Emergency Justification to Howard Shelanski

DEPARTMENT OF HEALTH & HUMAN SERVICES
Centers for Medicare & Medicaid Services
7500 Security Boulevard
Baltimore, Maryland 21244-1850

CMS

CENTERS FOR MEDICARE & MEDICAID SERVICES

DATE:

November 26,2013

TO:

Howard Shelanski

FROM:

SUBJECT:

Request for Emergency Clearance of the Paperwork Reduction Act Package for
Developing Federal Payment Rates for the Basic Health Program

Emergency Justification
The Centers for Medicare & Medicaid Services (CMS) is requesting that an information
collection request to support the development of federal payment rates for the Basic Health
Program (BHP) be processed under the emergency clearance process associated with Paperwork
Reduction Act of 1995 (PRA), specifically 5 CFR 1320.13(a)(2)(i). Public harm is reasonably
likely to occur if the normal, non-emergency clearance procedures are followed.
More specifically, without PRA emergency approval, CMS will need to delay by approximately
4 months the release ofBHP federal payment rates beyond the March 2014 timeframe that was
published in the BHP proposed regulation released on September 25, 2013. Instead, CMS would
release rates in early summer 2014 to accommodate the normal PRA approval process. Rates are
needed in March 2014 to support state decisions to implement BHP on January 1, 2015, and to
provide the necessary time for states to do their planning, contracting with issuers and to conduct
open enrollment. Providing rates in the summer 2014 will likely postpone interested states'
decisions and their implementation dates by as much as a year. This could result in as many as
1.3 million low income people not having access to BHP in early 2015, thereby prohibiting them
from availing continuity of providers and health care that BHP is intended to provide. That is,
BHP is a bridge program for low income people who today move in and out of health programs
as their eligibility changes based on fluctuations in income and other factors, and such
movements disrupt their access to providers and to services they need.
In accordance with Section 1331 of ACA, the BHP is federally funded by determining the
amount of payments that the federal government would have made through premium tax credits
(PTCs) and cost sharing reductions (CSRs) for people enrolled in BHP had they instead been
enrolled in an Exchange. In order to calculate these amounts for each state, CMS needs the
reference premiums for the second lowest cost silver plans (SLCSPs) in each geographic area in
a state, as SLCSPs are a basic unit in the calculation of PTCs and CSRs under the Exchanges.
Relatedly, the reference premiums for these SLCSPs are critical components in the BHP
payment methodology in order to estimate what PTCs and CSRs would have been paid.

Similarly, CMS also needs to collect reference premiums for the lowest cost bronze plans to
appropriately account for CSR calculations for American Indians and Alaskan Natives. CMS
recently determined that it does not have sufficient data from State Based Exchanges (SBEs) to
determine the reference premiums for their SLCSPs and lowest cost bronze plans. Reference
premiums are foundational inputs into the BHP payment methodology.
The burden associated with this collection is low and noncontroversial. The seventeen SBEs
already have these data, as they are needed to determine the SLCSPs and lowest cost bronze
plans and to calculate their PTCs and CSRs. (CMS has this information for the remaining thirtythree states that are either Federally Facilitated Exchanges (FFEs) or State-Partners with the
FFEs.) Furthermore, the BHP proposed regulation published on September 25, 2013(78 FR
59121; 0938-AR93), under Section 600.610(a)(2), states that a state may be required to submit
data in accordance with the published proposed payment notice in order for the Secretary to
determine the State's payment rates. As such, we intend only to require SBEs to provide these
data under this emergency approval and in December, 2014 if they want their rates published in
the March 2014 BHP payment notice. We believe that states will be interested in submitting
these data in time to include in the final BHP payment notice as it will help states consider
implementing BHP effective January 1, 2015.
Background
In accordance with the BHP proposed rule published on September 25, 2013 (78 FR 59121;
0938-AR93), states can apply and be certified to operate a BHP as early as January 1, 2015. The
BHP provides an alternative coverage program for certain low income individuals who would
otherwise be eligible to obtain coverage through the Exchange. The parameters of the BHP
program provide flexibility to states to better address potential disruptions in coverage and
service delivery that low income people tend to face as their income fluctuates which can have a
serious effect on their health status. This is a particularly important concern among people with
chronic conditions and disabilities who are disproportionately low income and need continuity in
their health care and other services. Among a state's key considerations in deciding whether to
implement BHP is the amount of federal funding they would receive. Because of this
consideration, it behooves CMS to publish BHP payment rates as soon as possible, thereby
providing states with adequate time before the start of the BHP program year to complete a broad
range of complex operational tasks. That is to say, a delay in the publication of the BHP
payment rates would likely result in an interested state starting its BHP program later than
expected and thereby delaying the opportunity for certain eligible people to receive coverage that
better addresses their health needs through more uniform access to providers and services as their
eligibility changes. The number of potentially affected people is 1.3 million based on estimates
by the Office of the Actuary of eligible people in the states that have shown an interest in
participating in BHP.

The earliest possible date to publish BHP payment rates is at the same time as publication of the
BHP final rule, which is planned for March 2014. In order to publish these rates by March 2014,
the latest possible date that CMS can receive reference premiums from SBEs is January 15,
2014.
We intend to publish the proposed BHP payment notice on December 6, 2013 which will provide
the rationale for this data collection and the proposed formulation of the BHP payment rates.
With emergency approval for the collection of reference premiums for SLCSPs, the public will

have two weeks to comment on the collection within the framing provided by the proposed
notice, giving OMB and CMS one day to review, revise (if needed), and publish the approved
information collection request (ICR).States would then have three weeks to provide the reference
premiums.
We do not anticipate concerns from SBEs in providing these data as they will only be required
from states who intend to implement the BHP, and we expect these data to be readily available as
they are needed to operate their Exchange programs.
Timeline

November 26,2013
• Submit Emergency Justification to OMB.
December 3, 2013
• Request OMB approval of Emergency Justification.
• Target date for submitting Federal Register notice to the OFR.
December 6, 2013
• Target date for publishing the proposed BHP payment notice.
• Target date for publishing the emergency Federal Register notice for this collection.
• Target date for submitting the ICR to OMB.
• Start of two week public comment period.
December 20, 2013
• End of two week public comment period.
• CMS will respond to public comments (if applicable).
• Start ofOMB review period.
December 23, 2013
• Requested OMB approval date.
• Approved collection is posted.
January 15, 2014
• Reference premiums due from SBEs who want their state's BHP payment rates published
with the final BHP payment notice in March 2014.