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On September 17, the Departments of Health and Human Services and Treasury (“Departments”) issued their final rule on 2022 benefit and payment parameters under the Affordable Care Act (“ACA”), following publication of the rule’s first and second parts earlier this year.

Of note, the final rule rescinds the Trump Administration’s 2018 guidance regarding Section 1332 waiver guardrails and provides an interpretation mirroring the Obama Administration’s 2015 guidance. Specifically, the Departments interpret the scope of “coverage” to apply consistently under Section 1332(b) to the coverage, comprehensiveness, and affordability guardrails.

Additionally, while the final rule does not directly address many of the Council’s core interests related to the ACA, it does touch some of the more tangential topics and policy issues that we have been following, including:

  • Establishing a monthly special enrollment period for Advance Payments of Premium Tax Credits for eligible consumers with household incomes at or below 150% of the federal poverty level;
  • Beginning with the 2022 plan year, establishing an annual open enrollment period of 75 days (e.g., from November 1, 2021 to January 15, 2022);
  • Increasing the federal and state-based marketplace user fees (e.g., from 2.25% to 2.75%);
  • Repealing the separate billing rule that required qualified health plans to send a separate bill for abortion services under Section 1303 of the ACA; and
  • Reinstating the requirement that navigators in the federally-facilitated marketplace assist consumers with specific post-enrollment issues (e.g., the eligibility appeals process, premium tax credit reconciliation process, etc.).

Furthermore, the final rule repeals the Exchange Direct Enrollment option. Similar to Georgia’s 1332 waiver, the option would have allowed states to transition from a centralized exchange (e.g., to enrollment via private sector websites (e.g., insurers, web-brokers, agents, and brokers). In the final rule, the Departments noted a concern that such option would deter the implementation of new transparency regimes under the Transparency in Coverage final rule, No Surprises Act, and American Rescue Plan Act.

The final rule takes effect on November 26, 2021. For more information, please see the final rule and fact sheet.