The Department of Health and Human Services (HHS) has published a major proposed rule that would, among other things, implement key provisions of the Affordable Care Act (ACA) related to essential health benefits, (EHBs), calculation of actuarial value (AV), and accreditation standards. By way of background, the ACA requires health plans offered in the individual and small group markets -- in and out of new Affordable Insurance Exchanges (Exchanges) -- to offer a core package of “essential health benefits.” The EHB package must include items and services in at least the 10 broad categories: ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services (including behavioral health treatment); prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services (including oral and vision care). EHB must be comparable to benefits offered by a “typical employer plan.” HHS proposes in a November 26, 2012 proposed rule that EHB be defined based on a state-specific benchmark plan, with several options for selection of a benchmark plan set forth in the proposed rule. All plans that cover EHB would be required to offer benefits that are substantially equal to the benefits offered by the benchmark plan. The proposed rule includes a framework for supplementing the benchmark plan if it is missing any of the 10 statutory benefit categories, and it includes safeguards to prevent benefit designs that could discriminate against certain enrollees. HHS also proposes a specific standard for prescription drug coverage that is broader than the potential approach set forth in HHS’s December 16, 2011 “EHB Bulletin.” In the EHB Bulletin, HHS indicated it would require insurance issuers to cover at least one drug in each United States Pharmacopeia (USP) category and class in which the EHB-benchmark plan covered at least one drug. In response to concerns raised about the comprehensiveness of this coverage, the proposed rule would provide that, to meet the EHB standard, a plan would need to cover at least the greater of: (1) one drug in every category and class; or (2) the same number of drugs in each category and class as the EHB-benchmark plan. 

The proposed rule also discusses how AV will be calculated under the ACA to facilitate consumer comparisons of plans with similar levels of coverage. The AVs vary by “metal level” – 60% for a bronze plan, 70% for a silver plan, 80% for a gold plan, and 90% for a platinum plan (with special standards for catastrophic-only coverage). To provide flexibility in meeting the metal levels, HHS proposes to allow a plan to qualify for a particular metal level if its AV is within 2 percentage points of the standard. In addition, the proposed rule includes a timeline for when issuers offering coverage in Exchanges must become accredited and an application process for accrediting entities seeking to be recognized to accredit issuers offering coverage in any Exchange. Comments on the proposed rule will be accepted until December 26, 2012. HHS also released guidance to state Medicaid programs on how existing private plans in Medicaid will have to meet the EHB standards.