakeholder groups, such as agents, brokers, and Exchange enrollment assisters.

Separate Billing

We propose repealing the separate-billing regulation that requires individual market qualified health plan (QHP) issuers to send a separate bill for that portion of a policyholder’s premium attributable to coverage for abortion services for which federal funding is prohibited, and to instruct such policyholders to pay for the separate bill in a separate transaction. Specifically, we propose to revert to and codify prior policy finalized in the preamble of the 2016 payment notice under which QHP issuers offering coverage of abortion services for which federal funding is prohibited have flexibility in selecting a method to comply with the separate-payment requirement under section 1303 of the Affordable Care Act (ACA). We believe the proposed changes offer issuers options for meaningful compliance with section 1303 of the ACA without imposing the operational and administrative burdens of the separate-billing policy, and without causing additional consumer confusion and loss of coverage.

State Options

Exchange Direct Enrollment Option Repeal

We propose to repeal the Exchange Direct Enrollment option. This option permits a state Exchange, SBE-FP, or an FFE state to facilitate enrollment of qualified individuals into individual market QHPs primarily through private-sector direct enrollment entities, including QHP issuers and web brokers, as well as agents and brokers. Under current regulations, this option will be available to state Exchanges beginning in plan year 2022, and to SBE-FP and FFE states beginning in plan year 2023. We believe repealing the Exchange Direct Enrollment option will best support the health care priorities of the Biden-Harris Administration. Since no state has yet expressed interest in implementing the Exchange Direct Enrollment option, we also believe that repealing it now will mitigate potential impacts to stakeholders.

Section 1332 State Innovation Waiver Policies

HHS and the Department of the Treasury (collectively, the Departments) propose modifications to section 1332 State Innovation Waivers implementing regulations, including changes to many of the policies and interpretations of the statutory guardrails recently codified in part 1 of the 2022 payment notice final rule, as well as new information regarding the process for amendments and extensions of approved section 1332 waivers. The changes in the rule, if finalized, would supersede and replace those outlined in the October 2018 “State Relief and Empowerment Waivers” guidance, and repeal the previous codification of those guardrail interpretations in part 1 of the 2022 payment notice final rule. The Departments also propose to modify regulations to set forth flexibilities in the public-notice requirements and post-award public participation requirements for section 1332 State Innovation Waivers under future emergent situations, if certain criteria are met. The Departments also propose in this rule processes and procedures for amendments and extensions for approved waiver plans. Through section 1332 waivers, the Departments aim to assist states with developing health insurance markets that expand coverage, lower costs, and ensure that health care truly is accessible for all Americans.