Community Health Needs Assessments

Nearly three years ago, having spent hundreds of hours immersed in ACA minutiae, we anticipated that clients would not react well to fees for services that consisted principally of telling them that they had asked the wrong question. So we decided, against tradition and much conventional wisdom, to sink lots of unpaid partner time into this education project. A casual reader of this blog should learn basic ACA terms and concepts, so that he or she can converse effectively with advisors. A regular reader should be able to identify, during such a conversation, a purported ACA expert who’s a poseur. Sadly, they abound. A colleague should find this a thought-provoking reference to ACA rules and guidance documents. Those are our goals.

Substitute nothing you read here for legal or other professional advice about any specific situation. ACA rules and sub-regulatory guidance change frequently and whimsically. Occasionally, the three main enforcement agencies (DOL, HHS, IRS) disagree. Sometimes, they publish a new rule unaware of a related, existing rule. Part of our service to you is to alert you to what we see coming. We usually have guessed right, but we often are guessing. And of course, apparently insignificant factual details can turn out to be determinative. If you regard this blog as cheap – i.e., free – legal advice, you’re rolling the dice at your own risk and the risk might be far bigger than you realize.

Finally, we invite constructive comments, including reasoned criticism, but not rants. We delete hissy-fits and block commenters who seem to be unable to comment otherwise. That goes triple for political hyperbole. Sometimes, we must explain political realities in order to explain a regulatory reality, but we try to be objective. You should, too.

Recently, we have received requests to re-post prior articles on the 90-day waiting period, the employer mandate final rules (supplemented here, here, here and here), and our pop quiz for ACA consultants.  As we approach our 100th article, some readers apparently find the scroll-down browsing process tedious.  So do we.  Here are two other ways to find the articles that most interest you.

You may search by “Tags” or by search terms.  We have attached all our present “Tags” to this article, appearing just under the author’s name, so that you may see your options.  Click any Tag and the server will show you a list of all articles similarly tagged.  Or, enter your search term(s) in the “Search” box, in the green bar above and to the right of the article, just above “ABOUT THIS BLOG.”  The server then will show you a list of articles that contain your search term(s).

We genuinely seek to help employers, providers, insurers and brokers understand ACA compliance issues, but please remember that the articles posted on this site are not legal advice and should not be substituted for legal advice.  They are offered as educational introductions to the subjects addressed.  ACA legal advice should be obtained confidentially from a lawyer who knows the ACA and who knows all your relevant facts.

On January 29, 2014, the IRS updated its list of priority projects for the period ending July 1, 2014.  Though expressly disclaiming any promise to compete any listed project by any certain date, the IRS included among its unfinished priorities these much-needed ACA rules and guidance documents.

  • Regulations amending §1.419A-2T relating to collectively-bargained welfare benefit funds.
  • Regulations under §4980G on the interaction of §4980G and §125 with respect to comparable employer contributions to employees’ HSAs.
  • Final regulations on shared responsibility for employers regarding health coverage under §4980H, as added by §1513 of the ACA. Proposed regulations were published on January 2, 2013.
  • Final regulations on the annual fee on branded prescription drug manufacturers and importers under §9008 of the ACA. Temporary and proposed regulations were published on August 8, 2011.
  • Final regulations under §§501(r) and 6033 on additional requirements for charitable hospitals as added by §9007 of the ACA. Proposed regulations were published on June 26, 2012 and April 5, 2013.
  • Regulations under §36B, as added by §1401 of the ACA, regarding minimum value of eligible employer-sponsored coverage and other provisions relating to the health insurance premium tax credit. Proposed regulations were published on May 3, 2013.
  • Final regulations under §36B, as added by §1401 of the ACA, regarding information reporting by Affordable Insurance Exchanges. Proposed regulations were published on July 2, 2013.

The § 4980H (aka “employer mandate”) final rules have been postponed repeatedly.  Though it’s good to know that the IRS is hard at work on them, there is no guarantee that we will see these badly needed rules soon.

What’s missing?  Perhaps most importantly, rules on fully-insured plan discrimination favoring the highly compensated.  Reporters were told several times in the last month that these rules are being delayed again, in order to reconcile them with a re-draft of existing rules prohibiting such discrimination by self-insured plans.  Even longer overdue are rules implementing the automatic enrollment mandate for large employers, but the Department of Labor has that project.

What Is the Opportunity?

