Patient Protection and Affordable Care Act, HHS Notice of Benefit and Payment Parameters for 2027; and Basic Health Program

Together, section 1311(c)(1), 1311(c)(1)(B), and 1311(c)(1)(C) of the Affordable Care Act directs HHS to establish by regulation certification criteria for QHPs, which include (but are not limited to) criteria that require QHPs to ensure a sufficient choice of providers, provide information to enrollees and prospective enrollees on the availability of in-network and out-of-network providers, and include within health insurance plan networks those ECPs, where available, that serve predominantly low-income, medically-underserved individuals. We have historically implemented these provisions through our network adequacy and ECP requirements for network plans at Sec. 156.230 and Sec. 156.235, respectively.\329\

\329\ See 45 CFR 156.230 and 156.235.

In the Exchange Establishment Rule (77 FR 18310), we finalized the minimum network adequacy criteria that plans, including medical plans and SADPs, must meet to be certified as QHPs at Sec. 156.230. In the 2016 Payment Notice (80 FR 10749), we revised Sec. 156.230(a) to specify that network adequacy requirements apply only to QHPs that use a provider network (network plans) to deliver services to enrollees and that a provider network includes only providers that are contracted as in-network. We also revised Sec. 156.235(a) to state that the ECP criteria apply only to QHPs that use a provider network. In part 1 of the 2022 Payment Notice (86 FR 6138), we added paragraph (f) to Sec. 156.230 to clarify that a plan for which an issuer seeks QHP certification or any certified QHP that does not use a provider network (or non-network plan) is not required to comply with the network adequacy standards at paragraphs (a) through (e) of Sec. 156.230 to qualify for certification as a QHP. Unlike network-based plans, non- network health plans do not rely on a contracted set of providers that agree in advance to specific terms and negotiated payment rates, nor do they condition or differentiate benefits to enrollees based on whether the issuer has a network participating agreement with a provider that furnishes covered services. Instead, these plans set specific benefit amounts for covered services and communicate those benefit amounts to enrollees who may then seek covered services from any provider. The plan may determine the benefit amount based on an established methodology such as a percentage of a publicly available benchmark, a reference-based pricing structure, or another reimbursement standard (that is, Medicare or private payor rates, etc.).

In the 2024 Payment Notice (88 FR 25872 through 25879), we exercised the authority delegated to us by section 1311(c)(1) of the Affordable Care Act to establish criteria for the certification of health plans as QHPs to revise Sec. Sec. 156.230 and 156.235 to require all individual market QHPs and SADPs and all SHOP QHPs across all Exchanges to utilize a network of providers that complies with the standards described in Sec. Sec. 156.230 and 156.235. In doing so, we acknowledged that we had previously stated that “nothing in [the Affordable Care Act] requires a QHP issuer to use a provider network” because there is no explicit standalone network requirement (88 FR 25872 (quoting 84 FR 6154)). But we still stated concerns over whether a plan without a network would be able to comply with Affordable Care Act section 1311(c)(1)(C)'s requirement that plans “shall, at minimum . . . include within health insurance plan networks those essential community providers, where available, that serve predominately low- income, medically-underserved individuals,” which we read to imply that access to ECPs would be provided “within health insurance networks” (88 FR at 25873). We also solicited comment on alternative administrable regulatory standards under which non-network plans could “ensure a sufficient choice of providers” consistent with section 1311(c)(1)(B) of the Affordable Care Act. At the time, neither commenters to the 2024 Payment Notice nor HHS had enough information to devise such an administrable regulatory standard to enable non-network plans to demonstrate a sufficient choice of providers to receive QHP certification. On these bases, in the 2024 Payment Notice (88 FR 25876), we finalized the requirement that all QHPs (except certain SADPs) \330\ must use a network of providers. As a result of this, non- network plans are currently unable to meet all of the minimum certification criteria at Sec. 155.1000(c), which means Exchanges cannot currently certify non-network plans as QHPs and consumers cannot enroll in non-network plans through the Exchanges.

\330\ See 45 CFR 156.230(a)(4).