Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9649 

1Multi-State Plan option or MSP option means a 

discrete pairing of a package of benefits with 

particular cost sharing (which does not include 

premium rates or premium rate quotes) that is 

offered under a contract with OPM. 

2Multi-State Plan issuer or MSP issuer means a 

health insurance issuer or group of issuers that has 

a contract with OPM to offer MSP options pursuant 

to section 1334 of the Affordable Care Act. 

3Patient Protection and Affordable Care Act; 

Establishment of the Multi-State Plan Program for 

the Affordable Insurance Exchanges, 78 FR 15560 

(Mar. 11, 2013). 

OFFICE OF PERSONNEL 

MANAGEMENT 

45 CFR Part 800 

RIN 3206–AN12 

Patient Protection and Affordable Care 

Act; Establishment of the Multi-State 

Plan Program for the Affordable 

Insurance Exchanges 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing a final 

rule implementing modifications to the 

Multi-State Plan (MSP) Program based 

on the experience of the Program to 

date. OPM established the MSP Program 

pursuant to the Affordable Care Act. 

This rule clarifies the approach used to 

enforce the applicable standards of the 

Affordable Care Act with respect to 

health insurance issuers that contract 

with OPM to offer MSP options; amends 

MSP standards related to coverage area, 

benefits, and certain contracting 

provisions under section 1334 of the 

Affordable Care Act; and makes nonsubstantive technical changes. 

DATES: Effective March 26, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Cameron Stokes by telephone at (202) 

606–2128, by FAX at (202) 606–4430, or 

by email at mspp@opm.gov. 

SUPPLEMENTARY INFORMATION: The 

Patient Protection and Affordable Care 

Act (Pub. L. 111–148), as amended by 

the Health Care and Education 

Reconciliation Act of 2010 (Pub. L. 111– 

152), together known as the Affordable 

Care Act, provides for the establishment 

of Affordable Insurance Exchanges, or 

‘‘Exchanges’’ (also called Health 

Insurance Marketplaces, or 

‘‘Marketplaces’’), where individuals and 

small businesses can purchase qualified 

coverage. The Exchanges provide 

competitive marketplaces for 

individuals and small employers to 

compare available private health 

insurance options based on price, 

quality, and other factors. The 

Exchanges enhance competition in the 

health insurance market, improve 

choice of affordable health insurance, 

and give individuals and small 

businesses purchasing power 

comparable to that of large businesses. 

The Multi-State Plan (MSP) Program 

was created pursuant to section 1334 of 

the Affordable Care Act to increase 

competition by offering high-quality 

health insurance coverage sold in 

multiple States on the Exchanges. The 

U.S. Office of Personnel Management 

(OPM) is issuing this final rule to 

modify the standards set forth for the 

MSP Program under 45 CFR Part 800 

that was published as a final rule on 

March 11, 2013 (78 FR 15560). This rule 

clarifies OPM’s intent in administering 

the Program, as well as makes regulatory 

changes in order to expand issuer 

participation and offerings in the 

Program to meet the goal of increasing 

competition. 

Abbreviations 

EHB—Essential Health Benefits 

FEHB Program—Federal Employees Health 

Benefits Program 

HHS—U.S. Department of Health and Human 

Services 

MSP—Multi-State Plan 

NAIC—National Association of Insurance 

Commissioners 

OPM—U.S. Office of Personnel Management 

PHS Act—Public Health Service Act 

QHP—Qualified Health Plan 

SHOP—Small Business Health Options 

Program 

Section 1334 of the Affordable Care 

Act created the Multi-State Plan (MSP) 

Program to foster competition in the 

health insurance markets on the 

Exchanges (also called Health Insurance 

Exchanges or Marketplaces) based on 

price, quality, and benefit delivery. The 

Affordable Care Act directs the U.S. 

Office of Personnel Management (OPM) 

to contract with private health 

insurance issuers to offer at least two 

MSP options on each of the Exchanges 

in the States and the District of 

Columbia.1 The law allows MSP issuers 

to phase in coverage.2

In the 2014 plan year, OPM 

contracted with one group of issuers to 

offer more than 150 MSP options in 31 

States, including the District of 

Columbia. Approximately 371,000 

individuals enrolled in an MSP option 

in 2014. For plan year 2015, OPM 

entered into contract with a second 

group of issuers, and MSP coverage 

expanded to 36 States. The Program 

currently offers more than 200 MSP 

options through the Exchanges to 

further competition and expand choices 

available to individuals, families, and 

small businesses. 

This rule builds on the MSP Program 

final rule published March 11, 2013.3

Changes to the regulations include 

clarifications to the process by which 

OPM administers the MSP Program, 

pursuant to section 1334 of the 

Affordable Care Act, and revisions to 

the standards and requirements 

applicable to MSP options and MSP 

issuers. 

Summary of Comments 

OPM published a proposed rule on 

November 24, 2014 (79 FR 69802), to 

modify standards related to the 

implementation of the MSP Program at 

part 800 of title 45, Code of Federal 

Regulations. The comment period for 

the proposed rule closed December 24, 

2014. OPM received 43 comments from 

a broad range of stakeholders, including 

States, health insurance issuers, health 

care provider associations, 

pharmaceutical companies, and 

consumer groups. 

While most of the comments were 

related to the proposed modifications 

addressed in the rule, a small number of 

the comments were on areas of the 

regulations for which we did not 

propose changes or request comment. 

A summary of the comments we 

received follows, along with our 

responses and changes to the proposed 

regulations in light of the comments. In 

addition, we are making some minor 

technical and editorial changes to the 

proposed regulations to correct errors 

and improve clarity and readability. 

Comments submitted on sections of the 

regulations that we did not propose to 

change are outside the scope of this 

rulemaking and are not addressed here. 

Length of the Comment Period 

Comments: Some commenters 

contended that the 30-day comment 

period did not provide sufficient time to 

provide feedback. 

Response: OPM values the 

participation of a broad array of diverse 

stakeholders. In addition to the 

proposed rule, we continue to seek 

input and guidance from numerous 

stakeholders, including the National 

Association of Insurance Commissioners 

(NAIC), States, tribal governments, 

consumer advocates, health insurance 

issuers, labor organizations, health care 

provider associations, and trade groups. 

Responses to Comments on the 

Proposed Regulations 

Subpart A—General Provisions and 

Definitions 

Definitions (§ 800.20) 

We sought comments on two 

proposed definitions for the MSP 

Program. Specifically, we proposed to 

add the definition for ‘‘Multi-State Plan 


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9650 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

option,’’ which may also be referred to 

as ‘‘MSP option.’’ We also proposed to 

remove the definition of ‘‘Multi-State 

Plan’’ because the term ‘‘Multi-State 

Plan option’’ is more precise and avoids 

the confusion of the varying definitions 

of the word ‘‘plan’’ in the context of 

health insurance. We also proposed to 

add a definition for ‘‘State-level issuer’’ 

as a health insurance issuer designated 

by the MSP issuer to offer an MSP 

option or MSP options. OPM invited 

comments on the proposed changes to 

the definitions under 45 CFR 800.20 as 

well as any comments on the current 

definition for ‘‘group of issuers.’’ OPM 

received no comments on the definition 

of ‘‘State-level issuer,’’ and we will 

adopt the definition as proposed. 

Comments: OPM received comments 

that were generally supportive of adding 

the proposed definition of ‘‘MSP 

option.’’ One of these commenters asked 

that we replace ‘‘package of benefits’’ 

with the term ‘‘product’’ as it is defined 

in 45 CFR 144.103. We did not receive 

comments on removing the definition 

‘‘Multi-State Plan.’’ 

Response: OPM will finalize the 

definition of ‘‘MSP option’’ as proposed 

and will remove ‘‘Multi-State Plan.’’ 

The definition of ‘‘MSP option’’ will 

ensure consistency within the MSP 

Program and avoid confusion with 

definitions from programs outside of 

OPM. 

Comments: Commenters responded to 

our call for feedback on the definition 

of ‘‘Group of Issuers’’ in § 800.20. The 

commenters were generally opposed to 

expanding ‘‘Group of Issuers’’ to include 

alternative structures and requested 

further clarification from OPM. Some 

commenters were supportive of 

interpreting the definition of ‘‘Group of 

Issuers’’ to attract additional issuers to 

the MSP Program. 

Response: OPM did not propose any 

changes to the ‘‘group of issuers’’ 

definition, and we appreciate the 

comments received. It was OPM’s 

intention in the proposed rule to clarify 

that a group of issuers may come 

together in the MSP Program either by 

common control and ownership or by 

using a nationally licensed service 

mark. OPM recognizes there are a 

number of ways to organize using a 

nationally licensed service mark, and 

looks forward to working with current 

and potential MSP issuers who decide 

to come together under either one of 

these two options in the MSP Program. 

Subpart B—Multi-State Plan Issuer 

Requirements 

Phased Expansion, etc. (§ 800.104) 

Section 1334(e) of the Affordable Care 

Act provides for OPM to allow issuers 

to phase in their participation in the 

MSP Program. Under § 800.104(a), OPM 

requested comment on how we may 

expand participation in the Program to 

meet the goal of increasing competition 

while balancing consumers’ needs. 

Specifically, we asked for comment on 

the timeframes and other appropriate 

parameters within which an MSP issuer 

could reasonably expand participation 

in the Program. We did not propose any 

changes to the regulatory text for 

§ 800.104(a). In clarifying the status of 

the Program and how we are 

implementing the standards set under 

§ 800.104, we proposed to delete the 

standard for an MSP issuer to submit a 

plan to become statewide in 

§ 800.104(b), and add a requirement that 

the MSP issuer service area for MSP 

coverage shall be greater than or equal 

to any service area proposed by the 

issuer for QHP coverage. Under 

§ 800.104(c), we solicited comment on 

when MSP issuers should be required to 

participate on a Small Business Health 

Options Program (SHOP). Based on the 

comments received, the changes to 

§ 800.104(b) will be accepted as 

proposed. 

Comments: Some commenters 

commended OPM for clarifying 

§ 800.104(a) of the rule and promoting 

increased flexibility on standards for 

coverage areas and geographic 

requirements, as it will attract issuers to 

the Program and promote competition. 

Other commenters urged OPM to 

encourage new and existing MSP issuers 

to offer plans that are national in scope 

and coverage. 

Response: Through our continued 

engagement with current and potential 

MSP issuers, OPM has heard significant 

concerns about the challenges of rapidly 

expanding MSP coverage both within 

and across State lines. OPM agrees that 

increased flexibility around the 

schedule to expand to each Exchange in 

every State will help the MSP Program 

meet its goal of increasing competition 

while balancing consumers’ needs for 

coverage. OPM intends to ensure that 

MSP coverage is available as 

expansively and as soon as practicable. 

We work closely with current and 

potential MSP issuers to address any 

operational challenges they may face in 

order to expand MSP coverage 

nationally or establish reciprocity. 

Comments: Some commenters 

expressed that any potential MSP 

issuers should be held to the same 

standards as an MSP issuer who 

participated in the Program during the 

first year of operations. These 

commenters requested OPM set 

minimum threshold standards for 

participation, such as timeframes for 

expanding coverage and minimum 

standards for coverage areas. 

Response: Since the first year of 

operations for the MSP Program, OPM 

consistently has applied the same 

standards to all current and potential 

MSP issuers, and we will continue to do 

so going forward. We are not making 

any changes to the text at this time. 

Comment: Commenters disagreed 

with OPM’s interpretation of 1334(b) 

and (e) stating that neither of the MSP 

issuers currently under contract with 

OPM meets the statutory requirements 

to participate in the Program. 

Response: We respectfully disagree 

with the commenter. Section 1334 sets 

forth standards to guide the exercise of 

OPM’s contracting authority, noting that 

section 1334(b)(1) contemplates offering 

coverage in every State and the District 

of Columbia, and outlines a framework 

within which participation in the MSP 

Program is a feasible and attractive 

business activity. Such standards 

include the provisions under 

subsections (b) and (e) on offering 

coverage in every State. 

Comments: Many commenters 

supported OPM’s proposal to delete the 

standard for an MSP issuer to submit a 

plan to become statewide and instead 

negotiate directly with MSP issuers to 

expand coverage based on business 

factors and consumers’ needs. 

Commenters suggested that requiring a 

specific plan to become statewide may 

discourage participation in the Program, 

and flexibility on meeting geographic 

coverage standards would encourage 

competition. These commenters also 

commended OPM on efforts to evaluate 

MSP issuers’ proposed service areas to 

ensure they are established without 

discrimination. Other commenters 

opposed the proposal and sought 

additional standards. 

Response: OPM is committed to 

statewide coverage, but is sensitive to 

requirements that may discourage 

participation in the Program or does not 

serve the goal of promoting competition 

on the Exchanges. OPM will assess 

consumers’ needs for coverage, 

including ensuring that MSP issuers’ 

proposed service areas have been 

established without regard to racial, 

ethnic, language, or health status-related 

factors listed in section 2705(a) of the 

PHS Act, or other factors that exclude 

specific high-utilizing, high-cost, or 

medically underserved populations. 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9651 

4March 11, 2013 Federal Register (78 FR 15560, 

15565). 

5 45 CFR 156.115(a)(5). 

Comments: Commenters opposed the 

proposed change to the regulatory text 

to delete a plan for reaching statewide 

MSP coverage, stating that OPM should 

establish minimum thresholds for 

expected MSP coverage areas within a 

State. The commenter suggested OPM 

set a standard to require coverage as 

broadly as the area in which the issuer 

is licensed to sell coverage in a State, 

equal to any coverage offered as a 

Qualified Health Plan (QHP), or 

alternatively, a percent of population or 

geographic area. Similarly, other 

commenters recommended OPM require 

coverage of 75% of the State’s counties 

or other geographic area. 

