DRAFT decision points by F1CN40

VIEWS: 8 PAGES: 24

									                                                                                                                                                                                                                DRAFT September 2, 2011
                                                                                                         Appendix A
                                                                                              Exchange Integration Decision Points

                                                                                                                                       Recommendations By                  State of Washington                 Advisory Committee
                Decision Point(s)*                          LD 1497†                                  LD 1498*
                                                                                                                                       Committee Reports‡                   Legislation (5445)*                 Recommendation
A. Exchange Structure
1.    Exchange Structure:                    Independent executive agency governed     Independent executive agency (a)           Independent or quasi-               A “public-private partnership       Establish Exchange as a
                                             by a Board (i.e., governmental agency).   governed by a Board (i.e., governmental    governmental agency,                separate and distinct from the       governmental agency that
      Whether to structure the Exchange
                                             The members of the Board are              agency). Nine members of which are         accountable to board and            state,” (a) governed by a Board, 8   reports to the Commissioner of
      as a governmental agency or a non-
                                             appointed by the Governor (subject to     appointed by either the Governor (5        legislature, allowing the           members of which are appointed       the Department of Professional
      profit entity. ACA § 1311(d)(1).
                                             review by the joint standing committee    members) or the Legislature (4             necessary interface with other      by the Governor based on             and Financial Regulation.
          Either is permissible, 45 C.F.R.                                                                                                                                                                 Proposed Legislation § 7003(1).
                                             of the Legislature and confirmation by    members) (subject to review by the joint   state agencies. No                  recommendations by the two
          § 155.100(b) (prop.), but HHS                                                                                                                                                                   Exchange Board should be
                                             the Senate) and represent key             standing committee of the Legislature      recommendation about where to       largest caucuses in both houses
          notes that:                                                                                                                                                                                      appointed by the Governor and
                                             stakeholders. §§ 7003(1) and 7004.        and confirmation by the Senate) and 4      house the Exchange, but report      of the legislative branch, 2
            States should consider costs                                              members of which are commissioners of      notes that one logical place        members of which are                 subject to confirmation by the
             and benefits of using                                                     related executive agencies, and (b)        would be to house the Exchange      commissioners of related             Legislature. Proposed
             accountability structure in                                               advised by a business advisory council     in the Dirigo Health Agency         executive agencies, and 1            Legislation § 7004(1).
             an existing agency versus                                                 whose members represent key                since it already performs many of   member of which is appointed by
             the need to establish a                                                   stakeholders. §§ 7003(1); 7004; and        the required functions of the       the Governor to serve as chair,
             governing body for an                                                     7013.                                      Exchange. (ACHSD p. 42-45)          and (b) advised by advisory
             independent public agency.                                                                                                                               committees with expertise
            Non-profits may operate                                                                                              The Exchange should have
                                                                                                                                  strong legislative oversight        required to assist the Board in
             without some restrictions but                                                                                                                            implementing the Exchange.
             could face limitations in                                                                                            (whether administered by an
                                                                                                                                  independent state agency or         § 3(1).
             performing typically
             governmental functions.                                                                                              quasi-state agency) (JSC p. 5)
            HHS notes suggestions by
             commenters that States
             establish independent public


*
 In accordance with ACA § 1321(c)(1)(B), the Secretary of Health and Human Services (“HHS”) must determine by January 1, 2013, whether the State’s Exchange will be fully operational by January 1, 2014. Regulations recently
proposed by HHS provide standards and processes for this determination, as well as guidance on other aspects of Exchange design. See Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health
Plans, 76 Fed. Reg. 41,866 (proposed July 7, 2011) (to be codified at 45 C.F.R. pts. 155 and 156). Key provisions of the proposed regulations that are relevant to each of the decision points are discussed in this chart. In addition, a
key part of the determination process is an Exchange Plan, which must be submitted to HHS in a form and manner that HHS will describe in later guidance. The Exchange Plan must include detailed information on how the Exchange
will meet federal requirements. 45 C.F.R. § 155.105(b) (prop.). The Exchange will need to notify HHS in writing before making any significant changes to its Exchange Plan. 45 C.F.R. § 155.105(e) (prop.).
†
 Unless otherwise indicated, section numbers in the columns for the proposed legislation and the Washington legislation refer to sections of the respective bill or law. Citations elsewhere indicate whether they refer to the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148 (2010) (“ACA”) or to the appropriate section of 45 C.F.R. part 155 (prop.), as proposed in Patient Protection and Affordable Care Act; Establishment of Exchanges and
Qualified Health Plans, 76 Fed. Reg. 41,866 (proposed July 7, 2011) (to be codified at 45 C.F.R. pts. 155 and 156).
‡
 “ACHSD” refers to Options and Opportunities for Implementing the Affordable Care Act in Maine, Advisory Council on Health Systems Development (Dec. 17, 2010). “JSC” refers to Final Report of the Joint Select Committee on
Health Care Reform Opportunities and Implementation (Dec. 2010).