Medicaid DHS payments to hospitals, reflecting their uncompensated care burdens, exceeded $300,000,000 in 2011 in Alabama.  They topped $200,000,000 in Florida, $250,000,000 in Georgia and $150,000,000 in Mississippi. Much uncompensated care is attributable to patients with household incomes just a bit too high for Medicaid eligibility.  Many of those households had no option to accept affordable, job-based coverage.  In part because the IRS has delayed until 2015 enforcement of the Affordable Care Act mandate that employers provide such coverage to their full time employees, this situation is likely to persist in 2014, when CMS will begin to reduce associated DSH payments, even in states that have rejected the government’s offer to fund most of the expense of expanding Medicaid eligibility to households with incomes up to 138% of the Federal Poverty Level (“FPL”).  But many such patients will be able to obtain guaranteed issue, individual health insurance policies through the new Affordable Care Act Exchanges.  Those with household incomes under 400% of the FPL will be eligible for federal premium and cost sharing subsidies to facilitate those purchases.  For a user-friendly online estimator, see http://kff.org/interactive/subsidy-calculator.  It forecasts that two uninsured, non-smoking parents with one child, having an annual household income of $25,000 (128% of FPL), after buying a $662.75 per month silver plan, will pay a monthly premium of just $41.67 (a 94% subsidy), with maximum out of pocket costs of $4,500.

Most such purchases are expected to be made online and may be made when the patient seeks care, assisted by a provider employee or contractor.  Insurance brokers, third party plan administrators and others with benefits administration experience are preparing to provide this service, but hospital billing personnel should be able to handle it with minimal training.

When Will This Opportunity Be Available?

October 1, 2013 – March 31, 2014 will be the first open enrollment period for individual health insurance purchases through the Federally Facilitated Exchange serving Alabama, Florida, Georgia and Mississippi.  Issuers of Exchange-listed policies must insure all applicants, regardless of health status, without exclusion of pre-existing conditions, on a modified community rating basis.

After this open enrollment period closes for calendar year 2014 coverage, certain applicants may qualify for special enrollment opportunities, based on, for example, loss of affordable, job-based coverage, income reduction, or other relevant factors.

What Restrictions Does the ACA Impose?

Probably due to extensive publicity of federal Navigator grants and their cumbersome rules, many providers erroneously have assumed that they would have to seek and win a Navigator grant, then comply with those rules, in order to assist this group of patients with their Exchange applications.  In fact, there are five categories of approved assistance personnel, with ACA regulations ranging from Navigator status (highly regulated) to unregistered and unregulated application assistants.  This chart lists major distinctions, with respect to the Federally Facilitated Exchange.

Title Funding Rules
Navigator $54M in 2014 Navigator grants, to be awarded August 15, 2013. Final rules at 45 C.F.R. § 155.205 et seq. are extensive – e.g. limited grant availability, absolute conflict of interest prohibitions, training, examination and recordkeeping requirements.
Non-Navigator Assistance Personnel Available, but not through the ACA. Final rules at 45 C.F.R. § 155.205 et seq. substantially parallel Navigator rules.
Certified Application Counselors None. Final rules at 45 C.F.R. § 155.225 are relatively relaxed, with no conflict of interest bar.  Organizations, including providers, may be authorized to grant CAC status to their employees.
Authorized Representatives None. Final rules at 45 C.F.R. § 155.227 are minimally burdensome.  The applicant (or a court), rather than the Exchange, designates an authorized representative.
None. None. None, as long as no “certified application counselor” representation is made.  See 78 F.R. 42,843 (July 17, 2013).

About $150,000,000 in non-Navigator grants was awarded in July 2013 to health care centers, and to others for distribution to health care centers, to fund their assisted Exchange enrollment of uninsured patients.  Other public and private funding may be available.

Tax-exempt providers subject to the ACA’s Community Health Needs Assessment mandate of 26 U.S.C. § 501r may be able to take credit for such assistance efforts in their CHNA documentation.

What Do State Laws Require?

No enforceable state law may interfere with the operation of federal rules regarding Navigators, Non-Navigator Assistance Personnel, Certified Application Counselors or Authorized Representatives. For example, a state may not require that they be licensed insurance agents.  But the ACA rules adopt by reference a number of generally applicable state laws (state guardianship orders and Medicaid application assistance certifications, for example) and permit states to provide funding for positions not federally funded.

What Should Providers Do?

Providers who want to pursue this opportunity should obtain professional guidance regarding the applicable state and federal rules and then determine whether to provide enrollment assistance through existing staff, new hires, or enrollment assistance contractors.