Response: OPM is committed to a goal 

of statewide coverage in the MSP 

Program, and intends to continue 

working with current and potential MSP 

issuers to develop productive and 

ambitious approaches to achieving 

statewide coverage. OPM believes that 

our standard for an MSP issuer who 

offers both MSP options and QHPs to 

provide an MSP service area that is 

equal to or greater than the issuer’s QHP 

service area is adequate and reasonable 

to ensure broad MSP coverage. We 

appreciate the specific examples of 

other minimum MSP standards for 

coverage areas. At this time, we will 

finalize § 800.104(b) as proposed 

maintaining the standard of an MSP 

coverage area to be equal to or greater 

than the coverage area proposed by the 

same issuer for their QHP service area. 

Some commenters recommended 

OPM continue to implement SHOP 

participation standards consistent with 

standards set by U.S. Department of 

Health and Human Services (HHS) for a 

Federally-facilitated SHOP or, where 

applicable, standards set by State-based 

Exchanges for SHOP participation 

requirements that apply to QHP issuers. 

Other comments suggested that the MSP 

Program is not mature enough to require 

MSP issuers to participate in a SHOP at 

this time. 

Response: In light of these comments, 

OPM intends to continue its flexibility 

in SHOP participation for MSP issuers 

in § 800.104(c). MSP issuers must meet 

the same standards for SHOP 

participation set for QHP issuers, 

including the requirements of 45 CFR 

156.200(g) and any standards for issuers 

participating on a State-based SHOP. An 

MSP issuer may meet the requirements 

of 45 CFR 156.200(g)(3) if a State-level 

issuer or any other issuer in the same 

issuer group affiliated with an MSP 

issuer provides coverage on a Federallyfacilitated SHOP. We discussed this 

policy in-depth in the March 2013 final 

rule.4

Benefits (§ 800.105) 

In § 800.105(b), OPM proposed a 

change that would allow an MSP issuer 

to make essential health benefits (EHB)- 

benchmark selections on a State-byState basis. The issuer would also be 

able to offer two or more MSP options 

in each State. For example, one option 

could use the State-selected EHBbenchmark, and one could use the 

OPM-selected EHB-benchmark. OPM 

proposed this change to allow for more 

flexibility to attract issuers to the MSP 

Program with the expectation of 

expanding competition on the 

Exchanges. This flexibility could 

facilitate coalition building across 

issuers in different States, so that issuers 

can work together toward MSP options 

that meet the MSP Program standards. 

In § 800.105(c)(3), OPM proposed to 

clarify the policy on formularies with an 

OPM-selected EHB-benchmark plan. 

Under the proposed rule, OPM would 

allow the MSP issuer to manage 

formularies around the needs of actual 

or anticipated enrollees. As part of this 

proposal, OPM pointed to the current 

practice in the Federal Employees 

Health Benefits (FEHB) Program of 

negotiating formularies and also 

considered the option of substituting the 

formulary from the State-selected EHBbenchmark plan. OPM noted that, even 

with this change, OPM would still 

ensure compliance with any HHS 

standards related to drug formularies for 

QHPs and assurance that the 

formularies are not discriminatory. OPM 

also noted that this would allow MSP 

issuers to propose plans built around 

the needs of enrollees, subject to 

approval by OPM. 

In the renumbered § 800.105(c)(4), 

OPM proposed a change to apply a 

Federal definition of habilitative 

services and devices, should HHS 

choose to define the term. In response 

to comments, in this final rule OPM will 

revert back to the term we used in our 

final rule published March 2013, 

‘‘habilitative services and devices,’’ to 

ensure consistency with the recently 

published HHS Notice of Benefit and 

Payment Parameters for 2016.5

In § 800.105(d), OPM did not propose 

any change to the regulation. However, 

the preamble noted that OPM also plans 

to review an MSP issuer’s package of 

benefits for discriminatory benefit 

design and intends to work closely with 

States and HHS to identify and 

investigate any potentially 

discriminatory or otherwise 

noncompliant benefit designs in MSP 

options. 

In § 800.105(e), OPM proposed to 

change ‘‘assume’’ to ‘‘defray’’ to align 

with the language in section 1334(c)(2) 

of the Affordable Care Act. 

Comments: We received comments on 

the proposed changes to § 800.105(b), 

which describes the EHB-benchmark 

policy, from a broad range of 

stakeholders. Some comments opposing 

the change cited consumer confusion 

while others raised concerns about an 

unlevel playing field between MSP 

issuers and QHP issuers or 

administrative efficiency. In contrast, 

other commenters supported the 

proposed changes, and highlighted the 

opportunity to increase competition in 

the MSP Program as well as additional 

choices for consumers. Commenters also 

highlighted that the change would allow 

issuers the flexibility needed to fulfill 

the goals of the Affordable Care Act. 

Response: While we understand the 

concerns about adverse selection and 

consumer confusion, we have not seen 

nor are we aware of any compelling 

evidence that multiple EHB-benchmarks 

would cause these issues. 

With the opportunity to use 

substitutions as well as expand benefits 

beyond the EHB-benchmark or EHB 

categories, there is already variation 

among plans available to consumers. 

Additionally, under the framework 

that applied in the first two years of the 

Program, we were already reviewing 

MSP options using each State’s EHBbenchmark. Even if the OPM-selected 

EHB-benchmark plan was not used in 

every State, there may be some 

administrative efficiency gained in the 

overlap. 

We note that these changes only allow 

an MSP issuer to propose these types of 

packages. OPM still retains the authority 

to approve the package of benefits in 

§ 800.105(d). OPM will scrutinize all 

proposals for evidence of discriminatory 

benefit designs and other issues of 

noncompliance. Keeping potential 

issues in mind, we are finalizing the 

changes as proposed in order to increase 

opportunities for competition in the 

MSP Program and create the potential 

for more choices for consumers. 

Comments: We also received 

comments that focused on the need to 

maintain benefit standards and 

protections under any approach. These 

comments highlighted potential issues 

or vulnerabilities in need of consumer 

protection and identified key strategies 

for addressing them. 

Response: We appreciate the feedback 

provided by these stakeholders and will 


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9652 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

take this information under 

consideration as it relates to our review 

process. We are not making any further 

changes to § 800.105(b), but may use the 

comments to inform MSP Program 

operations or in drafting Program 

guidance in the future. 

Comments: We received comments on 

the proposed changes to § 800.105(c)(3) 

to the formulary requirements with an 

OPM-selected EHB-benchmark plan 

from a variety of stakeholders. 

Commenters were generally supportive, 

interpreting the changes as OPM 

prioritizing the review of formularies 

proposed by MSP issuers. 

Other commenters raised concerns 

about consumer confusion and potential 

misalignment of medical and drug 

benefits 

Response: We appreciate the broad 

support from commenters on our 

proposal as well as their 

acknowledgement that OPM is 

prioritizing formulary review. While we 

understand concerns about the changes 

to the formulary requirements, 

including negotiating a formulary or 

using the formulary from the Stateselected EHB-benchmark plan, we do 

not have any compelling evidence that 

this would cause consumer confusion or 

gaps in coverage between medical and 

drug benefits. OPM intends to use any 

tools, including the USP category and 

class count framework, created by HHS 

to analyze the formulary and inform our 

negotiations or evaluation of the 

formulary from the State-selected EHBbenchmark plan. Additionally, we 

intend to use our discretion in approval 

of a package of benefits and during any 

negotiations to identify and remedy 

gaps between medical and drug benefits. 

We appreciate the concerns that were 

raised, but believe we can use the 

review process to mitigate them, 

offering more flexibility and consumer 

choice. 

Comments: Commenters asked to 

ensure that proposed formularies meet 

the requirements of section 2713 of the 

PHS Act and are compliant with other 

applicable standards. Other commenters 

that was supportive of the change asked 

for a similar change to be applied to 

State-selected EHB-benchmark plans. 

Response: OPM has already identified 

in § 800.102 the requirement to comply 

with part A of title XXVII of the PHS 

Act and has also identified in 

§ 800.105(d) that OPM approval of a 

proposed package of benefits, including 

the formulary, will include a review 

against standards set by HHS and OPM. 

For example, this would include the 

USP category and class count 

framework and the use of a pharmacy 

and therapeutics committee for 

formulary development as it applies to 

QHP issuers. Based on the comments we 

received and our analysis, we are 

finalizing § 800.105(c)(3) with no 

changes. 

Comments: We received comments on 

the proposed changes to apply a Federal 

definition of habilitative services from a 

variety of stakeholders. Some 

commenters supported the change. 

Others recommended OPM modify and 

expand the definition proposed by HHS 

and requested OPM address habilitative 

devices or make provisions for specific 

types of services or devices. 

Commenters also asked for illustrative 

lists of habilitative services. Finally, the 

comments requested that the Federal 

definition be treated as a Federal floor. 

Response: OPM is deferring to HHS 

on the substance and role of the Federal 

definition. In keeping with the HHS 

Notice of Benefit and Payment 

Parameters for 2016, we are now using 

the term ‘‘habilitative services and 

devices’’ in order to remain consistent 

and address the concerns raised by 

several commenters. We defer to HHS in 

determining the standards applicable 

under its definition of habilitative 

services and devices. It is not OPM’s 

intention to allow the MSP issuer to 

choose between State and Federal 

definitions if both exist for a given State. 

In the finalized version of 

§ 800.105(c)(4), OPM is taking the 

opportunity to add clarity to the 

paragraph in explaining when a State 

definition of habilitative services and 

devices applies and when a Federal 

definition applies. In the final 

§ 800.105(c)(4), the Federal definition is 

set as the floor, consistent with the HHS 

Notice of Benefit and Payment 

Parameters for 2016. The State retains 

the flexibility to apply standards or a 

definition that does not conflict with the 

Federal definition. Finally, we continue 

to reserve authority for OPM to define 

habilitative services and devices for an 

OPM-selected EHB-benchmark plan 

absent a State or Federal definition. 

Comments: We received comments on 

the issue of non-discrimination and 

OPM’s review of MSP options as it 

relates to § 800.105(d). Commenters 

generally supported the proposal and 

asked for OPM to identify examples of 

discriminatory benefit designs, and one 

asked OPM to set specific standards for 

review in the regulation. 

Response: OPM identified the 

requirement to comply with Federal law 

in § 800.102 and also identified related 

HHS standards against which MSP 

issuers and MSP options will be 

evaluated in § 800.105(d). At this time, 

we believe we have the authority 

necessary to apply and modify 

standards for non-discrimination, 

updating and adapting our review as we 

continue to learn about discriminatory 

benefit designs. In practice, we will 

align our review for non-discriminatory 

benefit designs with HHS. 

We did not receive any comments on 

the proposed change to § 800.105(e). 

Therefore, we are adopting the proposed 

§ 800.105(e) as final. 

In § 800.105(c)(1), we are removing 

the reference to (c)(4) and replacing it 

with a reference to (c)(5) in 

§ 800.105(c)(1) to correct an internal 

cross reference. 

Assessments and User Fees (§ 800.108) 

OPM has authority to collect MSP 

Program user fees, and continues to 

preserve its discretion to collect an MSP 

Program user fee. In the proposed rule, 

we clarified that OPM may begin 

collecting the fee as early as plan year 

2015. OPM intends to use the MSP 

assessment or user fee to fund OPM’s 

functions for administration of the 

Program, including but not limited to 

entering into contracts with, certifying, 

recertifying, decertifying, overseeing 

MSP options and MSP issuers for that 

plan year, and audits and investigations 

performed by OPM’s Office of Inspector 

General related to the MSP Program. In 

the Federally-facilitated Exchanges, 

OPM is coordinating with HHS 

regarding the collection of user fees, so 

that issuers would not be affected 

operationally. We proposed to revise the 

regulatory text to allow for flexibility in 

the process for collecting MSP Program 

assessments or user fees. We also 

solicited comments on the process for 

collecting user fees in the State-based 

Exchanges and the general use of any 

fees collected by OPM. 

Comments: Some commenters were 

opposed to the imposition of user fees 

in State-based Exchanges citing 

operational challenges in collecting fees. 

Response: We have considered the 

comments received and agree that 

operational complexities for collecting 

any user fee from MSP issuers on Statebased Exchanges exist. We will not be 

collecting or imposing user fees on MSP 

issuers operating on State-based 

Exchanges in plan year 2016. Therefore, 

the changes to § 800.108 will be 

accepted as proposed. 

Network Adequacy (§ 800.109) 

In § 800.109(b), OPM proposed to 

codify the requirement that MSP issuers 

must comply with any additional 

provider directory standards that may 

be set by HHS. 

Comments: Commenters generally 

supported the proposed change, noting 

that incorporating HHS standards for 


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provider directories would improve the 

quality of information consumers 

receive. Some commenters suggested 

OPM defer to State requirements where 

they exist. 

Response: It has been OPM’s intention 

that an MSP issuer comply with 

appropriate Federal, and where 

applicable, State requirements for 

provider directories. OPM did not 

intend for the proposed changes to 

§ 800.109(b) to alter that framework. 

After further consideration of the 

proposed change to subsection (b), we 

decided that the proposed language is 

unnecessary. We are, therefore, 

removing the proposed addition to 

subsection (b) from the regulatory text. 

Again, we intend for MSP issuers to 

comply with any additional regulations 

promulgated by HHS for QHP issuers, 

and where applicable, State 

requirements for provider directories. 

Accreditation (§ 800.111) 

In the proposed rule, we proposed to 

revise the reference to the specific 

section in the Code of Federal 

Regulations to 45 CFR 156.275(a)(1) to 

be more precise. We received no 

comments on this proposed change, and 

are finalizing the text as proposed. 

