CMS-10681 - Supporting Statement PI Rule (CMS-9922P)

Supporting Statement for Billing and Collection of the

Separate Payment for Certain Abortion Services

(CMS-10681/OMB control number: 0938-NEW)

A. Background

On March 23, 2010, the Patient Protection and Affordable Care Act (PPACA; P.L. 111-148) was signed into law and on March 30, 2010, the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) was signed into law. The two laws implement various health insurance policies.

Section 1303 of the PPACA, as implemented in 45 C.F.R. 156.280, specifies standards for issuers of qualified health plans (QHPs) through the Exchanges that cover abortion services for which public funding is prohibited (also referred to as non-Hyde abortion services). The statute and regulations establish that, unless otherwise prohibited by state law, a QHP issuer may elect to cover such non-Hyde abortion services. If a QHP issuer elects to cover such services under a QHP sold through an individual market Exchange, the issuer must take certain steps to ensure that no premium tax credit or cost-sharing reduction funds are used to pay for abortion services for which public funding is prohibited. One such step is that QHP issuers must determine the amount of, and collect, from each enrollee, a “separate payment” for an amount equal to the actuarial value of the coverage for abortions for which public funding is prohibited,¹ which must be no less than $1 per enrollee per month. QHP issuers must also segregate funds for non-Hyde abortion services collected through this payment into a separate allocation account used exclusively to pay for non-Hyde abortion services.

In the “Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers” (77 FR 18310) (2012 Exchange Establishment Rule), we codified the statutory provisions of section 1303 of the PPACA in regulation at 45 CFR 156.280. On February 27, 2015, we published the Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2016, (80 FR 10750) (2016 Payment Notice) providing guidance regarding acceptable billing and premium collection methods for the portion of the consumer’s total premium attributable to non-Hyde abortion coverage for purposes of satisfying the statutory separate payment requirement. We stated that the QHP issuer could satisfy the separate payment requirement in one of several ways, including by sending the enrollee a single monthly invoice or bill that separately itemizes the premium amount for non-Hyde abortion services; sending the enrollee a separate monthly bill for these services; or sending the enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge. In the 2016 Payment Notice, we also stated that a consumer may make the payment for non-Hyde abortion services and the separate payment for all other services in a single transaction. On October 6, 2017, we released a bulletin that discussed the statutory requirements for separate payment, as well as this previous guidance with respect to the separate payment requirement.²

In the proposed rule entitled the Patient Protection and Affordable Care Act; Exchange Program Integrity (Proposed Program Integrity Rule) (CMS-9922-P), we are proposing in §156.280(e)(2) amendments relating to billing of the consumer’s portion of the premium attributable to non-Hyde abortion services. Specifically, we are proposing that:

(1) QHP issuers send an entirely separate monthly bill to the policy subscriber for only the portion of premium attributable to non-Hyde abortion coverage, and

(2) Instruct the policy subscriber to pay the portion of their premium attributable to non-Hyde abortion coverage in a separate transaction from any payment the policy subscriber makes for the portion of their premium not attributable to non-Hyde abortion coverage.

To reflect this proposed change, CMS is issuing new information collection requests (ICRs), in the Proposed Program Integrity Rule, to account for the added burden to QHP issuers for processing these separately billed and separately collected payments for coverage of non-Hyde abortion services.

B. Justification

1. Need and Legal Basis

HHS now believes that some of the methods for billing and collection of the separate payment for non-Hyde abortion services noted as permissible in the preamble to the 2016 Payment Notice do not adequately reflect what we see as Congressional intent that the QHP issuer bill separately for two distinct (i.e., “separate”) payments, one for the non-Hyde abortion services at issue, and one for all other services covered under the policy, rather than simply itemizing these two components of a single total billed amount or notifying the enrollee, at or soon after the time of enrollment, that the monthly invoice or bill will include a separate charge for these services. Although we recognize that itemizing or providing advance notice about the amounts arguably identifies two “separate” amounts for two separate purposes, we believe that the statute contemplates issuers billing for two separate “payments” of these two amounts (e.g., two different checks or two distinct transactions), consistent with the requirement on issuers in section 1303(b)(2)(B)(i) of the PPACA to collect two separate payments.

HHS thus believes that requiring QHP issuers to separately bill the portion of the policy subscriber’s premium attributable to non-Hyde abortion services in a separate mailing or separate electronic communication and instruct policy subscriber’s to make a separate payment for this amount is a better implementation of the statutory requirement for QHP issuers to collect a separate payment for these services.

