Patient Protection & Affordable Care Act (PPACA)

Health plans may continue to engage in healthcare transactions without using unique health plan identifiers (“HPIDs”)—at least for now. The Department of Health and Human Services (“HHS”) announced it would indefinitely delay enforcement of regulations that would have required health plans to obtain and use Health Plan Identifiers in HIPAA transactions as early as November

On October 16, 2014, the Centers for Medicare & Medicaid Services (“CMS”) and the Office of the Inspector General (“OIG”) announced the continuation of the Accountable Care Organization (“ACO”) fraud and abuse waivers for an additional year. The Affordable Care Act (“ACA”) authorized creation of the Shared Savings Program to facilitate development of ACOs in

On October 1, 2014, the Departments of Health and Human Services (“HHS”), Labor (“DOL”) and Treasury (collectively, the “Departments”) published regulations finalizing a proposed amendment to the “excepted benefit” rules, i.e., the rules that govern when certain types of benefits are exempt from HIPAA’s portability rules as well as various requirements under ERISA (including applicability of the Mental Health Parity and Addiction Equity Act) and the Affordable Care Act (“ACA”), including the ACA’s market reforms (such as the prohibition on lifetime and annual limits, etc.). These final rules largely adopted proposed rules from December 2013, with a few clarifications and changes.

After the enactment of the ACA, various stakeholders became increasingly concerned about whether or not an employee assistance program (“EAP”) would be considered to be a “group health plan” under the ACA, and thus subject to all of the ACA’s market reforms. Because the benefits provided under an EAP are generally very limited, most (if not all) EAPs would have difficulty meeting these market reforms (including, particularly, the ACA’s prohibition on annual dollar limits). The final rules largely adopted the provisions of the proposed rule that specify that EAPs will be considered to be excepted benefits (and thus not subject to the ACA’s market reforms) if they meet four criteria (which, the Departments make clear, are intended to ensure that EAPs are supplemental to other coverage offered by employers):


Continue Reading HHS, Labor, and Treasury Issue Proposed Amendments to “Excepted Benefit” Rules

On September 2, 2014, the Centers for Medicare & Medicaid Services (CMS) announced a Final Rule specifying enrollment notice requirements and re-enrollment options for plans offered through the Exchange in 2015. Regarding notice requirements, the Final Rule states that consumers in the Exchange will receive notices from the marketplace before open enrollment begins that explain

On September 2, 2014, the Ninth Circuit, in the case of Coons and Novack v. Jacob L. Lew, et. al., rejected a constitutional appeal by an uninsured plaintiff and Arizona physician challenging two critical pieces of the Affordable Care Act: (1) the Independent Payment Advisory Board (IPAB), which monitors Medicare spending (referred to by its critics as “death panels”); and (2) the individual mandate, which imposes a tax penalty for certain individuals that do not obtain mandated health coverage.

On the IPAB, Dr. Novack, an Arizona physician, challenged the establishment of the IPAB on the ground that it violated Article I’s non-delegation principle. The Ninth Circuit rejected this claim on ripeness grounds, without addressing the merits of Dr. Novack’s argument. Dr. Novack had claimed that his challenge was ripe because, as an orthopedic surgeon who received 12.5% of his patient care payments from Medicare, he could reasonably anticipate suffering financial harm from IPAB’s actions in the future. The Ninth Circuit found this claim of future financial harm to be “highly speculative” and “certainly not impending” because the IPAB is prohibited from recommending reduction in payment to providers until January, 1, 2019. The Court directed the District Court to dismiss Dr. Novack’s claims related to IPAB for lack of jurisdiction.


Continue Reading Ninth Circuit Rejects Challenges to Affordable Care Act’s Individual Mandate and Independent Payment Advisory Board

The Centers for Medicare & Medicaid Services (“CMS”) recently announced that it had identified and contacted more than 300,000 people to obtain proof of their citizenship or legal residency status. Failure to provide this documentation by September 5 could result in these individuals losing their Affordable Care Act (“ACA”) health coverage, effective September 30. This

Insurers in U.S. Territories will soon be exempt from popular market-reform and non-discrimination provisions of the Affordable Care Act (ACA). In a July 16 letter, the Department of Health and Human Services (HHS) clarified that the ACA provisions on guaranteed availability, community rating, single risk pool, medical loss ratio, and essential health benefits only

On July 16, 2014, the Consumer Information and Insurance Oversight (CCIIO) division of the Centers for Medicare & Medicaid Services (CMS) released an Enrollment Bulletin for the individual markets of Federally-facilitated Exchanges (FFEs) about grace periods for premium non-payment. The Bulletin addresses when grace periods related to terminations for premium non-payment fall across enrollment periods for the next benefit year. Issuers must provide a three-month grace period to Exchange enrollees who receive advance premium tax credits (APTCs), pay at least one month’s premium during the benefit year, and subsequently fail to pay their portion of the monthly premium. If the three-month grace period passes and the enrollee does not pay all outstanding premiums, the issuer must terminate the enrollee’s coverage, retroactive to the last day of the first month of the grace period. All other Exchange enrollees receive grace periods according to state law. The Bulletin explains the following for APTC recipients in FFEs:
Continue Reading CCIIO Issues New Guidance on Grace Periods for Non-payment of Premiums in Exchanges

The Obama Administration received mixed messages yesterday when two federal appellate courts issued contradictory rulings on whether tax credits are available for individuals to purchase health insurance from federally facilitated Exchanges operating in 36 states. The U.S. Court of Appeals for the D.C. Circuit delivered a stiff rebuke to the Obama Administration, issuing a 2-1