WSR 13-16-044 EMERGENCY RULES OFFICE OF INSURANCE COMMISSIONER [Insurance Commissioner Matter No. R 2013-18—Filed July 31, 2013, 8:10 a.m., effective July 31, 2013, 8:10 a.m.] Effective Date of Rule: Immediately upon filing.
Purpose: Provide issuers with the requirements for open enrollment in the individual health benefit plan market, and for special enrollment in the individual and small group health benefit plan markets.
Citation of Existing Rules Affected by this Order: Amending WAC 284-43-985.
Statutory Authority for Adoption: RCW 48.02.060, 48.18.120(2), 48.20.450, 48.43.0122, 48.44.050, and 48.46.200.
Other Authority: 45 C.F.R. 155.420; 45 C.F.R. 155.725.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: Emergency regulations are necessary because without clear instruction regarding the requirements for open and special enrollment applicable to the 2014 plan or policy year, confusion among insurers and policyholders regarding rights and obligations will occur, preventing uniform and timely access to coverage in the individual and small group markets. Without open enrollment in the off-exchange individual market occurring concurrently with open enrollment on the exchange, issuers participating off the exchange are at significant risk for adverse selection, which can jeopardize the financial solvency of an issuer, payment of claims, and access to coverage at a reasonable cost. A prior emergency rule on this subject permitted open enrollment for the small group market. That emergency expires on July 31. Recently issued federal rules permit enrollment at any time in the small group market both on and off the exchange, removing the risk of adverse selection for that marketplace, and requiring the adoption of new emergency rules explaining this standard, as well as new special enrollment requirements.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 8, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 8, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 8, Amended 1, Repealed 0.
Date Adopted: July 31, 2013.
Mike Kreidler
Insurance Commissioner
NEW SECTION
WAC 284-170-400 Preexisting condition limitations.
For health plans offered, issued or renewed on or after January 1, 2014, issuers must not condition or otherwise limit enrollment based on preexisting health conditions.
NEW SECTION
WAC 284-170-410 Special enrollment requirements for small group plans.
(1) A "special enrollment period" means a period of time outside the initial or annual group renewal period during which an individual applicant may enroll if the individual has experienced a qualifying event. An issuer must make special enrollment periods available to an otherwise eligible applicant if the applicant has experienced one of the qualifying events identified in this section. (2) A qualifying event for special enrollment in small group plans offered on or off the health benefit exchange is one of the following: (a) The loss of employer sponsored insurance coverage, or of the coverage of a person under whose policy they were enrolled, unless the loss is based on the individual's voluntary termination of employer sponsored coverage, the misrepresentation of a material fact affecting coverage or for fraud related to the terminated health coverage; (b) The loss of eligibility for medicaid or a public program providing health benefits; (c) The loss of coverage as the result of dissolution of marriage or termination of a domestic partnership; (d) A permanent change in residence, work, or living situation, whether or not within the choice of the individual, where the health plan under which they were covered does not provide coverage in that person's new service area; (e) The birth, placement for adoption or adoption of the applicant for whom coverage is sought; (f) A situation in which a plan no longer offers benefits to the class of similarly situated individuals that includes the applicant; (g) Loss of individual or group coverage purchased on the health benefit exchange due to an error on the part of the exchange, the issuer or the U.S. Department of Health and Human Services. (3) Nothing in this rule is intended to alter or affect the requirements of RCW 48.43.517. (4) An issuer may require reasonable proof or documentation that an individual seeking special enrollment has experienced a qualifying event. (5) An issuer must offer a special enrollee each benefit package available to members of the group who enrolled when first eligible. A special enrollee cannot be required to pay more for coverage than other members of the group who enrolled in the same coverage when first eligible. Any difference in benefits or cost-sharing requirements constitutes a different benefit package. (6) An issuer must include detailed information about special enrollment options and rights in its health plan documents provided pursuant to WAC 284-43-820, and in any policy or certificate of coverage provided to an employer, plan sponsor, or enrollee. The notice must be substantially similar to the model notice provided by the U.S. Department of Labor or the U.S. Department of Health and Human Services. (7) For children who experience a qualifying event, if the selected plan is not the plan on which the parent is then enrolled, or if the parent does not have coverage, the issuer must permit the parent to enroll when the child seeks enrollment for dependent coverage. An enrolling child must have access to any benefit package offered to employees, even if that requires the issuer to permit the parent to switch benefit packages.
NEW SECTION
WAC 284-170-412 Special enrollment periods for small group qualified health plans.