Level Playing Field (§ 800.115) 

In § 800.115, we proposed to revise 

the regulatory text to clarify that all 

areas listed under section 1324(b) of the 

Affordable Care Act are subject to 

§ 800.114. In addition, we made a 

technical correction to § 800.115(l) to 

change a reference to 45 CFR part 162 

to 45 CFR part 164. We received no 

comments on these changes and are 

finalizing as proposed. 

Subpart D—Application and 

Contracting Procedures 

In subpart D of 45 CFR part 800, OPM 

set forth procedures for processing and 

evaluating applications from issuers 

seeking participation in the MSP 

Program. Subpart D also establishes 

processes pertaining to executing 

contracts to offer MSP coverage. In 

particular, this subpart includes 

sections that address an application 

process, review of applications, MSP 

Program contracting, term of a contract, 

contract renewal process, and 

nonrenewal. OPM did not receive any 

comments pertaining to this subpart, 

except for § 800.301. We are finalizing 

Subpart D as proposed. 

Application Process (§ 800.301) 

In § 800.301, OPM proposed a 

technical correction that it would 

consider annual applications from 

health insurance issuers to participate 

in the MSP Program. We also specified 

that an existing MSP issuer could 

submit a renewal application to OPM 

annually. This correction is intended to 

clarify the distinction between new and 

renewal applications. 

Comment: Commenters recommended 

that renewal applicants should be 

required to complete a full (not 

streamlined) application. 

Response: Renewal applications 

require comprehensive and detailed 

responses to adequately inform OPM 

about whether to renew its contract with 

the issuer. OPM has, and will continue 

to use its experience in the FEHB 

Program to inform and guide its 

contracting process with MSP issuers to 

the extent such experience is applicable 

to the individual and small group 

markets within which the MSP Program 

operates. We are finalizing our proposal. 

Subpart E—Compliance 

In subpart E of 45 CFR part 800, OPM 

set forth standards and requirements 

with which MSP issuers must comply. 

This subpart also contains a nonexhaustive list of actions OPM may 

utilize in instances of non-compliance 

and the process by which OPM may 

reconsider any compliance actions we 

decide to take. In particular, this subpart 

includes sections regarding contract 

performance, contract quality assurance, 

fraud and abuse, compliance actions, 

and reconsideration of compliance 

actions. OPM did not receive any 

comments pertaining to this subpart, 

except for § 800.404. We are finalizing 

Subpart E as proposed. 

Compliance Actions (§ 800.404) 

In § 800.404(a)(4), OPM proposed to 

clarify that we may initiate a 

compliance action against an MSP 

issuer for violations of applicable law or 

the terms of its contract pursuant to 

OPM’s authority under §§ 800.102 and 

800.114. In § 800.404(b)(2), OPM 

clarified that compliance actions may 

include withdrawal of certification of an 

MSP option or options. We also added 

nonrenewal of participation as a 

compliance action in order to be 

consistent with the new paragraph 

under § 800.306(a)(2). In § 800.404(d), 

OPM clarified that requirements 

pertaining to notices to enrollees are 

triggered when one of the following 

occurs: The MSP Program contract is 

terminated, OPM withdraws 

certification of an MSP option, or if a 

State-level issuer’s participation is not 

renewed. 

Comment: Commenters suggested that 

OPM should establish a Federal 

standard to ensure a seamless transition 

for enrollees when a plan is terminated 

or an enrollee is transferred to another 

issuer and enrolled in a new plan. 

Response: To the extent that the MSP 

issuer is providing health insurance 

coverage in a Federally-facilitated 

Exchange, Federal requirements 

regarding notice to enrollees must be 

followed. MSP coverage offered in a 

State-based Exchange must meet the 

requirements of that specific State or 

Exchange to the extent there is no 

conflict with Federal law. This 

delineation is consistent with the 

approach for applicable requirements 

across the MSP Program. Therefore, we 

are adopting this section as final, with 

no changes. 

Subpart G—Miscellaneous 

In subpart G of 45 CFR part 800, OPM 

set forth requirements pertaining to 

coverage and disclosure of non-excepted 

abortion services and data-sharing with 

State entities. 

Consumer Choice With Respect to 

Certain Services (§ 800.602) 

We proposed adding a new paragraph 

(c) to § 800.602 that would require an 

MSP issuer to provide notice of 

coverage or exclusion of non-excepted 

abortion services in an MSP option. 

Under our proposal, an MSP issuer must 

disclose to consumers prior to 

enrollment the exclusion of nonexcepted abortion services in a State 

where coverage of such abortion 

services is permitted by State law. We 

also proposed that if an MSP issuer 

provides an MSP option that covers 

non-excepted abortion services, in 

addition to an MSP option that excludes 

coverage, notice of coverage would also 

need to be provided to consumers prior 

to enrollment. Finally, OPM reserved 

the authority to review and approve 

these MSP notices and materials. OPM 

requested comments on the form and 

manner of these disclosures. 

Comments: In general, commenters 

supported the proposed notice 

requirements. However, commenters 

expressed concern that consumers 

would receive notice that an MSP 

option excludes coverage of nonexcepted abortion services only if the 

MSP option is offered in a State that 

permits coverage of non-excepted 

abortion services. Commenters argued 

that consumers may not know if their 

State permits coverage of non-excepted 

abortion services. 

Response: We agree that it is in the 

best interests of consumers for an MSP 

issuer to provide notice if an MSP 

option excludes non-excepted abortion 

services from coverage in every State, 

not just the States that would permit 

coverage of such services. We have 


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9654 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

6 44 U.S.C. chapter 35; see 5 CFR part 1320. 

7 44 U.S.C. 3502(3)(A)(i). 

8 5 U.S.C. 601 et seq. 

9According to the SBA size standards, entities 

with average annual receipts of $38.5 million or less 

would be considered small entities for North 

American Industry Classification System (NAICS) 

Code 524114 (Direct Health and Medical Insurance 

Carriers) (for more information, see ‘‘Table of Size 

Standards Matched To North American Industry 

Classification System Codes,’’ effective July 14, 

2014, U.S. Small Business Administration, available 

at http://www.sba.gov). 

amended the regulatory text to reflect 

this change. 

Comments: Commenters also 

generally supported our proposal that 

an MSP issuer who offers an MSP 

option with coverage of non-excepted 

abortion services must provide notice of 

coverage of such services to consumers. 

We proposed that MSP issuers must 

provide this notice of coverage in a 

manner consistent with 45 CFR 

147.200(a)(3) to meet the requirements 

of 45 CFR 156.280(f). Commenters 

offered a variety of suggestions on the 

form and manner of notices of coverage 

of non-excepted abortion services. 

Response: We believe adding the 

disclosure and notice requirements will 

assist consumers in making informed 

decisions about their coverage options. 

Consumers should have accurate 

information on an MSP option’s covered 

benefits, exclusions, and limitations. 

Therefore, we are finalizing this section 

as proposed, with changes to improve 

readability and clarity. 

Disclosure of Information (§ 800.603) 

OPM proposed this new section to 

clarify that OPM may use its discretion 

and authority to disclose information to 

State entities, including State 

Departments of Insurance and 

Exchanges, in order to keep such 

entities informed about the MSP 

Program and its issuers. 

Comments: Commenters expressed 

concern that the language in the new 

section gives OPM but not States 

discretion to withhold information. 

Others supported the language in the 

new section, indicating that it will assist 

States in being better primary regulators. 

Response: This section has been 

added to the rule to make it easier for 

States to obtain information from OPM 

on the MSP Program. This provision 

does not address disclosure of 

information from States to OPM, and 

therefore, this provision does not dictate 

information that a State may or may not 

withhold from OPM. We are finalizing 

this section as proposed. 

Executive Orders 13563 and 12866; 

Regulatory Review 

OPM has examined the impact of this 

proposed rule as required by Executive 

Order 12866 on Regulatory Planning 

and Review (September 30, 1993) and 

Executive Order 13563 on Improving 

Regulation and Regulatory Review 

(January 18, 2011). Executive Orders 

12866 and 13563 direct agencies to 

assess all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

must be prepared for major rules with 

economically significant effects ($100 

million or more in any 1 year adjusted 

for inflation). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action that is 

likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more in any 

one year or adversely affect in a material 

way a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal government or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlement grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. 

OPM will continue to generally 

operate the MSP Program as it 

previously had in plan year 2014. The 

regulatory changes in this final rule are 

for purposes of policy clarification, and 

any changes will have minimal impact 

on the administration of the Program. 

Administrative costs of the rule are 

generated both within OPM and by 

issuers offering MSP options. The costs 

that MSP issuers may incur are the same 

as those of QHPs, and as stated in 45 

CFR part 156, will include: 

Accreditation, network adequacy 

standards, and quality reporting. The 

costs associated with MSP certification 

offset the costs that issuers would face 

were they to be certified by the State, or 

HHS on behalf of the State, to offer 

QHPs through the Exchange. For the 

2014 plan year, there are approximately 

371,000 consumers enrolled in MSP 

options and with an estimated average 

monthly premium of $350, premiums 

collected by MSP issuers for consumers 

enrolled in MSP options are 

approximately $1.4 billion this year. 

While the overall regulation and 

Program have a significant economic 

impact, this final rule provides for no 

substantial changes to the Program and 

is not economically significant. 

We received one comment suggesting 

that the proposed rule could potentially 

have an economic impact of $100 

million or more per year. The 

commenter recommended OPM perform 

a full regulatory impact analysis. 

Based on the analysis presented in 

our proposed rule and acknowledged 

above, the economic impact of this rule 

is not expected to exceed the $100 

million threshold. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 

1995 6 requires that the U.S. Office of 

Management and Budget (OMB) 

approve all collections of information 

by a Federal agency from the public 

before they can be implemented. 

Respondents are not required to respond 

to any collection of information unless 

it displays a current valid OMB control 

number. OPM is not requiring any 

additional collections from MSP issuers 

or applicants seeking to become MSP 

issuers in this final rule. OPM continues 

to expect fewer than ten responsible 

entities to respond to all of the 

collections noted above. For that reason 

alone, the existing collections are 

exempt from the Paperwork Reduction 

Act.7

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 8

requires agencies to prepare an initial 

regulatory flexibility analysis to 

describe the impact of a rule on small 

entities, unless the head of the agency 

can certify that the rule would not have 

a significant economic impact on a 

substantial number of small entities. 

The RFA generally defines a ‘‘small 

entity’’ as—(1) A proprietary firm 

meeting the size standards of the Small 

Business Administration (SBA); (2) a 

not-for-profit organization that is not 

dominant in its field; or (3) a small 

government jurisdiction with a 

population of less than 50,000. States 

and individuals are not included in the 

definition of ‘‘small entity.’’ 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses, if a proposed rule has a 

significant impact on a substantial 

number of small entities. For purposes 

of the RFA, small entities include small 

businesses, small non-profit 

organizations, and small government 

jurisdictions. Small businesses are those 

with sizes below thresholds established 

by the SBA. With respect to most health 

insurers, the SBA size standard is $38.5 

million in annual receipts.9 Issuers 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9655 

10 79 FR 70747. 11Public Law 104–4. 

could possibly be classified in 621491 

(HMO Medical Centers) and, if this is 

the case, the SBA size standard would 

be $32.5 million or less. 

OPM does not think that small 

businesses with annual receipts less 

than $38.5 million would likely have 

sufficient economies of scale to become 

MSP issuers or be part of a group of 

MSP issuers. Similarly, while the 

Director must enter into an MSP 

Program contract with at least one nonprofit entity, OPM does not think that 

small non-profit organizations would 

likely have sufficient economies of scale 

to become MSP issuers or be part of a 

group of MSP issuers. OPM does not 

think that this final rule would have a 

significant economic impact on a 

substantial number of small businesses 

with annual receipts less than $38.5 

million, because there are only a few 

health insurance issuers that could be 

considered small businesses. Moreover, 

while the Director must enter into an 

MSP contract with at least one nonprofit entity, OPM does not think that 

this final rule would have a significant 

economic impact on a substantial 

number of small non-profit 

organizations, because few health 

insurance issuers are small non-profit 

organizations. 

OPM incorporates by reference 

previous analysis by HHS, which 

provides some insight into the number 

of health insurance issuers that could be 

small entities. Based on HHS data from 

Medical Loss Ratio (MLR) annual report 

submissions for the 2013 MLR reporting 

year, approximately 141 out of 500 

issuers of health insurance coverage 

nationwide had total premium revenues 

of $38.5 million or less.10 HHS estimates 

this data may overstate the actual 

number of small health insurance 

companies, since 77 percent of these 

small companies belong to larger 

holding groups, and many if not all of 

these small companies are likely to have 

non-health lines of business that would 

result in their revenues exceeding $38.5 

million. OPM concurs with this HHS 

analysis, and, thus, does not think that 

this final rule would have a significant 

economic impact on a substantial 

number of small entities. 

Based on the foregoing, OPM is not 

preparing an analysis for the RFA 

because OPM has determined, and the 

Director certifies, that this final rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

Unfunded Mandates 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

(UMRA) 11 requires that agencies assess 

anticipated costs and benefits, and take 

certain other actions before issuing a 

final rule that includes any Federal 

mandate that may result in expenditures 

in any one year by a State, local, or 

tribal governments, in the aggregate, or 

by the private sector, of $100 million in 

1995 dollars, updated annually for 

inflation. In 2015, that threshold is 

approximately $154 million. UMRA 

does not address the total cost of a rule. 

Rather, it focuses on certain categories 

of costs, mainly those ‘‘Federal 

mandate’’ costs resulting from: (1) 

Imposing enforceable duties on State, 

local, or tribal governments, or on the 

private sector; or (2) increasing the 

stringency of conditions in, or 

decreasing the funding of, State, local, 

or tribal governments under entitlement 

programs. 