In accordance with proposed §156.280(e)(2), affected QHP issuers would be required to separately bill for (in a separate mailing or separate electronic communication) and instruct policy subscribers to separately pay for the portion of the enrollee’s premium attributed to non-Hyde abortion services. Under this proposal, QHP issuers would be required to send this separate bill in a separate mailing that requires additional postage. If a QHP issuer sends bills electronically, we propose that it provide consumers with the two bills in separate emails or other electronic communications. Under this proposal, the QHP issuer would also be required to produce an invoice or bill that is distinctly separate from the invoice or bill for the other portion of the consumer’s premium that is not attributable to non-Hyde abortion coverage, whether in paper or electronic format.

QHP issuers must instruct policy subscribers to pay the separately billed or invoiced portion of the premium for non-Hyde abortion coverage in a transaction separate from the transaction for payment of the other portion of the policy subscriber’s premium that is not attributable to non-Hyde abortion coverage and make reasonable efforts to collect the payment separately, such as by including a separate payment stub on each of the separately mailed bills or invoices (if sent on paper) or providing a separate payment link in the separate email or electronic communication or with a separate payment field on the payment web page for each separate payment to be collected (if sending an electronic bill).

2. Information Uses

Requiring QHP issuers to separately bill for the portion of the premium attributable to non-Hyde abortion coverage in a separate mailing or separate electronic communication and instruct policy subscriber’s to pay for this portion of their premium in a separate transaction from any payment the policy subscriber makes for the portions of the premium not attributable to coverage for non-Hyde abortion services will better align the regulatory requirements for issuer billing of enrollee premiums with the separate payment requirement in section 1303.

To implement this proposal, QHP issuers would need to invest additional time and resources to develop a separate invoice for non-Hyde abortion services, separately mail with separate postage the bill for the portion of the premium attributable to non-Hyde abortion coverage or separately email or electronically send the separate bill, as well as additional time and resources for receipt and processing of the separate payment through a separate transaction. Specifically, we anticipate QHP issuers would need to invest time and resources oversee the process of sending in a separate mailing or separate electronic communication a complete and accurate bill to these enrollees for the portion of their premium attributable to that coverage, to review for accuracy the separate payment a policy subscriber in a QHP covering non-Hyde abortion sends for the portion of their premium attributable to that coverage, and to process separate payments, whether made electronically or by mail. We also anticipate that QHP issuers would need to add functionality to their operating systems to develop an automated process to populate the enrollee information on the separate bill, transmit the separate bill in a separate mailing or separate electronic communication, and process the separate payment. These efforts and the information produced by these efforts will ensure that QHP issuers are able to implement the proposal effectively.

3. Use of Information Technology

QHP issuers would be required to send this separate bill in a separate mailing that requires additional postage. If a QHP issuer sends bills electronically, we propose that it provide consumers with the two bills in separate emails or other electronic communications. Under the proposal, the QHP issuer would also be required to produce an invoice or bill that is distinctly separate from the invoice or bill for the other portion of the consumer’s premium that is not attributable to non-Hyde abortion coverage, whether in paper or electronic format.

QHP issuers must instruct policy subscribers to separately pay the separately billed or invoiced portion of the premium for non-Hyde abortion coverage and make reasonable efforts to collect the payment separately, such as by including a separate payment stub on each of the separately mailed bills or invoices (if sent on paper) or providing a separate payment link in the separate email or electronic communication or with a separate payment field on the payment web page for each separate payment to be collected (if sending an electronic bill).

4. Duplication of Efforts

HHS acknowledges that QHP issuers that offer non-Hyde abortion coverage in their individual market plans should already be collecting separate payments from consumers for the portion of their premium attributable to non-Hyde abortion coverage, in accordance with the acceptable methods outlined in the 2016 Payment Notice. As such, the proposals at §156.280(e)(2) may seem duplicative. However, HHS now believes that some of the methods for billing and collection of the separate payment for non-Hyde abortion services noted as permissible in the 2016 Payment Notice do not adequately reflect what we see as Congressional intent that the QHP issuer bill separately for two distinct (i.e., “separate”) payments. HHS instead believes that requiring QHP issuers to separately bill the portion of the policy subscriber’s premium attributable to non-Hyde abortion services and instruct policy subscribers to make a separate payment for this amount is a better implementation of the statutory requirement for QHP issuers to collect a separate payment for these services.