(1) Issuers of small group qualified health plans must comply with the additional special enrollment period requirements set forth in 45 CFR 155.420 (b)(2) and 45 CFR 155.725. (2) In addition to meeting the requirements set forth in WAC 284-170-410, issuers must include in qualified health small group plan contract forms and required disclosure documents an explanation of special enrollment rights if one of the following triggering events occurs: (a) In addition to the requirements for adopted, placed for adoption, and newborn children, the same special enrollment right accrues for foster children and children placed in foster care. (b) The qualified individual, or his or her dependent, which was not previously a citizen, national or lawfully present individual gains such status. For purposes of this subsection, "dependent" means a dependent as defined in RCW 48.43.005. (c) The individual demonstrates to the health benefit exchange that the qualified health plan in which they are enrolled violated a material provision of the coverage contract in relation to the individual; (e) The individual becomes newly eligible for cost-sharing reductions or advance payment of premium tax credits, or the individual's dependent becomes newly eligible. For purposes of this subsection (2)(e) and (f), "dependent" means dependent as defined in 26 CFR 54.9801-2; (f) the individual or their dependent who is currently enrolled in employer sponsored coverage is determined newly eligible for advance payment of premium tax credit pursuant to the criteria established in 45 CFR 155.420 (d)(6)(iii); (g) In addition to the special enrollment event in WAC 284-170-410 (2)(d), a change in the individual's residence as the result of a permanent move results in new eligibility for previously unavailable qualified health plans; (h) For qualified individuals who are an Indian, as defined by section 4 of the Indian Health Care Improvement Act, enrollment in a qualified health plan or change from one qualified health plan to another must be permitted one time per month, without requiring an additional special enrollment triggering event. (3) If the health benefit exchange establishes earlier effective dates for special enrollment periods, pursuant to 45 CFR 155.420, an issuer must include in its plan documents and required disclosures an explanation of the effective date for special enrollment periods.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040. NEW SECTION
WAC 284-170-415 Duration and effective dates of small group special enrollment periods.
(1) This section applies to nongrandfathered small group plans offered both on or off the health benefit exchange. (2) Special enrollment periods must not be shorter than sixty days from the date of the qualifying event. (3) The effective date of coverage for those enrolling in a small group plan through a special enrollment period is the first date of the next month after the application for coverage is received, unless one of the following exceptions applies: (a) For special enrollment of newborn, adopted or placed for adoption children, the date of birth, date of adoption or date of placement for adoption becomes the first effective date of coverage; (b) For applicants enrolling after the fifteenth of the month, the issuer must begin coverage not later than the first date of the second month after the application is received. If the applicant is enrolling due to marriage or the commencement of a domestic partnership, such applicant's coverage must begin on the first date of the next month, regardless of when in the month the application is received. An issuer may establish an earlier effective date at their discretion. (c) For applicants enrolling because of marriage, either as spouse or as a dependent child, when notice of the marriage is received within sixty days of the marriage, coverage must begin no later than the first date of the month immediately following the date of marriage. (4) An issuer must not refuse to enroll an applicant who applies within sixty days of the qualifying event, if the applicant would be eligible had the application been received during open enrollment.
NEW SECTION
WAC 284-170-420 Individual market open enrollment requirements.
(1) For purposes of this section, "open enrollment" means a specific period of time each year during which enrollment in a health benefit plan is permitted. (2) An issuer must limit the dates for enrollment in nongrandfathered plans offered on the individual market off the health benefit exchange to the same time period for open enrollment established by the health benefit exchange. (3) In addition to the open enrollment period established by the exchange, an issuer participating in the off-exchange individual market must hold an open enrollment period between March 15th and April 30th each year, making its child-only policies available to those underage nineteen in compliance with WAC 284-43-985. (4) An issuer must prominently display information on its web site about open enrollment periods and special enrollment periods, applicable to its individual health benefit plans offered either on or off the health benefit exchange. (a) The web site information about enrollment periods must provide a consumer with the ability to access or request and receive an application packet for enrollment at any time. (b) The displayed information must include details written in plain language explaining what constitutes a qualifying event for special enrollment. (5) Written notice of open enrollment must be provided to enrolled persons at some point between September 1st and September 30th of each year.
NEW SECTION
WAC 284-170-425 Individual market special enrollment requirements.