This final rule does not place any 

Federal mandates on State, local, or 

Tribal governments, or on the private 

sector. This final rule would modify the 

MSP Program, a voluntary Federal 

program that provides health insurance 

issuers the opportunity to contract with 

OPM to offer MSP options on the 

Exchanges. Section 3 of UMRA excludes 

from the definition of ‘‘Federal 

mandate’’ duties that arise from 

participation in a voluntary Federal 

program. Accordingly, no analysis 

under UMRA is required. 

Federalism 

Executive Order 13132 outlines 

fundamental principles of federalism, 

and requires the adherence to specific 

criteria by Federal agencies in the 

process of their formulation and 

implementation of policies that have 

‘‘substantial direct effects’’ on the 

States, the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among the various 

levels of government. Federal agencies 

promulgating regulations that have 

these federalism implications must 

consult with State and local officials, 

and describe the extent of their 

consultation and the nature of the 

concerns of State and local officials in 

the preamble to the regulation. 

This final rule has federalism 

implications because it has direct effects 

on the States, the relationship between 

the national government and States, or 

on the distribution of power and 

responsibilities among various levels of 

government. However, these sections of 

the regulation were not modified. 

In compliance with the requirement 

of Executive Order 13132 that agencies 

examine closely any policies that may 

have federalism implications or limit 

the policy making discretion of the 

States, OPM has engaged in efforts to 

consult with and work cooperatively 

with affected State and local officials, 

including attending meetings of the 

NAIC and consulting with State 

insurance officials on an individual 

basis. It is expected OPM will continue 

to act in a similar fashion in enforcing 

the Affordable Care Act requirements. 

Throughout the process of 

administering the MSP Program and 

developing this final regulation, OPM 

has attempted to balance the States’ 

interests in regulating health insurance 

issuers, and the statutory requirement to 

provide two MSP options in all 

Exchanges in the each States and the 

District of Columbia. By doing so, it is 

OPM’s view that it has complied with 

the requirements of Executive Order 

13132. 

Pursuant to the requirements set forth 

in section 8(a) of Executive Order 

13132, and by the signature affixed to 

this final regulation, OPM certifies that 

it has complied with the requirements 

of Executive Order 13132 for the 

attached regulation in a meaningful and 

timely manner. 

Congressional Review Act 

This final rule is subject to the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.), which specifies that 

before a rule can take effect, the Federal 

agency promulgating the rule must 

submit to each House of Congress and 

to the Comptroller General a report 

containing a copy of the rule along with 

other specified information. In 

accordance with this requirement, OPM 

has transmitted this rule to Congress 

and the Comptroller General for review. 

List of Subjects in 5 CFR Part 800 

Administrative practice and 

procedure, Health care, Health 

insurance, Reporting and recordkeeping 

requirements. 

Office of Personnel Management. 

Katherine Archuleta, 

Director. 

Accordingly, the U.S. Office of 

Personnel Management is republishing 

part 800 to title 45, Code of Federal 

Regulations, as follows: 


tkelley on DSK3SPTVN1PROD with RULES
9656 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

PART 800—MULTI-STATE PLAN 

PROGRAM 

Subpart A—General Provisions and 

Definitions 

Sec. 

800.10 Basis and scope. 

800.20 Definitions. 

Subpart B—Multi-State Plan Program Issuer 

Requirements 

800.101 General requirements. 

800.102 Compliance with Federal law. 

800.103 Authority to contract with issuers. 

800.104 Phased expansion, etc. 

800.105 Benefits. 

800.106 Cost-sharing limits, advance 

payments of premium tax credits, and 

cost-sharing reductions. 

800.107 Levels of coverage. 

800.108 Assessments and user fees. 

800.109 Network adequacy. 

800.110 Service area. 

800.111 Accreditation requirement. 

800.112 Reporting requirements. 

800.113 Benefit plan material or 

information. 

800.114 Compliance with applicable State 

law. 

800.115 Level playing field. 

800.116 Process for dispute resolution. 

Subpart C—Premiums Rating Factors, 

Medical Loss Ratios, and Risk Adjustment 

800.201 General requirements. 

800.202 Rating factors. 

800.203 Medical loss ratio. 

800.204 Reinsurance, risk corridors, and 

risk adjustment. 

Subpart D—Application and Contracting 

Procedures 

800.301 Application process. 

800.302 Review of applications. 

800.303 MSP Program contracting. 

800.304 Term of the contract. 

800.305 Contract renewal process. 

800.306 Nonrenewal. 

Subpart E—Compliance 

800.401 Contract performance. 

800.402 Contract quality assurance. 

800.403 Fraud and abuse. 

800.404 Compliance actions. 

800.405 Reconsideration of compliance 

actions. 

Subpart F—Appeals by Enrollees of Denials 

of Claims for Payment or Service 

800.501 General requirements. 

800.502 MSP issuer internal claims and 

appeals. 

800.503 External review. 

800.504 Judicial review. 

Subpart G—Miscellaneous 

800.601 Reservation of authority. 

800.602 Consumer choice with respect to 

certain services. 

800.603 Disclosure of information. 

Authority: Sec. 1334 of Pub. L. 111–148, 

124 Stat. 119; Pub. L. 111–152, 124 Stat. 1029 

(42 U.S.C. 18054). 

Subpart A—General Provisions and 

Definitions 

§ 800.10 Basis and scope. 

(a) Basis. This part is based on the 

following sections of title I of the 

Affordable Care Act: 

(1) 1001. Amendments to the Public 

Health Service Act. 

(2) 1302. Essential Health Benefits 

Requirements. 

(3) 1311. Affordable Choices of Health 

Benefit Plans. 

(4) 1324. Level Playing Field. 

(5) 1334. Multi-State Plans. 

(6) 1341. Transitional Reinsurance 

Program for Individual Market in Each 

State. 

(7) 1342. Establishment of Risk 

Corridors for Plans in Individual and 

Small Group Markets. 

(8) 1343. Risk Adjustment. 

(b) Scope. This part establishes 

standards for health insurance issuers to 

contract with the United States Office of 

Personnel Management (OPM) to offer 

Multi-State Plan (MSP) options to 

provide health insurance coverage on 

Exchanges for each State. It also 

establishes standards for appeal of a 

decision by OPM affecting the issuer’s 

participation in the MSP Program and 

standards for an enrollee in an MSP 

option to appeal denials of payment or 

services by an MSP issuer. 

§ 800.20 Definitions. 

For purposes of this part: 

Actuarial value (AV) has the meaning 

given that term in 45 CFR 156.20. 

Affordable Care Act means the Patient 

Protection and Affordable Care Act 

(Pub. L. 111–148), as amended by the 

Health Care and Education 

Reconciliation Act of 2010 (Pub. L. 111– 

152). 

Applicant means an issuer or group of 

issuers that has submitted an 

application to OPM to be considered for 

participation in the Multi-State Plan 

Program. 

Benefit plan material or information 

means explanations or descriptions, 

whether printed or electronic, that 

describe a health insurance issuer’s 

products. The term does not include a 

policy or contract for health insurance 

coverage. 

Cost sharing has the meaning given 

that term in 45 CFR 155.20. 

Director means the Director of the 

United States Office of Personnel 

Management. 

EHB-benchmark plan has the meaning 

given that term in 45 CFR 156.20. 

Exchange means a governmental 

agency or non-profit entity that meets 

the applicable requirements of 45 CFR 

part 155 and makes qualified health 

plans (QHPs) and MSP options available 

to qualified individuals and qualified 

employers. Unless otherwise identified, 

this term refers to State Exchanges, 

regional Exchanges, subsidiary 

Exchanges, and a Federally-facilitated 

Exchange. 

Federal Employees Health Benefits 

Program or FEHB Program means the 

health benefits program administered by 

the United States Office of Personnel 

Management pursuant to chapter 89 of 

title 5, United States Code. 

Group of issuers means: 

(1) A group of health insurance 

issuers that are affiliated either by 

common ownership and control or by 

common use of a nationally licensed 

service mark (as defined in this section); 

or 

(2) An affiliation of health insurance 

issuers and an entity that is not an 

issuer but that owns a nationally 

licensed service mark (as defined in this 

section). 

Health insurance coverage means 

benefits consisting of medical care 

(provided directly, through insurance or 

reimbursement, or otherwise) under any 

hospital or medical service policy or 

certificate, hospital or medical service 

plan contract, or health maintenance 

organization contract offered by a health 

insurance issuer. Health insurance 

coverage includes group health 

insurance coverage, individual health 

insurance coverage, and short-term, 

limited duration insurance. 

Health insurance issuer or issuer 

means an insurance company, insurance 

service, or insurance organization 

(including a health maintenance 

organization) that is required to be 

licensed to engage in the business of 

insurance in a State and that is subject 

to State law that regulates insurance 

(within the meaning of section 514(b)(2) 

of the Employee Retirement Income 

Security Act (ERISA)). This term does 

not include a group health plan as 

defined in 45 CFR 146.145(a). 

HHS means the United States 

Department of Health and Human 

Services. 

Level of coverage means one of four 

standardized actuarial values of plan 

coverage as defined by section 

1302(d)(1) of the Affordable Care Act. 

Licensure means the authorization 

obtained from the appropriate State 

official or regulatory authority to offer 

health insurance coverage in the State. 

Multi-State Plan Program issuer or 

MSP issuer means a health insurance 

issuer or group of issuers (as defined in 

this section) that has a contract with 

OPM to offer health plans pursuant to 

section 1334 of the Affordable Care Act 

and meets the requirements of this part. 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9657 

Multi-State Plan option or MSP option 

means a discrete pairing of a package of 

benefits with particular cost sharing 

(which does not include premium rates 

or premium rate quotes) that is offered 

pursuant to a contract with OPM 

pursuant to section 1334 of the 

Affordable Care Act and meets the 

requirements of 45 CFR part 800. 

Multi-State Plan Program or MSP 

Program means the program 

administered by OPM pursuant to 

section 1334 of the Affordable Care Act. 

Nationally licensed service mark 

means a word, name, symbol, or device, 

or any combination thereof, that an 

issuer or group of issuers uses 

consistently nationwide to identify 

itself. 

Non-profit entity means: 

(1) An organization that is 

incorporated under State law as a nonprofit entity and licensed under State 

law as a health insurance issuer; or 

(2) A group of health insurance 

issuers licensed under State law, a 

substantial portion of which are 

incorporated under State law as nonprofit entities. 

OPM means the United States Office 

of Personnel Management. 

Percentage of total allowed cost of 

benefits has the meaning given that term 

in 45 CFR 156.20. 

Plan year means a consecutive 12- 

month period during which a health 

plan provides coverage for health 

benefits. A plan year may be a calendar 

year or otherwise. 

Prompt payment means a requirement 

imposed on a health insurance issuer to 

pay a provider or enrollee for a claimed 

benefit or service within a defined time 

period, including the penalty or 

consequence imposed on the issuer for 

failure to meet the requirement. 

Qualified Health Plan or QHP means 

a health plan that has in effect a 

certification that it meets the standards 

described in subpart C of 45 CFR part 

156 issued or recognized by each 

Exchange through which such plan is 

offered pursuant to the process 

described in subpart K of 45 CFR part 

155. 

Rating means the process, including 

rating factors, numbers, formulas, 

methodologies, and actuarial 

assumptions, used to set premiums for 

a health plan. 

Secretary means the Secretary of the 

Department of Health and Human 

Services. 

SHOP means a Small Business Health 

Options Program operated by an 

Exchange through which a qualified 

employer can provide its employees and 

their dependents with access to one or 

more qualified health plans (QHPs). 

Silver plan variation has the meaning 

given that term in 45 CFR 156.400. 

Small employer means, in connection 

with a group health plan with respect to 

a calendar year and a plan year, an 

employer who employed an average of 

at least one but not more than 100 

employees on business days during the 

preceding calendar year and who 

employs at least one employee on the 

first day of the plan year. In the case of 

plan years beginning before January 1, 

2016, a State may elect to define small 

employer by substituting ‘‘50 

employees’’ for ‘‘100 employees.’’ 

Standard plan has the meaning given 

that term in 45 CFR 156.400. 

State Insurance Commissioner means 

the commissioner or other chief 

insurance regulatory official of a State. 

State means each of the 50 States or 

the District of Columbia. 

State-level issuer means a health 

insurance issuer designated by the 

Multi-State Plan (MSP) issuer to offer an 

MSP option or MSP options. The Statelevel issuer may offer health insurance 

coverage through an MSP option in all 

or part of one or more States. 

Subpart B—Multi-State Plan Program 

Issuer Requirements 

§ 800.101 General requirements. 

An MSP issuer must: 

(a) Licensed. Be licensed as a health 

insurance issuer in each State where it 

offers health insurance coverage; 

(b) Contract with OPM. Have a 

contract with OPM pursuant to this part; 

(c) Required levels of coverage. Offer 

levels of coverage as required by 

§ 800.107 of this part; 

(d) Eligibility and enrollment. MSP 

options and MSP issuers must meet the 

same requirements for eligibility, 

enrollment, and termination of coverage 

as those that apply to QHPs and QHP 

issuers pursuant to 45 CFR part 155, 

subparts D, E, and H, and 45 CFR 

156.250, 156.260, 156.265, 156.270, and 

156.285; 

(e) Applicable to each MSP issuer. 

Ensure that each of its MSP options 

meets the requirements of this part; 

(f) Compliance. Comply with all 

standards set forth in this part; 

(g) OPM direction and other legal 

requirements. Timely comply with OPM 

instructions and directions and with 

other applicable law; and 

(h) Other requirements. Meet such 

other requirements as determined 

appropriate by OPM, in consultation 

with HHS, pursuant to section 

1334(b)(4) of the Affordable Care Act. 

