Bulletin, March 16, 2016, Guidance Regarding the U.S. Department of Health and Human Services Extended Transitional Policy

Last Updated: March 16, 2016

Date: March 16, 2016
To: All Insurers Authorized to Write Health Insurance in Wisconsin
From: Theodore K. Nickel, Commissioner of Insurance
Subject: Guidance Regarding the U.S. Department of Health and Human Services Extended Transitional Policy

​On February 29, 2016, the Centers for Medicare and Medicaid Services (CMS), Center for Consumer Information and Insurance Oversight (CCIIO), issued an Insurance Standards Bulletin further extending the transitional policy. The current policy was outlined in a bulletin issued by the Office of the Commissioner of Insurance (OCI) on March 20, 2014 (http://oci.wi.gov/bulletin/0314transitionalpol.htm).

Consistent with state requirements and OCI's enforcement authority, OCI will allow insurers to renew, at their option, non-ACA compliant individual and small group coverage if coverage has been continuously in effect since December 31, 2013. Policies may continue to be renewed on or before October 1, 2017, provided that the policy will terminate by December 31, 2017. Insurers may early renew coverage or issue coverage for periods less than one year if a policy terminates prior to December 31, 2017, and the consumer or employer desires coverage to the end of the calendar year. Insurers electing to extend non-ACA compliant plans have the following options for individual and employer-sponsored group outreach and enrollment:

  1. An insurer may permit individuals and employer-sponsored groups currently enrolled in the insurer's non-ACA compliant plan to continue to renew their coverage.
  2. An insurer may provide an additional opportunity to renew coverage in its non-ACA compliant plan to an individual or employer-sponsored group who is currently enrolled in the insurer's non-ACA compliant plan but who has indicated their intent to nonrenew at the end of the plan year.

Insurers may submit rate revisions for 2016 and 2017 renewals within 30 days after the rates become effective using one of the following methods:

  1. If a complete rate filing was submitted for the affected product(s) in 2013, 2014, or 2015 and the insurer wishes to change rates by an annualized trend amount equal to or less than the amount indicated in the 2013, 2014, or 2015 filing, a simplified filing process may generally be used. Insurers electing this option must submit through a filing in SERFF a letter indicating (1) the affected products, (2) the annualized trend amount filed in the complete rate filing, (3) the trend change requested, and (4) the rate change effective date(s). The letter must reflect any incremental implementation of the annualized trend change.
  2. If no rate filing was submitted for the affected product(s) in 2013, 2014, or 2015, or the insurer wishes to increase rates by an amount greater than the annualized trend amount filed in 2013, 2014, or 2015, a complete filing must be submitted. The filing must fulfill all requirements for transitional rate filings. Detailed filing requirements are available on the OCI Web site at http://oci.wi.gov/ociforms/comphealth-ratefilings-ngf.htm.

It is important to note that coverage must have been in force on December 31, 2013, to continue use of a transitional policy. The guidance contained in this bulletin does not apply to "newly obtained coverage." "Newly obtained coverage" does NOT include normal enrollment changes (i.e., adding dependents or new employees) nor does it include coverage that has merely received a premium change or plan changes such as modified copayments, coinsurance, deductibles or provider networks before or after December 31, 2013. It should be noted that these plan changes must conform to the uniform modification to coverage requirements under 45 CFR § 147.106.

Consistent with Wisconsin insurance laws and regulations, the individual or small employer may change their plan options from one non-ACA compliant plan to another non-ACA compliant plan and renew that coverage provided:

  1. Coverage was in force for the individual or small employer before December 31, 2013; and
  2. The new plan was available for purchase prior to December 31, 2013.

It is important to note that CMS guidance clarifies that consumers or businesses are allowed to switch plans, but not products. Specifically from OCI's October 28, 2014, bulletin (http://oci.wi.gov/bulletin/1014transitionalpol.htm):

Confusion regarding the federal transitional policy has occurred due to the revolving federally mandated definitions for product and plan. As was clarified in the Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond; Final Rule issued in May 2014, 45 CFR § 144.103 defines product and plan as follows:

"Product" means a discrete package of health insurance coverage benefits that a health insurance issuer offers using a particular product network type within a service area.

"Plan" means, with respect to an issuer and a product, the pairing of the health insurance coverage benefits under the product with a metal tier level [as described in sections 1302 (d) and (e) of the Affordable Care Act] and service area. The product comprises all plans offered within the product, and the combination of all plans offered within a product constitutes the total service area of the product.

The latest guidance we have received from CMS regarding products and plans is as follows:

Essentially all plans within a product must share the exact same benefits, primary network type and issuer. Then, each plan under the product must meet the allowable metal levels and each plan can have its own service area. The product's service area is made up of the combination of all plan service areas, so nothing in our rules or guidance requires all plans within a product to share the same service area. The main reasons for moving plans from one product to another would be driven by aligning benefits or primary network types.

As to new guidance on transitional plans, CMS shared the following with a Wisconsin insurer:

This email confirms our interpretation of the transitional relief provided in the CMS bulletin dated March 5, 2014. While the CMS bulletin does not allow an individual or employer to change from one non-ACA compliant product to another non-ACA compliant product, it would allow an individual or employer to change plan options from one transitional plan to another transitional plan within the same product. This is consistent with our interpretation that the guaranteed renewability requirements apply at the product level as opposed to the plan level.

Insurers opting to renew non-ACA compliant plans must provide disclosure to their enrollees including notice that an enrollee's premium may be affected either on the date of renewal or in advance of the date on which the premium change will be affected.

For insurers that are transitioning individuals from an existing plan to a new ACA compliant plan, it is the position of OCI that nothing in the Wisconsin Statutes or regulations prohibits insurers from offering their enrollees auto-enrollment into a similar new plan. Auto-enrollment allows for minimal disruption to consumers as a result of changes required by the ACA. Insurers choosing to offer individual and group insureds the option for auto-enrollment must provide the insured a notice at least 30 days in advance of the renewal date that the insured will be automatically renewed in the new plan unless the insured exercises his or her right to choose any plan from any insurer and will receive coverage that is guaranteed. While consumers have the right to choose any plan from any insurer, the auto-enrollment option effectuates the right to guaranteed renewable coverage.

This bulletin applies to all insurers offering comprehensive individual and small group health insurance plans. Any questions concerning this bulletin should be directed to J. P. Wieske at jp.wieske@wisconsin.gov or (608) 266-2493.