(1) For a nongrandfathered individual health plan offered on or off the health benefit exchange, an issuer must make a special enrollment period of not less than sixty days available to any person who experiences a qualifying event, permitting enrollment in an individual health benefit plan outside the open enrollment period. This requirement applies to plans offered on the health benefit exchange that cover pediatric oral benefits offered as essential health benefits necessary to satisfy minimum essential coverage requirements. (2) A qualifying event means the occurrence of one of the following: (a) The loss of employer sponsored insurance coverage due to action by either the employer or the issuer or due to the individual's loss of eligibility for the employer sponsored coverage, or the loss of the individual or group coverage of a person under whose policy they were enrolled, unless the loss is based on the individual's misrepresentation of a material fact affecting coverage or for fraud related to the discontinued health coverage; (b) The loss of eligibility for medicaid or a public program providing health benefits; (c) The loss of coverage as the result of dissolution of marriage or termination of a domestic partnership; (d) A permanent change in residence, work, or living situation, whether or not within the choice of the individual, where the health plan under which they were covered does not provide coverage in that person's new service area; (e) The birth, placement for or adoption of the person for whom coverage is sought. For newborns, coverage must be effective from the moment of birth; for those adopted or placed for adoption, coverage must be effective from the date of adoption or placement for adoption, whichever occurs first; (f) A situation in which a plan no longer offers any benefits to the class of similarly situated individuals that includes the individual; (g) Coverage is discontinued in a qualified health plan by the health benefit exchange pursuant to 45 C.F.R. 155.430 and the three month grace period for continuation of coverage has expired; (h) Exhaustion of COBRA coverage due to failure of the employer to remit premium; (i) Loss of COBRA coverage where the individual has exceeded the lifetime limit in the plan and no other COBRA coverage is available; (j) If the person discontinues coverage under a health plan offered pursuant to chapter 48.41 RCW; (k) Loss of coverage as a dependent on a group plan due to age. (3) If the special enrollee had prior coverage, an issuer must offer a special enrollee each of the benefit packages available to individuals who enrolled during the open enrollment period within the same metal tier or level at which the person was previously enrolled. Any difference in benefits or cost-sharing requirements for different individuals constitutes a different benefit package. (a) A special enrollee cannot be required to pay more for coverage than a similarly situated individual who enrolls during open enrollment. (b) An issuer may limit a special enrollee who was enrolled in a catastrophic plan as defined in RCW 48.43.005(8) to the plans available during open enrollment at either the bronze or silver level. (c) An issuer may restrict a special enrollee whose eligibility is based on their status as a dependent to the same metal tier for the plan on which the primary subscriber is enrolled. (4) An issuer may require reasonable proof or documentation that an individual seeking special enrollment has experienced a qualifying event.
NEW SECTION
WAC 284-170-430 Individual market special enrollment period requirements for qualified health plans.
(1) An issuer offering individual qualified health plans on the health benefit exchange must make the special enrollment opportunities, subject to the same terms and conditions specified in WAC 284-170-425, available to applicants who experience a qualifying event. (2) In addition to the special enrollment qualifying events set forth in WAC 284-170-425, the following special enrollment opportunities must be made available for individual plans offered on the health benefit exchange: (a) For qualified individuals who are an Indian, as defined by section 4 of the Indian Health Care Improvement Act, enrollment in a qualified health plan or change from one qualified health plan to another must be permitted one time per month, without requiring an additional special enrollment triggering event. (b) If the applicant demonstrates to the health benefit exchange that the qualified health plan in which they are enrolled violated a material provision of the coverage contract in relation to the individual; (c) If the applicant lost prior coverage due to errors by the health benefit exchange staff or the U.S. Department of Health and Human Services; (d) If the applicant, or his or her dependent, who was not previously a citizen, national or lawfully present individual gains such status. For purposes of this subsection, "dependent" means a dependent as defined in RCW 48.43.005. (e) If the applicant becomes newly eligible for cost-sharing reductions or advance payment of premium tax credits, or the individual's dependent becomes newly eligible. For purposes of this subsection (2)(e) and (f), "dependent" means dependent as defined in 26 CFR 54.9801-2; (f) If the applicant or their dependent who is currently enrolled in employer sponsored coverage is determined newly eligible for advance payment of premium tax credit pursuant to the criteria established in 45 CFR 155.420 (d)(6)(iii); (g) In addition to the special enrollment event in WAC 284-170-425 (2)(d), a change in the individual's residence as the result of a permanent move results in new eligibility for previously unavailable qualified health plans; (3) If the applicant experiences a qualifying event and has coverage on a catastrophic health plan as defined in RCW 48.43.005 (8)(c)(i), the applicant's may be limited by the exchange to enrollment in a bronze or silver level plan. (4) This section must not be interpreted or applied to preclude or limit the health benefit exchange's rights to automatically enroll qualified individuals based on good cause or as required by the U.S. Department of Health and Human Services. (5) Issuers must comply with the special enrollment event requirements established for qualified health plans offered on the health benefit exchange in 45 C.F.R. 155.420. If the health benefit exchange establishes earlier effective dates for special enrollment periods, pursuant to 45 CFR 155.420, an issuer must include its plan documents and required disclosures an explanation of the effective date for special enrollment periods.