However, if these proposals are finalized, there will be no duplication of efforts, as QHP issuers would no longer be permitted to send the policy subscriber a single monthly invoice or bill that separately itemizes the premium amount for non-Hyde abortion services, or send the policy subscriber a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge in order to meet the separate payment requirement. Rather, QHP issuers would only be permitted to bill for (in a separate mailing or electronic communication) and collect this separate payment in the manner proposed at §156.280(e)(2).

5. Small Businesses

Small businesses are not significantly affected by this collection.

6. Less Frequent Collection

We anticipate that QHP issuers will collect payment monthly from policy subscribers for the portion of their premium attributable to non-Hyde abortion coverage, as health insurance premiums are usually billed on a monthly basis.

7. Special Circumstances

There are no special circumstances.

8. Federal Register/Outside Consultation

As required by the Paperwork Reduction Act of 1995 (44 U.S.C.2506 (c)(2)(A)), CMS is publishing this notice in the Federal Register requesting a 60-day public comment process in the Patient Protection and Affordable Care Act; Exchange Program Integrity (Proposed Program Integrity Rule)(CMS-9922-P). This notice proposes to create new information collection requirements in order to reflect the proposed policy at §156.280(e)(2) to account for the added burden to QHP issuers for these separately billed and collected payments for coverage of non-Hyde abortion services. This proposed rule is also soliciting comments on all portions of the proposed §156.280(e)(2).

9. Payments/Gifts to Respondents

No payments or gifts will be provided to respondents.

10. Confidentiality

Confidentiality would not apply to this data collection.

11. Sensitive Questions

No sensitive questions are asked in this data collection.

12. Burden Estimates (Hours & Wages)

The following sections of this document contain estimates of the burden imposed by the associated information collection requirements (ICRs). Salaries for the positions cited below were taken from the May 2017 National Occupational Employment and Wage Estimates United States Department of Labor’s Bureau of Labor Statistics (BLS) (http://www.bls.gov/oes/current/oes_nat.htm) based on the listed national median hourly wage. All wages on the following pages are inflated by 100% to account for the cost of fringe benefits and overhead costs.

Burden on Issuers

For proposed §156.280(e)(2), we anticipate that populating the enrollee information on the separate electronic or paper bill, transmitting the electronic or paper bill in a separate mailing or separate electronic communication, and processing the enrollee’s separate electronic or mailed payment would be an automated process that occurs monthly after a computer programmer adds this functionality to the QHP issuer’s billing and payment operating system. We estimate that a one-time computer programmer would require 10 hours to add this functionality to an affected QHP issuer’s systems (at a rate of $84.16 per hour)³ for a total burden of 10 hours. We estimate that there would be a one-time cost of $841.60 per QHP issuer that offers plans that cover non-Hyde abortion services to meet this reporting requirement. This would be a one-time cost, such that the overall burden for all 75 QHP issuers would be 750 hours, with an associated total cost of $63,120.

Based on 2018 QHP certification data in the Federally-facilitated Exchanges (FFEs) and State Exchanges on the Federal platform (SBE-FPs), we estimate that 15 QHP issuers offered a total of 111 plans with coverage of non-Hyde abortion services in 7 States. In State-Based Exchanges (SBEs) we estimate that 60 QHP issuers offered a total of approximately 1,000 plans offering non-Hyde abortion coverage across 10 SBEs. In total, this leads to an estimate of 75 QHP issuers offering a total of 1,111 plans covering non-Hyde abortion services across 17 states. As such, we estimate that the total number of QHP issuers that offer plans with coverage of non-Hyde abortion, that would be required to send separate bills in a separate mailing or separate electronic communication and collect separate payments as proposed at §156.280(e)(2), would be 75 per year, for a total one-time burden of 750 hours. Below is the estimate of the burden imposed on a single QHP issuer subject to the reporting requirements of this rule. The aggregate burden for 3 years would be the same as for one year: $841.60 per respondent and $63,120 for all respondents.