(i) Non-discrimination. MSP options 

and MSP issuers must comply with 

applicable Federal and State nondiscrimination laws, including the 

standards set forth in 45 CFR 156.125 

and 156.200(e). 

§ 800.102 Compliance with Federal law. 

(a) Public Health Service Act. As a 

condition of participation in the MSP 

Program, an MSP issuer must comply 

with applicable provisions of part A of 

title XXVII of the PHS Act. Compliance 

shall be determined by the Director. 

(b) Affordable Care Act. As a 

condition of participation in the MSP 

Program, an MSP issuer must comply 

with applicable provisions of title I of 

the Affordable Care Act. Compliance 

shall be determined by the Director. 

§ 800.103 Authority to contract with 

issuers. 

(a) General. OPM may enter into 

contracts with health insurance issuers 

to offer at least two MSP options on 

Exchanges and SHOPs in each State, 

without regard to any statutes that 

would otherwise require competitive 

bidding. 

(b) Non-profit entity. In entering into 

contracts with health insurance issuers 

to offer MSP options, OPM will enter 

into a contract with at least one nonprofit entity as defined in § 800.20 of 

this part. 

(c) Group of issuers. Any contract to 

offer MSP options may be with a group 

of issuers as defined in § 800.20 of this 

part. 

(d) Individual and group coverage. 

The contracts will provide for 

individual health insurance coverage 

and for group health insurance coverage 

for small employers. 

§ 800.104 Phased expansion, etc. 

(a) Phase-in. OPM may enter into a 

contract with a health insurance issuer 

to offer MSP options if the health 

insurance issuer agrees that: 

(1) With respect to the first year for 

which the health insurance issuer offers 

MSP options, the health insurance 

issuer will offer MSP options in at least 

60 percent of the States; 

(2) With respect to the second such 

year, the health insurance issuer will 

offer the MSP options in at least 70 

percent of the States; 

(3) With respect to the third such 

year, the health insurance issuer will 

offer the MSP options in at least 85 

percent of the States; and 

(4) With respect to each subsequent 

year, the health insurance issuer will 

offer the MSP options in all States. 

(b) Partial coverage within a State. (1) 

OPM may enter into a contract with an 

MSP issuer even if the MSP issuer’s 

MSP options for a State cover fewer 

than all the service areas specified for 


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that State pursuant to § 800.110 of this 

part. 

(2) If an issuer offers both an MSP 

option and QHP on the same Exchange, 

an MSP issuer must offer MSP coverage 

in a service area or areas that is equal 

to the greater of: 

(i) The QHP service area defined by 

the issuer or, 

(ii) The service area specified for that 

State pursuant to § 800.110 of this part 

covered by the issuer’s QHP. 

(c) Participation in SHOPs. (1) An 

MSP issuer’s participation in a 

Federally-facilitated SHOP must be 

consistent with the requirements for 

QHP issuers specified in 45 CFR 

156.200(g). 

(2) An MSP issuer must comply with 

State standards governing participation 

in a State-based SHOP, consistent with 

§ 800.114. For these State-based SHOP 

standards, OPM retains discretion to 

allow an MSP issuer to phase-in SHOP 

participation in States pursuant to 

section 1334(e) of the Affordable Care 

Act. 

(d) Licensed where offered. OPM may 

enter into a contract with an MSP issuer 

who is not licensed in every State, 

provided that the issuer is licensed in 

every State where it offers MSP coverage 

through any Exchanges in that State and 

demonstrates to OPM that it is making 

a good faith effort to become licensed in 

every State consistent with the 

timeframe in paragraph (a) of this 

section. 

§ 800.105 Benefits. 

(a) Package of benefits. (1) An MSP 

issuer must offer a package of benefits 

that includes the essential health 

benefits (EHB) described in section 1302 

of the Affordable Care Act for each MSP 

option within a State. 

(2) The package of benefits referred to 

in paragraph (a)(1) of this section must 

comply with section 1302 of the 

Affordable Care Act, as well as any 

applicable standards set by OPM and 

any applicable standards set by HHS. 

(b) Package of benefits options. (1) An 

MSP issuer must offer at least one 

uniform package of benefits in each 

State that is substantially equal to: 

(i) The EHB-benchmark plan in each 

State in which it operates; or 

(ii) Any EHB-benchmark plan selected 

by OPM under paragraph (c) of this 

section. 

(2) An issuer applying to participate 

in the MSP Program may select either or 

both of the package of benefits options 

described in paragraph (b)(1) of this 

section in its application. In each State, 

the issuer may choose one EHBbenchmark for each product it offers. 

(3) An MSP issuer must comply with 

any State standards relating to 

substitution of benchmark benefits or 

standard benefit designs. 

(c) OPM selection of benchmark 

plans. (1) The OPM-selected EHBbenchmark plans are the three largest 

Federal Employees Health Benefits 

(FEHB) Program plan options, as 

identified by HHS pursuant to section 

1302(b) of the Affordable Care Act, and 

as supplemented pursuant to paragraphs 

(c)(2) through (5) of this section. 

(2) Any EHB-benchmark plan selected 

by OPM under paragraph (c)(1) lacking 

coverage of pediatric oral services or 

pediatric vision services must be 

supplemented by the addition of the 

entire category of benefits from the 

largest Federal Employee Dental and 

Vision Insurance Program (FEDVIP) 

dental or vision plan options, 

respectively, pursuant to 45 CFR 

156.110(b) and section 1302(b) of the 

Affordable Care Act. 

(3) In all States where an MSP issuer 

uses the OPM-selected EHB-benchmark 

plan, the MSP issuer may manage 

formularies around the needs of 

anticipated or actual users, subject to 

approval by OPM. 

(4) An MSP issuer must follow the 

definition of habilitative services and 

devices as follows: 

(i) An MSP issuer must follow the 

Federal definitions where HHS 

specifically defines habilitative services 

and devices if the State does not define 

the term, if the State defines the term in 

a conflicting way, or if the State 

definition is less stringent than the 

Federal definition. 

(ii) An MSP issuer must follow State 

definitions where the State specifically 

defines the habilitative services and 

devices category pursuant to 45 CFR 

156.110(f) and the State definition is not 

in conflict with the Federal definition or 

goes above the standards set in the 

Federal definition. 

(iii) In the case of any State that does 

not define this category and absent a 

clearly applicable Federal definition, if 

any OPM-selected EHB-benchmark plan 

lacks coverage of habilitative services 

and devices, OPM may determine what 

habilitative services and devices are to 

be included in that EHB-benchmark 

plan. 

(5) Any EHB-benchmark plan selected 

by OPM under paragraph (c)(1) of this 

section must include, for each State, any 

State-required benefits enacted before 

December 31, 2011, that are included in 

the State’s EHB-benchmark plan as 

described in paragraph (b)(1)(i) of this 

section, or specific to the market in 

which the plan is offered. 

(d) OPM approval. An MSP issuer’s 

package of benefits, including its 

formulary, must be submitted for 

approval by OPM, which will review a 

package of benefits proposed by an MSP 

issuer and determine if it is 

substantially equal to an EHBbenchmark plan described in paragraph 

(b)(1) of this section, pursuant to 

standards set forth by OPM and any 

applicable standards set forth by HHS, 

including 45 CFR 156.115, 156.122, and 

156.125. 

(e) State payments for additional 

State-required benefits. If a State 

requires that benefits in addition to the 

benchmark package be offered to MSP 

enrollees in that State, then pursuant to 

section 1334(c)(2) of the Affordable Care 

Act, the State must defray the cost of 

such additional benefits by making 

payments either to the enrollee or to the 

MSP issuer on behalf of the enrollee. 

§ 800.106 Cost-sharing limits, advance 

payments of premium tax credits, and costsharing reductions. 

(a) Cost-sharing limits. For each MSP 

option it offers, an MSP issuer must 

ensure that the cost-sharing provisions 

of the MSP option comply with section 

1302(c) of the Affordable Care Act, as 

well as any applicable standards set by 

OPM or HHS. 

(b) Advance payments of premium tax 

credits and cost-sharing reductions. For 

each MSP option it offers, an MSP 

issuer must ensure that an eligible 

individual receives the benefit of 

advance payments of premium tax 

credits under section 36B of the Internal 

Revenue Code and the cost-sharing 

reductions under section 1402 of the 

Affordable Care Act. An MSP issuer 

must also comply with any applicable 

standards set by OPM or HHS. 

§ 800.107 Levels of coverage. 

(a) Silver and gold levels of coverage 

required. An MSP issuer must offer at 

least one MSP option at the silver level 

of coverage and at least one MSP option 

at the gold level of coverage on each 

Exchange in which the issuer is certified 

to offer an MSP option pursuant to a 

contract with OPM. 

(b) Bronze or platinum metal levels of 

coverage permitted. Pursuant to a 

contract with OPM, an MSP issuer may 

offer one or more MSP options at the 

bronze level of coverage or the platinum 

level of coverage, or both, on any 

Exchange or SHOP in any State. 

(c) Child-only plans. For each level of 

coverage, the MSP issuer must offer a 

child-only MSP option at the same level 

of coverage as any health insurance 

coverage offered to individuals who, as 

of the beginning of the plan year, have 

not attained the age of 21. 

(d) Plan variations for the reduction 

or elimination of cost-sharing. An MSP 


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issuer must comply with section 1402 of 

the Affordable Care Act, as well as any 

applicable standards set by OPM or 

HHS. 

(e) OPM approval. An MSP issuer 

must submit the levels of coverage plans 

and plan variations to OPM for review 

and approval by OPM. 

§ 800.108 Assessments and user fees. 

(a) Discretion to charge assessment 

and user fees. Beginning in plan year 

2015, OPM may require an MSP issuer 

to pay an assessment or user fee as a 

condition of participating in the MSP 

Program. 

(b) Determination of amount. The 

amount of the assessment or user fee 

charged by OPM for a plan year is the 

amount determined necessary by OPM 

to meet the costs of OPM’s functions 

under the Affordable Care Act for a plan 

year, including but not limited to such 

functions as entering into contracts 

with, certifying, recertifying, 

decertifying, and overseeing MSP 

options and MSP issuers for that plan 

year. The amount of the assessment or 

user fee charged by OPM will be offset 

against the assessment or user fee 

amount required by any State-based 

Exchange or federally-facilitated 

Exchange such that the total of all 

assessments and user fees paid by the 

MSP issuer for the year for the MSP 

option shall be no greater than nor less 

than the amount of the assessment or 

user fee paid by QHP issuers in that 

State-based Exchange or federallyfacilitated Exchange for that year. 

(c) Process for collecting MSP 

assessment or user fees. OPM may 

require an MSP issuer to make payment 

of the MSP Program assessment or user 

fee amount directly to OPM, or may 

establish other mechanisms for the 

collection process. 

§ 800.109 Network adequacy. 

(a) General requirement. An MSP 

issuer must ensure that the provider 

network of each of its MSP options, as 

available to all enrollees, meets the 

following standards: 

(1) Maintains a network that is 

sufficient in number and types of 

providers to assure that all services will 

be accessible without unreasonable 

delay; 

(2) Is consistent with the network 

adequacy provisions of section 2702(c) 

of the Public Health Service Act; and 

(3) Includes essential community 

providers in compliance with 45 CFR 

156.235. 

(b) Provider directory. An MSP issuer 

must make its provider directory for an 

MSP option available to the Exchange 

for publication online pursuant to 

guidance from the Exchange and to 

potential enrollees in hard copy, upon 

request. In the provider directory, an 

MSP issuer must identify providers that 

are not accepting new patients. 

(c) OPM guidance. OPM will issue 

guidance containing the criteria and 

standards that it will use to determine 

the adequacy of a provider network. 

§ 800.110 Service area. 

An MSP issuer must offer an MSP 

option within one or more service areas 

in a State defined by each Exchange 

pursuant to 45 CFR 155.1055. If an 

Exchange permits issuers to define their 

service areas, an MSP issuer must obtain 

OPM’s approval for its proposed service 

areas. Pursuant to § 800.104 of this part, 

OPM may enter into a contract with an 

MSP issuer even if the MSP issuer’s 

MSP options for a State cover fewer 

than all the service areas specified for 

that State. MSP options will follow the 

same standards for service areas for 

QHPs pursuant to 45 CFR 155.1055. 

§ 800.111 Accreditation requirement. 

(a) General requirement. An MSP 

issuer must be or become accredited 

consistent with the requirements for 

QHP issuers specified in section 1311 of 

the Affordable Care Act and 45 CFR 

156.275(a)(1). 

(b) Release of survey. An MSP issuer 

must authorize the accrediting entity 

that accredits the MSP issuer to release 

to OPM and to the Exchange a copy of 

its most recent accreditation survey, 

together with any survey-related 

information that OPM or an Exchange 

may require, such as corrective action 

plans and summaries of findings. 

(c) Timeframe for accreditation. An 

MSP issuer that is not accredited as of 

the date that it enters into a contract 

with OPM must become accredited 

within the timeframe established by 

OPM as authorized by 45 CFR 155.1045. 

§ 800.112 Reporting requirements. 

(a) OPM specification of reporting 

requirements. OPM will specify the data 

and information that must be reported 

by an MSP issuer, including data 

permitted or required by the Affordable 

Care Act and such other data as OPM 

may determine necessary for the 

oversight and administration of the MSP 

Program. OPM will also specify the 

form, manner, processes, and frequency 

for the reporting of data and 

information. The Director may require 

that MSP issuers submit claims payment 

and enrollment data to facilitate OPM’s 

oversight and administration of the MSP 

Program in a manner similar to the 

FEHB Program. 

