[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24470-24482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10504]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 159

RIN 0991-AB63


Health Care Reform Insurance Web Portal Requirements

AGENCY: Office of the Secretary, HHS.

ACTION: Interim final rule with comment period.

-----------------------------------------------------------------------

SUMMARY: The Patient Protection and Affordable Care Act (the Affordable 
Care Act) was enacted on March 23, 2010. It requires the establishment 
of an internet Web site (hereinafter referred to as a Web portal) 
through which individuals and small businesses can obtain information 
about the insurance coverage options that may be available to them in 
their State. The Department of Health and Human Services (HHS) is 
issuing this interim final rule in order to implement this mandate. 
This interim final rule adopts the categories of information that will 
be collected and displayed as Web portal content, and the data we will 
require from issuers and request from States, associations, and high 
risk pools in order to create this content.

DATES: Effective Date: These regulations are effective on May 10, 2010.
    Comment Date: To be assured consideration, comments must be 
received at the address provided below, no later than 5 p.m. on June 4, 
2010.

ADDRESSES: In commenting, please refer to file code DHHS-9997-IFC. 
Because of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    <bullet> Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions on 
the home page.
    <bullet> By regular mail. You may mail written comments to the 
following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: DHHS-9997-IFC, P.O. 
Box 8014, Baltimore, MD 21244-8014.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    <bullet> By express or overnight mail. You may send written 
comments to the following address ONLY: Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Attention: DHHS-
9997-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 
21244-1850.
    <bullet> By hand or courier. If you prefer, you may deliver (by 
hand or courier) your written comments before the close of the comment 
period to either of the following addresses:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 
20201
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD-- Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address,

[[Page 24471]]

please call telephone number (410) 786-9994 in advance to schedule your 
arrival with one of our staff members.
    Comments mailed to the addresses indicated as appropriate for hand 
or courier delivery may be delayed and received after the comment 
period.
    Submission of comments on paperwork requirements. You may submit 
comments on this document's paperwork requirements by following the 
instructions at the end of the ``Collection of Information 
Requirements'' section in this document.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Danielle Harris, (410) 786-1819.

SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments 
received before the close of the comment period are available for 
viewing by the public, including any personally identifiable or 
confidential business information that is included in a comment. We 
post all comments received before the close of the comment period on 
the following Web site as soon as possible after they have been 
received: http://regulations.gov. Follow the search instructions on 
that Web site to view public comments.
    Comments received timely will be also available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

I. Background

    The Patient Protection and Affordable Care Act (Pub. L. 111-148), 
hereinafter referred to as the Affordable Care Act, was enacted on 
March 23, 2010. Section 1103(a), as amended by section 10102(b) of the 
same act, directs the Secretary to immediately establish a mechanism, 
including an internet Web site, through which a resident of, or small 
business in, any State may identify affordable health insurance 
coverage options in that State.
    In implementing these requirements, we seek to develop a Web site 
(hereinafter called the Web portal) that would empower consumers by 
increasing informed choice and promoting market competition. To achieve 
these ends, we intend to provide a Web portal that provides information 
to consumers in a clear, salient, and easily navigated manner. We plan 
to minimize the use of technical language, jargon, or excessive 
complexity in order to promote the ability of consumers to understand 
the information and act in accordance with what they have learned. We 
will engage in careful consumer testing to identify the best methods to 
achieve these goals.
    In obtaining information to populate the Web portal, we will be 
seeking all the statutorily required information from issuers, and we 
anticipate adopting electronic submission capabilities. As we develop 
the Web portal, and engage with consumers, this information will be 
used to create an effective consumer-friendly presentation of 
affordable health coverage option plans. In addition, we plan to 
provide information, consistent with applicable laws, in a format that 
is accessible for use by members of the public, allowing them to 
download and repackage the information, promoting innovation and the 
goal of consumer choice.
    As we develop the Web portal, we are also seeking to balance the 
need to obtain information that will promote informed choice with the 
principles of the Paperwork Reduction Act and Executive Order 12866, 
which call for minimizing burdens and maximizing net benefits. To that 
end, we are seeking comments on how best to achieve that balance, and 
in particular how to reduce unnecessary burdens on the private sector.
    This is an interim final rule that becomes effective May 10, 2010. 
We invite public comments on all relevant issues to make improvements.

A. Statutory Basis

    As discussed above, Section 1103(a)of the Affordable Care Act, as 
amended by section 10102(b) of the same act, directs the Secretary to 
immediately establish a mechanism, including an internet Web site, 
through which a resident of, or small business in, any State may 
identify affordable health insurance coverage options in that State. To 
the extent practicable, the Web site (hereinafter called the Web 
portal) is to provide, at minimum, information on the following 
coverage options:
    1. Health insurance coverage offered by health insurance issuers,
    2. Medicaid coverage,
    3. Children's Health Insurance Program (CHIP) coverage,
    4. State health benefits high risk pool coverage,
    5. Coverage under the high risk pool created by section 1101 of the 
Affordable Care Act, and
    6. Coverage within the small group market for small businesses and 
their employees.
    In order to provide this information in a standardized format, 
section 1103(b) requires the Secretary to develop a standardized format 
to present the coverage information described above. This format is to 
provide for, at a minimum, the inclusion of information on the 
percentage of total premium revenue expended on nonclinical costs (as 
reported under section 2718(a) of the Public Health Service Act), 
eligibility, availability, premium rates, and cost sharing with respect 
to such coverage options. The format must be consistent with the 
standards that are adopted for the uniform explanation of coverage 
under section 2715 of the Public Health Service Act. Defining the 
minimum content of the format required under section 1103(b) in effect 
defines what we will publish as the minimum content of the Web portal. 
This regulation, therefore, specifies the data that will be collected 
and disseminated through the Web portal in accordance with 1103(a) as 
amended by section 10102(b).

B. General Overview

    Section 1103(a) of the Affordable Care Act, as amended by section 
10102(b) of the same act, requires the establishment of a Web portal 
through which individuals can obtain information about the health 
insurance options that may be available to them in their ``State.'' 
Section 1304(d) of the Affordable Care Act defines ``State'' to include 
the fifty states and the District of Columbia. The territories are not 
included in this definition. We therefore will interpret ``State'' in 
the Web portal context to mean the 50 States and the District of 
Columbia.
    By statute, the Web portal must be available for public use no 
later than July 1, 2010. We will use the data collections and processes 
described in this rule to make the initial release of the Web portal 
available to the public on July 1, 2010, through a government sponsored 
Web site. We intend for the future development and updating of the Web 
portal to be an evolutionary process that involves all stakeholders, 
and we anticipate future updates, including annual and periodic 
revisions, to be released as the result of a continued refinement of 
the Web portal content.
    In the July 1, 2010 release we will provide summary information 
about health insurance products that are available in the individual 
and small business markets including issuers of the products, types of 
products,

[[Page 24472]]

location, summaries of services offered, links to provider networks, 
and contact information (including Web site links and customer service 
telephone contact) to enable interaction with specific issuers. In 
addition, the Web portal will provide information on eligibility, 
coverage limitations and premium information for existing high risk 
pools operating in the States, to the extent that it is provided to us 
by the responding parties. It will also provide introductory 
information on eligibility and services for Medicaid and CHIP. We will 
include contact information and Web site links for the Medicaid and 
CHIP programs for individuals who believe that they or family members 
may meet eligibility criteria. In addition, we will provide information 
on coverage options for small businesses, including reinsurance for 
early retirees under section 1102 of the Affordable Care Act (which is 
being administered by HHS), and tax credits available under section 45R 
of the Internal Revenue Code, as added by section 1421 of the 
Affordable Care Act. We also will include Web site links to these 
programs so that small businesses can obtain further information.
    We note that Section 1103(b)(1) requires the Secretary to present 
the Web portal information in a format that is consistent with the 
standards that are adopted for the uniform explanation of coverage 
under section 2715 of the Public Health Service Act (PHSA) as added by 
section 1001(a) of the Affordable Care Act. Section 2715 of the PHSA 
provides for the establishment of these standards within 12 months of 
the Affordable Care Act's enactment date. As a result, these standards 
will not be in place for the July 1, 2010 release of the Web portal. We 
will modify the format used to present the initial release of the Web 
portal to ensure Web portal consistency with these standards in 
accordance with the implementation schedule that is established for 
these standards.
    In an effort to make the Web portal as comprehensive as possible, 
we will enhance the content over time to include more than the 
statutory minimum requirements that are discussed above. We will 
include any information that we have that we believe would be useful to 
consumers, such as medical loss ratios, quality and performance 
information, links to appropriate Web sites such as the Web site of the 
association that represents existing State health benefits high risk 
pools, and more State-specific information on Medicaid and CHIP 
eligibility and service coverage. Because of the complexity of pricing 
information and the need to incorporate pricing engines into the Web 
site, detailed pricing and benefit information will be provided in the 
second release of the Web portal on October 1, 2010.
    As we discuss in more detail in section III ``Waiver of Proposed 
Rulemaking and the 30[dash]Day Delay in the Effective Date,'' the 
statutory requirement for a July 1, 2010 Web portal release does not 
allow time for full notice and comment rulemaking. While this timeframe 
necessitates going directly to final, in order to maximize public input 
we are using an interim final rule with comment to establish the 
categories of information that we will collect for inclusion in the Web 
portal, including the data production requirements that we impose on 
health insurance issuers, and the data collection requests for States, 
associations, and high risk pools.