NEW SECTION
WAC 284-170-435 Duration, notice requirements and effective dates of coverage for individual market special enrollment periods.
(1) Special enrollment periods must not be shorter than sixty days from the date of the qualifying event. (2) The effective date of coverage for those enrolling in an individual health benefit plan through a special enrollment period is the first date of the next month after the premium is received by the issuer, unless one of the following exceptions applies: (a) For those enrolling after the twentieth of the month, the issuer must begin coverage not later than the first date of the second month after the application is received. Issuers may establish an earlier effective date at their discretion; (b) For special enrollment of newborn, adopted or placed for adoption children, the date of birth, date of adoption or date of placement for adoption, as applicable, becomes the first effective date of coverage. The same requirement applies to foster children or children placed for foster care on qualified health plans; (c) For special enrollment based on marriage or the beginning of a domestic partnership, and for special enrollment based on loss of minimum essential coverage, coverage must begin on the first day of the next month. (3) For individual plans offered either on or off the health benefit exchange, an issuer must include detailed information about special enrollment options and rights in its health plan documents provided pursuant to WAC 284-43-820, and in the policy or certificate of coverage provided to an employer, plan sponsor or enrollee. The notice must be substantially similar to the model notice provided by the U.S. Department of Health and Human Services.
AMENDATORY SECTION (Amending Matter No. R 2010-16, filed 6/15/11, effective 7/16/11)
WAC 284-43-985 Enrollment of persons under age nineteen
(1) For any individual health benefit plan offered after January 1, ((2011)) 2014, a carrier must conduct an open enrollment period for persons under age nineteen during ((two time periods each year)) the time frame applicable to the individual health plan market, and ((The first open enrollment period must occur)) from March 15th through April 30th of each year((., and the second open enrollment period must occur from September 15th through October 31st)). (2) A carrier must use the same method to establish the effective date of coverage for persons under age nineteen enrolling during either one of the open enrollment periods or a special enrollment period set forth in this rule that they use for any other individual health plan enrollee. (3) ((A carrier must make a special enrollment period of not less than thirty-one days available to any person under age nineteen who experiences a qualifying event. A qualifying event means the occurrence of one of the following: (a) The discontinuation for any reason of employer sponsored insurance coverage of a person under age nineteen or the person under whose policy they were enrolled; (b) The loss of eligibility of person under age nineteen for medicaid or a public program providing health benefits; (c) The loss of coverage for a person under age nineteen as the result of dissolution of marriage; (d) The person under age nineteen or the person under whose policy they were enrolled changes residence, and the health plan under which they were covered does not provide coverage in that person's new service area; (e) The person for whom coverage is sought was born, placed for adoption or adopted within sixty days of the application for enrollment. For newborns enrolled under an individual policy, coverage must be effective as of the moment of birth; (4) During the enrollment periods described in subsections (1) through (((3))) (2) of this section, or any other enrollment period, a carrier must not require a person under age nineteen applying for an individual health benefit plan to ((complete the standard health questionnaire designated under chapter RCW or otherwise)) provide evidence of health status ((insurability)). (5) ((A carrier may offer enrollment in an individual health benefit plan outside the open or special enrollment period, but must not require any evidence of insurability or completion of the standard health questionnaire if the applicant is a person under age nineteen. (6))) A carrier must not limit the choice of individual plan for which a person under age nineteen may apply based on the applicant's age. (((7) A carrier must prominently display on its web site information about open enrollment periods and special enrollment periods for persons under age nineteen. (a) If a carrier elects to limit enrollment for persons under nineteen to the open enrollment periods or a special enrollment period triggered by a qualifying event, the carrier must: (i) Explain that fact on its web site; (ii) Promptly make application packets available to interested persons upon request, even if the request is made outside the open enrollment periods; and (iii) Provide contact information for the Washington state high risk pool and the federally sponsored preexisting condition insurance pool - Washington. (b) The web site information about special enrollment periods must provide a consumer with the ability to access or request and receive an application packet for enrollment at any time. The displayed information must also include details written in plain language explaining what constitutes a qualifying event for special enrollment.))
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings. Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040. |