Sec. 1321. State flexibility in operation and enforcement of Exchanges and related requirements.
Establishment of standards. As soon as practicable after enactment, and with the
exception of standards for which the Secretary issues guidelines under the PHS Act, the Secretary is required to issue regulations setting standards for meeting the requirements under Title I of the bill and any amendments made to Title I, with respect to: (1) the establishment and operation of Exchanges (including SHOP Exchanges); (2) the offering of QHPs through the Exchanges; (3) the establishment of reinsurance and risk
appropriate. In establishing these standards, the Secretary is required to consult with the NAIC and its members and with health insurance issuers, consumer organizations and such other individuals as the Secretary selects to ensure balanced representation among interested parties.
State action. Requires each state that elects, at the time and in the manner specified by the Secretary, to apply the requirements specified in the above standard to adopt and have in effect by 1/1/2014 those federal standards or state law or regulation that the Secretary determines implements the standards within the state.
Failure to establish Exchange or implement requirements. If a state fails to establish an Exchange within 24 months of enactment, or the Secretary determines, on or before 1/1/2013 that an electing state will not have an Exchange operational by 1/1/2014 or has not taken the necessary actions to implement other related federal requirements, the Secretary is required (directly or through agreement with a not-for-profit entity) to
establish and operate an Exchange within the state and to take actions to implement the other federal requirements. Enforces federal authority related to non-electing states through the HIPAA enforcement provisions of the PHS Act (newly designated §2736(b)) without regard to any limitation on the application of those provisions to group health plans.
No interference with state regulatory action. Clarifies that nothing in this title preempts any state law that does not prevent the application of the provisions of this title.
Presumption for certain state-operated Exchanges. Presumes a state Exchange that operated before 1/1/2010 to be federally qualified under this Act and thus to continue to operate if it has insured a percentage of its population not less than the percentage of the population projected to be covered nationally after the Act’s implementation unless the Secretary determines, after a review process, that the Exchange does not comply with federal standards. Requires the Secretary to establish the process necessary to assist the state Exchange in coming into compliance.
Effective 3/23/2010.
Sec. 1322. Federal program to assist establishment and operation of nonprofit, member-run health insurance issuers.
Establishment of program. Requires the Secretary to establish a Consumer Operated and Oriented Plan (CO-OP) program to foster the creation of qualified nonprofit health insurance issuers to offer QHPs in the individual and small group markets in the states in which the issuers are licensed to offer such plans.
Loans and grants under the CO-OP program. Requires the Secretary by 7/1/2013 to: award to persons applying to become qualified issuers, loans to provide assistance in meeting their start-up costs and grants to provide assistance in meeting any state solvency requirements in which the applicant seeks to be licensed to issue qualified health plans. In awarding loans and grants, requires the Secretary to take into account the recommendations of the advisory board (see below); give priority to applicants that will offer QHPs on a statewide basis, will utilize integrated care models, and have
significant private support; and ensure that there is sufficient funding to establish at least one qualified nonprofit health insurance issuer in each state, except that this does not prohibit the Secretary from funding the establishment of multiple issuers in any state if
the funding is sufficient to do so. Provides that if no health insurance issuer applies to be a qualified nonprofit health insurance issuer within a state, the Secretary may use
amounts appropriated under this section for the awarding of grants to encourage the establishment of a qualified nonprofit health insurance issuer within the state or the expansion of a qualified nonprofit health insurance issuer from another state to the state. Requires, as a condition of a loan or grant, that the recipient enter into an agreement with the Secretary to meet and continue to meet the requirements for the loan or grant. Requires the agreement to state that no portion of the funds made available by any loan or grant under this section may be used for carrying on propaganda, or otherwise attempting, to influence legislation; or for marketing. Provides for sanctions in the event of a recipient’s failure to meet requirements.
By 7/1/2013, and prior to awarding loans and grants, the Secretary is required to issue regulations with respect to repayment of loans and grants in a manner that is consistent with state solvency regulations and other similar state laws that may apply. Requires that such loans be repaid within 5 years and grants be repaid within 15 years, taking into account any appropriate state reserve requirements, solvency regulations and requisite surplus note arrangements that must be constructed in a state to provide for repayment.
Advisory board. Provides for an advisory board to be made up of 15 members appointed by GAO from among individuals with qualifications described in §1805(c)(2) of the SSA (relating to the qualifications for MedPAC commissioners). Requires appointees to meet ethics and conflict of interest standards protecting against insurance industry
involvement and interference. Requires the board to be appointed within 3 months of enactment, provides for a process for filling vacancies, and authorizes no compensation except for travel expenses, including a per diem. Applies the Federal Advisory
Committee Act, except that §14 of such Act shall not apply. Terminates the board on the earlier of the date that it completes its duties under this section or 12/31/2015.