II. Provisions of the Interim Final Rule

A. Definitions

    For any terms defined by the Affordable Care Act, including the 
definitions in section 1304, as well as any definitions in the Public 
Health Service Act that are incorporated by reference under sections 
1301(b) or 1551 of the Affordable Care Act, we adopt those definitions. 
We discuss these definitions below. The regulatory text provides cross 
references to these provisions. We also explain here how we are 
defining the terms that are not defined in the Affordable Care Act or 
the PHSA. These terms are ``State health benefits high risk pool,'' 
``section 1101 high risk pool,'' ``health insurance product'' and 
``portal plan.''
    Section 2791(b)(1) of the PHSA, as incorporated by reference into 
the Affordable Care Act, defines ``health insurance coverage'' as 
``benefits consisting of medical care (provided directly, through 
insurance or reimbursement, or otherwise and including items and 
services paid for as medical care) 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.'' Section 2791(b)(2) in turn defines an 
insurance issuer (also referred to here as an ``issuer'') to be an 
entity ``licensed to engage in the business of insurance in a State and 
which is subject to State law which regulates insurance'' and specifies 
that it does not include a group health plan.
    For purposes of the Affordable Care Act and the PHSA, a distinction 
is made between health insurance coverage sold to group health plans, 
and other health insurance coverage. The term ``group health plan,'' as 
defined in section 2791(a)(1) of the PHSA, exclusively refers to health 
coverage sold to group health plans. Section 1304(a)(2) of the 
Affordable Care Act, which adopts the identical definition as section 
2791(e)(1)(A) of the PHSA, defines ``individual market'' as the 
``market for health insurance coverage offered to individuals other 
than in connection with a group health plan.''
    Section 2791(b)(5) of the PHSA in turn defines ``individual health 
insurance coverage'' as health insurance coverage ``offered to 
individuals in the individual market, but does not include short-term 
limited duration insurance.''
    The Affordable Care Act and the PHSA further divide the group 
health insurance market into coverage sold to large employers (the 
``large group market,'' and coverage sold to small employers (the 
``small group market''). See section 1304(a)(3) of Affordable Care Act. 
Section 1304(b)(2) of the Affordable Care Act defines a ``small 
employer'' as, in connection with a group health plan with respect to a 
calendar year and a plan year, an employer who employed an average at 
least 1, but not more than 100 employees on business days during the 
preceding calendar year, and who employs at least 1 employee on the 
first day of the plan year. Section 1304(b)(3) of the Affordable Care 
Act allows for a State to elect the option to define ``small employer'' 
as an employer who employed on average at least 1, but not more than 50 
employees on business days during the preceding calendar year in the 
case of plan years beginning before January 1, 2016. As such, for any 
State that elects this option, we would apply this alternate definition 
of ``small employer'' for their State for plan years beginning before 
January 1, 2016.
    For purposes of this regulation, we will refer to health insurance 
coverage offered to employees of small employers in the small group 
market as ``small group coverage.''
    Sections 1103(a)(2)(D) of the Affordable Care Act provides for Web 
portal reporting of ``State health benefits high risk pools.'' For the 
purpose of this rule, we define ``State health benefits high risk 
pools'' as nonprofit organizations created by State law to offer 
comprehensive health coverage to individuals who otherwise would be 
unable to secure such coverage because of their health status. This 
language was adopted, with modification, from the National Association 
of Comprehensive Health Insurance Plans (NASCHIP) annual report. Our 
understanding is that this definition is generally understood to 
identify existing high risk pools.

[[Page 24473]]

    Section 1103(a)(2)(E) provides for Web portal reporting of pools 
established pursuant to section 1101 of the Affordable Care Act. For 
purposes of this regulation, we define ``section 1101 high risk pools'' 
as any entity described in regulations implementing section 1101 of the 
Affordable Care Act.
    The Affordable Care Act and the PHSA do not include the term 
``health insurance product.'' We are creating this term as a short hand 
reference to the information that we will publish in the first release 
of the Web portal. This term is needed in order to differentiate the 
information that will be collected for the July 1, 2010 release and the 
post-July 1, 2010 releases. We define ``health insurance product'' 
(``product'') as a package of benefits that an issuer offers that is 
reported to State regulators in an insurance filing.
    The Affordable Care Act and the PHSA also do not define the term 
``portal plan.'' We are creating this term to describe certain data 
that we will collect and disseminate in post-July 1, 2010 releases of 
the Web portal. We understand that consumers apply for coverage under 
individual health insurance products that issuers develop and market to 
offer a package of benefits. In applying for a package of benefits, we 
further understand that consumers are offered a range of cost-sharing 
arrangements, including deductibles and copayments but not including 
premium rates or premium rate quotes. As a result, each package of 
benefits can be paired with a multitude of cost sharing options. We 
will use the word ``portal plan'' to refer to the discrete pairing of a 
package of benefits with a particular cost-sharing option (not 
including premium rates or premium rate quotes). We will collect portal 
plan information for publication in post-July 1, 2010 releases of the 
Web portal. We believe that portal plan information is precise enough 
to provide a potential consumer with enough information to discern the 
relative costs and benefits of selecting a particular coverage option.
    We welcome comments on the adequacy of these definitions, and, if 
applicable, suggestions to improve them.

B. Individual and Small Group Market Data Collection and Dissemination

    In order to meet the mandate, we must collect information on 
individual and small group coverage from health insurance issuers and 
prepare the information to be presented publicly in a clear and concise 
fashion. We will have a two part rollout of the Web portal for 2010, 
and then annual and periodic updates to allow for the inclusion of 
updated data as well as consumer education content.
1. Data Submission Mandate
    The Secretary currently regulates health insurance industry 
practices for private insurance plans offered through public programs 
such as Medicare, Medicaid, and CHIP. While she either has or has 
access to data on Federal government sponsored plans, we must issue 
regulations to mandate the production of the necessary information from 
issuers in order to fulfill the statutory mandate as it applies to 
private plans not offered through Federal government programs. To 
facilitate the development of a robust Web portal with comprehensive 
pricing and benefit information on individual and small group coverage, 
our current plan is to contract with a vendor that has a health 
insurance pricing engine and a related Web site with portal plan 
identification and comparison functionality through a full and open 
competition. The work on this contract will not be completed in time 
for the July 1, 2010 release of the Web portal. Accordingly, we will 
collect an initial set of data (health insurance product information) 
from issuers in order to present basic information on all issuers and 
health insurance products in the July 1, 2010 release of the Web 
portal. This release of the Web portal will only contain the basic 
information on issuers and their products in the individual and small 
group markets that was practicable to obtain in the constrained 
timeframe for meeting the statutory requirement that the Web portal be 
available for public use by July 1, 2010. We will provide a second 
release of the Web portal on October 1, 2010 with comprehensive pricing 
and benefit information for individual and small group coverage.
    We will communicate to consumers through the Web portal and other 
public communication processes, such as presentations and reports to 
stakeholders, the names of those issuers who fail to timely meet the 
reporting requirements or who provide incomplete or inaccurate 
information.
a. July 1, 2010
    To meet the July 1, 2010 deadline, we will require issuers to 
provide data that we will use to develop introductory information for 
consumers on the universe of issuers and health insurance products in 
their geographic area. By May 21, 2010 we will require issuers to 
submit corporate and contact information, such as corporate addresses 
and Web sites; administrative information, such as enrollment codes; 
enrollment data by product; product names and types, such as Preferred 
Provider Organization (PPO) or Health Maintenance Organization (HMO); 
whether enrollment is currently open for each product; geographic 
availability information, such as product availability by zip code or 
county; customer service phone numbers; Web site links to the issuer 
Web site, brochure documents such as benefit summaries, and provider 
networks; and financial ratings, such as those offered by financial 
rating firms including AM Best, Standard and Poor, and Moody's, if 
available.
    We invite comment on whether enrollment information is considered 
by issuers to be confidential business information.
    We are aware that some issuers are rated on their financial status 
and other performance measures. We considered excluding issuers with no 
or low financial ratings from firms such as AM Best, Standard and Poor, 
and Moody. However, it is our understanding that not all issuers seek 
financial ratings, and that the private firms that conduct them do not 
use standardized approaches. Therefore, we will instead require each 
issuer to submit information on whether they obtained a financial 
rating, from which firm, and what the rating is. We will use this 
information to help analyze whether such ratings are or could be useful 
in conveying meaningful differences to consumers. For the same purpose 
we will allow, but not require issuers to report other types of ratings 
they have received, such as ratings from The National Committee for 
Quality Assurance (NCQA) Accreditation.
    Certain administrative information that we are collecting, such as 
an issuer's technical contact information (that is, the person who will 
work directly with us and our contractors to submit and validate data), 
tax identification number, and enrollment count in an issuer's 
products, will be used to support the structure of the database in 
which this information will be warehoused so that the data can be 
easily retrieved to support uploading information to the Web portal 
test site, and so that issuers and their portal plans can be reliably 
recognized by HHS and issuers and counted to support analyses for 
improving the Web portal. This information will also be used to support 
analysis necessary to improve the meaningfulness and usefulness of the 
Web portal in future releases. In addition, certain contact information 
will allow the Federal government and its contractors to provide useful 
updates

