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HHS leaves autism hot potato in state hands

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A state can decide for itself how it wants its official “essential health benefits” (EHB) package to handle services for children with developmental disorders.

A state also will have at least two options for deciding how it wants to handle pediatric dental and vision benefits in the EHB package.

The U.S. Department of Health and Human Services (HHS) has confirmed that it will be taking that approach to running the EHB program in an advance version of a new final rule, “Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation” (CMS-9980-F)

The final rule is set to appear in the Federal Register Feb. 25. The rule will take effect 60 days after the publication date.

PPACA opponents are still trying to repeal PPACA or block implementation of the law, and HHS or other departments could postpone implementation of parts of the law. If the law takes effect on schedule and works as expected, it will create a new system of exchanges, or Web-based health insurance supermarkets, starting Oct. 1.

In an effort to help consumers shop for coverage on an apples-to-apples basis, PPACA will require all non-grandfathered individual or small group insurance plans to cover the EHB package.

The plans will have to cover the EHB package whether the plans are sold through an exchange or outside the exchange system.

The EHB package requirements will not apply to grandfathered plans, self-insured plans or large group plans.

HHS is giving each state some ability to adjust its EHB requirements, by creating a state EHB benchmark based on the list of benefits offered by a popular plan sold in that state. But a state’s EHB benchmark also must meet PPACA guidelines. PPACA requires each EHB package to include 10 classes of benefits.

Consultants at Milliman found that most EHB benchmark candidate plans offer similar benefits, and benefits similar to those required by PPACA, with three major exceptions: pediatric vision benefits, pediatric dental benefits, and “habilitative benefits,” or rehabilitative benefits for children or adults with developmental delays who may need help with acquiring basic life skills.

The sponsors of many benchmark candidate plans have offered pediatric dental and pediatric vision benefits through separate insurance policies, analysts have found.

States, insurers, employers and groups representing parents of children facing developmental delays have spent years fighting emotional battles over whether states should mandate that plans provide coverage for expensive habilitative services, such as applied behavioral analysis (ABA) for people with autism. ABA therapy and similar types of therapy can cost $30,000 a year or more.

In an EHB bulletin issued in December 2011, and in documents released in January 2012, February 2012 and July 2012, HHS suggested that it would let states decide to handle habilitative services for themselves.

HHS has proposed letting states handle gaps in a proposed benchmark plan’s pediatric and vision benefits by adopting either the benefits that federal employees who pay for dental and vision coverage get, or the dental and vision benefits that the state’s Children’s Health Insurance Plan program provides.

HHS received about 11,000 comments on the proposals.

Many commenters asked HHS to use a state’s Medicaid plan as the benchmark for habilitation, pediatric dental and pediatric vision benefits.

“In order to maintain the states’ role in defining required benefits in their markets, we will finalize the regulations to provide for state flexibility in determining how to define habilitation services and to offer other options for supplementing based-benchmark plans that do not include coverage for pediatric dental and vision services,” officials said.

If the EHB benchmark plan a state chooses does not cover habilitative services, the state can use the Medicaid definition of habilitative services or the National Association of Insurance Commissioners definition.

If a state chooses not to define habilitative benefits, the issuers can choose how to define the term, officials said.

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“This is a transitional policy,” officials said. “HHS intends to monitor available data regarding coverage of habilitative services.”

Mental parity
In another section, officials have stated that HHS Secretary Kathleen Sebelius will use PPACA authority to require that any insurance plan subject to the EHB requirements must meet the mental health and substance abuse treatment parity standards included in the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

MHPAEA itself applies only to employers with 50 or more employees that choose to offer mental health or substance abuse benefits. If an employer offers mental health care benefits, the coverage rules can be no more restrictive than the typical requirements for other types of care.

PPACA will require states that impose extra benefits mandates to cover any costs associated with providing the extra mandated benefits. Some PPACA watchers have speculated that states that required individual and small group plans to comply with MHPAEA to cover the cost of MHPAEA compliance.

“Because compliance with EHB would requirement compliance with the parity standards, states would not have to defray any costs associated with bringing plans into compliance, because any benefits added to ensure parity would be considered part of the EHB package,” officials said.

Actuarial Value
The EHB program is just one of many parts of the Patient Protection and Affordable Care Act of 2010 (PPACA).

In addition to the section on the EHB program, the upcoming final rule also includes regulations on calculating a plan’s minimum value and actuarial value.

PPACA will require large employers to offer a health plan that covers a minimum percentage of the value of the EHB or else pay a penalty.

Issuers that sell individual or small group coverage will have to classify their plans in one of four “metal levels” — bronze, silver, gold or platinum — based on actuarial value, or the percentage of the EHB that the plan covers.

HHS released a preliminary version of an actuarial value calculator months ago,

HHS said in the preamble to the new final rule that it has tried to use technical comments on an actuarial value calculator it created to improve the calculator. If the calculator does not accommodate a plan’s cost-sharing structure, the plan can use another method along with actuarial certification of the results, officials said.

HHS also reported that it has developed the long-awaited  minimum value calculator.

The minimum value calculator is similar to the actuarial value calculator, but issuers cannot simply use the actuarial value calculator to determine minimum value, because the actuarial calculator is based on individual and small group claims data, and the minimum value calculator is based on employer-sponsored plan claims data, officials said.

In a discussion of the value regulations, officials noted that HHS, the U.S. Labor Department and the U.S. Treasury Department believe that self-insured plans are exempt from a new PPACA limit on deductibles.

But the departments believe self-insured plans do have to comply with a new PPACA annual limit on enrollees’ total out-of-pocket spending.

“The departments are concerned about the operational and timing issues raised by commenters, and find that some transitional relief is appropriate,” officials said in a preamble to the final rule. “Accordingly, the three departments are issuing concurrent sub-regulatory guidance identifying an enforcement safe harbor for large and self-insured group health plans to address those operational concerns.”

Other matters
Also in the preamble to the final rule, officials said:

- They will let plans tinker with the EHB by substituting benefits, or sets of benefits, that fit into one of the 10 PPACA EHB categories and are actuarially equivalent to the benefits being replaced.

- A plan with a provider network can exclude out-of-network bills when determining whether an enrollee has reached a PPACA deductible or other cost-sharing limit. But a plan can voluntarily establish cost-sharing limits for out-of-network care, and a state can require issuers to do so, officials said.

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