Qualified nonprofit health insurance issuer. Defines a qualified non-profit health insurance issuer as an organization organized under state law as a nonprofit, member corporation; substantially all of the activities of which consist of the issuance of QHPs in the individual and small group markets in each state in which it is licensed to issue such plans and meets other requirements of this subsection. Provides that an organization are ineligible if it, or a related entity (or any predecessor of either), was a health insurance issuer on 7/16/2009 or it is sponsored by a state or local government, any political subdivision thereof, or any instrumentality of such government or political subdivision. To be qualified, the governance of the organization must be subject to a majority vote of its members; its governing documents incorporate ethics and conflict of interest standards protecting against insurance industry involvement and interference; and, as provided in regulations promulgated by the Secretary, the organization is required to operate with a strong consumer focus, including timeliness, responsiveness, and accountability to members.
Any profits made by the organization must be used to lower premiums, to improve benefits, or for other programs intended to improve the quality of health care delivered to its members. Requires, in addition, that the organization meet all the requirements that other issuers of QHPs are required to meet in any state where the issuer offers a QHP, including solvency and licensure requirements, rules on payments to providers, and compliance with network adequacy rules, rate and form filing rules, any applicable state
premium assessments and any state law specified in §1324 (see below). Limits eligibility to an organization in a state that has in effect (or the Secretary has implemented for the state) the market reforms required by this Act.
Establishment of private purchasing council. Permits issuers participating in the CO-OP program to establish a private purchasing council to enter into collective purchasing arrangements for items and services that increase administrative and other cost efficiencies, including claims administration, administrative services, health information technology, and actuarial services. Prohibits the Council from setting payment rates for participating facilities and providers. Clarifies that federal antitrust laws continue to apply.
Limitation on participation. Prohibits a representative of any federal, state, or local government from serving on the board of directors of a qualified nonprofit health insurance issuer or with a private purchasing council.
Limitations on Secretary. Prohibits the Secretary from participating in any negotiations between one or more qualified nonprofit health insurance issuers (or a private
purchasing council) and any health care facilities or providers, including any drug manufacturer, pharmacy, or hospital; and from establishing or maintaining a price
structure for reimbursement of any health benefits covered by such issuers. Clarifies that this section is not meant to authorize the Secretary to interfere with the competitive nature of providing health benefits through qualified nonprofit health insurance issuers.
Appropriations. Appropriates $6 billion to carry out this section.
Tax exemption for qualified nonprofit health insurance issuer. Amends §501(c) of the IRC (relating to list of exempt organizations) to provide a tax exemption to a qualified nonprofit health insurance issuer which has received a loan or grant under the CO-OP program, but only with respect to periods for which the issuer is in compliance with the requirements of the section and any agreement with respect to the loan or grant. Requires the reporting of certain information to the IRS.
GAO study and report. Requires GAO to conduct an ongoing study on competition and market concentration in the health insurance market after the implementation of the reforms made by this legislation. Requires the study to include an analysis of new issuers of health insurance in such market. Requires GAO, by no later than 12/31 of each even-numbered year (beginning with 2014) to report to the appropriate committees of the Congress the results of the study including any recommendations for
administrative or legislative changes the Comptroller General determines necessary or appropriate to increase competition in the health insurance market.
Effective 3/23/2010.
Sec. 1323. Funding for the Territories (as amended by sec. 1204 of HCERA).
In general. Provides that a territory that has elected to establish an Exchange consistent with the requirements of the Act to be treated as a state for purposes of funding for start up of the Exchange. Alternatively, if it fails to elect to establish a qualified Exchange, then the territory will be entitled to an increase in the cap on their federal Medicaid payments.
Terms and conditions. To qualify for the funding, requires the election to be received by 10/1/2013 and is contingent upon entering into an agreement between the territory and the Secretary that requires that funds be used only to provide premium and cost-sharing assistance to residents of the territory in obtaining health insurance coverage through the Exchange and the premium and cost-sharing assistance be structured so as to prevent any gap in assistance for individuals between the income level at which Medicaid is available and the income level at which premium and cost-sharing assistance is available under the agreement.
Allocation. Provides for the appropriation of $1 billion to be available for 2014 through 2018. Specifies how much is to be allocated for Puerto Rico ($925 million) and for other territories.
Effective 3/23/2010.
Sec. 1324. Level playing field (as modified by sec. 10104).
Provides that any health insurance coverage offered by a private issuer not be subject to any of the federal or state insurance laws listed below if a QHP offered by a CO-OP or a multi-state QHP is not subject to such laws. Provides that the federal and state laws are those relating to: guaranteed renewal, rating, preexisting conditions, non-discrimination, quality improvement and reporting, fraud and abuse, solvency and financial
requirements, market conduct, prompt payment, appeals and grievances, privacy and confidentiality, licensure and benefit plan material or information.
Effective 3/23/2010.
PART IV—STATE FLEXIBILITY TO ESTABLISH ALTERNATIVE PROGRAMS