WSR 14-03-128 PROPOSED RULES OFFICE OF INSURANCE COMMISSIONER [Insurance Commissioner Matter No. R 2013-28—Filed January 22, 2014, 8:39 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-24-110.
Title of Rule and Other Identifying Information: Substitution of essential health benefits in individual and small group health benefit plans.
Hearing Location(s): Office of the Insurance Commissioner, Training Room (TR-120), 5000 Capitol Boulevard S.E., Tumwater, WA, on February 26, 2014, at 10:00 a.m.
Date of Intended Adoption: February 28, 2014.
Submit Written Comments to: Kate Reynolds, P.O. Box 40258, Olympia, WA 98504-0258, e-mail rulescoordinator@oic.wa.gov, fax (360) 586-3109, by February 25, 2014.
Assistance for Persons with Disabilities: Contact Lori [Lorie] Villaflores by February 25, 2014, TTY (360) 586-0241 or (360) 725-7087.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: When the essential health benefits were established by regulation in 2013, the commissioner included a requirement that issuers not substitute benefits that differ from a benefit or benefits in the benchmark plan within a category for the 2014 benefit year. Due to the complexity of the new rating and filing requirements, and because the United States Department of Health and Human Services' Center for Medicaid and Medicare Services is not expected to provide additional guidance until 2016, the nonsubstitution requirement needs to be extended to include the filings through 2016 to facilitate the review of plans for approval.
Reasons Supporting Proposal: The United States Department of Health and Human Services is proposing that states have basic benchmark plans in place with no substitutions.
Statutory Authority for Adoption: RCW 48.02.060, 48.43.715.
Statute Being Implemented: RCW 48.43.715, 45 C.F.R. 156.200(b).
Rule is necessary because of federal law, 45 C.F.R. 156.200(b).
Name of Proponent: Mike Kreidler, insurance commissioner, governmental.
Name of Agency Personnel Responsible for Drafting: Kate Reynolds, P.O. Box 40258, Olympia, WA 98504-0258, (360) 725-7170; Implementation: Molly Nollette, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7117; and Enforcement: AnnaLisa Gellermann, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7050.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The entities that must comply with the proposed rule are not small businesses, pursuant to chapter 19.85 RCW.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kate Reynolds, P.O. Box 40258, Olympia, WA 98504-0258, phone (360) 725-7170, fax (360) 586-3535, e-mail rulescoordinator@oic.wa.gov.
January 22, 2014
Mike Kreidler
Insurance Commissioner
AMENDATORY SECTION (Amending WSR 13-15-025, filed 7/9/13, effective 7/10/13)
WAC 284-43-877 Plan design.
(1) A nongrandfathered individual or small group health benefit plan offered, issued, or renewed, on or after January 1, 2014, must provide coverage that is substantially equal to the EHB-benchmark plan, as described in WAC 284-43-878, 284-43-879, and 284-43-880.
(a) For plans offered, issued, or renewed for a plan or policy year beginning on or after January 1, 2014, until December 31, ((2015)) 2016, an issuer must offer the EHB-benchmark plan without substituting benefits for the benefits specifically identified in the EHB-benchmark plan.
(b) For plan or policy years beginning on or after January 1, ((2015)) 2017, an issuer may substitute benefits to the extent that the actuarial value of the benefits in the category to which the substituted benefit is classified remains substantially equal to the EHB-benchmark plan.
(c) "Substantially equal" means that:
(i) The scope and level of benefits offered within each essential health benefit category supports a determination by the commissioner that the benefit is a meaningful health benefit;
(ii) The aggregate actuarial value of the benefits across all essential health benefit categories does not vary more than a de minimis amount from the aggregate actuarial value of the EHB-benchmark base plan; and
(iii) Within each essential health benefit category, the actuarial value of the category must not vary more than a de minimis amount from the actuarial value of the category for the EHB-benchmark plan.
(2) An issuer must classify covered services to an essential health benefits category consistent with WAC 284-43-878, 284-43-879, and 284-43-880 for purposes of determining actuarial value. An issuer may not use classification of services to an essential health benefits category for purposes of determining actuarial value as the basis for denying coverage under a health benefit plan.
(3) The base-benchmark plan does not specifically list all types of services, settings and supplies that can be classified to each essential health benefits category. The base-benchmark plan design does not specifically list each covered service, supply or treatment. Coverage for benefits not specifically identified as covered or excluded is determined based on medical necessity. An issuer may use this plan design, provided that each of the essential health benefit categories is specifically covered in a manner substantially equal to the EHB-benchmark plan.
(4) An issuer is not required to exclude services that are specifically excluded by the base-benchmark plan. If an issuer elects to cover a benefit excluded in the base-benchmark plan, the issuer must not include the benefit in its essential health benefits package for purposes of determining actuarial value. A health benefit plan must not exclude a benefit that is specifically included in the base-benchmark plan.
(5) An issuer must not apply visit limitations or limit the scope of the benefit category based on the type of provider delivering the service, other than requiring that the service must be within the provider's scope of license for purposes of coverage. This obligation does not require an issuer to contract with any willing provider, nor is an issuer restricted from establishing reasonable requirements for credentialing of and access to providers within its network.
(6) Telemedicine or telehealth services are considered provider-type services, and not a benefit for purposes of the essential health benefits package.
(7) Consistent with state and federal law, a health benefit plan must not contain an exclusion that unreasonably restricts access to medically necessary services for populations with special needs including, but not limited to, a chronic condition caused by illness or injury, either acquired or congenital.
(8) Unless an age based reference limitation is specifically included in the base-benchmark plan or a supplemental base-benchmark plan for a category set forth in WAC 284-43-878, 284-43-879, or 284-443-880, an issuer's scope of coverage for those categories of benefits must cover both pediatric and adult populations.
(9) A health benefit plan must not be offered if the commissioner determines that:
(a) It creates a risk of biased selection based on health status;
(b) The benefits within an essential health benefit category are limited so that the coverage for the category is not a meaningful health benefit; or
(c) The benefit has a discriminatory effect in practice, outcome or purpose in relation to age, present or predicted disability, and expected length of life, degree of medical dependency, quality of life or other health conditions, race, gender, national origin, sexual orientation and gender identity or in the application of Section 511 of Public Law 110-343 (the federal Mental Health Parity and Addiction Equity Act of 2008).
(10) An issuer must not impose annual or lifetime dollar limits on an essential health benefit, other than those permitted as reference based limitations pursuant to WAC 284-43-878, 284-43-879, and 284-43-880.
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