Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-12-064.

     Title of Rule and Other Identifying Information: Essential health benefits designation, supplementation and establishment of scope and limitation requirements.

     Hearing Location(s): Training Room, T-120, 5000 Capitol Way South, Tumwater, WA, on October 23, 2012, at 10:00 a.m.

     Date of Intended Adoption: November 1, 2012.

     Submit Written Comments to: Meg L. Jones, P.O. Box 40258, Olympia, WA 98504, e-mail rulescoordinator@oic.wa.gov, fax (360) 586-3109, by October 24, 2012.

     Assistance for Persons with Disabilities: Contact Lorrie [Lorie] Villaflores by October 22, 2012, 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 do not alter existing rules. The proposed rules establish the essential health benefits package for Washington state's nongrandfathered individual and small group plans, and explain the proposed standards the commissioner will apply for evaluating whether a carrier's proposed plan complies with the requirements of both federal and state law to include the essential health benefits package in the health benefit plan.

     Reasons Supporting Proposal: Legislation enacted during the 2012 session directs the commissioner to designate by rule the small group plan with the largest enrollment, as the benchmark plan for purposes of defining the essential health benefits package for health benefit plans issued between January 1, 2014, and December 31, 2015. The same legislation requires supplementation, and adjustment or establishment of scope and limitation requirements by the commissioner in order to ensure meaningful benefits and prevent bias based on health selection.

     Statutory Authority for Adoption: Chapter 87, Laws of 2012; RCW 48.02.060.

     Statute Being Implemented: Chapter 87, Laws of 2012.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Office of the insurance commissioner, governmental.

     Name of Agency Personnel Responsible for Drafting: Meg Jones, P.O. Box 40258, Olympia, WA 98504, (360) 725-7170; Implementation: Beth Berendt, P.O. Box 40258, Olympia, WA 98504, (360) 725-7117; and Enforcement: Carol Sureau, P.O. Box 40258, Olympia, WA 98504, (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 Meg Jones, P.O. Box 40258, Olympia, WA 98504, phone (360) 725-7170, fax (360) 586-3109, e-mail rulescoordinator@oic.wa.gov.

September 19, 2012

Mike Kreidler

Insurance Commissioner

     (1) The commissioner will implement this sub-chapter to the extent that federal law or policy does not require the state to defray the costs of benefits included within the definition of essential health benefits.

     (2) This sub-chapter does not apply to a health benefit plan that provides excepted benefits as described in Section 2722 of the federal Public Health Service Act (42 U.S.C. Sec. 300gg-21), or a health benefit plan that qualifies as a grandfathered health plan as defined in RCW 48.43.005, unless a plan is providing an essential health benefit for pediatric oral services or vision services within the exchange, or as a subcontractor to a health benefit plan.

     (3) This sub-chapter does not require provider reimbursement at the same levels negotiated by the benchmark reference plan's carrier for their plan.

     (4) This sub-chapter does not require a plan to exclude the services or treatments from coverage that are excluded in the benchmark reference plan.

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     (1) "Benchmark reference plan" means the small group plan offered in the state with the largest enrollment, as designated in WAC 284-43-865(1).

     (2) "Individual plan" includes any non-grandfathered health benefit plan offered, issued, amended or renewed by an admitted carrier in the state of Washington for the individual health benefit plan market, unless the certificate of coverage is issued to an individual pursuant to a master contract held by an organization determined to be a bona fide association by the united states department of labor.

     (3) "Mandated benefit" means a health plan benefit for a specific type of service, device or medical equipment, or treatment for a specified condition or conditions that is required by either state or federal law.

     (4) "Meaningful health benefit" means the range of services or benefits within each of the ten essential health benefit categories identified in section 1302 of PPACA that are necessary to ensure enrollees covered access to clinically effective services, including services critical to the needs of those with chronic disease or those with special needs based on age or gender.

     (5) "Medical necessity determination process" means the process used by a health carrier to make a specific type of coverage determination about whether a medical item or service, which is a covered benefit, is medically necessary for an individual patient's circumstances.

     (6) "PPACA" means the federal Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), and any rules, regulations, or guidance issued thereunder.

     (7) "Scope and limitation requirements" means a requirement applicable to a benefit that limits the duration of a benefit, the number of times coverage is available for the benefit, or imposes a legally permitted eligibility limitation on a specific benefit.

