Following up on the interim final regulations issued in July, on Tuesday, August 24, 2010, the Departments of Health and Human Services (HHS), Labor (DOL) and the Treasury issued a joint notice announcing the availability of guidance detailing interim procedures for the Federal external review process and model notices both for internal claims and appeals and for external review processes under the Patient Protection and Affordable Care Act.
The announced guidance comes in the form of the DOL’s Technical Release 2010-01 which provides an interim enforcement safe harbor for non-grandfathered self-insured group health plans not subject to a State external review process, and therefore subject to the Federal external review process. (In the case of health insurance coverage offered in connection with a group health plan, the insurer has the primary responsibility to comply with interim final regulations.) The safe harbor created by the Technical Release applies for plan years beginning on or after September 23, 2010 and will apply until superseded by future guidance on the Federal external review process that is still in development. During this interim safe harbor period, the DOL and the IRS will not take any enforcement action against a self-insured group health plan that complies with either the interim compliance procedures outlined in the Technical Release or that voluntarily complies with any available State external review process, should the state choose to expand their external review process to plans that are not subject to applicable state insurance codes.
Additionally insurers in the individual market and in the small group and large group health insurance markets (including fully-insured group health plans) will enjoy an interim enforcement safe harbor for plan years (or in the individual market, policy years) beginning on or after September 23, 2010 and until superseded by future guidance on the Federal external review process that is still in development. During this interim safe harbor period, HHS will not take any enforcement action against an issuer that complies with the interim compliance method which HHS will detail on the Office of Consumer Information and Insurance Oversight website (http://www.hhs.gov/ociio/). This method will either involve use of a State external appeals process or a temporary process established by HHS.
The Model Notices which can be used to satisfy the disclosure requirements of the interim final regulations published in July are now available on the DOL’s website. The Notices include a notice of adverse benefit determination, a notice of final internal adverse benefit determination, and a notice of final external review decision. Model language describing the internal claims and appeals and external review procedures for inclusion in summary plan descriptions will be posted in the future.
The joint agency announcement may be found at http://www.dol.gov/ebsa/pdf/1210-AB45.pdf