[[Page 24474]]

and reminders to issuers and to provide technical support.
    Data submitted under the requirements contained in this regulation 
must be submitted by issuers in accordance with instructions issued by 
the Secretary.
b. October 1, 2010
    We will release a more comprehensive version of the Web portal on 
October 1, 2010. This version will include benefit and pricing 
information. Benefit and pricing information includes data such as 
premiums, cost-sharing options, types of services covered, coverage 
limitations, and exclusions.
    We note that for States in which premiums are not community rated, 
the premium data that we intend to collect will include manual rates 
that represent only standard risks. As a result of medical 
underwriting, issuers may charge individuals rates that are above the 
manual rate based on the applicant's health status. We recognize that 
there is not a feasible method for collecting or displaying information 
on the rate that an individual who is underwritten might actually be 
charged, and in the absence of that are proposing to provide 
information on the manual rates with the understanding that they do not 
represent actual premium rates that an individual may be charged.
    While the initial release of the Web portal will list all issuers 
and all health insurance products, we believe that it would confuse 
users if we were to display portal plans that are not open for 
enrollment. Furthermore, we believe that it is inappropriate to impose 
a pricing and benefits information reporting burden on issuers for 
products and portal plans that are not open for enrollment. Therefore, 
we will exempt issuers of products and portal plans that are not open 
to new enrollments from additional pricing and benefits reporting 
requirements. Such issuers will be required to provide the data defined 
under the May 21 collection to assure we have the universe of issuers 
and their health insurance products.
    In the event that an issuer establishes new products or new portal 
plans under a product, or opens enrollment in products or portal plans 
under a product that was previously closed to enrollment, we will 
require the submission of the pricing and benefits information within 
30 days of offering new, or newly re-opened to enrollment, products or 
portal plans.
    We considered excluding issuers with minimal market share from the 
benefits and cost sharing data collection. However, we believe that 
some of the portal plans offered by these issuers serve niche markets 
that would be particularly appealing to some consumers. At this time, 
we will include portal plans with minimal market share, but we will 
collect enrollment data for use in analyzing the effect, if any, of 
market share and our ability to meet consumer needs.
    The intent of the Web portal is to present consumers with the full 
range of meaningful insurance options available to them. We believe 
this will be best accomplished through providing all plans that have a 
non-de minimus portion of the issuer's enrollment in an area and 
allowing for additional plans to be submitted based on the issuers 
perception of need. Our initial overview of the market indicates that 
most areas have coverage which is concentrated in a limited number of 
portal plans. One percent of an issuers' enrollment in the service area 
was seen as a reasonable cut off balancing the consumer's right to know 
with the burden imposed on issuers. Therefore, for each zip code, 
issuers will be required to submit information on at least all portal 
plans that are open for enrollment and that represent 1 percent or more 
of the issuer's total enrollment for the respective individual or small 
group market within that zip code.
    We invite comments from the public on what information should be 
required from issuers to ensure consumer access to meaningful 
information about coverage options is included in the Web portal, and 
on the ways that information should be presented to allow for sorting 
and comparing portal plans. We are particularly interested in comments 
from consumers, to make certain that the Web portal meets the needs of 
those individuals who will use it as part of their health coverage 
decision making.
    The data submissions for the October 1, 2010 Web portal release 
will be due by September 3, 2010. Data must be submitted by issuers in 
accordance with instructions issued by the Secretary.
c. Future Updates
    After the initial data collection efforts described in the prior 
two subsections, we will require issuers to perform an annual 
verification and update of the data they submitted. In addition, we 
recognize that many issuers update pricing and benefit information for 
their portal plans more frequently than annually, and we therefore will 
require issuers to submit updated data whenever they change premiums, 
cost-sharing, types of services covered, coverage limitations, or 
exclusions for one or more of their individual or small group portal 
plans. Furthermore, we will require issuers that develop new health 
insurance products between annual verifications to submit pricing and 
benefit information for the new product within 30 days of opening 
enrollment.
    Finally, while not included in the statutory list of minimum 
requirements for the Web portal, we will collect from issuers and 
report on the Web portal in 2011 the following performance ratings: 
percent of individual market and small group market policies that are 
rescinded; the percent of individual market policies sold at the manual 
rate; the percent of claims that are denied under individual market and 
small group market policies; and the number and disposition of appeals 
on denials to insure, pay claims and provide required 
preauthorizations.
    Updated data, including the required data updates previously 
discussed and annual verifications, must be submitted by issuers in 
accordance with instructions issued by the Secretary in a future 
Paperwork Reduction Act Package.
d. Data Validation
    All data that is collected for the July 1, 2010, October 1, 2010, 
and future releases of the Web portal will be validated by the issuers 
to assure the information they provided is correct. We will require the 
issuer's CEO or CFO to electronically certify to the completeness and 
accuracy of the initial data collection for the October 1, 2010 release 
of the Web portal and for any future updates to these requirements. 
Following the submission of the data, we will provide issuers with 
access to preview the data that we will publish on the Web portal. They 
will also be provided with access to edit their data submissions to 
update or correct information.
2. Voluntary Data Submission by States
    We are requesting that States submit data on issuer corporate and 
contact information for licensed issuers in their State, such as 
corporate addresses and Web sites; underwriting status, such as whether 
or not premium rates in the individual market are determined based on 
medical underwriting or community rating; and information on any public 
Web sites administered by the State that provide consumer guidance on 
individual and small group health insurance coverage in their State.
    It is our understanding that States possess the issuer corporate 
and contact information we are requesting them to submit as a result of 
their filing requirements for regulated issuers. We are requesting that 
States voluntarily

[[Page 24475]]