(b) Quality and quality improvement 

standards. An MSP issuer must comply 

with any standards required by OPM for 

reporting quality and quality 

improvement activities, including but 

not limited to implementation of a 

quality improvement strategy, 

disclosure of quality measures to 

enrollees and prospective enrollees, 

reporting of pediatric quality measures, 

and implementation of rating and 

enrollee satisfaction surveys, which will 

be similar to standards under section 

1311(c)(1)(E), (H), and (I), (c)(3), and 

(c)(4) of the Affordable Care Act. 

§ 800.113 Benefit plan material or 

information. 

(a) Compliance with Federal and State 

law. An MSP issuer must comply with 

Federal and State laws relating to 

benefit plan material or information, 

including the provisions of this section 

and guidance issued by OPM specifying 

its standards, process, and timeline for 

approval of benefit plan material or 

information. 

(b) General standards for MSP 

applications and notices. An MSP 

issuer must provide all applications and 

notices to enrollees in accordance with 

the standards described in 45 CFR 

155.205(c). OPM may establish 

additional standards to meet the needs 

of MSP enrollees. 

(1) Accuracy. An MSP issuer is 

responsible for the accuracy of its 

benefit plan material or information. 

(2) Truthful, not misleading, no 

material omissions, and plain language. 

All benefit plan material or information 

must be: 

(i) Truthful, not misleading, and 

without material omissions; and 

(ii) Written in plain language, as 

defined in section 1311(e)(3)(B) of the 

Affordable Care Act. 

(3) Uniform explanation of coverage 

documents and standardized 

definitions. An MSP issuer must comply 

with the provisions of section 2715 of 

the PHS Act and regulations issued to 

implement that section. 

(4) OPM review and approval of 

benefit plan material or information. 

OPM may request an MSP issuer to 

submit to OPM benefit plan material or 

information, as defined in § 800.20. 

OPM reserves the right to review and 

approve benefit plan material or 

information to ensure that an MSP 

issuer complies with Federal and State 

laws, and the standards prescribed by 

OPM with respect to benefit plan 

material or information. 

(5) Statement on certification by OPM. 

An MSP issuer may include a statement 

in its benefit plan material or 

information that: 


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9660 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

(i) OPM has certified the MSP option 

as eligible to be offered on the 

Exchange; and 

(ii) OPM monitors the MSP option for 

compliance with all applicable law. 

§ 800.114 Compliance with applicable 

State law. 

(a) Compliance with State law. An 

MSP issuer must, with respect to each 

of its MSP options, generally comply 

with State law pursuant to section 

1334(b)(2) of the Affordable Care Act. 

However, the MSP options and MSP 

issuers are not subject to State laws that: 

(1) Are inconsistent with section 1334 

of the Affordable Care Act or this part; 

(2) Prevent the application of a 

requirement of part A of title XXVII of 

the PHS Act; or 

(3) Prevent the application of a 

requirement of title I of the Affordable 

Care Act. 

(b) Determination of inconsistency. 

After consultation with the State and 

HHS, OPM reserves the right to 

determine, in its judgment, as 

effectuated through an MSP Program 

contract, these regulations, or OPM 

guidance, whether the standards set 

forth in paragraph (a) of this section are 

satisfied with respect to particular State 

laws. 

§ 800.115 Level playing field. 

An MSP issuer must, with respect to 

each of its MSP options, meet the 

following requirements in order to 

ensure a level playing field, subject to 

§ 800.114: 

(a) Guaranteed renewal. Guarantee 

that an enrollee can renew enrollment 

in an MSP option in compliance with 

sections 2703 and 2742 of the PHS Act; 

(b) Rating. In proposing premiums for 

OPM approval, use only the rating 

factors permitted under section 2701 of 

the PHS Act and State law; 

(c) Preexisting conditions. Not impose 

any preexisting condition exclusion and 

comply with section 2704 of the PHS 

Act; 

(d) Non-discrimination. Comply with 

section 2705 of the PHS Act; 

(e) Quality improvement and 

reporting. Comply with all Federal and 

State quality improvement and 

reporting requirements. Quality 

improvement and reporting means 

quality improvement as defined in 

section 1311(h) of the Affordable Care 

Act and quality improvement plans or 

strategies required under State law, and 

quality reporting as defined in section 

2717 of the PHS Act and section 1311(g) 

of the Affordable Care Act. Quality 

improvement also includes activities 

such as, but not limited to, 

implementation of a quality 

improvement strategy, disclosure of 

quality measures to enrollees and 

prospective enrollees, and reporting of 

pediatric quality measures, which will 

be similar to standards under section 

1311(c)(1)(E), (H), and (I) of the 

Affordable Care Act; 

(f) Fraud and abuse. Comply with all 

Federal and State fraud and abuse laws; 

(g) Licensure. Be licensed in every 

State in which it offers an MSP option; 

(h) Solvency and financial 

requirements. Comply with the solvency 

standards set by each State in which it 

offers an MSP option; 

(i) Market conduct. Comply with the 

market conduct standards of each State 

in which it offers an MSP option; 

(j) Prompt payment. Comply with 

applicable State law in negotiating the 

terms of payment in contracts with its 

providers and in making payments to 

claimants and providers; 

(k) Appeals and grievances. Comply 

with Federal standards under section 

2719 of the PHS Act for appeals and 

grievances relating to adverse benefit 

determinations, as described in subpart 

F of this part; 

(l) Privacy and confidentiality. 

Comply with all Federal and State 

privacy and security laws and 

requirements, including any standards 

required by OPM in guidance or 

contract, which will be similar to the 

standards contained in 45 CFR part 164 

and applicable State law; and 

(m) Benefit plan material or 

information. Comply with Federal and 

State law, including § 800.113 of this 

part. 

§ 800.116 Process for dispute resolution. 

(a) Determinations about applicability 

of State law under section 1334(b)(2) of 

the Affordable Care Act. In the event of 

a dispute about the applicability to an 

MSP option or MSP issuer of a State 

law, the State may request that OPM 

reconsider a determination that an MSP 

option or MSP issuer is not subject to 

such State law. 

(b) Required demonstration. A State 

making a request under paragraph (a) of 

this section must demonstrate that the 

State law at issue: 

(1) Is not inconsistent with section 

1334 of the Affordable Care Act or this 

part; 

(2) Does not prevent the application of 

a requirement of part A of title XXVII of 

the PHS Act; and 

(3) Does not prevent the application of 

a requirement of title I of the Affordable 

Care Act. 

(c) Request for review. The request 

must be in writing and include contact 

information, including the name, 

telephone number, email address, and 

mailing address of the person or persons 

whom OPM may contact regarding the 

request for review. The request must be 

in such form, contain such information, 

and be submitted in such manner and 

within such timeframe as OPM may 

prescribe. 

(1) The requester may submit to OPM 

any relevant information to support its 

request. 

(2) OPM may obtain additional 

information relevant to the request from 

any source as it may, in its judgment, 

deem necessary. OPM will provide the 

requester with a copy of any additional 

information it obtains and provide an 

opportunity for the requester to respond 

(including by submission of additional 

information or explanation). 

(3) OPM will issue a written decision 

within 60 calendar days after receiving 

the written request, or after the due date 

for a response under paragraph (c)(2) of 

this section, whichever is later, unless a 

different timeframe is agreed upon. 

(4) OPM’s written decision will 

constitute final agency action that is 

subject to review under the 

Administrative Procedure Act in the 

appropriate U.S. district court. Such 

review is limited to the record that was 

before OPM when OPM made its 

decision. 

Subpart C—Premiums, Rating Factors, 

Medical Loss Ratios, and Risk 

Adjustment 

§ 800.201 General requirements. 

(a) Premium negotiation. OPM will 

negotiate annually with an MSP issuer, 

on a State by State basis, the premiums 

for each MSP option offered by that 

issuer in that State. Such negotiations 

may include negotiations about the costsharing provisions of an MSP option. 

(b) Duration. Premiums will remain in 

effect for the plan year. 

(c) Guidance on rate development. 

OPM will issue guidance addressing 

methods for the development of 

premiums for the MSP Program. That 

guidance will follow State rating 

standards generally applicable in a 

State, to the greatest extent practicable. 

(d) Calculation of actuarial value. An 

MSP issuer must calculate actuarial 

value in the same manner as QHP 

issuers under section 1302(d) of the 

Affordable Care Act, as well as any 

applicable standards set by OPM or 

HHS. 

(e) OPM rate review process. An MSP 

issuer must participate in the rate 

review process established by OPM to 

negotiate rates for MSP options. The rate 

review process established by OPM will 

be similar to the process established by 

HHS pursuant to section 2794 of the 


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PHS Act and disclosure and review 

standards established under 45 CFR part 

154. 

(f) State effective rate review. With 

respect to its MSP options, an MSP 

issuer is subject to a State’s rate review 

process, including a State’s Effective 

Rate Review Program established by 

HHS pursuant to section 2794 of the 

PHS Act and 45 CFR part 154. In the 

event HHS is reviewing rates for a State 

pursuant to section 2794 of the PHS Act, 

HHS will defer to OPM’s judgment 

regarding the MSP options’ proposed 

rate increase. If a State withholds 

approval of an MSP option and OPM 

determines, in its discretion, that the 

State’s action would prevent OPM from 

administrating the MSP Program, OPM 

retains authority to make the final 

decision to approve rates for 

participation in the MSP Program, 

notwithstanding the absence of State 

approval. 

(g) Single risk pool. An MSP issuer 

must consider all enrollees in an MSP 

option to be in the same risk pool as all 

enrollees in all other health plans in the 

individual market or the small group 

market, respectively, in compliance 

with section 1312(c) of the Affordable 

Care Act, 45 CFR 156.80, and any 

applicable Federal or State laws and 

regulations implementing that section. 

§ 800.202 Rating factors. 

(a) Permissible rating factors. In 

proposing premiums for each MSP 

option, an MSP issuer must use only the 

rating factors permitted under section 

2701 of the PHS Act. 

(b) Application of variations based on 

age or tobacco use. Rating variations 

permitted under section 2701 of the 

PHS Act must be applied by an MSP 

issuer based on the portion of the 

premium attributable to each family 

member covered under the coverage in 

accordance with any applicable Federal 

or State laws and regulations 

implementing section 2701(a) of the 

PHS Act. 

(c) Age rating. For age rating, an MSP 

issuer must use the ratio established by 

the State in which the MSP option is 

offered, if it is less than 3:1. 

(1) Age bands. An MSP issuer must 

use the uniform age bands established 

under HHS regulations implementing 

section 2701(a) of the PHS Act. 

(2) Age curves. An MSP issuer must 

use the age curves established under 

HHS regulations implementing section 

2701(a) of the PHS Act, or age curves 

established by a State pursuant to HHS 

regulations. 

(d) Rating areas. An MSP issuer must 

use the rating areas appropriate to the 

State in which the MSP option is offered 

and established under HHS regulations 

implementing section 2701(a) of the 

PHS Act. 

(e) Tobacco rating. An MSP issuer 

must apply tobacco use as a rating factor 

in accordance with any applicable 

Federal or State laws and regulations 

implementing section 2701(a) of the 

PHS Act. 

(f) Wellness programs. An MSP issuer 

must comply with any applicable 

Federal or State laws and regulations 

implementing section 2705 of the PHS 

Act. 

§ 800.203 Medical loss ratio. 

(a) Required medical loss ratio. An 

MSP issuer must attain: 

(1) The medical loss ratio (MLR) 

required under section 2718 of the PHS 

Act and regulations promulgated by 

HHS; and 

(2) Any MSP-specific MLR that OPM 

may set in the best interests of MSP 

enrollees or that is necessary to be 

consistent with a State’s requirements 

with respect to MLR. 

(b) Consequences of not attaining 

required medical loss ratio. If an MSP 

issuer fails to attain an MLR set forth in 

paragraph (a) of this section, OPM may 

take any appropriate action, including 

but not limited to intermediate 

sanctions, such as suspension of 

marketing, decertifying an MSP option 

in one or more States, or terminating an 

MSP issuer’s contract pursuant to 

§ 800.404 of this part. 

§ 800.204 Reinsurance, risk corridors, and 

risk adjustment. 

(a) Transitional reinsurance program. 

An MSP issuer must comply with 

section 1341 of the Affordable Care Act, 

45 CFR part 153, and any applicable 

Federal or State regulations under 

section 1341 that set forth requirements 

to implement the transitional 

reinsurance program for the individual 

market. 

(b) Temporary risk corridors program. 

An MSP issuer must comply with 

section 1342 of the Affordable Care Act, 

45 CFR part 153, and any applicable 

Federal regulations under section 1342 

that set forth requirements to implement 

the risk corridor program. 

(c) Risk adjustment program. An MSP 

issuer must comply with section 1343 of 

the Affordable Care Act, 45 CFR part 

153, and any applicable Federal or State 

regulations under section 1343 that set 

forth requirements to implement the 

risk adjustment program. 

Subpart D—Application and 

Contracting Procedures 

§ 800.301 Application process. 

(a) Acceptance of applications. 

Without regard to 41 U.S.C. 6101(b)–(d), 

or any other statute requiring 

competitive bidding, OPM may consider 

annual applications from health 

insurance issuers, including groups of 

health insurance issuers as defined in 

§ 800.20, to participate in the MSP 

Program. If OPM determines that it is 

not beneficial for the MSP Program to 

consider new issuer applications for an 

upcoming year, OPM will issue a notice 

to that effect. Each existing MSP issuer 

may complete a renewal application 

annually. 

(b) Form and manner of applications. 

An applicant must submit to OPM, in 

the form and manner and in accordance 

with the timeline specified by OPM, the 

information requested by OPM for 

determining whether an applicant meets 

the requirements of this part. 