DC: 4072741-5                                                                                                    1
                                                                                                                            Recommendations By                    State of Washington                   Advisory Committee
             Decision Point(s)*                          LD 1497†                              LD 1498*
                                                                                                                            Committee Reports‡                     Legislation (5445)*                   Recommendation
           or governmental agencies
           with flexible hiring &
           operational practices, or
           non-profit entities with
           governing bodies appointed
           and overseen by States.
        76 Fed. Reg. at 41,870.
2.   Interstate Exchanges:               Does not provide for any regional      Does not provide for any regional      Operate own exchange initially       Requires the WA state health          No regional Exchange.
     Whether to form regional            exchange or interstate coordination.   exchange or interstate coordination.   but explore opportunities for        care authority, in collaboration
     exchanges or establish interstate                                                                                 regional exchange or                 with the joint select committee
                                                                                                                                                                                                  However, recommend that the
     coordination for certain functions.                                                                               coordination of back office          on health reform implementation
                                                                                                                                                                                                  state continue to participate in
     ACA § 1311(f).                                                                                                    functions with other New             and the Exchange Board, to
                                                                                                                                                                                                  multi-state collaboratives to learn
                                                                                                                       England states. (JSC p. 5, 14)       recommend to the Governor and
        Regional exchanges are                                                                                                                                                                    how other states are implementing
                                                                                                                       Regional exchange unlikely to be     legislature whether to establish or
        permissible, but--                                                                                                                                                                        ACA requirements, such as :
                                                                                                                       initially desirable because more     participate in multistate
          the regional exchange must                                                                                                                       exchange. § 5(2)(a)(iii).             New England States
           “span two or more States”                                                                                   difficult to tailor to needs of
                                                                                                                                                                                                  Collaborative Insurance
           (that need not be                                                                                           Maine residents, synchronize the
                                                                                                                                                                                                  Exchange Systems (NESCIES) -
           contiguous). 45 C.F.R.                                                                                      exchange with existing insurance
                                                                                                                                                                                                  Early Innovator Grant
           § 155.140(a)(1) (prop.).                                                                                    market and Medicaid programs,
                                                                                                                                                                                                  Participation:
          a single plan for the                                                                                       and timely implement the
                                                                                                                       exchange. However,                                                          Maine is an active participant in
           regional Exchange must be
                                                                                                                       regionalization of certain aspects                                           the NESCIES project. Maine’s
           submitted and approved by
                                                                                                                       of the exchange (e.g.,.                                                      purpose as a member of the
           HHS prior to operation. 45
           C.F.R. § 155.140(a)(2)                                                                                      administrative “back office”                                                 Collaborative is assist
                                                                                                                       functions) may be initially                                                  Massachusetts to create Health
           (prop.).
                                                                                                                       feasible and beneficial. (ACHSD                                              Insurance Exchange
          the regional exchange must                                                                                                                                                               information technology
                                                                                                                       p. 40-42)
           perform the functions of a                                                                                                                                                               components that can be
           SHOP for its area. 45                                                                                                                                                                    leveraged by Maine and other
           C.F.R. § 155.140(c)(2)                                                                                                                                                                   states in operating their own
           (prop.).                                                                                                                                                                                 Health Insurance Exchanges.
        The entire geographic area of a                                                                                                                                                            The Collaborative is actively
        state must be covered by one or                                                                                                                                                             exploring shared purchasing
        more Exchanges but only one                                                                                                                                                                 models, shared cloud based
        Exchange may operate in each                                                                                                                                                                service components, code re-
        geographically distinct area.                                                                                                                                                               use and sharing, and other
        76 Fed. Reg. at 41,871.                                                                                                                                                                     opportunities to leverage each
                                                                                                                                                                                                    other’s efforts to reduce rework
                                                                                                                                                                                                    and redundant development
                                                                                                                                                                                                    efforts. The Collaborative is
                                                                                                                                                                                                    also serving as one of Maine’s
                                                                                                                                                                                                    primary vehicles for knowledge
                                                                                                                                                                                                    sharing and for policy
                                                                                                                                                                                                    explorations / discussions

                                                                                                              2
                                               Recommendations By   State of Washington          Advisory Committee
Decision Point(s)*   LD 1497†   LD 1498*
                                               Committee Reports‡    Legislation (5445)*           Recommendation
                                                                                             relative to Exchange
                                                                                             development.
                                                                                           Enroll UX
                                                                                            Through our participation in
                                                                                             NESCIES, Maine is
                                                                                             participating in the Enrollment
                                                                                             UX 2014 project, which aims to
                                                                                             develop “wireframes” (i.e., the
                                                                                             look, feel, and navigation
                                                                                             strategies) for the Exchange
                                                                                             web portal.
                                                                                            Maine’s purpose in this project
                                                                                             to is provide feedback in the
                                                                                             development of the wireframes
                                                                                             and also to be in a strong
                                                                                             position to leverage whatever
                                                                                             assets are generated from the
                                                                                             project, thereby shortening
                                                                                             Maine’s need for research and
                                                                                             development time in deploying
                                                                                             its Health Insurance Exchange.




