WSR 13-19-090
PROPOSED RULES
OFFICE OF
INSURANCE COMMISSIONER
[Insurance Commissioner Matter No. R 2013-02—Filed September 18, 2013, 8:25 a.m.]
Supplemental Notice to WSR 13-11-149.
Preproposal statement of inquiry was filed as WSR 13-03-140.
Title of Rule and Other Identifying Information: Open and special enrollment periods—Health plans.
Hearing Location(s): Office of the Insurance Commissioner, Training Room (T-120), 5000 Capitol Way South, Tumwater, WA, on October 23, 2013, at 1:00 p.m.
Date of Intended Adoption: October 25, 2013.
Submit Written Comments to: Meg Jones, 5000 Capitol Way South, Tumwater, WA, e-mail rulescoordinator@oic.wa.gov, fax (360) 586-3109, by October 23, 2013.
Assistance for Persons with Disabilities: Contact Lori [Lorie] Villaflores by October 22, 2013, TTY (360) 586-0241 or (360) 725-7087.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules are designed to align the exchange and off-exchange marketplaces to address the risk of adverse selection, and ensure that each issuer administers open and special enrollment periods for the individual and small group markets consistently.
Reasons Supporting Proposal: Beginning January 1, 2014, absent open enrollment requirements, health plan issuers must enroll all applicants at any time during the benefit year. Beginning October 1, 2013, and each October 1 thereafter, the health benefit exchange will conduct open enrollment for individual health plans offered on the exchange. The first year, open enrollment closes in March 2014; subsequently it will end in December of each year. This creates a risk of adverse selection for the off-exchange markets because without the limitation of open enrollment, someone with a specific health care need can enroll, receive the service, and disenroll, unless open enrollment periods are established that parallel the exchange's time frames. The proposed rules address this risk for the individual market.
For small group plans, the option of conducting open enrollment is not available to issuers in any marketplace under federal law, which means the risk of adverse selection based on guaranteed issue does not exist.
Special enrollment periods are required in both the small group and individual markets if a qualifying event occurs. Some of these requirements are identical for qualified health plans offered on the health benefit exchange and commercial plans offered off the exchange; some are unique to qualified health plans. The proposed rules also explain these special enrollment triggers for issuers.
Statutory Authority for Adoption: RCW 48.02.060, 48.18.120(2), 48.20.450, 48.43.0211, 48.43.720(3), 48.44.050, and 48.46.200.
Rule is necessary because of federal law, 45 C.F.R. 147.104; 45 C.F.R. 147.106; 45 C.F.R. 155.420; 45 C.F.R. 155.725.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: For the 2014 benefit year, issuers filed forms for approval with the commissioner prior to the issue of this rule. For plans already filed and open for review with the commissioner's rates and forms division, the commissioner proposes that he will not require plans to refile forms to comply with the requirements of this rule. The commissioner further proposes that plan form filings must be brought into compliance with on [within] the issuer's next form filing date after the effective date of the permanent rule. During the interim period, the commissioner proposes enforcing these proposed rules, and expects issuers to administer their enrollment processes in compliance with the rules.
Name of Proponent: Office of the insurance commissioner, governmental.
Name of Agency Personnel Responsible for Drafting: Meg Jones, P.O. Box 40528, Olympia, WA, (360) 725-7170; Implementation: Molly Nollette, P.O. Box 40528, Olympia, WA, (360) 725-7117; and Enforcement: Leslie Krier, P.O. Box 40528, Olympia, WA, (360) 725-7216.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The entities affected by the rule are not small businesses.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Meg Jones, P.O. Box 40528, Olympia, WA 98504, phone (360) 725-7170, fax (360) 586-3109, e-mail rulescoordinator@oic.wa.gov.
September 18, 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 periods for special enrollment in its small group plans 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 minimum essential benefits, including 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;
(h) Marriage or entering into a domestic partnership, including eligibility as a dependent of an individual marrying or entering into a domestic partnership.
(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 C.F.R. 155.420 (b)(2) and 45 C.F.R. 155.725.
(2) In addition to meeting the requirements set forth in WAC 284-170-410, issuers must include in qualified health 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 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;
(c) An individual's enrollment in or nonenrollment in a qualified health plan is unintentional, inadvertent or erroneous, and is the result of the error, misinterpretation or inaction of an officer, employee or agent of the health benefit exchange of the U.S. Department of Health and Human Services, as determined by the health benefit exchange upon evaluation;
(d) 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;
(e) 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 C.F.R. 155.420, an issuer must include in its plan documents and required disclosures an explanation of the effective date for special enrollment periods.
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 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, unless the applicant is enrolling due to marriage or the commencement of a domestic partnership. An issuer may establish an earlier effective date at their discretion. An issuer may establish an earlier effective date at their discretion;
(c) For applicants enrolling because of marriage or the commencement of a domestic partnership, when notice of the marriage or domestic partnership is received within sixty days of the marriage or commencement of the domestic partnership, either as spouse, domestic partner or as a dependent child, coverage must begin no later than the first date of the month immediately following the date of marriage or domestic partnership.
(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. This section applies to plans offered in the individual market.
(2) An issuer must limit the dates for enrollment in 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 under age nineteen.
(4) An issuer must prominently display information on its web site about open enrollment periods and special enrollment periods applicable to its 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 minimum essential coverage, including 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;
(l) Marriage or entering into a domestic partnership, including eligibility as a dependent of an individual marrying or entering into a domestic partnership.
(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 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) 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 applicant lost prior coverage due to errors by the health benefit exchange staff or the U.S. Department of Health and Human Services;
(d) The applicant, or his or her dependent, 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) The individual becomes newly eligible or newly ineligible for advance payment of premium tax credits, has a change in eligibility for cost-sharing reductions, or the individual's dependent becomes newly eligible. For purposes of (e) and (f) of this subsection, "dependent" means dependent as defined in 26 C.F.R. 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 C.F.R. 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) An individual who experiences a qualifying event and whose prior coverage was on a catastrophic health plan as defined in RCW 48.43.005 (8)(c)(i) 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, exceptional circumstances as defined by the health benefit exchange 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 C.F.R. 155.420, an issuer must include in 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 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, contract 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.