     (8) "Small group plan" includes any non-grandfathered health benefit plan offered, issued, amended or renewed by an admitted carrier in the state of Washington for the small group health benefit plan market to a "small group," as defined in RCW 48.43.005, unless the certificate of coverage is issued to a small group pursuant to a master contract held by or issued through an entity meeting the definition established in sections 3(5) and 3(40) of the Employee Retirement Income Security Act of 1974 (29 USC 1001 et seq.)

     (9) "Stand-alone dental" means a contract or coverage plan covering a set of benefits limited to oral care, including but not necessarily limited to, pediatric oral care.

     (10) "Supplemental Benefit" means a health care service, benefit or supply designated by the commissioner to supplement the benchmark reference plan in one of the essential health benefit categories.

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     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 284-43-860   Supplementation of essential health benefits   The commissioner may supplement the benchmark reference plan coverage and may adjust or establish scope and limitation requirements for services, supplies or benefits within each essential health benefit category, based on the criteria identified in this section. The scope requirements include establishing the definition for the essential health benefit category.

     (1) Supplementation of the benchmark reference plan is based on one or more of the following criteria:

     (a) Whether a specific essential health benefits category required by PPACA is missing in its entirety;

     (b) Whether the benchmark reference plan's specifically identified coverage provides the benefits or services necessary to address the medical concerns of greatest importance to enrollees;

     (c) Whether the benchmark reference plan's coverage in an essential health benefits category is unduly limited so as to constitute an unreasonable restriction on patient treatment, or an illusory or deceptive benefit;

     (d) Whether the benchmark reference plan includes a service or benefit that addresses the medical concerns of greatest importance to effective chronic disease management or the particular needs of the most vulnerable patients and populations;

     (e) Whether the services or benefits designated to supplement the benchmark reference plan are medically effective and supported by a sufficient evidence base or a credible standard that demonstrates the probability of meaningful improvement in outcomes over current effective services/treatments and for which the expected benefits are greater than the expected harms;

     (f) Whether the benchmark reference plan's specifically identified services and benefits include a full continuum of effective, integrated treatment practices within an essential health benefit category; and

     (g) The potential effect of supplementing the essential health benefit category on the cost of coverage, particularly for those with incomes at or above 400% of the federal poverty level.

     (2) Adjustment to the scope and limitation requirements in the benchmark reference plan is based on one or more of the following criteria:

     (a) Whether the scope of a benefit covered by the benchmark reference plan in an essential health benefits category is unduly limited so as to constitute an unreasonable restriction on patient treatment, or an illusory or deceptive benefit;

     (b) Whether the scope or limitation requirement for a benefit covered by the benchmark reference plan in an essential health benefits category impermissibly discriminates based on health status or other basis prohibited by federal or state law;

     (c) Whether the scope or limitation requirement, or the coverage in the benchmark reference plan under an essential health benefit category, is more restrictive or limited than the benefits under the state Medicaid coverages; or

     (d) Whether the cost of the service or benefit in an essential health benefit category would, more probably than not, substantially affect the affordability of the coverage in the absence of the imposition of a scope or limitation requirement, and whether such scope or limitation requirement permits the benefit to continue to meet the supplementation criteria.

     (3) A carrier must not apply annual or lifetime financial limits to any service or benefit included in the essential health benefits package.

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     (1) The list of benchmark reference plan benefits, with services classified under an essential health benefits category, is posted on the insurance commissioner's website, www.insurance.wa.gov.

     (2) The required list of supplemental benefits, classified under an essential health benefit category, is posted on the insurance commissioner's website, www.insurance.wa.gov.

     (3) Any adjustment by the commissioner to the posted list of supplemented benefits or the scope and limitation requirements will be made pursuant to a rule proposal and development in compliance with chapter 34.05 RCW.

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     (2) Scope and duration limits for purposes of this section do not include cost-sharing provisions.

     (3) The scope and limitation requirements for specific services and benefits, and the definition of each essential health benefit category are posted on the insurance commissioner's website, www.insurance.wa.gov.

     (4) A carrier's medical necessity determination process must:

     (a) Be clearly explained in its certificate of coverage, plan document or contract for health benefit coverage;

     (b) Conducted fairly, and with transparency, at a minimum when an enrollee or their representative appeals or seeks review of an adverse benefit determination;

     (c) Include consideration of services that are less costly, less risky and a logical next step in reasonable care if they are appropriate for the patient, even if the service has not been the subject of clinical studies;

     (d) Ensure that its process for interpretation of the medical purpose of interventions is broad enough to address the services encompassed in the ten essential health benefits categories of care;

     (e) Comply with state and federal requirements for the inclusion of the ten essential health benefit categories of care, and prohibitions against discrimination based on age, disability, and expected length of life; and

     (f) Consider the provider's clinical judgment and recommendations regarding the medical purpose of the requested service, and the extent to which the service is likely to produce incremental health benefits for the enrollee.