                                           3
                                                                                                                              Recommendations By                   State of Washington                 Advisory Committee
             Decision Point(s)*                        LD 1497†                                 LD 1498*
                                                                                                                               Committee Reports‡                   Legislation (5445)*                 Recommendation
3.   Single or Dual Exchange(s) for       Authorizes Exchange to establish SHOP Authorizes Exchange to establish SHOP One exchange for individuals,         Requires the WA state health        State should establish one unified
     Individuals & Small Employers: Exchange. § 7008(2)(I).                     Exchange. Also authorizes Exchange to families, and small employers,        care authority, in collaboration    Exchange that includes a SHOP
     Whether to operate a unified                                               use access payments (currently, the     but recognize different needs of    with the joint select committee     program to meet the needs of
     Exchange for individuals &                                                 Dirigo assessment) to provide subsidies the groups. (JSC p. 5)              on health reform implementation     small employers. Proposed
     businesses or two separate                                                 for small businesses to purchase        Separate lines of business should   and the Exchange Board, to          Legislation § 7008(2)(I).
     exchanges: the SHOP Exchange                                               coverage through the SHOP exchange. be established within the unified       recommend to the Governor and
     for small employers and the                                                § 7008(2)(N).                           exchange to serve individuals       legislature whether to create and
     Exchange for individuals. If                                                                                       and businesses to ensure the        implement a single state-
     operating a single exchange, it must                                                                               viability of both programs and      administered exchange for both
     have adequate resources to assist                                                                                  that the priorities of each group   the individual and small
     both the individuals and employers.                                                                                are met. (ACHSD p. 38-40)           employer markets. § 5(2)(a)(ii).
     ACA § 1311(b).                                                                                                     Identify as a policy option using
         A state may elect to create an                                                                                 Dirigo assessment to assist sole
         independent governance and                                                                                     proprietors and small businesses
         administrative structure for the                                                                               in purchasing coverage for
         SHOP if the state ensures that                                                                                 employees (JSC p. 15; ACHSD
         the SHOP coordinates and                                                                                       p. 67)
         shares relevant information for
         the individual Exchange
         operating in the same area. 45
         C.F.R. § 155.110(e)(1) (prop.).
         If a state chooses one
         governance/administrative
         structure for both the
         individual Exchange and
         SHOP, it must ensure that the
         Exchange has adequate
         resources to assist individuals
         and small employers. ACA
         § 1311(b)(2); 45 C.F.R.
         § 155.110(e)(2) (prop.).
         HHS indicates a preference for
         Exchange to use same
         governance for both Exchange
         and SHOP. 76 Fed. Reg. at
         41,872-73.




                                                                                                              4
                                                                                     Recommendations By                  State of Washington               Advisory Committee
             Decision Point(s)*                 LD 1497†        LD 1498*
                                                                                     Committee Reports‡                   Legislation (5445)*               Recommendation
4.   Separate Risk Pools for               --              --                  Consider merging risk pools that   Requires the WA state health      The risk pools for rating the
     Individual and Small Group                                                are currently separate for these   care authority, in collaboration  individual and small group
     Markets:                                                                  markets, depending on outcome      with the joint select committee   markets should not be merged.
     Whether to merge risk pools for                                           of actuarial study. (JSC p. 13)    on health reform implementation
     rating the individual and small                                                                              and the Exchange Board, to
     group markets. ACA § 1312(c).                                                                                recommend to the Governor and
                                                                                                                  legislature whether to merge risk
         If risk pools are not merged,
                                                                                                                  pools for rating the individual
         SHOP must permit each
                                                                                                                  and small group markets in the
         qualified employee to enroll
                                                                                                                  exchange and the private health
         only in qualified health plans
                                                                                                                  insurance markets. § 5(2)(c)(i).
         in the small group market. 45
         C.F.R. § 155.705(b)(8) (prop.).
         HHS notes that the purpose of
         this requirement is to help
         prevent adverse selection. 76
         Fed. Reg. at 41,887.




                                                                           5
                                                                                                                                       Recommendations By                   State of Washington                Advisory Committee
              Decision Point(s)*                            LD 1497†                                  LD 1498*
                                                                                                                                       Committee Reports‡                    Legislation (5445)*                 Recommendation
5.   Insurance Options Available to           Allows an employer only to specify a     Allows an employer only to specify a      --                                  Requires the WA state health        The Exchange should have the
     Employers:                               level of coverage so that any of its     level of coverage or amount of                                                care authority, in collaboration    authority to determine whether
     SHOP must allow employers to             employees may enroll in any qualified    contribution toward coverage so that any                                      with the joint select committee     any additional options should be
     select a level of coverage, from         health plan offered through the SHOP     of its employees may enroll in a                                              on health reform implementation     made available to employers.
     which employees may choose any           exchange at the specified level of       qualified health plan offered through the                                     and the Exchange Board, to          Proposed Legislation § 7008(2)(I).
     qualified health plan at that level      coverage. § 7008(2)(I).                  SHOP exchange at the specified level of                                       advise the Governor and
     (i.e., employee choice within a tier).                                            coverage or cost of coverage.                                                 legislature on any impacts of the
     45 C.F.R. § 705(b)(2) (prop.); see                                                § 7010(2)(N).††                                                               Exchange on the individual and
     also ACA § 1312(a)(2).§ Whether                                                                                                                                 small group markets. § 5(2)(c).
     SHOP should allow employers to
     make other choices, such as to
     select specific plans in which
     employees may enroll.
     The state must determine whether
     the Exchange will also allow:
      employees to choose any
        qualified health plans offered in
        SHOP at any level;
      employers to select specific
        levels from which an employee
        may choose a qualified health
        plan;
      employers to select specific
        qualified health plans from
        different levels of coverage from
        which an employee may choose;
        or
      employers to select a single
        qualified health plan to offer
        employees.
     See 76 Fed. Reg. at 41,886 (but
     inviting comment on whether
     allowing the last option is
     permissible under ACA).** ACA
     § 1312(f)(2).



§
  The proposed regulations require the Exchange to provide aggregate billing for insurance premiums and allocate the employer’s payments among the insurers whom its employees have selected. See 45 C.F.R. § 155.705(b)(4)
(prop.); 76 Fed. Reg. at 41,879, 41,887. In addition, employers will want the coverage options that are available in the SHOP to also be available in the individual market to facilitate the frequent enrollments/dis-enrollments that occur
in the small group market.



