[Federal Register Volume 75, Number 165 (Thursday, August 26, 2010)]
[Notices]
[Pages 52597-52599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21206]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
RIN 1545-BJ63
DEPARTMENT OF LABOR
Employee Benefits Security Administration
RIN 1210-AB45
DEPARTMENT OF HEALTH AND HUMAN SERVICES
RIN 0991-AB70
Availability of Interim Procedures for Federal External Review
and Model Notices Relating to Internal Claims and Appeals and External
Review Under the Patient Protection and Affordable Care Act; Notice
AGENCY: Internal Revenue Service, Department of the Treasury; Employee
Benefits Security Administration, Department of Labor; Office of
Consumer Information and Insurance Oversight, Department of Health and
Human Services.
ACTION: Notice.
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SUMMARY: This document announces the availability of guidance detailing
interim procedures for the Federal external review process and model
notices both for internal claims and appeals and for external review
processes under the Patient Protection and Affordable Care Act.
FOR FURTHER INFORMATION CONTACT: Amy Turner or Beth Baum, Employee
Benefits Security Administration, Department of Labor, at (202) 693-
8335; Karen Levin, Internal Revenue Service, Department of the
Treasury, at (202) 622-6080; Ellen Kuhn, Office of Consumer Information
and Insurance Oversight, Department of Health and Human Services, at
(301) 492-4100.
Customer Service Information: Individuals interested in obtaining
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information from the Department of Labor concerning employment-based
health coverage laws may call the EBSA Toll-Free Hotline at 1-866-444-
EBSA (3272) or visit the Department of Labor's Web site (http://www.dol.gov/ebsa). In addition, information from HHS on private health
insurance for consumers can be found on the Centers for Medicare &
Medicaid Services (CMS) Web site (http://www.cms.hhs.gov/HealthInsReformforConsume/01_Overview.asp) and information on health
reform can be found at http://www.hhs.gov/ociio/ and http://www.healthcare.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Patient Protection and Affordable Care Act (the Affordable Care
Act), Public Law 111-148, was enacted on March 23, 2010; the Health
Care and Education Reconciliation Act (the Reconciliation Act), Public
Law 111-152, was enacted on March 30, 2010. The Affordable Care Act and
the Reconciliation Act reorganize, amend, and add to the provisions of
part A of title XXVII of the Public Health Service Act (PHS Act)
relating to group health plans and health insurance issuers in the
group and individual markets. The Affordable Care Act adds section
715(a)(1) to the Employee Retirement Income Security Act (ERISA) and
section 9815(a)(1) to the Internal Revenue Code (the Code) to
incorporate the provisions of part A of title XXVII of the PHS Act into
ERISA and the Code, and make them applicable to group health plans, and
health insurance issuers providing health insurance coverage in
connection with group health plans. The Departments of Labor, Health
and Human Services, and the Treasury (the Departments) have been
issuing regulations in several phases to implement the revised PHS Act
sections 2701 through 2719A and related provisions of the Affordable
Care Act.
Section 2719 of the PHS Act applies to group health plans and
health insurance coverage that are not grandfathered health plans
within the meaning of section 1251 of the Affordable Care Act.\1\ It
sets forth standards for plans and issuers regarding both internal
claims and appeals and external review. The Departments published
interim final regulations implementing PHS Act section 2719 on July 23,
2010, at 75 FR 43330 (the interim final regulations). In general, the
interim final regulations require plans and issuers to comply with the
requirements of 29 CFR 2560.503-1 (the DOL claims procedure regulation)
and impose specified additional standards for internal claims and
appeals.
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\1\ The Departments published interim final regulations
implementing section 1251 of the Affordable Care Act on June 17,
2010, at 75 FR 34538.
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Section 2719 of the PHS Act provides that plans and issuers in
States without an applicable State external review process shall
implement an effective external review process that meets minimum
standards established by the Secretary through guidance and that is
similar to a State external review process described in PHS Act Section
2719(b)(1). The statute and the interim final regulations also provide
a basis for determining when plans and issuers must comply with an
applicable State external review process and when they must comply with
the Federal external review process. Generally, if a State has an
external review process that meets, at a minimum, the consumer
protections set forth in the interim final regulations, an issuer (or a
plan) subject to the State process must comply with the State process.
The regulations include a transition period for plan years (in the
individual market, policy years) beginning before July 1, 2011, during
which the Department of Health and Human Services (HHS) will work
individually with States on an ongoing basis to assist in making any
necessary changes to incorporate additional consumer protections so
that the State process will continue to apply after the end of the
transition period. For plans and issuers not subject to an existing
State external review process (including self-insured plans), a Federal
process is to apply for plan years (in the individual market, policy
years) beginning on or after September 23, 2010.
The preamble to the interim final regulations provided that the
Departments would issue additional guidance on the Federal external
review process. In addition, the preamble stated that the Departments
would issue model notices that could be used to satisfy the notice
requirements under the interim final regulations. This notice announces
the availability of and provides links to guidance on the interim
Federal external review process, as well as links to the model notices.