     (5) A carrier's medical necessity determination process may include, but not be limited or required to include, evaluation of the effectiveness and benefit of a service for the individual patient based on scientific evidence considerations, up-to-date and consistent professional standards of care, convincing expert opinion and a comparison to alternative interventions, including no interventions. Cost effectiveness may be criteria for determining medical necessity if it is not limited to "lowest price."

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     For the purposes of this section "substantially equal" means that the scope and level of benefits offered within each essential health benefit category is meaningful, and the aggregate value of the benefits across all essential health benefit categories, and within each essential health benefit category, is not less than the aggregate value and each category's value of the benchmark reference plan as supplemented by the commissioner.

     (2) A carrier may not alter its health benefit plan design by transferring a service from the category assigned to it by the commissioner in WAC 284-43-875 if that transfer results in the elimination of a parity requirement.

     (3) Nothing precludes a health carrier from including benefits in a health benefit plan that are in addition to the benchmark reference plan's essential health benefit package, as supplemented by the commissioner. A carrier must identify in its rate filing services substituted within a category as part of the essential health benefits package if the carrier includes the service in calculating actuarial value of the essential health benefits package.

     (4) To the extent that the benchmark reference plan contains benefit limitations that conflict with requirements of PPACA, the benefit limitations must be amended to comply with PPACA's requirements.

     (5) A health benefit plan may not be offered if the commissioner determines that:

     (a) It creates a risk of biased selection based on health status; or

     (b) The benefits within an essential health benefit category are not a meaningful benefit.

     (6) A carrier may not apply deductible requirements to evidence based preventive health services covered by a health benefit plan, including those that have an A or B rating in the most recent recommendations of the United States Preventive Services Task Force, women's preventive healthcare services recommended by the U.S. Health Resources and Services Administration (HRSA), and HRSA Bright Futures designated pediatric services.

     (7) Pediatric oral benefits must be included in a health benefit plan either as an embedded set of services, offered through a rider or as a contracted service.

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     (a) In addition to confirming that a limitation requirement has not changed the actuarial value of an essential health benefit category, a carrier may not make the adjustment if the commissioner finds that, after the adjustment, the essential health benefit category no longer constitutes a meaningful benefit.

     (b) Services may be offered under more than one category, but for purposes of determining the actuarial value for one on the ten essential health benefit categories, a carrier must include an enumerated service in its designated category for purposes of the calculation.

     (2) Carrier adjustment of a limitation requirement must not violate other requirements of title 48 RCW, TITLE 284 WAC, or P.L. 111-148 (2010), as amended, and associated regulations, bulletins and guidance issued by the u.s. department of health and human services.

     (3) A carrier must not impose annual or lifetime dollar limits on an essential health benefit.

     (4) At the time a health benefit plan form is filed with the commissioner for approval, if a carrier elects to adjust specific services within any of the essential health benefit categories, or the quantitative limits for a service, a carrier must submit with its filing an actuarial opinion certifying the equivalence of the value of the plan's essential health benefits in the category, and overall, to the benchmark reference plan as supplemented.

     (5) A health benefit plan that includes the essential health benefits package may not impose annual cost-sharing that exceeds the limits that apply to high deductible plans linked to health savings accounts.

     (a) For the 2014 benefit year, those limits are $5,950 per year for individuals and $11,900 per year for families for individual health plans including the essential health benefits.

     (b) For the 2014 benefit year, a small group health benefit plan including the essential health benefits must limit deductibles to $2,000 for individual coverage and $4,000 for family coverage.

     (c) The commissioner will publish on the agency website adjusted cost sharing limits for subsequent benefit years if those limits are altered at the federal level.

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     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.
NEW SECTION
WAC 284-43-885   Representations regarding minimum essential coverage   A health carrier must not indicate or imply that a health benefit plan covers essential health benefits unless the plan covers essential health benefits in compliance with this sub-chapter. This requirement applies to any health benefit plan offered inside or outside the Washington Health Benefit Exchange.

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