                                                                                                                     6
                                                                                                                                          Recommendations By                 State of Washington               Advisory Committee
                 Decision Point(s)*                          LD 1497†                                   LD 1498*
                                                                                                                                           Committee Reports‡                 Legislation (5445)*                Recommendation
6.      Small Employers:                      Uses 50 employees as the cut-off; does     Uses 50 employees as the cut-off; does     Identifies issue and notes that   Requires the WA state health       The State should continue to
        Whether to use the ACA definition     not provide for an automatic increase to   not provide for an automatic increase to   under current Maine law, small    care authority, in collaboration   define the small group market as
        of small employer (1-100              100 effective January 1, 2016.             100 employees effective January 1,         group is defined as an employer   with the joint select committee    employers with up to 50
        employees) or elect the option to     § 7002(13).                                2016. § 7002(13).                          with 50 or fewer employees.       on health reform implementation    employees before 2016. Proposed
        use 50 employees as the cut-off for                                                                                         Does not make recommendation      and the Exchange Board, to         Legislation § 7002(15).
        small group market plans until                                                                                              regarding whether to change       recommend to the Governor and
        2016. ACA §§ 1312(f)(2)(A);                                                                                                 definition to 100 now or wait     legislature whether to increase
        1304(b)(2)-(3).                                                                                                             until 2016. (JSC p. 12)           employers eligible for small
                                                                                                                                                                      group market from 50 to 100.
                                                                                                                                                                      § 5(2)(c)(ii).




**
  ACA includes conflicting provisions, but it appears to also allow Exchanges to offer group health plans to employers through the SHOP exchange. HHS agrees that it is probably permissible for Exchanges to offer employers a
single group health plan but invites comment on this question. 76 Fed. Reg. at 41,886. This option is attractive to employers because it would allow an employer to select one health plan for its employees that would be rated solely
on its own employee group.
††
     The approach in LD 1498 with regard to insurance options available to employers appears permissible, so long as the Exchange at least allows the employer to specify the level of coverage.



                                                                                                                       7
                                                                                                                                     Recommendations By        State of Washington           Advisory Committee
             Decision Point(s)*                            LD 1497†                                   LD 1498*
                                                                                                                                     Committee Reports‡         Legislation (5445)*            Recommendation
7.   Counting Employer Size:                Uses NAIC model language based on          Uses NAIC model language based on        --                        --                          The enabling legislation should
     What legal standard to use for         HHS guidance which provides for all        HHS guidance which provides for all                                                            provide for the size of an
     counting employer size, and            employees to be counted, including part-   employees to be counted, including part-                                                       employer to be determined in
     whether this standard should be        time employees and employees who are       time employees and employees who are                                                           accordance with Maine law except
     included in the State legislation or   not eligible for coverage through the      not eligible for coverage through the                                                          to the extent federal law requires a
     delegated to the Exchange. ACA         employer. § 7002(13).                      employer. § 7002(13).                                                                          different standard to be used.
     § 1304(b); HHS Bulletin 99-03.                                                                                                                                                   Proposed Legislation
                                                                                                                                                                                      § 7002(15)(C).
        All employees, including part-
        time and seasonal employees,
        would need to be counted. 76
        Fed. Reg. at 41,887-88. Part-
        time workers would be counted
        in the same manner as full-time
        workers, while seasonal
        employees would be counted
        proportionately to the number
        of days they work in a year. Id.
        HHS requests comments
        regarding whether states
        should be permitted to impose
        more specific rules for
        determining the number of
        employees. See id.
        Exchange is permitted to either
        rely on employer self-reporting
        or require more stringent
        determination of employer size.
        See 76 Fed. Reg. at 41,888.
8.   Large Employers:                    --                                            --                                       --                        --                          The State should not consider
     Beginning in 2017, the State may                                                                                                                                                 allowing insurers of large group
     allow issuers of large group health                                                                                                                                              plans to participate in the
     insurance to participate in the                                                                                                                                                  exchange until closer to 2017
     Exchange. If so, the exchange must
     allow large employers—i.e.,
     employers who employ an average
     of at least 101 employees--to
     participate in the Exchange. ACA
     § 1312(f)(2)(B).




                                                                                                                    8
                                                                                                                                       Recommendations By                    State of Washington                 Advisory Committee
               Decision Point(s)*                            LD 1497†                                    LD 1498*
                                                                                                                                       Committee Reports‡                     Legislation (5445)*                  Recommendation
9.    Automatic Repeal:                      --                                            --                                     --                                    --                                If there is a U.S. Supreme Court
      Whether the Exchange will                                                                                                                                                                           decision overturning all or part of
      continue to exist if the provisions of                                                                                                                                                              ACA, the Exchange Board should
      the Federal Act relating to health                                                                                                                                                                  be required to recommend to the
      benefit exchanges are repealed.                                                                                                                                                                     Legislature whether to continue
                                                                                                                                                                                                          the Exchange and the Legislature
                                                                                                                                                                                                          should be required to consider the
                                                                                                                                                                                                          recommendation within 60 days
                                                                                                                                                                                                          without cloture.
                                                                                                                                                                                                          Proposed Legislation, Section 4.
B. Board Structure and Operations‡‡
10.   Exchange Governance—Duties:            Board Authority: Responsible for              Board Authority: Responsible for       Recommendation that, at a             Board Authority. Until            The powers and duties of the
      The duties and other                   operation of Exchange and exercising          operation of Exchange and exercising   minimum, the Board of Directors       March 15, 2012, Board serves      Exchange, as governed by the
      responsibilities of any board that     duties and powers of Exchange                 duties and powers of Exchange          operates in the public interest and   mostly cooperative and advisory   board, should be specified in the
      will have day-to-day responsibility    (described below in “Exchange                 (described below in “Exchange          no board member realizes              role. (WA state health care       enabling statute.
      for carrying out the duties and        Duties”). Within 6 months of                  Duties”).                              personal financial gain. Notes        authority has most powers until   Proposed Legislation § 7008
      responsibilities of the Exchange.      appointment, must submit to the                                                      that balance should be struck         then.) See §§ 5(5); 6(3); 7.
      ACA § 1311.                            Superintendent of the Bureau of                                                      between the Board and
                                             Insurance (the “Superintendent”) a plan                                              government’s policy-setting
                                             of operation for the Exchange that will                                              responsibilities and the Exchange
                                             not take effect until it is approved by the                                          staff’s administrative
                                             Superintendent. If Board fails to submit                                             responsibilities. Also notes that
                                             a plan of operation, the Superintendent                                              if the Exchange is operated by an
                                             may, after notice and hearing, determine                                             executive agency, an advisory
                                             a plan of operation for the Exchange that                                            board could provide input and
                                             will remain in effect until the Board                                                advice on exchange polices.
                                             submits a plan of operation that is                                                  (ACHSD p. 43-44)
                                             approved by the Superintendent.                                                      Exchange should have strong
                                             § 7006.                                                                              legislative oversight (JSC p. 5)