submit issuer corporate and contact information because we believe that 
it is incumbent upon us to ensure that we provide information on the 
entire universe of issuers and health insurance products. Gathering 
these data from both States and issuers will help us in determining the 
universe and ensure that we are not inadvertently excluding an issuer 
or product as a result of incomplete data collection.
    The underwriting information and Web site links we are requesting 
from States will be included on the Web portal in an effort to develop 
consumer education content and incorporate (by way of linking) any 
State-developed information on insurance coverage options in a given 
State. We recognize that some States may have already developed Web 
portals that provide comprehensive information about health insurance 
coverage in their State, and we will link to that information if it is 
available.
    In asking States to provide the data identified above, we note that 
the information would improve the accuracy and scope of the information 
we can provide to consumers in each of the States. We expect that 
States will want to ensure full access to information about issuers, 
health insurance products and portal plans to their residents. We 
believe that doing so would support consumer choice and a more robust 
marketplace for insurance. We therefore anticipate that States will be 
responsive to this request because the information requested will 
enhance the ability of the citizens of each State to identify 
affordable options for insurance.
3. Data Dissemination
    We will disseminate the information collected as a result of our 
data submission mandates as described above, as well as other 
information about health insurance coverage in the individual and small 
group market that may be useful to the public.
a. July 1, 2010
    On July 1, 2010 the Web portal will include information on the data 
collected as a result of the May 21, 2010 data submission mandate 
outlined above, including information for consumers on the issuers that 
sell individual and small group products in their area and links to 
benefit information for those products. In addition, we will provide 
some consumer education information on the individual market, including 
describing how it operates and why its offerings might be appropriate 
for a consumer, as well as information that will facilitate health 
insurance coverage decision-making and increased understanding of how 
the Web portal operates in the context of the Affordable Care Act. We 
also will include information for small businesses on the small group 
market, including information on the reinsurance and tax credit 
programs discussed previously.
b. October 1, 2010
    On October 1, 2010 the Web portal will include expanded content 
that will incorporate the data collected as a result of the September 
3, 2010 data submission mandate outlined above with the data collected 
for the May 21, 2010 mandate previously discussed. Using the pricing 
and benefit information gathered as a result of the September 3rd 
collection, we will display portal plans as packages of benefits and 
cost sharing, with associated premiums, based on geographic 
availability.
    The display of portal plans will be driven by interactive 
functionality that accounts for geographic and personal demographic 
information such as State and zip code of residence, sex, family 
composition, smoking status and other health indicators. We intend for 
the order and layering of search results to be based on consumer choice 
parameters such as range of premium, high and low deductibles, ranges 
of out-of-pocket maximums, provider network, and indicators of market 
interest in the product including enrollment. We intend that consumers 
will also have the ability to select on all available issuers and 
portal plans and view them alphabetically.
    We invite comments on the sort and selection functionality of the 
Web portal, and on the order and layering of portal plans that we will 
display.
    Certain administrative data collected for the October 1 Web portal 
release will not be displayed directly on the Web portal but these data 
are important to the functionality of a pricing engine, such as input 
data that defines the geographic and demographic variables that affect 
premium price and cost sharing that will be displayed on the Web 
portal.
    We also will retain and enhance the consumer education content 
established for the July 1, 2010 Web portal release.
c. Future Updates
    We will update the portal plan pricing and benefit information as 
frequently as monthly to reflect updates that issuers submit as a 
result of changes to their portal plans. As discussed previously, 
because issuers may update pricing and benefit information more 
frequently than annually, we are requiring updated data submissions 
whenever an issuer changes the premiums, cost-sharing, types of 
services covered, coverage limitations, or exclusions for one or more 
of their individual or small group portal plans. Our monthly updates 
will also reflect these updates. Consumer education content will be 
updated periodically in the event that new and pertinent information 
about either of these markets becomes available that would be 
beneficial for a consumer to know.
    In addition, we are required by section 1103(b)(1) to provide 
information on the percentage of total premium revenue expended on 
nonclinical costs, as reported under section 2718(a) of the Public 
Health Service Act (PHSA). We will report medical loss ratios to meet 
this requirement, which will provide more than the minimally required 
information and is believed to be more useful to the public. Section 
2718 of the PHSA requires issuers to report this information to HHS 
beginning with plan years starting on or after September 23, 2010, and 
the Secretary is promulgating rules on these reporting requirements. 
After the regulations for this provision are implemented, we anticipate 
including medical loss ratio information on the Web portal.
    As discussed previously, we anticipate including portal plan 
performance rating information, such as percent of individual market 
and small group market policies that are rescinded, the percent of 
individual market policies sold at the manual rate, the percent of 
claims that are denied under individual market and small group market 
policies, and the number and disposition of appeals, on the Web portal 
in the future.
    We also anticipate posting information derived from standards and 
reporting obligations that will apply to insurance sold under the 
exchanges. For example, we might post information on issuers' financial 
stability, trends in enrollment and disenrollment, appeals and 
grievances, and other indicators of fiscal viability, customer service 
and policy-holder satisfaction.
    The Affordable Care Act directs the Secretary to develop quality 
measures and standards to inform the public about quality of care and 
to drive improvements in the service delivery system. When such 
measures and standards become available they will be incorporated into 
the Web portal.
    We invite comments on the content of futures updates to the Web 
portal, including the frequency of updates, the inclusion of 
performance rating

[[Page 24476]]

information, and the incorporation of quality measures and standards.

C. Information to be Collected and Disseminated on High Risk Pool 
Coverage

    Sections 1103(a)(2)(D) and (E) of the Affordable Care Act requires 
HHS to include information about State health benefits high risk pools 
and high risk pools established under section 1101 of the Affordable 
Care Act. In order to fulfill this mandate, HHS must establish a 
mechanism for collecting and preparing this information for public 
dissemination in a clear and concise fashion.
1. Data Submission Request
    Pursuant to the requirement that the Web portal include information 
on coverage through these high risk pools, this rule requests that 
certain information on State health benefits high risk pools and high 
risk pools that will operate under authority established in section 
1101 of the Affordable Care Act be reported.
a. July 1, 2010
    We will ask the National Association of State Comprehensive Health 
Insurance Plans (NASCHIP) for information about State health benefit 
high risk pools. This information will include administrative and 
contact information, such as a customer service phone number and a Web 
site for pool information; pool eligibility information, such as state 
residency and health condition requirements; pool coverage limitations, 
such as restrictive riders; and pool premium information, such as rules 
and restrictions for premium subsidy programs. We understand that this 
information is currently collected and maintained by NASCHIP, and that 
all of the existing State health benefits high risk pools are members 
of NASCHIP. As such, we believe that NASCHIP is strategically equipped 
to work with the State health benefits high risk pools to gather and 
transmit data to HHS on behalf of State health benefits high risk 
pools. Therefore, we will ask NASCHIP to provide the data as discussed 
above by May 21, 2010.
b. Future Updates
    We understand that coverage that is offered by State health 
benefits high risk pools is updated on an annual calendar-year basis. 
We will therefore ask NASCHIP to provide annual updates of the 
information that we will request for the May 21, 2010 data collection. 
If NASCHIP is unable to provide this information in the future, we will 
ask State health benefits high risk pools to provide this information.
    Because the initial release of the Web portal is July 1, 2010, 
which is in the middle of a calendar-year, we will initiate the annual 
update data submission requests in the fall of 2010.
    In addition, we request that any State health benefits high risk 
pool that is established after May 21, 2010, including any high risk 
pool established pursuant to section 1101 of the Affordable Care Act, 
report the requested information within 30 days of when the pool begins 
accepting enrollment, and then annually thereafter.
2. Data Dissemination
a. July 1, 2010
    The July 1, 2010 release of the Web portal will include 
eligibility, coverage limitations and premium information as collected 
under the request as described above, as well as consumer education 
content that would aid consumer understanding about high risk pools 
generally, and whether such pools might offer a potential source of 
coverage for them.
b. Future Updates
    Future updates to the high risk pool content of the Web portal will 
include updates to the eligibility, coverage, and premium information 
requested above. These updates may include data for new high risk pools 
that are established subsequent to the July 1, 2010 release of the Web 
portal, including those established pursuant to section 1101 of the 
Affordable Care Act. We understand NASCHIP intends to build a Web site 
to contain detailed information that today is only available in 
NASCHIP's hard copy annual report. We will therefore also provide a 
link to a NASCHIP Web site in a future release in order to provide even 
more comprehensive information on those State health benefits high risk 
pools that are represented by NASCHIP.

D. Information to be Disseminated on Medicaid and CHIP

    Sections 1103(a)(2)(B) and (C) of the Affordable Care Act require 
that Medicaid and CHIP information be included on the Web portal. Title 
XIX of the Social Security Act, the law governing the Medicaid program, 
has allowed States broad discretion over Medicaid eligibility policy 
and therefore, Medicaid eligibility varies widely across States. In 
general, Medicaid eligibility is dependent on categorical and income 
requirements. Title XXI of the Social Security Act outlines the 
eligibility rules in CHIP, and such eligibility requirements are 
generally based on certain income requirements for children under age 
19. There are instances where pregnant women and parents can be 
eligible for CHIP. The Affordable Care Act simplifies Medicaid and CHIP 
income eligibility rules for most populations beginning January 2014. 
In the meantime, individuals will need to directly contact their State 
programs for definitive determinations of their eligibility or for 
their family members. However, the Web portal can serve as a resource 
to educate potential beneficiaries that they or their family members 
may be eligible for Medicaid and CHIP and provide information about how 
they can contact their State programs to determine eligibility and 
services available to them. The portal will serve as a resource for 
understanding what their State Medicaid and CHIP programs generally 
cover and how to apply for benefits.
    To implement sections 1103(a)(2)(B) and (C) we will provide 
information guiding consumers on general eligibility criteria for the 
individual State programs in an effort to assist them in assessing the 
need to pursue the application processes for these programs. There are 
no new reporting requirements to support implementation of this 
section. The data will come from existing Federal sources. The Web 
portal will also be designed to offer links to the various State 
Medicaid and CHIP agencies in order to facilitate consumers' submission 
of program applications.
    For each eligibility category, the Web portal will present 
information regarding the services that are available to eligible 
applicants. General cost sharing requirements will also be presented on 
the Web portal, to the extent that they are permitted for the 
eligibility category in these programs.
    In order to provide this information, data are being compiled 
within CMS across all Medicaid and CHIP eligibility categories 
regarding the services available under each program. This includes both 
mandatory and optional Medicaid services for which States receive 
Federal funding as defined in each State Medicaid plan and any waiver 
of such plan, as well as the services available under each State's CHIP 
plan and any waiver of such plan. Mandatory services are specific 
services States are required to cover for certain groups of Medicaid 
beneficiaries, both adults and children under the age of 21. Each 
required service is defined in Federal regulations 42 CFR part 440. 
Optional Medicaid services are defined as those services not required 
by Federal