§ 800.302 Review of applications. 

(a) Determinations. OPM will 

determine if an applicant meets the 

requirements of this part. If OPM 

determines that an applicant meets the 

requirements of this part, OPM may 

accept the applicant to enter into 

contract negotiations with OPM to 

participate in the MSP Program. 

(b) Requests for additional 

information. OPM may request 

additional information from an 

applicant before making a decision 

about whether to enter into contract 

negotiations with that applicant to 

participate in the MSP Program. 

(c) Declination of application. If, after 

reviewing an application to participate 

in the MSP Program, OPM declines to 

enter into contract negotiations with the 

applicant, OPM will inform the 

applicant in writing of the reasons for 

that decision. 

(d) Discretion. The decision whether 

to enter into contract negotiations with 

a health insurance issuer who has 

applied to participate in the MSP 

Program is committed to OPM’s 

discretion. 

(e) Impact on future applications. 

OPM’s declination of an application to 

participate in the MSP Program will not 

preclude the applicant from submitting 

an application for a subsequent year to 

participate in the MSP Program. 

§ 800.303 MSP Program contracting. 

(a) Participation in MSP Program. To 

become an MSP issuer, the applicant 

and the Director or the Director’s 

designee must sign a contract that meets 

the requirements of this part. 


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(b) Standard contract. OPM will 

establish a standard contract for the 

MSP Program. 

(c) Premiums. OPM and the applicant 

will negotiate the premiums for an MSP 

option for each plan year in accordance 

with the provisions of subpart C of this 

part. 

(d) Package of benefits. OPM must 

approve the applicant’s package of 

benefits for its MSP option. 

(e) Additional terms and conditions. 

OPM may elect to negotiate with an 

applicant such additional terms, 

conditions, and requirements that: 

(1) Are in the interests of MSP 

enrollees; or 

(2) OPM determines to be appropriate. 

(f) Certification to offer health 

insurance coverage. 

(1) For each plan year, an MSP 

Program contract will specify MSP 

options that OPM has certified, the 

specific package(s) of benefits 

authorized to be offered on each 

Exchange, and the premiums to be 

charged for each package of benefits on 

each Exchange. 

(2) An MSP issuer may not offer an 

MSP option on an Exchange unless its 

MSP Program contract with OPM 

includes a certification authorizing the 

MSP issuer to offer the MSP option on 

that Exchange in accordance with 

paragraph (f)(1) of this section. 

§ 800.304 Term of the contract. 

(a) Term of a contract. The term of the 

contract will be specified in the MSP 

Program contract and must be for a 

period of at least the 12 consecutive 

months defined as the plan year. 

(b) Plan year. The plan year is a 

consecutive 12-month period during 

which an MSP option provides coverage 

for health benefits. A plan year may be 

a calendar year or otherwise. 

§ 800.305 Contract renewal process. 

(a) Renewal. To continue participating 

in the MSP Program, an MSP issuer 

must provide to OPM, in the form and 

manner and in accordance with the 

timeline prescribed by OPM, the 

information requested by OPM for 

determining whether the MSP issuer 

continues to meet the requirements of 

this part. 

(b) OPM decision. Subject to 

paragraph (c) of this section, OPM will 

renew the MSP Program contract of an 

MSP issuer who timely submits the 

information described in paragraph (a). 

(c) OPM discretion not to renew. OPM 

may decline to renew the contract of an 

MSP issuer if: 

(1) OPM and the MSP issuer fail to 

agree on premiums and benefits for an 

MSP option for the subsequent plan 

year; 

(2) The MSP issuer has engaged in 

conduct described in § 800.404(a) of this 

part; or 

(3) OPM determines that the MSP 

issuer will be unable to comply with a 

material provision of section 1334 of the 

Affordable Care Act or this part. 

(d) Failure to agree on premiums and 

benefits. Except as otherwise provided 

in this part, if an MSP issuer has 

complied with paragraph (a) of this 

section and OPM and the MSP issuer 

fail to agree on premiums and benefits 

for an MSP option on one or more 

Exchanges for the subsequent plan year 

by the date required by OPM, either 

party may provide notice of nonrenewal 

pursuant to § 800.306 of this part, or 

OPM may in its discretion withdraw the 

certification of that MSP option on the 

Exchange or Exchanges for that plan 

year. In addition, if OPM and the MSP 

issuer fail to agree on benefits and 

premiums for an MSP option on one or 

more Exchanges by the date set by OPM 

and in the event of no action (no notice 

of nonrenewal or renewal) by either 

party, the MSP Program contract will be 

renewed and the existing premiums and 

benefits for that MSP option on that 

Exchange or Exchanges will remain in 

effect for the subsequent plan year. 

§ 800.306 Nonrenewal. 

(a) Nonrenewal. Nonrenewal may 

pertain to the MSP issuer or the Statelevel issuer. The circumstances under 

which nonrenewal may occur are: 

(1) Nonrenewal of contract. As used 

in this subpart and subpart E of this 

part, ‘‘nonrenewal of contract’’ means a 

decision by either OPM or an MSP 

issuer not to renew an MSP Program 

contract. 

(2) Nonrenewal of participation. As 

used in this subpart and subpart E of 

this part, ‘‘nonrenewal of participation’’ 

means a decision by OPM, an MSP 

issuer, or a State-level issuer not to 

renew a State-level issuer’s participation 

in a MSP Program contract. 

(b) Notice required. Either OPM or an 

MSP issuer may decline to renew an 

MSP Program contract by providing a 

written notice of nonrenewal to the 

other party. 

(c) MSP issuer responsibilities. The 

MSP issuer’s written notice of 

nonrenewal must be made in 

accordance with its MSP Program 

contract with OPM. The MSP issuer also 

must comply with any requirements 

regarding the termination of a plan that 

are applicable to a QHP offered on an 

Exchange on which the MSP option was 

offered, including a requirement to 

provide advance written notice of 

termination to enrollees. MSP issuers 

shall provide written notice to enrollees 

in accordance with § 800.404(d). 

Subpart E—Compliance 

§ 800.401 Contract performance. 

(a) General. An MSP issuer must 

perform an MSP Program contract with 

OPM in accordance with the 

requirements of section 1334 of the 

Affordable Care Act and this part. The 

MSP issuer must continue to meet such 

requirements while under an MSP 

Program contract with OPM. 

(b) Specific requirements for issuers. 

In addition to the requirements 

described in paragraph (a) of this 

section, each MSP issuer must: 

(1) Have, in the judgment of OPM, the 

financial resources to carry out its 

obligations under the MSP Program; 

(2) Keep such reasonable financial 

and statistical records, and furnish to 

OPM such reasonable financial and 

statistical reports with respect to the 

MSP option or the MSP issuer, as may 

be requested by OPM; 

(3) Permit representatives of OPM 

(including the OPM Office of Inspector 

General), the U.S. Government 

Accountability Office, and any other 

applicable Federal Government auditing 

entities to audit and examine its records 

and accounts that pertain, directly or 

indirectly, to the MSP option at such 

reasonable times and places as may be 

designated by OPM or the U.S. 

Government Accountability Office; 

(4) Timely submit to OPM a properly 

completed and signed novation or 

change-of-name agreement in 

accordance with subpart 42.12 of 48 

CFR part 42; 

(5) Perform the MSP Program contract 

in accordance with prudent business 

practices, as described in paragraph (c) 

of this section; and 

(6) Not perform the MSP Program 

contract in accordance with poor 

business practices, as described in 

paragraph (d) of this section. 

(c) Prudent business practices. OPM 

will consider an MSP issuer’s specific 

circumstances and facts in using its 

discretion to determine compliance 

with paragraph (b)(5) of this section. For 

purposes of paragraph (b)(5) of this 

section, prudent business practices 

include, but are not limited to, the 

following: 

(1) Timely compliance with OPM 

instructions and directives; 

(2) Legal and ethical business and 

health care practices; 

(3) Compliance with the terms of the 

MSP Program contract, regulations, and 

statutes; 

(4) Timely and accurate adjudication 

of claims or rendering of medical 

services; 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9663 

(5) Operating a system for accounting 

for costs incurred under the MSP 

Program contract, which includes 

segregating and pricing MSP option 

medical utilization and allocating 

indirect and administrative costs in a 

reasonable and equitable manner; 

(6) Maintaining accurate accounting 

reports of costs incurred in the 

administration of the MSP Program 

contract; 

(7) Applying performance standards 

for assuring contract quality as outlined 

at § 800.402; and 

(8) Establishing and maintaining a 

system of internal controls that provides 

reasonable assurance that: 

(i) The provision and payments of 

benefits and other expenses comply 

with legal, regulatory, and contractual 

guidelines; 

(ii) MSP funds, property, and other 

assets are safeguarded against waste, 

loss, unauthorized use, or 

misappropriation; and 

(iii) Data is accurately and fairly 

disclosed in all reports required by 

OPM. 

(d) Poor business practices. OPM will 

consider an MSP issuer’s specific 

circumstances and facts in using its 

discretion to determine compliance 

with paragraph (b)(6) of this section. For 

purposes of paragraph (b)(6) of this 

section, poor business practices include, 

but are not limited to, the following: 

(1) Using fraudulent or unethical 

business or health care practices or 

otherwise displaying a lack of business 

integrity or honesty; 

(2) Repeatedly or knowingly 

providing false or misleading 

information in the rate setting process; 

(3) Failing to comply with OPM 

instructions and directives; 

(4) Having an accounting system that 

is incapable of separately accounting for 

costs incurred under the contract and/ 

or that lacks the internal controls 

necessary to fulfill the terms of the 

contract; 

(5) Failing to ensure that the MSP 

issuer properly pays or denies claims, 

or, if applicable, provides medical 

services that are inconsistent with 

standards of good medical practice; and 

(6) Entering into contracts or 

employment agreements with providers, 

provider groups, or health care workers 

that include provisions or financial 

incentives that directly or indirectly 

create an inducement to limit or restrict 

communication about medically 

necessary services to any individual 

covered under the MSP Program. 

Financial incentives are defined as 

bonuses, withholds, commissions, profit 

sharing or other similar adjustments to 

basic compensation (e.g., service fee, 

capitation, salary) which have the effect 

of limiting or reducing communication 

about appropriate medically necessary 

services. 

(e) Performance escrow account. OPM 

may require MSP issuers to pay an 

assessment into an escrow account to 

ensure contract compliance and benefit 

MSP enrollees. 

§ 800.402 Contract quality assurance. 

(a) General. This section prescribes 

general policies and procedures to 

ensure that services acquired under 

MSP Program contracts conform to the 

contract’s quality requirements. 

(b) Internal controls. OPM may 

periodically evaluate the contractor’s 

system of internal controls under the 

quality assurance program required by 

the contract and will acknowledge in 

writing if the system is inconsistent 

with the requirements set forth in the 

contract. OPM’s reviews do not 

diminish the contractor’s obligation to 

implement and maintain an effective 

and efficient system to apply the 

internal controls. 

(c) Performance standards. (1) OPM 

will issue specific performance 

standards for MSP Program contracts 

and will inform MSP issuers of the 

applicable performance standards prior 

to negotiations for the contract year. 

OPM may benchmark its standards 

against standards generally accepted in 

the insurance industry. OPM may 

authorize nationally recognized 

standards to be used to fulfill this 

requirement. 

(2) MSP issuers must comply with the 

performance standards issued pursuant 

to this section. 

§ 800.403 Fraud and abuse. 

(a) Program required. An MSP issuer 

must conduct a program to assess its 

vulnerability to fraud and abuse as well 

as to address such vulnerabilities. 

(b) Fraud detection system. An MSP 

issuer must operate a system designed 

to detect and eliminate fraud and abuse 

by employees and subcontractors of the 

MSP issuer, by providers furnishing 

goods or services to MSP enrollees, and 

by MSP enrollees. 

(c) Submission of information. An 

MSP issuer must provide to OPM such 

information or assistance as may be 

necessary for the agency to carry out the 

duties and responsibilities, including 

those of the Office of Inspector General 

as specified in sections 4 and 6 of the 

Inspector General Act of 1978 (5 U.S.C. 

App.). An MSP issuer must provide any 

requested information in the form, 

manner, and timeline prescribed by 

OPM. 

§ 800.404 Compliance actions. 

(a) Causes for OPM compliance 

actions. The following constitute cause 

for OPM to impose a compliance action 

described in paragraph (b) of this 

section against an MSP issuer: 

(1) Failure by the MSP issuer to meet 

the requirements set forth in 

§ 800.401(a) and (b); 

(2) An MSP issuer’s sustained failure 

to perform the MSP Program contract in 

accordance with prudent business 

practices, as described in § 800.401(c); 

(3) A pattern of poor conduct or 

evidence of poor business practices 

such as those described in § 800.401(d); 

or 

(4) Such other violations of law or 

regulation as OPM may determine, 

including pursuant to its authority 

under §§ 800.102 and 800.114. 

(b) Compliance actions. (1) OPM may 

impose a compliance action against an 

MSP issuer at any time during the 

contract term if it determines that the 

MSP issuer is not in compliance with 

applicable law, this part, or the terms of 

its contract with OPM. 

(2) Compliance actions may include, 

but are not limited to: 

(i) Establishment and implementation 

of a corrective action plan; 

(ii) Imposition of intermediate 

sanctions, such as suspension of 

marketing; 

(iii) Performance incentives; 

(iv) Reduction of service area or areas; 

(v) Withdrawal of the certification of 

the MSP option or options offered on 

one or more Exchanges; 

(vi) Nonrenewal of participation 

(vii) Nonrenewal of contract; and 

(viii) Withdrawal of approval or 

termination of the MSP Program 

contract. 

