The Biden administration recently issued guidance on a range of coverage-related issues. On February 25, 2021, the Centers for Medicare and Medicaid Services (CMS) issued technical guidance on the broad special enrollment period (SEP) through HealthCare.gov that began on February 15. This was followed by an announcement of $2.3 million in additional funding for current navigators to assist consumers with enrollment; there will soon be additional funding opportunities for navigators. Separately, the Departments of Labor and the Treasury issued new joint guidance to clarify the duration of prior relief that extended timeframes for group health plans and participants or beneficiaries during the pandemic.
Special Enrollment Period Guidance
In response to an executive order from President Biden on January 28, CMS announced a new three-month SEP for HealthCare.gov that began on February 15 and will end on May 15. During this time, all qualifying consumers can submit a new application or update an existing application. Consumers can do so through HealthCare.gov, the call center, or direct enrollment channels. Although not required to do so, many state-based marketplaces quickly announced similar SEPs.
Coverage is prospective, meaning it will begin on the first day of the month after a consumer selects a plan through HealthCare.gov. A consumer will have 30 days to select a plan once they apply. Current enrollees can change to any plan in their area but will need to revisit their current application to claim the SEP and receive an updated eligibility determination. Some of these operational details were already published. But on February 25, CMS published additional technical guidance on the SEP.
Any qualifying consumer can enroll during the SEP. This potentially includes a consumer whose coverage was terminated because they failed to pay their premiums for prior coverage. Consumers can also change plans more than once during this SEP, meaning a consumer who enrolled in coverage after February 15 could return to the marketplace to request another SEP and change plans. CMS believes that this is appropriate given the uncertainty and exceptional circumstances associated with the pandemic. This opportunity only extends through the end of the SEP on May 15.
Since the COVID-19 SEP is a broad-based SEP (more akin to the annual open enrollment period), it will take precedence over other SEPs that a consumer may be eligible for. Thus, even if a consumer is eligible for a SEP because they lost their job-based coverage or moved, they will enroll under the current broad SEP and will not face any enrollment restrictions that they might have faced under other SEPs. One exception is when a consumer qualifies for a SEP with a retroactive coverage effective date (for, say, birth, adoption, or foster care); in those cases, consumers will have the benefit of retroactive coverage.
One benefit of the SEP is that applicants will not have to answer any new application questions or comply with verification requirements (such as submitting documentation to show they qualify for a SEP). This includes consumers who were already asked to submit paperwork to resolve a SEP verification issue. CMS will resolve these issues on its own, and consumers do not have to take further action to resolve a verification issue. This relief does not extend to data-matching inconsistencies, which are generated when the information on a consumer’s application does not match marketplace data sources. Data-matching inconsistencies will be processed normally during this period, and consumers may have to submit documentation to resolve data matching issues.
Marketplace consumers whose tax household received advanced premium tax credits (APTC) in 2019 must file a federal income tax return and reconcile APTC received in 2019 using IRS Form 8962, if they have not done so already. Consumers that fail to do so may be found ineligible for future advance premium tax credits. But, given delays in the tax filing process and the backlog of unprocessed tax returns, data from the Internal Revenue Service may not be sufficiently updated to confirm to CMS that a consumer has met this requirement. If a consumer did reconcile their credits when filing their 2019 tax return, they should attest to doing so on their application during the SEP.
The SEP is available only through the federal marketplace (i.e., on-exchange). This is because the “exceptional circumstances” SEP is only available through the marketplace. Even so, states can extend the SEP to the off-marketplace market if they choose to do so. And nothing in federal law bars insurers from offering the SEP in their off-marketplace markets so long as coverage is not offered in a discriminatory manner.
Separately, CMS outlined its schedule of planned maintenance periods for HealthCare.gov. Those six periods will generally occur on Saturday evenings and Sunday mornings, and CMS expects to use these entire periods for maintenance. While consumers will be unable to apply for or enroll in coverage during these periods, they can still visit HealthCare.gov to review their coverage options.
Additional Navigator Funding For 2021
In announcing the SEP, CMS committed to spending $50 million on outreach and education, with the goal of increasing awareness of the new SEP. These funds will support a consumer-facing education campaign with broadcast, radio, and digital advertising with an emphasis on reaching uninsured people and historically marginalized populations. Recent press announcements from CMS have also highlighted the benefits of marketplace coverage (such as coverage of the essential health benefits) and premium affordability, especially for subsidized enrollees.
