CMS-10704.Emegency Justification Document (signed)

DATE:

June 19, 2019

TO:

Paul Ray
Acting Administrator, OIRA

FROM:

Randy Pate �
Director, cc'fJJJ f

SUBJECT:

Request for Emergency Clearance of the Paperwork Reduction Act Package for
Health Reimbursement Arrangements and Other Account-Based Group Health
Plans Final Rule

A
F ,_,.._

Emergency Justification
The Centers for Medicare & Medicaid Services (CMS) is requesting that an information
collection request associated with the Health Reimbursement Arrangements (HRA) final rule be
processed in accordance with the implementing regulations of the Paperwork Reduction Act of
1995 at 5 CFR l 320.13(a)(2)(i). We believe HRA plan sponsors will be unable to provide
eligible participants with critical information related to the offer of an individual coverage HRA
prior to the 2019 Open Enrollment if the normal, non-emergency clearance procedures are
followed.
Specifically we are requesting emergency approval for information collection requirements
(ICRs) related to substantiation ofindividual health insurance coverage (45 CFR 146.123(c)(5)),
notice requirement for individual coverage HRA (45 CFR 146.123(c)(6)), notification of
termination of coverage (45 CFR 146.123(c)( I )(iii)), and the special rule for excepted benefit
HRAs (45 CFR l 46. I 45(b)(3)(viii)(F)). In accordance with 5 CFR l 320. l 3(a)(2)(i), we believe
that public harm is reasonably likely to ensue if the normal clearance procedures are followed.
The use ofnonnal clearance procedures is reasonably likely to prevent the collection of
information. In general, the individual coverage HRA notice must be provided to participants at
least 90 days before the beginning of each plan year. The Departments ofHealth and Human
Services, Labor and Treasury are making available to HRA plan sponsors model notice and
model attestation language for individual coverage HRAs to ensure that eligible participants have
necessary information related to the HRA they are being offered. Employers will need to add
infonnation specific to their HRAs into the model notice. If the infonnation collection is not
approved on an emergency basis, employers with an HRA plan year beginning on January I,
2020, may not have the needed certainty to be able to prepare the notices and send them to
participants by October I, 2019. If employers do not receive the model notice and attestation in
final form until later, some may rush to meet the October I, 2019 deadline and in the process
incur additional costs and increase the likelihood that the required notice contains mistakes or
does not comply with the regulatory requirements. This could affect individuals' ability to make
informed decisions about whether to accept the HRA, could affect individuals' eligibility for the
premium tax credit for Exchange coverage, and could affect the accuracy of affordability
INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BYLAW: This i11/0rmarion has 1101 been public�vdisclosed
and may be p1fri!eged and confidential. // is for imemal gon:'l'IWU!nl we on(v and must not be dis.11.>mi11a1ed. (/istrib11ted, or copied 10 pasons 1101
authori::ed to recefre the i11(ormalio11. Umwtlwri::ed disclosure may result in prosecution 10 thejitllesl extent �(the law.

determinations with respect to whether an individual's individual coverage HRA
offer makes
them ineligible for advanced paynent of the premium tax credit. While employers
who have not
previously offered employees coverage may be able to delay the start
of their HRA plan year and
send the notice later, employers who are currently offering traditional group
coverage with a plan
year beginning on January 1,2020 and who cannot meet the October
l, 2019 deadline would
likely be forced to wait until the following plan year to take advantage of the flexibility
added in
tlìe rule. For ernployees, this may mean fewer choices of plans.

Background
The Department of the Treasury, the Department of Labor, and the Department
of Health and
Human Services (collectively, the Departments) will be issuing fural regulations
in June 2019,
titled "Health Reimbursement Arrangements and Other Account-Based Group Health plans,,
under section 271 I of the PHS Act and the health nondiscrimination provisions
of HIpAA,
Public Law 104-191 (HIPAA nondiscrimination provisions). The regulations expand
the use of
health reimbursement arrangements and other account-based group health plans (collectively
referred to as HRAs). In general, the regulations accomplish this by eliminating the
current
prohibition on integrating HRAs with individual health insurance coverage, thereby permitting
ernployers to offer individual coverage HRAs to employees enrolled in i¡dividual health
insurance coverage or Medicare. Under the regulations employees will be permitted
to use
amounts in an individual coverage HRA to pay expenses for medical care (including premiums
for individual health insurance coverage and Medicare), subject to certai¡ requirements. The
final rules include ICRs related to the substantiation of individual health insurance coverage,
a
notice requirement for individual coverage HRAs, notification of tennination of coverage
and a
special rule for excepted benefit HRAs.

Timeline
June 12,2019

o

Emergency Information Collection Requirement formally submitted to OMB

June 13,2019
o OMB approval received

July 2019 onwards

r

Employers prepare individual coverage HRA notices and substantiation documents based
on rnodel notice and attestation language.

August 26,2019

o

60-day FR notice submitted to the Office of the Federal Register (OFR) for publication

August 30,2019

INFORMATIoN NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: 'l'his ittlbrmttion has
uuthori:ed to

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Target publication date for 60-day FR notice to initiate standard OMB approval process.
Start of the 60-day public comment period.
PRA package posted for public review on the cMS pRA web site.

October lr20l9
o HRA sponsors with a plan year starting January 1,2020 must provide notice regarding
individual coverage HRA offers.
October 29,2019
o End of 60-day comment period.
o The Departments review and respond to comments,

o

as needed.

PRA package revised as needed

November l9r20l9
o Final PRA package due to OSORA for review
and processing.
a osoRA submits PRA package to cMS/oA for
final clearance.
November 2612019

o

30-day FR notice submitted to the OFR for publication.

December 212019
Target publication date for 30-day FR notice.
Start of 30-day public comment period.
PRA package formally submitted to OMB in ROCIS

o
o
o

INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This infornation
ond may be privileged and con!ìdential.isþr intemal government use only and muil nor be disseniítaø:,
.It
authorized to receive the inþrmation. lJnaulhorized disclosure may resuk

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