A longtime health law specialist says health policymakers should remember that the Internal Revenue Service is the entity in charge of enforcing the new federal health coverage mandates.
William Schiffbauer, a lawyer in private practice, raised that point in a comment on new draft regulations posted on the Regulatory Framework Task Force section of the National Association of Insurance Commissioners website.
The NAIC is updating individual and small-group health insurance coverage model regulation drafts to reflect the changes made by the Patient Protection and Affordable Care Act.
At one point, drafters of the individual model update talked about how states should handle the PPACA requirements for children’s dental benefits.
PPACA requires the individual and small-group plans sold through a PPACA exchange to cover a minimum percentage of the actuarial value of a package of “essential health benefits.” The EHB package includes dental coverage for children.
The U.S. Department of Health and Human Services has interpreted the provision to mean that a federal or state exchange can offer private health plans — “qualified health plans” — that leave out children’s dental coverage if the exchange also offers stand-alone dental plans for children.
HHS has suggested in a preamble to EHB regulations issued in February 2013 that a QHP can exclude pediatric dental benefits if it is “reasonably assured” that a customer “has obtained” an exchange certified stand-alone dental plan.
Regulators used the phrase “reasonable assured” on a preamble to regulations, and the preamble was not subject to the same kind of notice and comment requirements that apply to a regulation, Schiffbauer writes.
Regulators cannot enforce advice given in a preamble comment, Schiffbauer writes.
Schiffbauer adds that only the Internal Revenue Service, an arm of the U.S. Treasury Department, has the authority to enforce the PPACA requirement that individuals obtain “minimum essential coverage.”
“This requirement will be enforced through the income tax audit process, and individuals without ‘minimum essential coverage’ will be subject to a penalty,” Schiffbauer says.