Labor Category	Respondents	Responses	Burden per Response (hours)	Wage Rate (p/hr) including 100% fringe benefits	Total Annual Burden per response (hours)	Labor Cost of One-Time Reporting ($)	Total One-Time Cost for all respondents ($)
Computer programmer to add automated billing & payment processing functionality	75	75	10	$42.08	10	$841.60	$63,120
Total	75	75	10	$42.08	10	$841.60	$63,120

For proposed §156.280(e)(2), we anticipate that populating the enrollee information on the separate electronic or paper bill and transmitting that bill in a separate mailing or separate electronic communication would be an automated process. However, we estimate that a general office clerk working for an affected QHP issuer would require 2 hours monthly (at a rate of $30.28 per hour)⁴ per plan to determine which enrollees are enrolled in plans that cover non-Hyde abortion and to oversee the process of sending a separately packaged complete and accurate bill in a separate mailing or separate electronic communication to these enrollees for the portion of their premium attributable to that coverage, for an annual burden of 24 hours. This estimate includes the time the office clerk would spend determining which enrollees prefer paper billing versus electronic billing and ensuring that the bills are complete and accurate and are being sent in a separate mailing or separate electronic communication. We estimate that it would cost $726.72 annually per plan that covers non-Hyde abortion services to meet the reporting requirement, with a total annual burden for all 1,111 plans of 26,664 hours and an associated total annual cost of $807,385.92.

For proposed §156.280(e)(2), we similarly anticipate that processing the payment made by enrollees for this portion of their premium would be an automated process. However, we estimate that a general office clerk working for an affected issuer would require 2 hours monthly (at a rate of $30.28 per hour)⁵ per plan to review for accuracy the separate payment an enrollee in a plan covering non-Hyde abortion sends for the portion of their premium attributable to that coverage and to process any payments or paper checks made by enrollees through the mail, for an annual burden of 24 hours. This estimate includes the amount of additional time the office clerk would need to spend reviewing for accuracy the separate payments returned in separate mailings from the payments received for the portion of the policy subscriber’s premium not attributable to non-Hyde abortion. We estimate that it would cost $726.72 annually per plan that covers non-Hyde abortion services to meet the reporting requirement, with a total annual burden for all 1,111 plans of 26,664 hours and an associated total cost of $807,385.92.

Based on 2018 QHP certification data in the FFEs and SBE-FPs, we estimate that 15 QHP issuers offered a total of 111 plans with coverage of non-Hyde abortion services in 7 States. In SBEs we estimate that 60 QHP issuers offered a total of approximately 1,000 plans offering this coverage across 10 SBEs. In total, this leads to an estimate of 75 QHP issuers offering a total of 1,111 plans covering non-Hyde abortion services across 17 states. As such, we estimate that the total number of plans for which QHP issuers need to send separate bills in a separate mailing or separate electronic communication and collect separate payments as proposed at §156.280(e)(2) would be 1,111 per year, for a total burden of 53,328 hours to meet these reporting requirements per year. Below is the estimate of the burden imposed on a single plan subject to the reporting requirements of this rule. The aggregate burden for 3 years would be $4,360.32 per respondent and $4,844,315.52 for all respondents.

Labor Category	Respondents	Responses	Burden per Response (hours)	Total Annual Burden per response (hours)	Wage Rate (p/hr) including 100% fringe benefits	Labor Cost of Reporting Annually ($)	Total Annual Cost for all respondents ($)
General office clerk for preparing and sending the bill	1,111	1,111	2	24	$30.28	$726.72	$807,385.92
General office clerk for receiving and processing the separate payment	1,111	1,111	2	24	$30.28	$726.72	$807,385.92
Total	2,222	2,222	4	48	$60.56	$1,453.44	$1,614,771.84

13. Capital Costs

There are no anticipated capital costs associated with this data collection.

14. Cost to Federal Government

There are no costs to the Federal government.

15. Changes to Burden

There are no changes to burden as this is a new information collection request.

16. Publication/Tabulation Dates

The results of this data collection will not be posted for public view.

17. Expiration Date

There are no data collection instruments associated with this collection.

1 Section 1303 also specifies how such actuarial value is to be calculated.

2 CMS Bulletin Addressing Enforcement of Section 1303 of the Patient Protection and Affordable Care Act (October 6, 2017), available at https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Section-1303-Bulletin-10-6-2017-FINAL-508.pdf.

3 This is based on the national median hourly rate of $42.08 for a computer programmer, inflated by 100% to account for the cost of fringe benefits.

4 This is based on the national median hourly rate of $15.14 for a general office clerk, inflated by 100% to account for the cost of fringe benefits.

5 This is based on the national median hourly rate of $15.14 for a general office clerk, inflated by 100% to account for the cost of fringe benefits.

6