In its draft white paper on decisions suggested for states now subject to a Federally Facilitated Exchange (FFE), an NAIC Working Group suggests that these states may want to consider entering into an enforcement arrangement with the Department of Health and Human Services (HHS) to clarify the role of the state insurance department.
The Health Care Reform Regulatory Alternatives Working Group, now chaired by Wisconsin Insurance Commissioner Ted Nickel and composed of 26 jurisdictions, notes in the draft paper that many of the market reforms in the Affordable Care Act (ACA) will be primarily enforced through the form review process.
These requirements will apply to all plans in the state, whether sold through exchanges or outside of them.
States will have primary enforcement authority regarding provisions of the law, but HHS will step in and directly enforce them—as it has with external appeals requirements in some states—a stricken sentence in the draft paper notes. If HHS’ Centers for Medicare and Medicaid Services (CMS) determines that a state is not substantially enforcing aspects of the Public Health Service Act, as amended in 2010 under ACA, CMS then enforces them.
The white paper draft, entitled, State Decisions: Federally Facilitated Exchange (FFE) States, discusses the form review process and interaction between the states, HHS, and its agencies.
The paper noted the potential for federal involvement in form review and the possibility of an administrative burden on the affected state departments of insurance as well as on carriers submitting forms for review to both states and HHS.
For additional information on form review considerations, see the NAIC’s exchange plan management white paper intended as guidance on form review from last year.
The paper gives states with an FFE coming a lot to consider with respect to the state insurance department’s involvement in the federal program, and suggests there is still much uncertainty.
In one example, the working paper notes that initial guidance on FFEs indicates that in states “meeting federal standards” the FFE will verify the states review.
In other states, the FFE will review network adequacy data submitted in the qualified health plan (QHP) issuer application.