‡‡
  HHS indicates that changes to Exchange governance structure and operations would be a “significant change” to an Exchange plan that would require advance notice and approval by HHS in writing. See 45 C.F.R. § 155.105(e)
(prop.); 76 Fed. Reg. at 41,871.



                                                                                                                       9
                                                                                                                            Recommendations By          State of Washington                  Advisory Committee
             Decision Point(s)*                     LD 1497†                                 LD 1498*
                                                                                                                            Committee Reports‡            Legislation (5445)*                  Recommendation
11.   Exchange Governance—Board       Board Member Appointment Process.       Board Member Appointment Process.        --                        Board Member Appointment               The Board should include 9
      Appointment and Reappointment   Ten members appointed by Governor       Nine voting members. Five appointed                                Process. Eight voting members           voting members appointed by
      Process:                        subject to Senate confirmation and      by Governor and 1 appointed by each                                appointed by Governor from lists        the Governor and subject to
                                      review by joint standing committee of   the President of Senate, Speaker of                                of nominees submitted by the 2          confirmation by Legislature.
      The process for appointing
                                      Legislature with health insurance       House, President of Senate from Senate                             largest caucuses in each the            Proposed Legislation § 7004(1).
      members of the board or other
      entity that will govern the     jurisdiction.                           Minority Leader recommendation, and                                house and senate (2 appointed          The Board should also include
      Exchange. ACA § 1311.           Board Term. 6 years, up to 2            Speaker of House by House Minority                                 from each of the 4 lists of             2 ex officio, non-voting
                                      consecutive terms; may serve until      Leader recommendation. § 7004(1)(A).                               nominees). Two nonvoting ex             members: Commissioner of
                                      replacement appointed and qualified.    Board Term. 3 years, although to a                                 officio members (insurance              PFR and the DHHS
                                      § 7004(2).                              achieve a staggered board, 2 of the                                commissioner, administrator of          Commissioner (or their
                                                                              members will serve an initial term of 1                            health care authority).                 designees). Proposed
                                      Chair. Governor appoints 1 member as                                                                                                               Legislation § 7004(1).
                                                                              year, 3 members will serve initial terms                           Replacements are made by
                                      chair. § 7004(3).                                                                                                                                 The Board members should be
                                                                              of 2 years, and 4 members will serve                               gubernatorial appointment;
                                                                              initial terms 3 years. §§ 7004(3); B-3.                            outgoing members nominated by           permitted to serve 3-year terms
                                                                                                                                                 legislature must be replaced            but should be prohibited from
                                                                              Voting members may serve up to 2                                                                           serving more than 2 terms.
                                                                                                                                                 based on a new list of 5 nominees
                                                                              consecutive terms and may serve until a                                                                    Proposed Legislation § 7009(3).
                                                                                                                                                 provided by caucus that had
                                                                              replacement is appointed and qualified.
                                                                                                                                                 nominated outgoing member.             Initial terms of Board members
                                                                              § 7004(3).
                                                                                                                                                 § 3(1), (3).                            will be staggered. Proposed
                                                                              Chair. Governor appoints 1 voting                                                                          Legislation § 7009(3).
                                                                                                                                                 Board Term. 2 years, although
                                                                              member as chair. § 7004(4).
                                                                                                                                                 initial terms up to 4 years to
                                                                                                                                                 implement staggering, and
                                                                                                                                                 members may be reappointed to
                                                                                                                                                 multiple terms. § 3(2), (3).
                                                                                                                                                 Chair. Governor appoints 9th
                                                                                                                                                 member as nonvoting chair by
                                                                                                                                                 12/15/2011 (except chair may
                                                                                                                                                 vote to break a tie). § 3(1)(c).