[[Page 24477]]

law that States may elect to provide Medicaid beneficiaries. Optional 
services are also defined in Federal regulation at 42 CFR part 440. 
CHIP regulations define mandatory and optional services at 42 CFR part 
457.
    The portal will include data elements for mandatory services for 
each mandatory and optional categorical group defined in each Medicaid 
State plan, such as: Inpatient hospital care (excluding inpatient 
services in institutions for mental disease for working age adults); 
outpatient hospital care; physician's services; nurse midwife services; 
pediatric and family nurse practitioner services; laboratories and x-
ray services; rural health clinic services including Federally 
qualified health centers (``FQHC'') and if permitted by State law, 
rural health clinic and other ambulatory services provided by a rural 
health clinic which are otherwise included under a State Medicaid plan; 
prenatal care and family planning services, skilled nursing facility 
services for persons over age 21, home health care services for persons 
over 21 who are eligible for skilled nursing services (includes medical 
supplies and equipment), early and periodic screening, diagnosis, and 
treatment for persons under age 21 (``EPSDT''), necessary 
transportation services, and vaccines for children.
    If States include optional services in their Medicaid State plan, 
they must be provided in a manner that is consistent with all Federal 
requirements. The Web portal will include data elements to reflect the 
availability of optional services such as home health therapy services, 
rehabilitative services, case management services, medical or remedial 
care services or other licensed practitioners (chiropractors, 
podiatrists, optometrist, psychologists and nurse anesthetists), 
smoking cessation services and palliative care for children in each 
State Medicaid plan. Additional program specific service information 
will be provided with regard to Demonstration programs designed by 
States under the authority of section 1115 of the Social Security Act 
as well as services provided through the Children's Health Insurance 
Program.
    Appropriate information on a specific State's Demonstration 
programs, including variations in eligibility, coverage and service 
delivery systems used under the Demonstrations, will also be provided 
on the portal. Demonstrations that are Statewide or high impact, 
meaning that they have a significant penetration in the market and 
serve more than a narrow coverage group, will also be included in the 
initial release of the Web portal. Other Demonstration programs in 
Medicaid and CHIP will be added in future releases.
    Additionally, the Web portal will provide information to consumers 
on the Home and Community-Based Waiver program (Section 1915(c) of the 
Act), including a broad range of State defined services that enable 
independence in a consumer's own home.
    All of the above data will be derived from sources internal to CMS 
and include Medicaid State Plan Amendments, CHIP State Plans, CHIP 
annual reports, home and community based waivers applications and 
renewals, 1115 Demonstration documents, and the contacts database used 
for http://www.cms.gov which includes consumer contacts to state 
Medicaid and CHIP program offices. We are not collecting any new data 
elements for the Medicaid and CHIP portions of the Web portal under the 
authorities that were granted to us under section 1103 of the 
Affordable Care Act. All information will come from data that CMS 
already collects for program management and administration purposes.
    Certain State-based variations in Medicaid and CHIP programs, such 
as specific income and resource disregards, and variations in services, 
such as limits on the number of visits, cannot be presented with a high 
degree of detail in early releases of the Web portal. We expect to list 
the services and note that there are limitations, giving consumers 
enough information to ask questions of the State program if they pursue 
an application to enroll.
    Finally, while a significant amount of data is being compiled to 
populate the Web portal, some of the data for the Medicaid and CHIP 
portion will be presented in an aggregated format to enhance public 
understanding. For example, eligibility categories may be collapsed 
together for purposes of maximizing public understanding. By way of 
example, there are several working disabled eligibility categories in 
Medicaid that inter-relate. We would expect, given the complexity of 
these definitions, that consumers may have difficulty fully 
understanding these categories. Therefore, we are presenting the public 
with summary-level information, such as collapsing information about 
the working disabled into one category.

III. Waiver of Proposed Rulemaking and the 30-Day Delay in the 
Effective Date

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register and invite public comment on the proposed rule in 
accordance with 5 U.S.C. 553(b) of the Administrative Procedure Act 
(APA). The notice of proposed rulemaking includes a reference to the 
legal authority under which the rule is proposed, and the terms and 
substances of the proposed rule or a description of the subjects and 
issues involved. This procedure can be waived, however, if an agency 
finds good cause for concluding that a notice-and-comment procedure is 
impracticable, unnecessary, or contrary to the public interest and 
incorporates a statement of the finding and its reasons in the rule 
issued. Section 1103(a), as amended by section 10102(b), and section 
1103(b) of the Affordable Care Act provide for the establishment by 
July 1, 2010 of a Web portal through which a resident or small business 
of any State may identify affordable health insurance coverage options 
in that State. In order to meet this mandate, we have to collect and 
prepare for dissemination a broad array of data on issuers, health 
insurance products, and plans, including administrative and product 
information for the individual and small group markets; information on 
eligibility and coverage limits for high risk pools; and information on 
eligibility and services for Medicaid and CHIP. This cannot be 
accomplished unless issuers are made aware of the data submission 
requirements in short order and States, associations and high risk 
pools are made aware of opportunities to aide in this information 
dissemination effort within the established narrow timeframes. In order 
to allow sufficient time for data submission and validation prior to 
public presentation, we must be in possession of the data that is to be 
included on the Web portal in the July 1, 2010 release no later than 
May 21, 2010.
    As a result of this data collection timeline, it is impracticable 
to issue a notice of proposed rulemaking prior to publishing a final 
rule that would implement these data production requirements. 
Therefore, we find good cause to waive notice and comment rulemaking, 
and we are proceeding with issuing this final rule on an interim basis. 
We are providing a 30-day public comment period.
    In addition, we ordinarily provide a 30-day delay in the effective 
date of the provisions of an interim final rule. While the 
Administrative Procedures Act (5 U.S.C. 551 et seq.) generally requires 
the publication of a substantive rule not less than thirty days prior 
to its effective date, agencies may establish a shorter time frame 
based on good cause.

[[Page 24478]]

5 U.S.C. 553(d)(3). In accordance with the good cause basis explained 
below, these regulations are effective on May 10, 2010.
    Section 1103(a) of the Affordable Care Act requires the public 
release of the Web portal on July 1, 2010. As shown below, a sequenced 
order of activities must be completed in order to meet this statutory 
deadline.
    Data will be uploaded into the database supporting the Web portal 
to populate the Web portal test site, and based on observations 
adjustments to the actual Web site may be made. Any problems with the 
actual data would be adjusted as well. This is a four week iterative 
process that continues until the test site is functioning and 
presenting data output as expected, which begins with the first data 
upload on June 3 and ends with the release of the Web portal on July 1.
    Prior to this, the data that is submitted must be formatted in 
preparation for upload to the database that supports the Web portal 
test site. First upload to the test site takes approximately two days, 
from June 1 to June 3. There can be subsequent uploads through June 14, 
as noted below.
    Prior to this, beginning May 21, we must have time to view the 
submitted data to assure it is complete and clean. At this same time we 
believe that the regulated parties should be offered an opportunity to 
validate the data they submit and resubmit any erroneous data. We 
believe that the minimum time required to accomplish such work is three 
weeks, which brings us to June 14, 2010. There is a 10 day overlap 
between this process and the two processes described above.
    Prior to this, we must afford those submitting the data with 
adequate time to gather and submit the data. We believe that the 
minimum time that should be provided for this work is 7 business days 
from May 12 through to May 21, 2010.
    In order to submit that data, these parties will need to establish 
accounts that will allow secure data entry into the data collection 
tool. This will entail approximately 3 business days from May 10 to May 
12.
    Furthermore, we anticipate that these parties will need training 
and guidance on gathering data, obtaining an account and entering data. 
This will include a webinar on or about May 7 and other technical 
support through a help desk. This collection of activities would take 
at least 4 business days which brings us to May 12, 2010.
    Thus, in order to meet the statutory deadline of July 1, 2010, the 
processes described above must commence no later than May 10, 2010.
    Furthermore, certain activities had to occur within the agency 
prior to our being able to publish a rule to implement the Web portal 
requirements, or enter the contracts necessary to support work under 
this rule. The Affordable Care Act was enacted on March 23, 2010. We 
immediately established a workgroup to analyze policy options and the 
contractual and regulatory needs of the Web portal program. This work 
was completed on April 22. We then commenced task-specific workgroups 
to draft the necessary documents, including this regulation, and to 
procure the initial contractors. While these activities would usually 
take at least 6 months we have accomplished them in just under six 
weeks. It was impossible to have accomplished this work any faster, and 
the brief timeframe between the publication of this document and the 
effective date of its provisions could not have been avoided through 
more diligent use of time by the individuals working to implement this 
mandate.
    To afford a full thirty days between publication and the effective 
date we would be have to hold the parties submitting the data and 
ourselves to inadequate timeframes in which to accomplish the necessary 
tasks. The timeframes and dates described above therefore establish 
good cause for an effective date that is fewer than thirty days after 
publication.
    We will accept comments on the content of this regulation until 
June 4, 2010. This schedule will allow for a ten day comment period 
prior to the initial reporting requirement under these regulations.

