PART 800—MULTI-STATE PLAN PROGRAM Authority: Sec. 1334 of Pub. L. 111-148, 124 Stat. 119; Pub. L. 111-152, 124 Stat. 1029 (42 U.S.C. 18054). Source: 80 FR 9655, Feb. 24, 2015; 80 FR 16577, Mar. 30, 2015, unless otherwise noted. Subpart A—General Provisions and Definitions § 800.10 Basis and scope. (a) Basis. (1) 1001. (2) 1302. (3) 1311. (4) 1324. (5) 1334. (6) 1341. (7) 1342. (8) 1343. (b) Scope. § 800.20 Definitions. For purposes of this part: Actuarial value (AV) Affordable Care Act Applicant Benefit plan material or information Cost sharing Director EHB-benchmark plan Exchange Federal Employees Health Benefits Program FEHB Program Group of issuers (1) A group of health insurance issuers that are affiliated either by common ownership and control or by common use of a nationally licensed service mark (as defined in this section); or (2) An affiliation of health insurance issuers and an entity that is not an issuer but that owns a nationally licensed service mark (as defined in this section). Health insurance coverage Health insurance issuer issuer HHS Level of coverage Licensure Multi-State Plan option MSP option Multi-State Plan Program MSP Program Multi-State Plan Program issuer MSP issuer Nationally licensed service mark Non-profit entity (1) An organization that is incorporated under State law as a non-profit entity and licensed under State law as a health insurance issuer; or (2) A group of health insurance issuers licensed under State law, a substantial portion of which are incorporated under State law as non-profit entities. OPM Percentage of total allowed cost of benefits Plan year Prompt payment Qualified Health Plan QHP Rating Secretary SHOP Silver plan variation Small employer small employer Standard plan State State Insurance Commissioner State-level issuer Subpart B—Multi-State Plan Program Issuer Requirements § 800.101 General requirements. An MSP issuer must: (a) Licensed. (b) Contract with OPM. (c) Required levels of coverage. (d) Eligibility and enrollment. (e) Applicable to each MSP issuer. (f) Compliance. (g) OPM direction and other legal requirements. (h) Other requirements. (i) Non-discrimination. § 800.102 Compliance with Federal law. (a) Public Health Service Act. (b) Affordable Care Act. § 800.103 Authority to contract with issuers. (a) General. (b) Non-profit entity. (c) Group of issuers. (d) Individual and group coverage. § 800.104 Phased expansion, etc. (a) Phase-in. (1) With respect to the first year for which the health insurance issuer offers MSP options, the health insurance issuer will offer MSP options in at least 60 percent of the States; (2) With respect to the second such year, the health insurance issuer will offer the MSP options in at least 70 percent of the States; (3) With respect to the third such year, the health insurance issuer will offer the MSP options in at least 85 percent of the States; and (4) With respect to each subsequent year, the health insurance issuer will offer the MSP options in all States. (b) Partial coverage within a State. (2) If an issuer offers both an MSP option and QHP on the same Exchange, an MSP issuer must offer MSP coverage in a service area or areas that is equal to the greater of: (i) The QHP service area defined by the issuer or, (ii) The service area specified for that State pursuant to § 800.110 of this part covered by the issuer's QHP. (c) Participation in SHOPs. (2) An MSP issuer must comply with State standards governing participation in a State-based SHOP, consistent with § 800.114. For these State-based SHOP standards, OPM retains discretion to allow an MSP issuer to phase-in SHOP participation in States pursuant to section 1334(e) of the Affordable Care Act. (d) Licensed where offered. § 800.105 Benefits. (a) Package of benefits. (2) The package of benefits referred to in paragraph (a)(1) of this section must comply with section 1302 of the Affordable Care Act, as well as any applicable standards set by OPM and any applicable standards set by HHS. (b) Package of benefits options. (i) The EHB-benchmark plan in each State in which it operates; or (ii) Any EHB-benchmark plan selected by OPM under paragraph (c) of this section. (2) An issuer applying to participate in the MSP Program may select either or both of the package of benefits options described in paragraph (b)(1) of this section in its application. In each State, the issuer may choose one EHB-benchmark for each product it offers. (3) An MSP issuer must comply with any State standards relating to substitution of benchmark benefits or standard benefit designs. (c) OPM selection of benchmark plans. (2) Any EHB-benchmark plan selected by OPM under paragraph (c)(1) lacking coverage of pediatric oral services or pediatric vision services must be supplemented by the addition of the entire category of benefits from the largest Federal Employee Dental and Vision Insurance Program (FEDVIP) dental