II. Interim Federal External Review Process for Self-Insured Group
Health Plans
This notice announces the availability of EBSA Technical Release
No. 2010-01, which provides an interim enforcement safe harbor for non-
grandfathered self-insured group health plans not subject to a State
external review process, and therefore subject to the Federal external
review process. (In the case of health insurance coverage offered in
connection with a group health plan, the issuer has primary
responsibility to comply with the interim final regulations.) This
interim enforcement safe harbor applies for plan years beginning on or
after September 23, 2010 and until superseded by future guidance on the
Federal external review process that is being developed and that will
apply after this interim period. During the period that this interim
enforcement safe harbor is in effect, the Department of Labor and the
Internal Revenue Service will not take any enforcement action against a
self-insured group health plan that complies with either of the
following interim compliance methods (and if a plan complies with one
of the interim compliance methods of this notice, no excise tax
liability should be reported on IRS Form 8928 with respect to PHS Act
section 2719(b)):
Compliance with the procedures outlined in Technical
Release 2010-01. The Department of Labor and the Internal Revenue
Service will not take enforcement action against any plan that complies
with the procedures set forth in Technical Release No. 2010-01. These
procedures are based on the Uniform Health Carrier External Review
Model Act promulgated by the National Association of Insurance
Commissioners (NAIC Model Act) in place on July 23, 2010.\2\ The
Technical Release is available today on the Department of Labor's Web
site at: http://www.dol.gov/ebsa.
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\2\ Even though these procedures are based on the NAIC Model
Act, they do not include all the consumer protections of the NAIC
Model Act. For example, the procedures set forth in this notice do
not include the special provisions for claims relating to
experimental or investigational treatment and do not include a
government agency certifying and assigning independent review
organizations. The NAIC Model Act is available at http://www.dol.gov/ebsa and http://www.hhs.gov/ociio/. Future guidance will
address the minimum consumer protections required under the Federal
external review process after the interim enforcement safe harbor
period.
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Voluntary compliance with State external review processes.
Alternatively, States may choose to expand access to their State
external review process to plans that are not subject to the applicable
State laws, such as self-insured plans, and such plans may choose to
voluntarily comply with the provisions of that State external review
process. In such circumstances, while the interim enforcement safe
harbor is in effect, the Department of Labor and
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the Internal Revenue Service also will not take enforcement action
against a plan that voluntarily complies with the provisions of a State
external review process that would not otherwise be applicable or
available.
The Departments will issue guidance regarding what process will
apply under 26 CFR 54.9815-2719T(d), 29 CFR 2590.715-2719(d), and 45
CFR 147.136(d) no later than July 1, 2011 to replace the interim
process.
III. Interim Federal External Review Process for Issuers
For issuers in the individual market and the small group and large
group health insurance markets (including fully-insured group health
plans), there will be an interim enforcement safe harbor which will
apply only for plan years (in the individual market, policy years)
beginning on or after September 23, 2010 and until superseded by future
guidance on the Federal external review process that is being developed
and that will apply after this interim period. During this limited
interim enforcement safe harbor period, HHS will not take any
enforcement action against an issuer that complies with the interim
compliance method that will be detailed by HHS on the Office of
Consumer Information and Insurance Oversight Web site (http://www.hhs.gov/ociio/). This method will either involve use of a State
external appeals process or a temporary process established by HHS.
Prior to July 1, 2011, HHS will issue further guidance as to which
State external review laws have been determined to satisfy the minimum
standards of the NAIC Model Act as identified in 45 CFR 147.136(c). The
Departments will issue guidance regarding what process will apply under
26 CFR 54.9815-2719T(d), 29 CFR 2590.715-2719(d), and 45 CFR 147.136(d)
no later than July 1, 2011 to replace the interim process.
IV. Model Notices
Model notices that can be used to satisfy the disclosure
requirements of the interim final regulations \3\ are being posted on
the Department of Labor's Web site at http://www.dol.gov/ebsa and the
Department of HHS/Office of Consumer Information and Insurance
Oversight Web site at http://www.hhs.gov/ociio/. These models include:
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\3\ For rules regarding the form and manner of notice, see 26
CFR 54.9815-2719T(e), 29 CFR 2590.715-2719(e), and 45 CFR
147.136(e).
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(1) A notice of adverse benefit determination;
(2) A notice of final internal adverse benefit determination; and
(3) A notice of final external review decision.
Model language for the description of the internal claims and
appeals and external review procedures in the summary plan description
provided to participants and beneficiaries will be posted on these
websites in the future.
Please note that the Departments accounted for the actual costs of
the external appeal process taking into account the model notices when
the interim final regulations were issued.
Signed: August 19, 2010.
Sarah Hall Ingram,
Acting Deputy Commissioner for Services and Enforcement, Internal
Revenue Service.
Signed: August 20, 2010.
Michael L. Davis,
Deputy Assistant Secretary, Employee Benefits Security Administration,
Department of Labor.
Dated: August 20, 2010.
Jay Angoff,
Director, Office of Consumer Information and Insurance Oversight.
[FR Doc. 2010-21206 Filed 8-23-10; 11:15 am]
BILLING CODE 4830-01-P; 4510-29-P; 4120-01-P