First Public Meeting of New NAIC Working Group on Regulatory Alternatives to the ACA

On November 16, state regulators and interested parties held the first public meeting of the NAIC’s new Health Care Reform Regulatory Alternatives (B) Working Group, charged with providing a forum for discussion of and guidance on the alternatives to implementing a state-based exchange, the implications of such alternatives on regulatory authority, and the impact of the Affordable Care Act on state’s existing regulatory authority both inside and outside of a federal exchange, among other roles.

During the open call, the Chairman of the Working Group—Commissioner Consedine of Pennsylvania—noted that the Group’s work will be critical, particularly because about half of the states have formally declared that they will not move forward with establishing a state-based exchange. He also emphasized that the Group’s goal will be to serve as a forum for these states to discuss difficult questions and push for answers as well as explore health insurance issues not addressed by the Affordable Care Act.

The Group first discussed the deadline extensions that federal regulators announced this week with its latest announcement as recently as last night. Federal regulators will now give states until December 14, 2012 to declare their intent to establish a state-based exchange as well as submit their “blueprint” application. And states will now have until February 15, 2013 to declare their intent to operate an exchange in partnership with the federal government. Regulators also noted that federal regulations are expected to be released soon and will hopefully provide additional guidance on, for example, exchange establishment, essential health benefits requirements, actuarial value, the 2014 market reforms, and multi-state plans.

The Group then turned to reviewing three documents—FFE Exchange Decisions, EHB Summary, and Open Regulatory Questions Regarding Federally Facilitated and Partnership Exchanges—that focus on the decisions that states must make if the federal government is operating the exchange and issues faced by state regulators regarding the new 2014 market reforms, many of which apply both inside and outside the exchange. The open call served as a forum for regulators and interested parties to discuss the documents, ask questions, and make comments. Regulators raised a number of important questions that included:

  • Can states be compelled to provide information to federal regulators or the exchange on, for example, an insurer’s solvency?
  • Will federal exchanges have access to data on the National Insurance Producer Registry?
  • What level of review will federal regulators require for states that review policy forms? For example, will federal regulators find a requirement that insurers attest or certify compliance with the Affordable Care Act to be sufficient in terms of regulatory oversight?
  • Should regulators discuss other alternatives to minimizing adverse selection in addition to the use of open enrollment periods?
  • Can states set additional standards to allow or discourage the substitution of benefits between categories under new essential health benefits requirements?

Comm. Consedine noted that the Group will first address these issues in the context of a federally facilitated exchange but anticipates expanding their efforts to discuss partnership exchanges as well. The Group has also established a Legal Authority Subgroup that will identify core regulatory areas; determine which provisions of the Affordable Care Act directly preempt or have the potential to preempt state laws; and gain a broader understanding  of state ability to enforce consumer protections and regulations.

The Group’s work will be ongoing and regulators will hold an in-person meeting at the NAIC’s fall national meeting in Washington DC on December 1. At this meeting, regulators are expected to further discuss the documents, the work of the Legal Authority Subgroup, and any guidance that has since been issued by the federal government.

Be sure to check in with CHIRblog where we’ll update you on these rules and everything else you need to know about the “Implementing the Affordable Care Act.”

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