                                                                                                          10
                                                                                                                                  Recommendations By         State of Washington              Advisory Committee
             Decision Point(s)*                          LD 1497†                                    LD 1498*
                                                                                                                                  Committee Reports‡          Legislation (5445)*               Recommendation
12.   Exchange Governance—Board           Board Member Composition. Two              Nonvoting Members. Four nonvoting                                 See appointments process above. The Board should be comprised of
      Member Composition:                 members representing each insurers and     ex officio members (Commissioner of                                                               the following representatives:
                                          insurance producers; 1 member              Professional and Financial Regulation,                                                             small employer
        Board may not be made up of a
                                          representing each hospitals, physicians,   Commissioner of HHS, Commissioner                                                                  large employer
        majority of voting
                                          nurses, large employers, and small         of Admin. and Financial Services, and                                                              insurer
        representatives with a conflict
                                          employers; and one member who              State Treasurer). § 7004(1)(B).                                                                    broker
                                          purchases individual health insurance                                                                                                         provider
        of interest, including                                                       Voting Members.
                                          (total of 10 members). § 7004(1).                                                                                                             federally recognized Indian
        representatives of health                                                     One member must serve as chair of
        insurance issuers, agents,                                                     the Medicaid advisory committee                                                                    tribe
        brokers, or any other individual                                               within DHHS. § 7004(2)(B)(1).                                                                    consumer
        licensed to sell health                                                       Two members must represent                                                                       2 at large (subject to federal
        insurance. See 45 C.F.R.                                                       consumers selected from stakeholder                                                                conflict of interest rules)
        § 155.110(c)(3) (prop.).                                                       nominations. § 7004(2)(B)(2).                                                                   Proposed Legislation
        HHS invites comment on                                                        Voting members may not be:                                                                      § 7004(1)(B).
        whether categories of potential                                                 employed by, a consultant to, a
        conflicts should be further                                                       member of the board of directors
        specified and what types of                                                       of, affiliated with or otherwise a
        representatives have potential                                                    representative of a carrier, insurer,
        conflicts of interests. 76 Fed.                                                   agent or broker, health care
        Reg. at 41,872.                                                                   provider, health care facility,
        A State may adopt more                                                            health clinic;
        stringent or specialized conflict                                               a member, board member, or
        of interest requirements than                                                     employee of a trade association of
        those used in connection with                                                     carriers, health facilities, health
        regular governmental                                                              clinics or health care providers; or
        operations. 76 Fed. Reg. at                                                     a health care provider, unless the
        41,872.                                                                           member receives no compensation
                                                                                          for rendering services as a health
                                                                                          care provider and does not have an
                                                                                          ownership interest in a
                                                                                          professional health care practice.
                                                                                          § 7004(2)(C).
                                                                                      Notwithstanding any other provision,
                                                                                       a current or former member of Board
                                                                                       of Trustees of Dirigo may also be
                                                                                       member of Board. § 7004(2)(D).




                                                                                                                   11
                                                                                                                                     Recommendations By          State of Washington                Advisory Committee
                 Decision Point(s)*                           LD 1497†                                  LD 1498*
                                                                                                                                     Committee Reports‡           Legislation (5445)*                 Recommendation
13.     Exchange Governance—Board               LD 1497 does not include experience      Voting Members.                                                  Board Member Composition.           The Board composition should
        Member Qualifications:                  requirements for Board members that       Six voting members must be qualified                           Voting members must include at      comply with federal requirements
        Whether to specify qualification        would be necessary to comply with 45       in at least 2 of the following areas:                          least one:                          for experience. Proposed
        requirements for the Board in the       C.F.R. § 155.110(c)(4) (prop.).            health care purchasing, individual                              employee benefits specialist      Legislation § 7004(2).
        enacting legislation.                                                              health coverage, small group                                    health economist or actuary
          A majority of the voting
                                                                                           coverage, MaineCare program; health                             small business representative
          members must have relevant
                                                                                           benefit plan administration,                                    health consumer advocate
                                                                                           administering a public or private                                 representative
          experience in health benefits
                                                                                           health care delivery system, health
          administration, health care                                                                                                                     The remaining 4 members must
                                                                                           care financing, or health policy and
          finance, health plan purchasing,                                                                                                                have expertise in at least one of
                                                                                           law. § 7004(2)(A).
          health care delivery system                                                                                                                     following areas: individual
          administration, public health, or                                                                                                               health care coverage, small
          health policy issues related to the                                                                                                             employer coverage, health
          small group and individual                                                                                                                      benefits plan administration,
          markets and the uninsured. 45                                                                                                                   health care finance and
          C.F.R. § 155.110(c)(4) (prop.);                                                                                                                 economics, actuarial science, or
          see also 76 Fed. Reg. at 41,872                                                                                                                 public or private health care
          (inviting comment on the types                                                                                                                  delivery system administration.
          of representatives that should be                                                                                                               § 3(1)(a), (b).
          on the Board to ensure necessary
          technical expertise).
14.     Exchange Governance—                 Voting. Quorum of 6, and 6 affirmative      Voting. Quorum of 5 voting members, --                           Meetings. At the call of the        The Board should be required to
        Operations:                          votes required for any board action.        and majority vote of members required                            chair. § 3(5).                      operate in accordance with federal
        Rules regarding how the Board will   § 7004(5).                                  for any board action. § 7004(6).                                 Other.                              and state law. Proposed
        operate. ACA § 1311.                 Meetings: Monthly or at times called by     Meetings: Monthly or at times called by                           Members reimbursed for            Legislation § 7004.
            Meetings: Board must hold        Chair or Executive Director. All            Chair or Executive Director. All                                   travel expenses. § 3(5).
            regular public meetings that     meetings public. § 7004(7).                 meetings public. § 7004(8).                                       Members are exempt from
            are announced in advance. 45     Other.§§                                    Other.                                                             liability for actions or
            C.F.R. § 155.110(c)(2) (prop.).   Members compensated for expenses           Members compensated for fulfilling                               omissions undertaken in good
            Conflicts of Interest:              incurred in performance of their            board duties in accordance with board                           faith and in the performance of
                                                duties. § 7004(6).                          bylaws. § 7004(7).                                              their duties. § 3(8).
              Exchange must have in                                                                                                                       Members must resign or be
                                              Members’ personal liability is limited     Members’ personal liability is limited
               place and make publicly                                                                                                                      removed if participation in the
                                                if acted in accordance with scope of        if acted in accordance with scope of
               available a set of governance                                                                                                                decisions of the Board could
                                                power and duties, and members are           power and duties, and members are
               principles that includes                                                                                                                     benefit their own financial
                                                indemnified for expenses actually and       indemnified for expenses actually and
               ethics, conflict of interest                                                                                                                 interests of the financial
                                                necessarily incurred in defense of any      necessarily incurred in defense of any
               standards, accountability                                                                                                                    interests of an entity they
                                                action or proceeding to which they          action or proceeding to which they
               and transparency standards,                                                                                                                  represent. § 3(4).