or vision plan options, respectively, pursuant to 45 CFR 156.110(b) and section 1302(b) of the Affordable Care Act. (3) In all States where an MSP issuer uses the OPM-selected EHB-benchmark plan, the MSP issuer may manage formularies around the needs of anticipated or actual users, subject to approval by OPM. (4) An MSP issuer must follow the definition of habilitative services and devices as follows: (i) An MSP issuer must follow the Federal definitions where HHS specifically defines habilitative services and devices if the State does not define the term, if the State defines the term in a conflicting way, or if the State definition is less stringent than the Federal definition. (ii) An MSP issuer must follow State definitions where the State specifically defines the habilitative services and devices category pursuant to 45 CFR 156.110(f) and the State definition is not in conflict with the Federal definition or goes above the standards set in the Federal definition. (iii) In the case of any State that does not define this category and absent a clearly applicable Federal definition, if any OPM-selected EHB-benchmark plan lacks coverage of habilitative services and devices, OPM may determine what habilitative services and devices are to be included in that EHB-benchmark plan. (5) Any EHB-benchmark plan selected by OPM under paragraph (c)(1) of this section must include, for each State, any State-required benefits enacted before December 31, 2011, that are included in the State's EHB-benchmark plan as described in paragraph (b)(1)(i) of this section, or specific to the market in which the plan is offered. (d) OPM approval. (e) State payments for additional State-required benefits. § 800.106 Cost-sharing limits, advance payments of premium tax credits, and cost-sharing reductions. (a) Cost-sharing limits. (b) Advance payments of premium tax credits and cost-sharing reductions. § 800.107 Levels of coverage. (a) Silver and gold levels of coverage required. (b) Bronze or platinum metal levels of coverage permitted. (c) Child-only plans. (d) Plan variations for the reduction or elimination of cost-sharing. (e) OPM approval. § 800.108 Assessments and user fees. (a) Discretion to charge assessment and user fees. (b) Determination of amount. (c) Process for collecting MSP assessment or user fees. § 800.109 Network adequacy. (a) General requirement. (1) Maintains a network that is sufficient in number and types of providers to assure that all services will be accessible without unreasonable delay; (2) Is consistent with the network adequacy provisions of section 2702(c) of the Public Health Service Act; and (3) Includes essential community providers in compliance with 45 CFR 156.235. (b) Provider directory. (c) OPM guidance. § 800.110 Service area. An MSP issuer must offer an MSP option within one or more service areas in a State defined by each Exchange pursuant to 45 CFR 155.1055. If an Exchange permits issuers to define their service areas, an MSP issuer must obtain OPM's approval for its proposed service areas. Pursuant to § 800.104 of this part, OPM may enter into a contract with an MSP issuer even if the MSP issuer's MSP options for a State cover fewer than all the service areas specified for that State. MSP options will follow the same standards for service areas for QHPs pursuant to 45 CFR 155.1055. § 800.111 Accreditation requirement. (a) General requirement. An MSP issuer must be or become accredited consistent with the requirements for QHP issuers specified in section 1311 of the Affordable Care Act and 45 CFR 156.275(a)(1). (b) Release of survey. (c) Timeframe for accreditation. § 800.112 Reporting requirements. (a) OPM specification of reporting requirements. (b) Quality and quality improvement standards. § 800.113 Benefit plan material or information. (a) Compliance with Federal and State law. (b) General standards for MSP applications and notices. (1) Accuracy. (2) Truthful, not misleading, no material omissions, and plain language. (i) Truthful, not misleading, and without material omissions; and (ii) Written in plain language, as defined in section 1311(e)(3)(B) of the Affordable Care Act. (3) Uniform explanation of coverage documents and standardized definitions. (4) OPM review and approval of benefit plan material or information. (5) Statement on certification by OPM. (i) OPM has certified the MSP option as eligible to be offered on the Exchange; and (ii) OPM monitors the MSP option for compliance with all applicable law. § 800.114 Compliance with applicable State law. (a) Compliance with State law. (1) Are inconsistent with section 1334 of the Affordable Care Act or this part; (2) Prevent the application of a requirement of part A of title XXVII of the PHS Act; or (3) Prevent the application of a requirement of title I of the Affordable Care Act. (b) Determination of inconsistency. § 800.115 Level playing field. An