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December 13, 2012

U.S. Chamber of Commerce requests that HHS Secretary extend comment periods for three proposed rules implementing PPACA

By Sheila Lynch-Afryl, JD, MA

The U.S. Chamber of Commerce has requested that the Secretary of HHS extend the 30-day comment periods for three proposed rules implementing provisions of the Patient Protection and Affordable Care Act (P.L. 111-148). The Chamber of Commerce asserted in letters to the Secretary that the proposed rules have "extremely short comment periods," especially in light of their length and complexity. The proposed rules on (1) standards relating to essential health benefits, actuarial value, and accreditation; (2) health insurance market rules and rate review; and (3) benefit and payment parameters for 2014 have comment period deadlines of December 26, December 26, and December 31, respectively.

Standards relating to essential health benefits. The first proposed rule (77 FR 70644, November 26, 2012) outlined exchange and issuer standards related to coverage of essential health benefits and actuarial value. It also proposed a timeline for qualified health plans to be accredited in federally facilitated exchanges, as well as an amendment establishing an application process for the recognition of additional accrediting entities for purposes of certification of qualified health plans.

The Chamber of Commerce noted that the proposed rule was signed by the Acting Administrator of CMS on August 2, 2012, but was not approved by the HHS Secretary until November 14 and not published in the Federal Register until November 26. The almost four-month delay demonstrates the complexity of the proposed rule, according to the Chamber of Commerce, and "highlights the absurdity" of a 30-day comment period for the public. It argued that the public is entitled to as much time to review as the Office of the Secretary required.

Health insurance market rules. The second proposed rule (77 FR 70584, November 26, 2012) implements PPACA's policies related to fair health insurance premiums, guaranteed availability, guaranteed renewability, risk pools, and catastrophic plans. The Chamber of Commerce argued that HHS withheld the proposed rule until after the election; it was signed May 15, 2012, approved by the HHS Secretary August 6, and published in the Federal Register on November 26. The Chamber of Commerce urged HHS to extend the proposed rule's "impossibly abbreviated comment period" to the period of time that the Office of the Secretary took to review it.

Notice of benefit and payment parameters for 2014. The third proposed rule (77 FR 73118, December 7, 2012) proposed several ways to transfer money between providers of individual and small group health insurance who sell their products through Affordable Insurance Exchanges. The proposed rule established a risk adjustment program, which uses each individual's health data to determine a payment, and a unique reinsurance program designed to stabilize risk among the providers by stabilizing premiums. Plans will be required to pay a per-member, per-month reinsurance charge that will eventually be distributed to other health insurance providers during the same year.

The Chamber of Commerce took issue with commenters being shortchanged a week for this proposed rule's comment period since it was released for public inspection on November 30, 2012, but was not published in the Federal Register until December 7. The Chamber of Commerce requested that HHS extend the comment deadline by 60 days from the date of publication in the Federal Register, to March 7, 2013.

U.S. Chamber of Commerce. The U.S. Chamber of Commerce is a federation representing the interests of more than 3 million businesses nationwide. It supports the repeal of the "most egregious" provisions of PPACA, including the employer mandate.

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