§§
     Note that LD 1497 does not provide for conflict of interest standards for the Exchange or its Board.



                                                                                                                     12
                                                                                                                                    Recommendations By        State of Washington              Advisory Committee
              Decision Point(s)*                            LD 1497†                                 LD 1498*
                                                                                                                                    Committee Reports‡         Legislation (5445)*              Recommendation
            and disclosure of financial         are made a party by reason of their     are made a party by reason of their
            interest. 45 C.F.R.                 authority with respect to the           authority with respect to the
            § 155.110(d)(1) (prop.).            Exchange. §§ 7005(1), (2).              Exchange. § 7005.
           Exchange must implement                                                    Members and employees of the
            procedures for disclosure of                                                Exchange and their spouses and
            financial interests by                                                      children may not receive any direct
            members of the Board.                                                       personal benefit from the activities of
            § 155.110(d)(2); see also 76                                                the Exchange in assisting any private
            Fed. Reg. at 41,872 (inviting                                               entity, except they may participate in
            comment on this proposal                                                    the Exchange on the same terms as
            and whether additional                                                      others. Provision does not apply to
            detail should be proposed).                                                 any entities that employ members and
                                                                                        staff (and their families) if the
                                                                                        relationship is made known to the
                                                                                        Board and the member does not vote
                                                                                        on matters relating to the entity’s
                                                                                        participation in the Exchange. § 7006.
15.   Exchange Governance—                 --                                         In General. Board may appoint advisory --                          Board must establish separate   The enabling legislation should
      Advisors:                                                                       committees (with no compensation but                               advisory committee and may      allow the Exchange to establish
      Whether the Board is required or                                                reimbursed for necessary expenses).                                establish technical advisory    advisory committees and should
      permitted to appoint advisors.                                                  § 7010(10).                                                        committees. § 3(7).             require the Exchange to establish
      ACA § 1311. Whether the                                                         Business Advisory Council.                                                                         an advisory committee for
      legislation should specify how the                                               Council to advise and support the                                                                federally-recognized Indian tribes
      Exchange is to take into account                                                   Exchange on matters referred to it by                                                           within the state. Proposed
      stakeholder interests.                                                             the Board or the Executive Director                                                             Legislation § 7008(2)(P).
          ACA provides that Board must                                                   and serve as a liaison between
          regularly consult with certain                                                 Exchange and consumers. § 7013(7).
          stakeholders. ACA                                                            Volunteer members appointed by
          § 1311(d)(6). In addition to the                                               Governor with 3 members
          statutorily listed stakeholders                                                representing providers (1 physician, 1
          (educated health care                                                          hospital rep, and 1 non-physician
          consumers who are enrollees,                                                   health care practitioner) and 1
          enrollment facilitators,                                                       member representing each
          advocates for hard-to-reach                                                    consumers, large employers, small
          populations, small businesses                                                  employers, carriers, and producers
          and self-employed individuals,                                                 (total of 8 members). § 7013(1).
          and State Medicaid and CHIP                                                  Council members serve 5 year terms,
          agencies), HHS would add the                                                   except to achieve a staggered
          following:                                                                     Council, 3 of the members will serve
            federally-recognized tribes,                                                an initial term of 3 years, 3 members
            public health experts,                                                      will serve initial terms of 4 years, and
            health care providers,                                                      2 members will serve initial terms of
            large employers,                                                            5 years. § 7013(2); B-4.