MSP issuer must, with respect to each of its MSP options, meet the following requirements in order to ensure a level playing field, subject to § 800.114: (a) Guaranteed renewal. (b) Rating. (c) Preexisting conditions. (d) Non-discrimination. (e) Quality improvement and reporting. (f) Fraud and abuse. (g) Licensure. (h) Solvency and financial requirements. (i) Market conduct. (j) Prompt payment. (k) Appeals and grievances. (l) Privacy and confidentiality. (m) Benefit plan material or information. § 800.116 Process for dispute resolution. (a) Determinations about applicability of State law under section 1334(b)(2) of the Affordable Care Act. (b) Required demonstration. (1) Is not inconsistent with section 1334 of the Affordable Care Act or this part; (2) Does not prevent the application of a requirement of part A of title XXVII of the PHS Act; and (3) Does not prevent the application of a requirement of title I of the Affordable Care Act. (c) Request for review. (1) The requester may submit to OPM any relevant information to support its request. (2) OPM may obtain additional information relevant to the request from any source as it may, in its judgment, deem necessary. OPM will provide the requester with a copy of any additional information it obtains and provide an opportunity for the requester to respond (including by submission of additional information or explanation). (3) OPM will issue a written decision within 60 calendar days after receiving the written request, or after the due date for a response under paragraph (c)(2) of this section, whichever is later, unless a different timeframe is agreed upon. (4) OPM's written decision will constitute final agency action that is subject to review under the Administrative Procedure Act in the appropriate U.S. district court. Such review is limited to the record that was before OPM when OPM made its decision. Subpart C—Premiums, Rating Factors, Medical Loss Ratios, and Risk Adjustment § 800.201 General requirements. (a) Premium negotiation. (b) Duration. (c) Guidance on rate development. (d) Calculation of actuarial value. (e) OPM rate review process. (f) State effective rate review. (g) Single risk pool. § 800.202 Rating factors. (a) Permissible rating factors. (b) Application of variations based on age or tobacco use. (c) Age rating. (1) Age bands. (2) Age curves. (d) Rating areas. (e) Tobacco rating. (f) Wellness programs. § 800.203 Medical loss ratio. (a) Required medical loss ratio. (1) The medical loss ratio (MLR) required under section 2718 of the PHS Act and regulations promulgated by HHS; and (2) Any MSP-specific MLR that OPM may set in the best interests of MSP enrollees or that is necessary to be consistent with a State's requirements with respect to MLR. (b) Consequences of not attaining required medical loss ratio. § 800.204 Reinsurance, risk corridors, and risk adjustment. (a) Transitional reinsurance program. (b) Temporary risk corridors program. (c) Risk adjustment program. Subpart D—Application and Contracting Procedures § 800.301 Application process. (a) Acceptance of applications. Without regard to 41 U.S.C. 6101(b)-(d), or any other statute requiring competitive bidding, OPM may consider annual applications from health insurance issuers, including groups of health insurance issuers as defined in § 800.20, to participate in the MSP Program. If OPM determines that it is not beneficial for the MSP Program to consider new issuer applications for an upcoming year, OPM will issue a notice to that effect. Each existing MSP issuer may complete a renewal application annually. (b) Form and manner of applications. § 800.302 Review of applications. (a) Determinations. (b) Requests for additional information. (c) Declination of application. (d) Discretion. (e) Impact on future applications. § 800.303 MSP Program contracting. (a) Participation in MSP Program. (b) Standard contract. (c) Premiums. (d) Package of benefits. (e) Additional terms and conditions. (1) Are in the interests of MSP enrollees; or (2) OPM determines to be appropriate. (f) Certification to offer health insurance coverage. (1) For each plan year, an MSP Program contract will specify MSP options that OPM has certified, the specific package(s) of benefits authorized to be offered on each Exchange, and the premiums to be charged for each package of benefits on each Exchange. (2) An MSP issuer may not offer an MSP option on an Exchange unless its MSP Program contract with OPM includes a certification authorizing the MSP issuer to offer the MSP option on that Exchange in accordance with paragraph (f)(1) of this section. § 800.304 Term of the contract. (a) Term of a contract. (b) Plan year. § 800.305 Contract renewal process. (a) Renewal. (b) OPM decision. (c) OPM discretion not to renew. (1) OPM and the MSP issuer fail to agree on premiums and benefits for an MSP option for the subsequent plan year; (2) The