IV. Collection of Information Requirements

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection included 
in this interim rule have been submitted for emergency approval to the 
Office of Management and Budget (OMB). OMB has assigned control number 
0938-1086 to the information collection requirements.
    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act 
of 1995 requires that we solicit comment on the following issues:
    <bullet> The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
    <bullet> The accuracy of our estimate of the information collection 
burden.
    <bullet> The quality, utility, and clarity of the information to be 
collected.
    <bullet> Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    We are soliciting public comment on each of these issues for the 
following sections of this document that contain information collection 
requirements (ICRs):

ICRs Regarding Data Submission for the Individual and Small Group 
Markets (Sec.  159.120)

    Section 159.120(a) requires health insurance issuers (issuers), in 
accordance with guidance issued by the Secretary, to submit corporate 
and contact information; administrative information; enrollment data by 
health insurance product; health insurance product name and type; 
whether enrollment is currently open for each health insurance product; 
geographic availability information; customer service phone numbers; 
and Web site links to the issuer Web site, brochure documents, and 
provider networks; and financial ratings on or before May 21, 2010, and 
annually thereafter. The information must be submitted via a template 
furnished by the Secretary. The burden associated with these reporting 
requirements is both the time and effort necessary to review the 
regulations, analyze data, and train issuer staff and the time and 
effort necessary for an issuer to compile the necessary information, to 
download and complete the template, and to submit the required 
information. We estimate that this requirement affects 650 issuers. We 
believe it will take each issuer 30 hours to review the regulations, 
analyze data, and train its staff on how to comply with the 
requirements. The total one-time burden associated with this 
requirement is 19,500 hours. The estimated cost associated with 
complying with this part of the requirement is $1,950,000.
    Based on our experience with Medicare Part C, we also estimate that 
each issuer will submit information on 9 of its portal plans and that 
it will take each issuer a total of 19 minutes to download the 
information submission template, complete the template, and submit the 
template. The estimated annual burden associated with the requirements 
in Sec.  159.120 is 206 hours.

[[Page 24479]]

The estimate cost associated with complying with these requirements is 
$13,390.
    Section 159.120(b) requires issuers, in accordance with the 
guidance issued by the Secretary, to submit pricing and benefit data 
for their portal plans on or before September 3, 2010, and annually 
thereafter. The information must be submitted via a template furnished 
by the Secretary. The burden associated with this requirement is the 
time and effort necessary for issuers to compile and submit pricing and 
benefit information. We estimate that it will take each of the 650 
issuers 533 minutes to comply with these requirements. The total annual 
burden associated with these requirements is 51,968 hours. The 
estimated cost associated with complying with these requirements is 
$3,377,920.
    Section 159.120(c) requires issuers to submit updated pricing and 
benefit data for their portal plans whenever they change premiums, 
cost-sharing, types of services covered, coverage limitations, or 
exclusions for one or more of their individual or small group portal 
plans. Section 159.120(d) requires issuers to submit pricing and 
benefit data for portal plans associated with products that are newly 
open or reopened for enrollment within 30 days of opening for 
enrollment. Each submission would include a certification on the 
completeness and accuracy of the submission. The burden associated with 
these requirements is the time and effort necessary for an issuer to 
submit the aforementioned data. While these requirements are subject to 
the PRA, we do not have sufficient data to estimate the associated 
burden. We do not know the frequency with which issuers will make the 
aforementioned updates. For that reason, we are estimating a total 
burden of 1 hour for these requirements. The estimate of one hour 
acknowledges that there is a burden associated with this requirement. 
The total estimated annual burden to industry associated with these 
updates is 13,000 hours, or 20 hours per issuer. This estimate is based 
on a three times a year, 19 minute per batch response update. The total 
cost associated with this requirement is $845,000.
    Section 159.120(e) requires issuers to annually verify the data 
submitted under Sec.  159.120(a) through (d). Section 159.120(f) 
requires issuers to submit administrative data on product and 
performance rating information for future releases of the Web portal in 
accordance with guidance issued by the Secretary. While these 
requirements are subject to the PRA, we will seek OMB approval at a 
later date under notice and comment periods separate from this interim 
final rule with comment.

                                                       Table 1--Recordkeeping and Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Hourly
                                                                             Burden per     Total      labor cost  Total labor     Total
       Regulation section(s)         OMB control  Respondents   Responses     response      annual         of        cost of      capital/    Total cost
                                         No.                                  (hours)       burden     reporting    reporting   maintenance      ($)
                                                                                           (hours)        ($)          ($)       costs ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   159.120(a)..................    0938-1086          650          650           30       19,500          100    1,950,000            0    1,950,000
                                     ...........          650          650         .317          206           65       13,390            0       13,390
Sec.   159.120(b)..................    0938-1086          650          650            4       52,000           65    3,380,000  ...........    3,380,000
Sec.   159.120(c) and (d)..........    0938-1086          650       13,000            1       13,000           65      845,000            0      845,000
                                                 -------------------------------------------------------------------------------------------------------
    Total..........................  ...........          650       14,950  ...........       84,706  ...........  ...........  ...........    6,188,390
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This interim final rule imposes information collection requirements 
as outlined in the regulation text and specified above. However, this 
interim final rule also makes reference to several associated 
information collections that are not discussed in the regulation text 
contained in this document. The following is a discussion of these 
information collections.

State Data Submissions

    As previously stated in Section II.B.2 of the preamble of this 
interim final rule, we are requesting that States, in accordance with 
guidance issued by the Secretary, submit issuer corporate and contact 
information, underwriting status, and information on any State-
administered Web sites that provide consumer information on health 
insurance coverage in their State by May 21, 2010. The information must 
be submitted via a template furnished by the Secretary.
    The burden associated with these voluntary reporting requests is 
both the time and effort necessary to review the regulations, analyze 
data, and train issuer staff and the time and effort necessary for an 
issuer to compile the necessary information, to download and complete 
the template, and to submit the required information. We estimate that 
this request affects all 50 States and the District of Columbia. We 
believe it will take each State 10 hours to review the preamble 
discussion, analyze data, and train its staff on how to comply with the 
request. The total one-time burden associated with this request is 500 
hours. The total estimated cost associated with complying with this 
part of the requirement is $50,000.
    We further estimate that it will take each State a total of 10 
minutes to download the information submission template, complete the 
template, and submit the template. The estimated annual burden 
associated with this request is 8 hours. The estimated cost associated 
with complying with this request is $520.