(c) Notice of compliance action. (1) 

OPM must notify an MSP issuer in 

writing of a compliance action under 

this section. Such notice must indicate 

the specific compliance action 

undertaken and the reason for the 

compliance action. 

(2) For compliance actions listed in 

§ 800.404(b)(2)(v) through (viii), such 

notice must include a statement that the 

MSP issuer is entitled to request a 

reconsideration of OPM’s determination 

to impose a compliance action pursuant 

to § 800.405. 

(3) Upon imposition of a compliance 

action listed in paragraphs (b)(2)(iv) 

through (vii) of this section, OPM must 

notify the State Insurance 

Commissioner(s) and Exchange officials 

in the State or States in which the 

compliance action is effective. 

(d) Notice to enrollees. If the contract 

is terminated, if OPM withdraws 

certification of an MSP option, or if a 


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9664 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 

State-level issuer’s participation in the 

MSP Program contract is not renewed, 

as described in §§ 800.306 and 

800.404(b)(2), or in any situation in 

which an MSP option is no longer 

available to enrollees, the MSP issuer 

must comply with any State or 

Exchange requirements regarding 

discontinuing a particular type of 

coverage that are applicable to a QHP 

offered on the Exchange on which the 

MSP option was offered, including a 

requirement to provide advance written 

notice before the coverage will be 

discontinued. If a State or Exchange 

does not have requirements about 

advance notice to enrollees, the MSP 

issuer must inform current MSP 

enrollees in writing of the 

discontinuance of the MSP option no 

later than 90 days prior to discontinuing 

the MSP option, unless OPM determines 

that there is good cause for less than 90 

days’ notice. 

(e) Definition. As used in this subpart, 

‘‘termination’’ means a decision by OPM 

to cancel an MSP Program contract prior 

to the end of its contract term. The term 

includes OPM’s withdrawal of approval 

of an MSP Program contract. 

§ 800.405 Reconsideration of compliance 

actions. 

(a) Right to request reconsideration. 

An MSP issuer may request that OPM 

reconsider a determination to impose 

one of the following compliance actions: 

(1) Withdrawal of the certification of 

the MSP option or options offered on 

one or more Exchanges; 

(2) Nonrenewal of participation 

(3) Nonrenewal of contract; or 

(4) Termination of the MSP Program 

contract. 

(b) Request for reconsideration and/or 

hearing. (1) An MSP issuer with a right 

to request reconsideration specified in 

paragraph (a) of this section may request 

a hearing in which OPM will reconsider 

its determination to impose a 

compliance action. 

(2) A request under this section must 

be in writing and contain contact 

information, including the name, 

telephone number, email address, and 

mailing address of the person or persons 

whom OPM may contact regarding a 

request for a hearing with respect to the 

reconsideration. The request must be in 

such form, contain such information, 

and be submitted in such manner as 

OPM may prescribe. 

(3) The request must be received by 

OPM within 15 calendar days after the 

date of the MSP issuer’s receipt of the 

notice of compliance action. The MSP 

issuer may request that OPM’s 

reconsideration allow a representative 

of the MSP issuer to appear personally 

before OPM. 

(4) A request under this section must 

include a detailed statement of the 

reasons that the MSP issuer disagrees 

with OPM’s imposition of the 

compliance action, and may include any 

additional information that will assist 

OPM in rendering a final decision under 

this section. 

(5) OPM may obtain additional 

information relevant to the request from 

any source as it may, in its judgment, 

deem necessary. OPM will provide the 

MSP issuer with a copy of any 

additional information it obtains and 

provide an opportunity for the MSP 

issuer to respond (including by 

submitting additional information or 

explanation). 

(6) OPM’s reconsideration and 

hearing, if requested, may be conducted 

by the Director or a representative 

designated by the Director who did not 

participate in the initial decision that is 

the subject of the request for review. 

(c) Notice of final decision. OPM will 

notify the MSP issuer, in writing, of 

OPM’s final decision on the MSP 

issuer’s request for reconsideration and 

the specific reasons for that final 

decision. OPM’s written decision will 

constitute final agency action that is 

subject to review under the 

Administrative Procedure Act in the 

appropriate U.S. district court. Such 

review is limited to the record that was 

before OPM when it made its decision. 

Subpart F—Appeals by Enrollees of 

Denials of Claims for Payment or 

Service 

§ 800.501 General requirements. 

(a) Definitions. For purposes of this 

subpart: 

(1) Adverse benefit determination has 

the meaning given that term in 45 CFR 

147.136(a)(2)(i). 

(2) Claim means a request for: 

(i) Payment of a health-related bill; or 

(ii) Provision of a health-related 

service or supply. 

(b) Applicability. This subpart applies 

to enrollees and to other individuals or 

entities who are acting on behalf of an 

enrollee and who have the enrollee’s 

specific written consent to pursue a 

remedy of an adverse benefit 

determination. 

§ 800.502 MSP issuer internal claims and 

appeals. 

(a) Processes. MSP issuers must 

comply with the internal claims and 

appeals processes applicable to group 

health plans and health insurance 

issuers under 45 CFR 147.136(b). 

(b) Timeframes and notice of 

determination. An MSP issuer must 

provide written notice to an enrollee of 

its determination on a claim brought 

under paragraph (a) of this section 

according to the timeframes and 

notification rules under 45 CFR 

147.136(b) and (e), including the 

timeframes for urgent claims. If the MSP 

issuer denies a claim (or a portion of the 

claim), the enrollee may appeal the 

adverse benefit determination to the 

MSP issuer in accordance with 45 CFR 

147.136(b). 

§ 800.503 External review. 

(a) External review by OPM. OPM will 

conduct external review of adverse 

benefit determinations using a process 

similar to OPM review of disputed 

claims under 5 CFR 890.105(e), subject 

to the standards and timeframes set 

forth in 45 CFR 147.136(d). 

(b) Notice. Notices to MSP enrollees 

regarding external review under 

paragraph (a) of this section must 

comply with 45 CFR 147.136(e), and are 

subject to review and approval by OPM. 

(c) Issuer obligation. An MSP issuer 

must pay a claim or provide a healthrelated service or supply pursuant to 

OPM’s final decision or the final 

decision of an independent review 

organization without delay, regardless 

of whether the plan or issuer intends to 

seek judicial review of the external 

review decision and unless or until 

there is a judicial decision otherwise. 

§ 800.504 Judicial review. 

(a) OPM’s written decision under the 

external review process established 

under § 800.503(a) of this part will 

constitute final agency action that is 

subject to review under the 

Administrative Procedure Act in the 

appropriate U.S. district court. A 

decision made by an independent 

review organization under the process 

established under § 800.503(a) is not 

within OPM’s discretion and therefore 

is not final agency action. 

(b) Judicial review under paragraph 

(a) of this section is limited to the record 

that was before OPM when OPM made 

its decision. 

Subpart G—Miscellaneous 

§ 800.601 Reservation of authority. 

OPM reserves the right to implement 

and supplement these regulations with 

written operational guidelines. 

§ 800.602 Consumer choice with respect 

to certain services. 

(a) Assured availability of varied 

coverage. Consistent with § 800.104 of 

this part, OPM will ensure that at least 

one of the MSP issuers on each 

Exchange in each State offers at least 

one MSP option that does not provide 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Rules and Regulations 9665 

coverage of services described in section 

1303(b)(1)(B)(i) of the Affordable Care 

Act. 

(b) State opt-out. An MSP issuer may 

not offer abortion coverage in any State 

where such coverage of abortion 

services is prohibited by State law. 

(c) Notice to Enrollees—(1) Notice of 

exclusion. The MSP issuer must provide 

notice to consumers prior to enrollment 

that non-excepted abortion services are 

not a covered benefit in the form, 

manner, and timeline prescribed by 

OPM. 

(2) Notice of coverage. If an MSP 

issuer chooses to offer an MSP option 

that covers non-excepted abortion 

services, in addition to an MSP option 

that does not cover non-excepted 

abortion services, the MSP issuer must 

provide notice to consumers prior to 

enrollment that non-excepted abortion 

services are a covered benefit. An MSP 

issuer must provide notice in a manner 

consistent with 45 CFR 147.200(a)(3), to 

meet the requirements of 45 CFR 

156.280(f). OPM may provide guidance 

on the form, manner, and timeline for 

this notice. 

(3) OPM review and approval of 

notices. OPM may require an MSP 

issuer to submit to OPM such notices. 

OPM reserves the right to review and 

approve these consumer notices to 

ensure that an MSP issuer complies 

with Federal and State laws, and the 

standards prescribed by OPM with 

respect to § 800.602. 

§ 800.603 Disclosure of information 

(a) Disclosure to certain entities. OPM 

may provide information relating to the 

activities of MSP issuers or State-level 

issuers to a State Insurance 

Commissioner or Director of a Statebased Exchange. 

(b) Conditions of when to disclose. 

OPM shall only make a disclosure 

described in this section to the extent 

that such disclosure is: 

(1) Necessary or appropriate to permit 

OPM’s Director, a State Insurance 

Commissioner, or Director of a Statebased Exchange to administer and 

enforce laws applicable to an MSP 

issuer or State-level issuer over which it 

has jurisdiction, or 

(2) Otherwise in the best interests of 

enrollees or potential enrollees in MSP 

options. 

(c) Confidentiality of information. 

OPM will take appropriate steps to 

cause the recipient of this information 

to preserve the information as 

confidential. 

[FR Doc. 2015–03421 Filed 2–20–15; 8:45 am] 

BILLING CODE 6325–63–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 101206604–1758–02] 

RIN 0648–XD731 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Gulf of Mexico and South Atlantic; 

2015 Commercial Run-Around Gillnet 

Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS implements an 

accountability measure (AM) through 

this temporary rule for commercial 

harvest of king mackerel in the Florida 

west coast southern subzone of the 

eastern zone of the Gulf of Mexico (Gulf) 

exclusive economic zone (EEZ) using 

run-around gillnet gear. NMFS has 

determined that the commercial annual 

catch limit (ACL; commercial quota) for 

king mackerel using run-around gillnet 

gear in the Florida west coast southern 

subzone of the Gulf EEZ will be reached 

on February 20, 2015. Therefore, NMFS 

closes the Florida west coast southern 

subzone to commercial king mackerel 

fishing using run-around gillnet gear in 

the Gulf EEZ. This closure is necessary 

to protect the Gulf king mackerel 

resource. 

DATES: The closure is effective 12:01 

p.m., eastern standard time, February 

20, 2015, until 6 a.m., eastern standard 

time, January 19, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Susan Gerhart, NMFS Southeast 

Regional Office, telephone: 727–824– 

5305, email: susan.gerhart@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fishery for coastal migratory pelagic fish 

(king mackerel, Spanish mackerel, and 

cobia) is managed under the Fishery 

Management Plan for the Coastal 

Migratory Pelagic Resources of the Gulf 

of Mexico and South Atlantic (FMP). 

The FMP was prepared by the Gulf of 

Mexico and South Atlantic Fishery 

Management Councils and is 

implemented by NMFS under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) by 

regulations at 50 CFR part 622. 

Gulf migratory group king mackerel’s 

Florida west coast subzone of the Gulf 

eastern zone is divided into northern 

and southern subzones, each with 

separate commercial quotas. From 

November 1 through March 31, the 

southern subzone encompasses an area 

of the EEZ south of a line extending due 

west of the Lee and Collier County, FL, 

boundary on the Florida west coast, and 

south of a line extending due east of the 

Monroe and Miami-Dade County, FL, 

boundary on the Florida east coast, 

which includes the EEZ off Collier and 

Monroe Counties, FL. From April 1 

through October 31, the southern 

subzone is reduced to the EEZ off 

Collier County, and the EEZ off Monroe 

County becomes part of the Atlantic 

migratory group area (50 CFR 

622.384(b)(1)(i)(C)). 

On January 30, 2012 (76 FR 82058, 

December 29, 2011), NMFS 

implemented a commercial quota for the 

Gulf migratory group king mackerel in 

the Florida west coast southern subzone 

of 551,448 lb (250,133 kg) for vessels 

using run-around gillnet gear (50 CFR 

622.384(b)(1)(i)(B)(1)), for the current 

fishing year, July 1, 2014, through June 

30, 2015. 

Regulations at 50 CFR 622.8(b) require 

NMFS to close any segment of the king 

mackerel commercial sector when its 

quota has been reached, or is projected 

to be reached, by filing a notification 

with the Office of the Federal Register. 

NMFS has determined that the 

commercial quota of 551,448 lb (250,133 

kg) for Gulf group king mackerel for 

vessels using run-around gillnet gear in 

the Florida west coast southern subzone 

will be reached on February 20, 2015. 

Accordingly, commercial fishing using 

such gear in the Florida west coast 

southern subzone is closed at 12:01 

p.m., eastern standard time, February 

20, 2015, until 6 a.m., eastern standard 

time, January 19, 2016, the beginning of 

the next fishing season, i.e., the day after 

the 2016 Martin Luther King, Jr. Federal 

holiday. Accordingly, the operator of a 

vessel that has been issued a Federal 

commercial permit to harvest Gulf 

migratory group king mackerel using 

run-around gillnet gear in the Florida 

west coast southern subzone must have 

landed ashore and bartered, traded, or 

sold such king mackerel prior to 12:01 

p.m., eastern standard time, February 

20, 2015. 

Persons aboard a vessel for which a 

commercial permit for king mackerel 

has been issued, except persons who 

also possess a king mackerel gillnet 

permit, may fish for or retain Gulf group 

king mackerel harvested using hookand-line gear in the Florida west coast 

southern subzone unless the 

commercial quota for hook-and-line gear 

has been met and the hook-and-line 


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