Belgium: CMS Releases Annual Health Insurance Exchanges Final Rule

On April 9, 2018, the Centers for Medicare & Medicaid Services (CMS) released the Benefit and Payment Parameters final rule for 2019 (2019 Payment Notice) applicable to qualified health plans (QHPs) offered on health insurance exchanges.1 Although the Trump Administration had previously issued regulations and guidance related to the health insurance marketplaces (for example, the market stabilization rule) this is the first time that it has completed the annual payment notice rulemaking cycle, given that that the 2018 payment notice was issued by the Obama Administration. While the focus of the annual payment notice rulemaking cycle is on QHPs offered on exchanges, it often also addresses federal regulations that apply across the health insurance markets, as the 2019 Payment Notice does.

The regulatory changes made in the 2019 Payment Notice reflect the Trump Administration's stated objectives of enhancing flexibility, affordability, program integrity, and market stability, while reducing the regulatory burden of the Affordable Care Act (ACA). Health insurance issuers and state regulators will have to move quickly to respond to the changes in policy, as the 2019 Payment Notice was issued later relative to prior years.

The changes in policy reflected in the 2019 Payment Notice include:

  • Essential health benefits (EHBs): Under the ACA, non-grandfathered individual and small group market plans, including exchange plans, must cover 10 categories of EHBs. The 2019 Payment Notice gives states increased flexibility to define the items and services that constitute each of these categories of EHBs. Beginning with plan year 2020, CMS is allowing states on an annual basis to pick from three options when setting their EHB-benchmark plans: (1) choose one of the 50 benchmark plans that states used in plan year 2017; (2) replace one or more of the 10 statutorily required EHB categories of items and services under the state's benchmark plan used in plan year 2017 with the same category or categories of items and services from another state's benchmark plan used in plan year 2017; or (3) select an entirely new set of benefits as the state's benchmark plan. These options are subject to two scope-of-benefit requirements. First, a state's benchmark plan must provide benefits that are at least equal to the scope of benefits provided under a typical employer plan. A typical employer plan is defined as one of the state's 10 benchmark plan options in plan year 2017 or one of the state's five largest group health insurance products by enrollment in plan year 2017, assuming such products meet certain additional conditions. Second, a state's benchmark plan must not be more generous than the most generous comparison plan, which is defined to include the state's benchmark plan in plan year 2017 and the state's three largest small group health plans by enrollment in plan year 2017.
  • Medical loss ratio (MLR): Under the ACA, health insurance issuers must spend a proportion of premium revenues on clinical services and quality improvement relative to their total costs and profits or issue rebates to enrollees; this requirement is known as the MLR requirement. The 2019 Payment Notice, will, among other things, give CMS the authority to allow a state to lower its individual market MLR if the state shows that a lower MLR would help stabilize its individual market.
  • Rate review: Under the ACA, health insurance issuers must submit information to regulators about proposed premium rate increases. CMS, in partnership with states, reviews any proposed rate premium increases above a threshold to ensure the increases are not "unreasonable." The 2019 Payment Notice makes certain changes to the rate review process, including, most significantly, increasing the "unreasonable" premium increase threshold from its current rate of 10 percent to 15 percent.
  • Network adequacy: To be certified as a QHP, a plan must meet a network adequacy requirement. Under the 2019 Payment Notice, CMS will continue to defer to state review of network adequacy when a state has the authority and means to enforce standards that are at least equal to the federal "reasonable access standard." For a state that does not have such authority and means, CMS will rely on an issuer's accreditation or the submission of an access plan as part of the issuer's QHP application.
  • Risk adjustment program: Under the ACA, to protect against potential effects of adverse selection, the risk adjustment program transfers funds from QHPs with relatively low risk enrollees to QHPs with relatively high risk enrollees. Under the 2019 Payment Notice, CMS made technical changes to how issuers' risk scores are calculated. Additionally, beginning in plan year 2020, in states where the federal government operates the risk adjustment program, CMS will allow state regulators to request a percentage adjustment of up to 50 percent in the individual, small group, or merged market if the state regulator can demonstrate that state-specific factors warrant such an adjustment.
  • Meaningful difference standard and standardized plan options: CMS is eliminating the meaningful difference standard, which required QHPs to be meaningfully different from other QHPs offered by the same issuer within a service area and metal level tier. CMS is also eliminating standardized plan options for plan year 2019, including by not specifying standardized options on, the federal exchange webportal.
  • Small business health options programs (SHOPs): CMS is no longer requiring SHOPs, the small group market exchanges, to provide employee eligibility, premium aggregation, or online enrollment functionality. While this change in policy is codified in the 2019 Payment Notice, CMS implemented the change in plan year 2018.
  • Hardship exemption: Although the individual mandate has been repealed by Congress beginning in plan year 2019, CMS is expanding the scope of the hardship exemption from the mandate for years where the mandate remains in force. Under the 2019 Payment Notice, for plan year 2018, affordable coverage, which is used to determine whether an individual is eligible for a hardship exemption, will be based on the individual's projected income using the lowest-cost metal level plan offered through an exchange when there is no bronze level plan available in the individual's service area. In conjunction with the 2019 Payment Notice, CMS released guidance that further expands the hardship exemption to include a person who lives in a county where: no QHPs are offered (i.e., a bare county); only one issuer offers QHPs and such circumstance renders the person incapable of obtaining coverage; or all QHPs include abortion coverage and such coverage is contrary to the person's beliefs.
  • Special enrollment periods (SEPs): CMS made three changes to SEPs by: (1) aligning enrollment options for dependents who are newly enrolling in coverage through an SEP and who are added to an application with current enrollees; (2) making women who lose access to pregnancy-related Children's Health Insurance Program coverage eligible for a 60-day SEP; and (3) clarifying that the prior coverage requirement for SEP eligibility does not apply if an individual is moving from a bare county.
  • Eligibility Verification: CMS is imposing increased exchange subsidy verification requirements for individuals with data matching issues who attest to income over 100 percent of the federal poverty level.

It remains to be seen whether such changes in policy will help mitigate concerns about future premium spikes or issuers exiting the exchanges. While some experts have contended these changes could generally diminish access by consumers to health care items and services, others argue that they could increase access by making plans more affordable.


1 The document, copy available here, was released by the Department of Health and Human Services, but has yet to be published by the Office of the Federal Register. Minor changes could be made.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions