Higher Bar for "Good Faith Compliance" in Second Year of Exchange Operations

The Centers for Medicare & Medicaid Services ("CMS") expects Qualified Health Plan ("QHP") Issuers to be more familiar with Marketplace requirements and better reflect those standards in Issuers' written policies and procedures, officials stated at the recent 2015 QHP Certification Conference held at CMS Headquarters in Baltimore, Maryland.

Twenty-three Issuers across fifteen Federally-facilitated Marketplace ("FFM") States were audited for compliance with Federal QHP requirements during 2014.  The audits focused largely on QHP's policies and procedures relating to FFM operations, including oversight of first tier, downstream and related entities ("FDRs).  While CMS held to its previously announced policy to not pursue sanctions against non-compliant Issuers which made a good faith effort to comply with requirements, officials noted that audit findings showed a lack of familiarity with Federal QHP requirements.  Many QHPs' Marketplace-related policies and procedures were either non-existent, newly created near the time of the audit or generic, not addressing Marketplace-specific requirements.  Other common findings included QHP failure to:

• Meet notice accessibility requirements;
• Address requirements on maintaining current and accurate provider directories;
• Ensure compliance with agent/broker training and registration requirements; and,
• Ensure that agent/broker compensation is equal inside and outside the Exchange.

CMS is reviewing available data to select Issuers for audit during 2015.  Audit initiation will be staggered throughout the year and may be conducted on a standard or expedited timeframe.  The process may be managed as a desk review or may be onsite, but will include review of QHP systems and documents as well as interviews and will look at QHP oversight of FDRs.  Despite CMS's decision to extend its good faith compliance policy through 2015, it may be difficult to find a QHP to have acted in good faith where policies and procedures fail to reflect FFM requirements, such requirements remain unimplemented or QHPs fail to monitor contractor compliance with FFM rules.