To further promote the SEP and help consumers enroll in coverage, CMS announced that it will provide about $2.3 million in additional funding for 30 current navigator organizations in 28 states with the federal marketplace. The largest supplemental funding allocations are $250,000 for larger navigator organizations in Florida and Texas. Navigators that receive these funds can decide how to best use the additional money consistent with their existing agreement with CMS.
Regular readers know that the Trump administration cut funding for the navigator program by 84 percent, investing $10 million annually beginning with the 2019 plan year down from a high of $63 million for the 2017 plan year. These funding cuts significantly reduced the number of organizations that applied to be navigators and left some states and many counties without any navigator support.
Most recently, the Trump administration issued a two-year notice of funding opportunity for the 2020 and 2021 plan years and allocated $10 million in funding for each year. Given this two-year funding, navigators were already selected for 2021 with grant awards that run through August 29, 2021. This is likely why CMS simply directed funds to existing navigator entities (rather than trying to issue additional funding to expand the number of navigators at this time).
Given the need to ensure that the marketplace has robust participation, CMS intends to make an even more significant investment in the navigator program for the 2022 plan year. The agency did not identify a dollar amount that it will invest but will issue a new notice of funding opportunity later this year so that new navigator grants are in place ahead of the 2022 open enrollment period. Doing so is critical: survey data from the Kaiser Family Foundation shows that consumers highly value assistance and that 12 percent of target consumers tried to find help but did not get it.
Latest Guidance On Employer Health Plans
On February 26, the Department of Labor, the Department of the Treasury, and the Internal Revenue Service issued a new joint notice to clarify the duration of prior relief extended by the same agencies. With the goal of maximizing flexibility for those losing job-based coverage, the prior relief extended certain timeframes for group health plans, disability and other welfare plans, pension plans, and the participants and beneficiaries of these plans during a defined “outbreak period.”
In general, plans were directed to disregard the outbreak period in determining eligibility for a SEP, the 60-day election period for COBRA continuation coverage, the date for making COBRA premium payments, the date to notify the plan of a qualifying event or disability determination, and dates regarding claims procedures and appeals. The guidance thus extended the deadline for participants and beneficiaries to use a SEP, enroll in COBRA coverage, pay COBRA premiums, and appeal adverse determinations.
Per the prior guidance, the “outbreak period” extended from March 1 until 60 days after the announced end of the national emergency due to COVID-19 (or another date announced by the agencies). However, federal law limits the flexibility that federal officials can offer to a period of up to only one year in response to certain disasters, including a declared public health emergency. Given this statutory limitation, stakeholders asked whether the relief offered under the prior guidance would expire in one year (on February 28, 2021).
The new guidance clarifies the duration of relief under the prior guidance by confirming that the disregard period for relief cannot exceed one year. As such, individuals and plans will have disregard periods in effect until the earlier of 1) one year from the date they were first eligible for relief; or 2) 60 days after the announced end of the national emergency or outbreak period (which remains ongoing). Because March 1, 2020 was the first possible date when someone would be eligible for relief under the prior guidance, some disregard periods will end on March 1, 2021. If a disregard period has expired, prior timeframes (i.e., those that were previously disregarded) will resume.
The guidance includes some examples to better understand these timeframes. For instance, if a beneficiary would have been required to elect to enroll in COBRA continuation coverage by March 1, 2021, the individual has until March 1, 2022 or the end of the outbreak period. If a plan were required to provide notice or a disclosure by March 1, 2020, the relief period for failing to do so would end on February 28, 2021. Thus, the notice or disclosure must be provided on or before March 1, 2021.
Federal officials acknowledge that some consumers will continue to face challenges because of the pandemic and natural disasters. As such, employee benefit plans are urged to “act reasonably, prudently, and in the interest of the workers and their families who rely on their health, retirement, and other employee benefit plans for their physical and economic well-being.” For instance, if an individual stands to lose protections or other benefits because the disregard period is ending, plan fiduciaries are encouraged to affirmatively notify enrollees. Plan disclosures—such as COBRA election notices or claims procedure notices—may need to be reissued or amended with correct information about the timeline for individuals to act. And plans are encouraged to make sure that individuals who are losing coverage are aware of other coverage options, including the ability to enroll in marketplace coverage.
The guidance recognizes that some plans may not be able to comply with certain timeframes for claims decisions or disclosures due to disruptions from the pandemic or a natural disaster. In these circumstances, the Department of Labor intends to exercise enforcement discretion so long as fiduciaries act in good faith and with reasonable diligence under the circumstances. The agency’s approach to enforcement will emphasize compliance assistance as well as grace periods and other relief.