MSP issuer has engaged in conduct described in § 800.404(a) of this part; or (3) OPM determines that the MSP issuer will be unable to comply with a material provision of section 1334 of the Affordable Care Act or this part. (d) Failure to agree on premiums and benefits. § 800.306 Nonrenewal. (a) Nonrenewal. (1) Nonrenewal of contract. (2) Nonrenewal of participation. (b) Notice required. (c) MSP issuer responsibilities. Subpart E—Compliance § 800.401 Contract performance. (a) General. (b) Specific requirements for issuers. (1) Have, in the judgment of OPM, the financial resources to carry out its obligations under the MSP Program; (2) Keep such reasonable financial and statistical records, and furnish to OPM such reasonable financial and statistical reports with respect to the MSP option or the MSP issuer, as may be requested by OPM; (3) Permit representatives of OPM (including the OPM Office of Inspector General), the U.S. Government Accountability Office, and any other applicable Federal Government auditing entities to audit and examine its records and accounts that pertain, directly or indirectly, to the MSP option at such reasonable times and places as may be designated by OPM or the U.S. Government Accountability Office; (4) Timely submit to OPM a properly completed and signed novation or change-of-name agreement in accordance with subpart 42.12 of 48 CFR part 42; (5) Perform the MSP Program contract in accordance with prudent business practices, as described in paragraph (c) of this section; and (6) Not perform the MSP Program contract in accordance with poor business practices, as described in paragraph (d) of this section. (c) Prudent business practices. (1) Timely compliance with OPM instructions and directives; (2) Legal and ethical business and health care practices; (3) Compliance with the terms of the MSP Program contract, regulations, and statutes; (4) Timely and accurate adjudication of claims or rendering of medical services; (5) Operating a system for accounting for costs incurred under the MSP Program contract, which includes segregating and pricing MSP option medical utilization and allocating indirect and administrative costs in a reasonable and equitable manner; (6) Maintaining accurate accounting reports of costs incurred in the administration of the MSP Program contract; (7) Applying performance standards for assuring contract quality as outlined at § 800.402; and (8) Establishing and maintaining a system of internal controls that provides reasonable assurance that: (i) The provision and payments of benefits and other expenses comply with legal, regulatory, and contractual guidelines; (ii) MSP funds, property, and other assets are safeguarded against waste, loss, unauthorized use, or misappropriation; and (iii) Data is accurately and fairly disclosed in all reports required by OPM. (d) Poor business practices. (1) Using fraudulent or unethical business or health care practices or otherwise displaying a lack of business integrity or honesty; (2) Repeatedly or knowingly providing false or misleading information in the rate setting process; (3) Failing to comply with OPM instructions and directives; (4) Having an accounting system that is incapable of separately accounting for costs incurred under the contract and/or that lacks the internal controls necessary to fulfill the terms of the contract; (5) Failing to ensure that the MSP issuer properly pays or denies claims, or, if applicable, provides medical services that are inconsistent with standards of good medical practice; and (6) Entering into contracts or employment agreements with providers, provider groups, or health care workers that include provisions or financial incentives that directly or indirectly create an inducement to limit or restrict communication about medically necessary services to any individual covered under the MSP Program. Financial incentives are defined as bonuses, withholds, commissions, profit sharing or other similar adjustments to basic compensation ( e.g., (e) Performance escrow account. § 800.402 Contract quality assurance. (a) General. (b) Internal controls. (c) Performance standards. (2) MSP issuers must comply with the performance standards issued pursuant to this section. § 800.403 Fraud and abuse. (a) Program required. (b) Fraud detection system. (c) Submission of information. § 800.404 Compliance actions. (a) Causes for OPM compliance actions. (1) Failure by the MSP issuer to meet the requirements set forth in § 800.401(a) and (b); (2) An MSP issuer's sustained failure to perform the MSP Program contract in accordance with prudent business practices, as described in § 800.401(c); (3) A pattern of poor conduct or evidence of poor business practices such as those described in § 800.401(d); or (4) Such other violations of law or regulation as OPM may determine, including pursuant to its authority under §§ 800.102 