Data Submissions for High Risk Pools

    As discussed in section II.C.1 of the preamble of this interim 
final rule, we are asking the National Association of State 
Comprehensive Health Insurance Plans (NASCHIP) to provide data 
pertaining to the information listed in section II.C.1., in accordance 
with guidance issued by the Secretary, no later than May 21, 2010. In 
the event that NSACHIP is unable to provide this information, State 
health benefits high risk pools have been asked to submit it to HHS. 
While this request is subject to the PRA, we anticipate that this 
information will be collected from NASCHIP. Therefore, we are not 
assigning any burden to these entities within the first year of this 
collection.
    In section II.C.1, we also request that NASCHIP or State health 
benefits high risk pools submit annual updates on the aforementioned 
information. While these requests are subject to the PRA, we will seek 
OMB approval at a later date under notice and comment periods separate 
from this interim final rule with comment.
    Similarly, in the case of a high risk pool established under 
section 1101 of the Affordable Care Act, we are requesting that the 
pool submit to HHS the aforementioned information within thirty days of 
accepting enrollment and then annually thereafter. While these requests 
are subject to the PRA, we will seek OMB approval at a later date under 
notice and comment periods separate

[[Page 24480]]

from this interim final rule with comment.
    All of the information collection requirements contained in this 
interim final rule were submitted to the Office of Management and 
Budget (OMB) for emergency review and approval as part of a single 
information collection request (ICR). As part of the emergency review 
and approval process, OMB waived the notification requirements. The ICR 
was approved under OMB control number 0938-1086 with an expiration date 
of October 31, 2010. However, we are still seeking public comments on 
the information collection requirements discussed in this interim final 
rule with comment. All comments will be considered as we continue to 
develop the ICR as we must resubmit the ICR to obtain a standard 3-year 
approval.
    If you comment on these information collection and recordkeeping 
requirements, please do either of the following:
    1. Submit your comments electronically as specified in the 
ADDRESSES section of this rule; or
    2. Submit your comments to the Office of Information and Regulatory 
Affairs, Office of Management and Budget,
    Attention: CMS Desk Officer, DHHS-9997-IFC.
    Fax: (202) 395-6974; or E-mail: <a href="/cdn-cgi/l/email-protection#2e61677c6f715d5b4c43475d5d4741406e41434c004b415e00494158"><span class="__cf_email__" data-cfemail="aee1e7fceff1dddbccc3c7ddddc7c1c0eec1c3cc80cbc1de80c9c1d8">[email protected]</span></a>.

V. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
and, when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.

VI. Regulatory Impact Statement

    We have examined the impacts of this rule as required by Executive 
Order 12866 (September 1993, Regulatory Planning and Review), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
section 1102(b) of the Social Security Act, the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on 
Federalism, and the Congressional Review Act (5 U.S.C. 804(2)).
    Executive Order 12866 directs 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 (RIA) must be prepared for major rules with economically 
significant effects ($100 million or more in any 1 year). As discussed 
below, we have concluded that this rule does not have economic impacts 
of $100 million or more or otherwise meet the definitions of 
``significant rule'' under EO 12866.
    Based primarily on data that we have obtained from the National 
Association of Insurance Commissioners (NAIC), we believe that there 
are about 650 insurance firms that sell insurance in the individual and 
small group markets and are hence subject to this interim final rule. 
This estimate is consistent with other data on the size of the health 
insurance industry estimated by HHS in previous rulemakings. In 
addition, about 50 States and other governmental entities will be 
encouraged to provide voluntarily administrative data on Medicaid and 
CHIP and (as applicable) data on high risk pool programs. We estimate 
that on average these approximately 700 respondents will spend 40 hours 
of time reading this rule, determining what information sources will be 
used to respond, determining how to provide that information in the 
newly required formats, and completing a certification on the 
completeness and accuracy of the information. Assuming that high level 
staff (for example, managers, attorneys, actuaries, and senior IT 
professionals) are involved in these efforts, at an average 
compensation cost of $100 an hour, total one-time costs will be 
approximately $3 million dollars. Actual provision of data we estimate 
to cost approximately $3 million a year both in the first year and 
annually thereafter. Federal government planning, oversight, 
preparation, and maintenance of the portal web site we estimate to cost 
$11 million in one-time costs in 2010, and $12 million to oversee and 
operate in 2011 and annually thereafter. In total, we estimate costs in 
calendar 2010 to be approximately $17 million, and annual costs 
thereafter to be approximately $15 million. Additional detail on these 
estimates can be found in the Paperwork Reduction Act section of this 
preamble and we welcome comment on them.
    All or virtually all of the information needed for the Web portal 
is standard information that is already made available to individuals, 
insurance agents, or existing IT contractors with pricing engines and 
other entities that sell or otherwise provide health insurance to 
individuals and small groups. For example, information on deductibles, 
coverage, cost-sharing, and catastrophic protection limits is routinely 
available on all or virtually all insurance available to individuals or 
small groups. Nothing in this rule requires preparation of entirely new 
information. In essence, we simply require that relatively 
comprehensive information be provided in standardized formats so that 
plan comparisons can be automated in ways that present comparable 
information in comparable levels of detail to facilitate consumer 
understanding of available choices. We believe that carriers that offer 
large numbers of plans will find that once they have determined how 
best to provide the data for a few of those plans, adding additional 
plans will involve very little if any additional cost. We have also 
limited the number of plans on which carriers will be required to 
provide data. Because we appreciate that the time schedule provided in 
the statute is extremely short, and because the Federal government 
itself needs time to prepare and populate its Web portal, we have 
provided for two data submissions in 2010, the first in May and a 
second more detailed collection in September. This will provide the 
Federal government with the time needed to competitively bid for a 
contractor that has a sophisticated pricing engine, as well as for 
issuers and States time to plan for and compile some of the more 
detailed information that we are deferring until later in the year.
    Nothing in this interim final rule prevents other parties from 
aggregating and presenting similar information. For example, the State 
of Massachusetts already presents essentially the entire set of 
information we will obtain, and more, on its Connector Web site. 
Several online firms aggregate and present information for some of the 
policies sold in all or most States. Many insurance brokers and agents, 
and some consumer organizations, present information on subsets of 
plans available to their client target groups in their geographic 
areas. In fact, the Web portal we will provide may facilitate such 
efforts and improve the scope and accuracy of information provided by 
alternative sources.
    As specified in the statute, our Web portal will include the range 
of insurance coverage options available to individuals or small 
businesses, including both public (for example, Medicaid, CHIP, and 
high risk pool) and private plans, and all types of plans including 
health maintenance organization, preferred provider organization and 
indemnity plans. To the best of our knowledge no web sites include such 
a broad range of health

[[Page 24481]]

