WSR 13-08-072

EMERGENCY RULES

OFFICE OF

INSURANCE COMMISSIONER

[ Insurance Commissioner Matter No. R 2013-10 -- Filed April 2, 2013, 9:13 a.m. , effective April 2, 2013, 9:13 a.m. ]


Effective Date of Rule: Immediately.

Purpose: Establish consistent market requirements for open and special enrollment periods for nongrandfathered individual and small group plans.

Statutory Authority for Adoption: RCW 48.02.060, 48.18.120(2), 48.20.450, 48.43.720, 48.44.050, and 48.46.200.

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: Beginning October 1, 2013, the health benefit exchange will conduct open enrollment for health plans offered on the exchange. The first year, open enrollment closes in March 2014; subsequently it will end earlier. Beginning January 1, 2014, health plan issuers must enroll all applicants, whether the applicant seeks coverage during open enrollment (on or off the exchange) or off-exchange at any time during the calendar year. This creates a risk of adverse selection for the off-exchange markets, because 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. Carriers need to know this standard now to file forms with the commissioner for 2014.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 2, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 0, Repealed 0.

Date Adopted: April 2, 2013.

Mike Kreidler

Insurance Commissioner

OTS-5362.4


NEW SECTION
WAC 284-170-400   Small group market open enrollment.   (1) Issuers participating in the small group market must not condition or otherwise limit enrollment based on preexisting conditions. An issuer may only vary eligibility requirements that limit access to enrollment between plans purchased on and off the exchange consistent with this section or to limit eligibility to comply with the exchange's qualified enrollee requirements.

(2) An issuer may limit enrollment to specific time periods during the year. If an issuer elects to open enrollment for nongrandfathered small group health plans only during specific times, the following requirements apply:

(a) For health plans offered on the exchange, the issuer must comply with the open enrollment periods established by the health benefit exchange.

(b) For health benefit plans offered off the exchange, the issuer's open enrollment period must:

(i) Be a minimum of forty-five days in length;

(ii) Apply in the same manner and with the same conditions to all plans offered by the issuer in the small group market. An issuer may not establish different open enrollment periods or requirements for specific health benefit plans.

(3) If an issuer uses open enrollment periods, the issuer must make special enrollment periods of not less than sixty days available on the same basis that special enrollment periods are available to enrollees of plans purchased on the exchange.

(a) A triggering event for special enrollment includes:

(i) The discontinuation for any reason of employer sponsored insurance coverage of a person or the person under whose policy they were enrolled;

(ii) The loss of eligibility for medicaid or a public program providing health benefits;

(iii) The loss of coverage as the result of dissolution of marriage or termination of a domestic partnership;

(iv) A 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;

(v) The person for whom coverage is sought was born, placed for adoption or adopted within sixty days of the application for enrollment. For newborns, coverage must be effective from the moment of birth;

(vi) A situation in which a plan no longer offers any benefits to the class of similarly situated individuals that includes the individual;

(b) An annual enrollment period must be held between November 15th and extending through December 15th of each year for small groups whose plan sponsor is unable to comply with a material plan provision relating to employer contribution or group participation rules as required under 45 C.F.R. 147.104 (b)(1)(i) and 45 C.F.R. 147.106 (b)(3).

(4) A carrier must prominently display on its web site and include in its health benefit plan, contract or policy or any certificate of coverage information about open enrollment periods and special enrollment periods.

(a) If a carrier elects to limit enrollment to the open enrollment periods or a special enrollment period triggered by a qualifying event, the carrier must:

(i) Explain that fact prominently on its web site; and

(ii) Promptly make application packets available to interested persons upon request, even if the request is made outside the open enrollment periods; and

(iii) Offer a special enrollee all the benefit packages available to similarly situated individuals who enroll when first eligible. Any difference in benefits or cost-sharing requirements for different individuals constitutes a different benefit package. A special enrollee cannot be required to pay more for coverage than a similarly situated individual who enrolls in the same coverage when first eligible.

(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.

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NEW SECTION
WAC 284-170-410   Individual market open enrollment requirements.   (1) Issuers participating in the individual market must not condition or otherwise limit enrollment based on preexisting conditions. An issuer may not vary eligibility requirements that limit access to enrollment between plans purchased on and off the exchange, other than limiting eligibility to comply with the exchange's qualified enrollee requirements or for child-only policies available to those under nineteen.

(2) For purposes of this section, "open enrollment" means a specific period of time during which enrollment in a health benefit plan is permitted.

(3) An issuer must limit the dates for enrollment in plans offered on the individual market to the same time period for open enrollment established by the Washington health benefit exchange. In addition to the open enrollment period established by the exchange, an issuer must hold an open enrollment period between March 15th and April 30th each year for child-only policies available to those under age nineteen.

(4) A carrier must make a special enrollment period of not less than thirty-one days available to any person 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 or the person under whose policy they were enrolled;

(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 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 person for whom coverage is sought was born, placed for adoption or adopted within sixty days of the application for enrollment. For newborns, coverage must be effective from the moment of birth;

(f) A situation in which a plan no longer offers any benefits to the class of similarly situated individuals that includes the individual;

(g) Nothing in this rule is intended to alter or affect the application of RCW 48.43.517.

(5) An issuer must prominently display on its web site and include in its health benefit plan, contract or policy information about open enrollment periods and special enrollment periods.

(a) 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.

(b) An issuer must offer a special enrollee all the benefit packages available to similarly situated individuals who enroll when first eligible. Any difference in benefits or cost-sharing requirements for different individuals constitutes a different benefit package. A special enrollee cannot be required to pay more for coverage than a similarly situated individual who enrolls in the same coverage when first eligible.

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