and 800.114. (b) Compliance actions. (2) Compliance actions may include, but are not limited to: (i) Establishment and implementation of a corrective action plan; (ii) Imposition of intermediate sanctions, such as suspension of marketing; (iii) Performance incentives; (iv) Reduction of service area or areas; (v) Withdrawal of the certification of the MSP option or options offered on one or more Exchanges; (vi) Nonrenewal of participation (vii) Nonrenewal of contract; and (viii) Withdrawal of approval or termination of the MSP Program contract. (c) Notice of compliance action. (2) For compliance actions listed in § 800.404(b)(2)(v) through (viii), such notice must include a statement that the MSP issuer is entitled to request a reconsideration of OPM's determination to impose a compliance action pursuant to § 800.405. (3) Upon imposition of a compliance action listed in paragraphs (b)(2)(iv) through (vii) of this section, OPM must notify the State Insurance Commissioner(s) and Exchange officials in the State or States in which the compliance action is effective. (d) Notice to enrollees. (e) Definition. § 800.405 Reconsideration of compliance actions. (a) Right to request reconsideration. (1) Withdrawal of the certification of the MSP option or options offered on one or more Exchanges; (2) Nonrenewal of participation (3) Nonrenewal of contract; or (4) Termination of the MSP Program contract. (b) Request for reconsideration and/or hearing. (2) A request under this section must be in writing and contain contact information, including the name, telephone number, email address, and mailing address of the person or persons whom OPM may contact regarding a request for a hearing with respect to the reconsideration. The request must be in such form, contain such information, and be submitted in such manner as OPM may prescribe. (3) The request must be received by OPM within 15 calendar days after the date of the MSP issuer's receipt of the notice of compliance action. The MSP issuer may request that OPM's reconsideration allow a representative of the MSP issuer to appear personally before OPM. (4) A request under this section must include a detailed statement of the reasons that the MSP issuer disagrees with OPM's imposition of the compliance action, and may include any additional information that will assist OPM in rendering a final decision under this section. (5) OPM may obtain additional information relevant to the request from any source as it may, in its judgment, deem necessary. OPM will provide the MSP issuer with a copy of any additional information it obtains and provide an opportunity for the MSP issuer to respond (including by submitting additional information or explanation). (6) OPM's reconsideration and hearing, if requested, may be conducted by the Director or a representative designated by the Director who did not participate in the initial decision that is the subject of the request for review. (c) Notice of final decision. Subpart F—Appeals by Enrollees of Denials of Claims for Payment or Service § 800.501 General requirements. (a) Definitions. (1) Adverse benefit determination (2) Claim (i) Payment of a health-related bill; or (ii) Provision of a health-related service or supply. (b) Applicability. § 800.502 MSP issuer internal claims and appeals. (a) Processes. (b) Timeframes and notice of determination. § 800.503 External review. (a) External review by OPM. (b) Notice. (c) Issuer obligation. § 800.504 Judicial review. (a) OPM's written decision under the external review process established under § 800.503(a) of this part will constitute final agency action that is subject to review under the Administrative Procedure Act in the appropriate U.S. district court. A decision made by an independent review organization under the process established under § 800.503(a) is not within OPM's discretion and therefore is not final agency action. (b) Judicial review under paragraph (a) of this section is limited to the record that was before OPM when OPM made its decision. Subpart G—Miscellaneous § 800.601 Reservation of authority. OPM reserves the right to implement and supplement these regulations with written operational guidelines. § 800.602 Consumer choice with respect to certain services. (a) Assured availability of varied coverage. (b) State opt-out. (c) Notice to Enrollees Notice of exclusion. (2) Notice of coverage. (3) OPM review and approval of notices. § 800.603 Disclosure of information. (a) Disclosure to certain entities. (b) Conditions of when to disclose. (1) Necessary or appropriate to permit OPM's Director, a State Insurance Commissioner, or Director of a State-based Exchange to administer and enforce laws applicable to an MSP issuer or State-level issuer over which it has jurisdiction, or (2) Otherwise in the best interests of enrollees or potential enrollees in MSP options. (c) Confidentiality of information.