On September 17, the Departments of Health and Human Services (HHS) and the Treasury issued a final rule governing marketplaces and qualified health plans sold through the marketplaces in 2022. The final rule largely codifies changes proposed in June including several changes to rescind policies made under the prior administration including:
- Repealing prior guidance on 1332 state innovation waivers that significantly broadened the interpretation of the legislative guardrails governing affordability and comprehensiveness standards of waiver proposals;
- Reinstating requirements for Navigators to engage in post-enrollment activities including assistance with eligibility appeals, tax credit reconciliation, and support for consumers with how to use coverage;
- Repealing a currently unutilized option for states to use Direct Enrollment entities to operate their marketplace; and
- Repealing a requirement for issuers to send separate bills and collect separate payments to cover non-Hyde abortion services.
Extending open enrollment and establishing a low-income special enrollment period
The new rule finalized two significant changes related to enrollment periods. The rule extends the open enrollment period (OEP) for states that use the federally-facilitated marketplace (FFM) from December 15 to January 15. States that run their own marketplace (SBMs), may opt to adopt the new OEP or maintain the December 15 deadline.
The rule also creates a new special enrollment period (SEP) specifically for households with income under 150% of the federal poverty level (FPL, $39,750 for a family of four, $19,320 for an individual). The SEP is designed to increase opportunities for low-income consumers to access coverage, especially in circumstances where they may not have been aware that they qualified for financial assistance. The rule notes the important role this SEP may serve in helping consumers maintain coverage, including the millions who are expected to lose Medicaid coverage when disenrollments are reinstated for individuals who may have become ineligible for the program during the public health emergency (PHE). (For more on the end of the PHE, see New Guidance for Unwinding Federal COVID-19 Public Health Emergency Provides State Flexibility and Medicaid Enrollee Protection).
The SEP would apply only when sufficient federal tax credits are available so that benchmark coverage can be purchased at $0 premium cost by these households. Currently, this SEP would only apply during the 2021 and 2022 coverage years during which an expansion of tax credits enabled under the American Rescue Plan Act (ARPA) provided an increase in tax credits so that households with income up to 150% FPL pay $0 for a benchmark plan. Congress is currently debating whether and how long to extend the ARPA tax credits as part of its ongoing negotiations over budget reconciliation. Without APRA’s tax credit enhancements, these households pay up to 4.14% of their income to cover benchmark premium costs.
The rule sets a series of parameters for individuals who enroll using this SEP. First, if they are a new marketplace enrollee, they may enroll in a plan at any metal level. However, current enrollees—including enrollees adding a dependent to their coverage—are limited to continuing enrollment in their current plan or may switch to a silver-level plan (which includes the $0 benchmark coverage). Second, the rule allows that enrollees may attest to income when applying for coverage under this SEP. SBMs may adopt the new SEP at their discretion and have flexibility over whether to require stricter parameters for income verification.