On March 12, 2012, the Department of Health and Human Services (“HHS”) issued final regulations relating to the establishment and operation of a State-based health insurance Exchange, including standards for the Small Business Health Options Program (“SHOP Exchange”).
While the final regulations did not include rules on how the Federally-facilitated Exchange would operate or what a Federal-State “partnership” would entail, the final regulations confirm the flexibility that states generally have when it comes to structuring and operating a State-based Exchange. This flexibility is welcomed by most if not all states. However, such flexibility presents certain political as well as practical challenges. In the case of practical challenges, the new Exchange rules carry with them a number of legal issues that every State Exchange will have to address.
Most states are leaning toward housing their Exchange in an independent, non-profit organization or a quasi-public/private entity. Regardless of its structure, the Exchange will operate like a business entity. In this case, the Exchange Board will need to engage in risk planning and risk management. In addition, although the state “establishing” legislation may afford the Exchange sovereign immunity, there will likely be legal challenges against the Exchange.
With respect to operating an Exchange, there are a number of Exchange functions that also raise legal issues. These legal issues range from the protection of personally identifiable information and HIPAA compliance to memoranda of understanding between state agencies regarding Exchange functions and fiduciary issues that are certain to be associated with “premium aggregation” in the SHOP Exchange (and the “individual market” Exchange if it operates as a premium aggregator).
While states have significant latitude in funding the Exchange, if a state opts to raise financing for the Exchange through, among other things, advertising, the Exchange Board may have to navigate certain areas of the law. In addition, if user fees are imposed on participating insurance carriers, legal and enforcement challenges are likely, and other financial management issues are sure to arise.