care coverage and specific plan information on a national scale, with 
the intent of serving such a broad range of consumers needing health 
insurance coverage. (There are, however, similarly broad portals for 
some specific population groups, such as Medicare beneficiaries and 
Federal employees).
    It is difficult if not impossible to quantify the benefits of such 
a broad expansion of consumer information. Moreover, the benefits of 
this information will change over time, most importantly as State-
specific insurance exchanges expand their presence. We do believe, 
however, that the benefits of improved information will facilitate 
informed consumer choices as well as benefit the insurance market more 
broadly. We expect that our Web portal will inform State decisions on 
the design of exchanges both by positive example and, doubtless, 
through ideas on ways to improve on the information and formats and 
tools we provide. Among the likely effects of this effort will be 
increased use of State high risk insurance pools, increased sale of 
private policies to uninsured individuals, increased enrollment in 
Medicaid and CHIP, and commensurate reductions in spending on care for 
the uninsured. We believe, however, that the most important effect of 
the Web portal will be to improve health insurance coverage choices. 
For example, private plans that offer better benefit packages at lower 
premium costs are likely to benefit from improved consumer information.
    We have considered a range of alternatives to the Web portal 
approach we describe in this final rule with comment, including both 
more and less ambitious efforts. For example, we could provide less 
complete information on health insurance coverage choices, and rely on 
States and private efforts to provide more complete comparisons. In our 
view, however, costs would not be significantly less were we to require 
less plan-specific information. Moreover, the full range of information 
we specify is likely to facilitate other efforts. For example, we do 
not believe that any other service has been able to assemble in one 
source information on all insurance issuers and programs serving the 
individual and small group markets across a broad range of States. One 
specific alternative on which we request comment is on our proposal to 
limit the number of plan variations on which we present information for 
an issuer in a particular area to those that represent at least one 
percent of their total enrollment in that area (that is, never more 
than 100 variations, and usually far fewer). Without such a limitation, 
if a particular issuer offers twenty or more possible products and 
twenty alternative cost sharing arrangements applied to the products in 
a particular geographic area, the combinations and permutations of 
offerings would be 400 for this one issuer alone. Our use of zip codes 
for plan service areas is an essential simplifying approach to reducing 
the number of alternative plans presented, by eliminating irrelevant 
plans, but does not solve this problem.
    We welcome comments on the likely costs and benefits of this rule 
as presented, on alternatives that would improve the consumer and small 
business purchaser information to be provided, and on our quantitative 
estimates of burden. Comments are welcome to address both regulatory 
changes and changes that might be made through administrative decisions 
in planning and implementing the Web portal. Comments on ways to design 
our Internet portal to best meet consumer information needs are 
especially welcome.
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses, if a rule has a significant impact on a 
substantial number of small entities. For purposes of the RFA, small 
entities include small businesses, nonprofit organizations, and small 
government jurisdictions. Small businesses are those with sizes below 
thresholds established by the Small Business Administration (SBA). We 
examined the health insurance industry in depth in the Regulatory 
Impact Analysis we prepared for the proposed rule on establishment of 
the Medicare Advantage program (69 FR 46866, August 3, 2004). In that 
analysis we determined that there were few if any insurance firms 
underwriting comprehensive health insurance policies (in contrast, for 
example, to travel insurance policies or dental discount policies) that 
fell below the size thresholds for ``small'' business established by 
the SBA. In fact, then and even more so now, the market for health 
insurance is dominated by a relative handful of firms with substantial 
market shares. For example, nationally the approximately 40 Blue Cross 
and Blue Shield companies account for approximately half of all private 
insurance sold in the United States. A recent GAO study focused on the 
small business market and found that the five largest issuers in the 
small group market, when combined, represented three-quarters or more 
of the market in 34 of 39 States for which this information was 
available (GAO, February 27, 2009, Private Health Insurance: 2008 
Survey Results on Number and Market Share of Issuers in the Small Group 
Health Insurance Market). These firms included Blue Cross companies, 
and also other major insurers such as United HealthCare, Aetna, and 
Kaiser. Small government jurisdictions do not sell insurance in the 
individual or small business markets. There are, however, a number of 
health maintenance organizations (HMOs) that are small entities by 
virtue of their non-profit status, including Kaiser, even though few if 
any of them are small by SBA size standards. There are approximately 
one hundred such HMOs. These HMOs and those Blue Cross and Blue Shield 
plans that are non-profit organizations, like the other firms affected 
by this interim final rule, will be required to provide information on 
their insurance policies to the Department. Accordingly, this interim 
final rule will affect a ``substantial number'' of small entities.
    We estimate, however, that the one-time costs of this interim final 
rule are approximately $5 thousand per covered entity (regardless of 
size or non-profit status) and about $5 thousand annually both in the 
first year and thereafter. Numbers of this magnitude do not remotely 
approach the amounts necessary to be a ``significant economic impact'' 
on firms with revenues of tens of millions of dollars (usually hundreds 
of millions or billions of dollars annually). Moreover, the Regulatory 
Flexibility Act only requires an analysis for those final rules for 
which a Notice of Proposed Rule Making was required. Accordingly, we 
have determined, and certify, that this rule will not have a 
significant economic impact on a substantial number of small entities 
and that a regulatory flexibility analysis is not required.
    In addition, section 1102(b) of the Social Security Act requires us 
to prepare a regulatory impact analysis if a rule may have a 
significant economic impact on the operations of a substantial number 
of small rural hospitals. This analysis must conform to the provisions 
of section 604 of the RFA. This interim final rule would not affect 
small rural hospitals. Therefore, the Secretary has determined that 
this rule would not have a significant impact on the operations of a 
substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1195 requires 
that agencies assess anticipated costs and benefits before issuing any 
rule that includes a Federal mandate that could result in expenditure 
in any one year by State, local or tribal governments, in the 
aggregate, or by the private sector, of

[[Page 24482]]

$100 million in 1995 dollars, updated annually for inflation. That 
threshold level is currently about $135 million. This interim final 
rule contains reporting mandates for private sector firms, but these 
will not cost more than the approximately $6 million that we have 
estimated. It includes no mandates on State, local, or tribal 
governments.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule and subsequent 
final rule that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This interim final rule does not impose substantial 
direct requirement costs on State and local governments, preempt State 
law, or otherwise have Federalism implications.
    In accordance with the provisions of Executive Order 12866, this 
interim final rule was reviewed by the Office of Management and Budget.

List of Subjects in 45 CFR Part 159

    Administrative practice and procedure, Computer technology, Health 
care, Health facilities, Health insurance, Health records, Hospitals, 
Medicaid, Medicare, Penalties, Reporting and recordkeeping 
requirements.


0
For the reasons set forth in the preamble, the Department of Health and 
Human Services amends 45 CFR subtitle A, subchapter B, by adding a new 
part 159 to read as follows:

PART 159--HEALTH CARE REFORM INSURANCE WEB PORTAL

Sec.
159.100 Basis and Scope.
159.110 Definitions.
159.120 Data Submission for the individual and small group markets.

    Authority: Section 1103 of the Patient Protection and Affordable 
Care Act (Pub. L. 111-148).


Sec.  159.100  Basis and scope.

    This part establishes provisions governing a Web portal that will 
provide information on health insurance coverage options in each of the 
50 States and the District of Columbia. It sets forth data submission 
requirements for health insurance issuers. It covers the individual 
market and the small group market.


Sec.  159.110  Definitions.

    For purposes of part 159, the following definitions apply unless 
otherwise provided:
    Health Insurance Coverage: We adopt the Public Health Service Act 
(PHSA) definition of ``health insurance coverage'' found at section 
2791(b)(1) of the Public Health Service Act (PHSA).
    Health Insurance Issuer: We adopt the PHSA definition of ``health 
insurance issuer'' found at section 2791(b)(2) of the PHSA.
    Health Insurance Product: Means a package of benefits that an 
issuer offers that is reported to State regulators in an insurance 
filing.
    Individual Health Insurance Coverage: We adopt the PHSA definition 
of ``individual health insurance coverage'' found at section 2791(b)(5) 
of the PHSA.
    Individual Market: We adopt the Affordable Care Act definition of 
``individual market'' found at section 1304(a)(2) of the Affordable 
Care Act and 2791(e)(1)(A) of the PHSA.
    Portal Plan: Means the discrete pairing of a package of benefits 
and a particular cost sharing option (not including premium rates or 
premium quotes).
    Section 1101 High Risk Pools: We define section 1101 high risk 
pools as any entity described in regulations implementing section 1101 
of the Affordable Care Act.
    Small Employer: We adopt the Affordable Care Act definition of 
``small employer'' found at section 1304(b)(2) and (3).
    Small Group Coverage: Means health insurance coverage offered to 
employees of small employers in the small group market.
    Small Group Market: We adopt the Affordable Care Act definition of 
``small group market'' found at section 1304(a)(3).
    State Health Benefits High Risk Pools: Means nonprofit 
organizations created by State law to offer comprehensive health 
insurance to individuals who otherwise would be unable to secure such 
coverage because of their health status.


Sec.  159.120  Data submission for the individual and small group 
markets.

    (a) Health insurance issuers (hereinafter referred to as issuers) 
must, in accordance with guidance issued by the Secretary, submit 
corporate and contact information; administrative information; 
enrollment data by health insurance product; product names and types; 
whether enrollment is currently open for each health insurance product; 
geographic availability information; customer service phone numbers; 
and Web site links to the issuer Web site, brochure documents, and 
provider networks; and financial ratings on or before May 21, 2010, and 
annually thereafter.
    (b) Issuers must, as determined by the Secretary, submit pricing 
and benefit information for their portal plans on or before September 
3, 2010, and annually thereafter.
    (c) Issuers must submit updated pricing and benefit data for their 
portal plans whenever they change premiums, cost-sharing, types of 
services covered, coverage limitations, or exclusions for one or more 
of their individual or small group portal plans.
    (d) Issuers must submit pricing and benefit data for portal plans 
associated with products that are newly open or newly reopened for 
enrollment within 30 days of opening for enrollment.
    (e) Issuers must annually verify the data submitted under 
paragraphs (a) through (d) of this section, and make corrections to any 
errors that are found.
    (f) Issuers must submit administrative data on products and portal 
plans, and these performance ratings, percent of individual market and 
small group market policies that are rescinded; the percent of 
individual market policies sold at the manual rate; the percent of 
claims that are denied under individual market and small group market 
policies; and the number and disposition of appeals on denials to 
insure, pay claims and provide required preauthorizations, for future 
releases of the Web portal in accordance with guidance issued by the 
Secretary.
    (g) The issuer's CEO or CFO must electronically certify to the 
completeness and accuracy of all data submitted for the October 1, 
2010, release of the Web portal and for any future updates to these 
requirements.

    Dated: April 29, 2010.
Jay Angoff,
Director, Office of Consumer Information and Insurance Oversight.
    Dated: April 29, 2010.
Kathleen Sebelius,
Secretary.
[FR Doc. 2010-10504 Filed 4-30-10; 4:15 pm]
BILLING CODE 4150-03-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>