                                                                                                                   13
                                                                                                                                   Recommendations By         State of Washington                  Advisory Committee
              Decision Point(s)*                           LD 1497†                                 LD 1498*
                                                                                                                                   Committee Reports‡          Legislation (5445)*                  Recommendation
           health insurance issuers, &                                                Council members serve as volunteers
           agents and brokers.                                                         without compensation. § 7013(3)
         45 C.F.R. § 155.130 (prop.).                                                  Council will meet at least 4 times a
         (Note: the Board need not                                                      year; a quorum is a majority of the
         necessarily appoint advisory                                                   members of the Council. § 7013(4),
         committees to meet this                                                        (6).
         requirement, but it is one                                                    The Council shall annually choose
         avenue for compliance.)                                                        one of its members to serve as chair
                                                                                        for a one year term. § 7013(5).
16.   Staff and Leadership:                 Requires Exchange Board to submit to      Board to appoint Executive Director to: --                        Requires the WA state health         The Board should have the
      Authority and procedures for hiring   Superintendent a plan of operation for     serve as liaison between Board and                              care authority, in collaboration     authority to appoint an Executive
      staff and procurement resources.      the Exchange, including, inter alia,         Exchange, secretary and treasurer to                           with the joint select committee      Director and have the authority to
      ACA § 1311.                           procedures for selecting and hiring an       the Board;                                                     on health reform implementation      hire staff and procure resources.
                                            Executive Director. § 7006(2)(B).          manage Exchange’s programs and                                  and the Exchange Board, to           Proposed Legislation § 7005.
                                            Executive Director shall prepare budget      services;                                                      recommend to the Governor and
                                            at Board’s direction. § 7008(3).           employ or contract for personnel or                             legislature the staff, resources,
                                                                                         services;                                                      and revenues necessary to
                                                                                       approve accounts; and                                           operate and administer the
                                                                                       perform other duties prescribed by                              Exchange for the first two years.
                                                                                         Board.                                                         § 5(2)(j).
                                                                                      § 7008.                                                           The Exchange has the authority
                                                                                      Executive Director shall prepare budget                           to employ personnel for purposes
                                                                                      at Board’s direction. § 7010(3).                                  of applying for and administering
                                                                                                                                                        grants, establishing IT
                                                                                      Executive Director of Dirigo Health will                          infrastructure, and undertaking
                                                                                      provide initial staffing assistance to the                        additional administrative
                                                                                      Exchange, until the appointment of the                            functions necessary to begin
                                                                                      Executive Director. § B-5(2).                                     operation on Jan. 1, 2014.
                                                                                      In hiring and contracting, preference                             § 4(1)(c).
                                                                                      may be given to Dirigo Health                                     Until March 15, 2012, the WA
                                                                                      employees. § B-5(2).                                              state health care authority is
                                                                                      Board must submit application to HHS                              responsible to provide staff and
                                                                                      for Exchange planning and                                         resources to implement the Act.
                                                                                      implementation grant funding. § B-5(3).                           After that point, the Exchange
                                                                                                                                                        Board is responsible for doing so.
                                                                                                                                                        § 6(2)(a), (3)(a).




                                                                                                                  14
                                                                                                                                        Recommendations By                     State of Washington                 Advisory Committee
              Decision Point(s)*                           LD 1497†                                   LD 1498*
                                                                                                                                        Committee Reports‡                      Legislation (5445)*                 Recommendation
C. Exchange Functions
17.   Exchange Operating Model:           Requires Exchange Board to submit to         Requires Exchange Board to selectively      Exchange should take active role      Requires the WA state health        The Exchange should be an open
      What operating model to choose      Superintendent a plan of operation for       contract for health care coverage and       in selecting plans to contain costs   care authority, in collaboration    marketplace – if issuer/QHP meets
      (e.g., “active purchaser” model,    the Exchange. § 7006(2).                     “seek to contract with carriers so as to    and ensure quality. Exchange          with the joint select committee     minimum standards, it will be
      “open marketplace” model, etc.) for                                              provide health care coverage choices        has role in standardizing plans to    on health reform implementation     permitted to participate on
      certifying plans to participate on                                               that offer the optimal combination of       make consumer selection easier.       and the Exchange Board, to          Exchange.
      Exchange.*** § 1311. Whether the                                                 choice, value, quality, and service.”       (JSC p. 5)                            recommend to the Governor and
      operating model should be                                                        § 7010(2)(I).                                                                     legislature the goals and
      specified in the legislation or                                                                                                                                    principles of the Exchange,
      delegated to the Exchange.                                                                                                                                         including whether the Exchange
                                                                                                                                                                         should serve as an aggregator of
          HHS identifies different models
                                                                                                                                                                         funds that comprise the premium
          for choosing qualified health
                                                                                                                                                                         for a health plan offered through
          plans and gives Exchanges the
                                                                                                                                                                         the Exchange. § 5(2)(a)(iv).
          “discretion” to choose strategy
          for certifying plans. Exchange
          need not be limited to one
          strategy. See 76 Fed. Reg. at
          41,891-92.
18.   Exchange Duties:                      Specifies Exchange powers and duties,      Specifies minimum Exchange powers           The exchange must be more than        Requires the WA state health        No additional duties should be
      Whether to assign additional duties   which are limited to those minimum         and duties (as reflected in ACA             just a website—individuals and        care authority, in collaboration    assigned to the Exchange beyond
      to the Exchange beyond the            duties required by ACA (as reflected in    § 1311(d)(4) and the NAIC model             small businesses seeking              with the joint select committee     the minimum federal required
      minimum required in the Act.          ACA § 1311(d)(4) and the NAIC model        legislation). § 7010(2). In addition to     assistance must have opportunity      on health reform implementation     duties. Proposed Legislation
      § 1311(d)(4). The minimum             legislation). § 7008(2). However, an       minimum duties:                             for face-to-face interaction.         and the Exchange Board, to          § 7008.
      required duties appear in the         initial duty of the Exchange Board is to    Moves the Maine Quality Forum             Local access and consumer             recommend to the Governor and
      “Appendix” to this chart.             submit to Superintendent a plan of            (currently within Dirigo Health) to      outreach are important functions      legislature the goals and
                                            operation for the Exchange that includes      within the Exchange. § A-38.             for the exchange. The exchange        principles of the Exchange.
          HHS “encourage[s] States to
          consider supplemental
                                            procedures for:                             Requires Exchange to coordinate           should be accessible for              § 5(2).
                                             operation of the Exchange,                  eligibility/enrollment process with      providers and minimize their
          standards or functionality for
                                             selecting and hiring an Executive           other health care coverage programs,     costs and administrative burden.
          their Exchanges that benefit
                                                                                          including MaineCare and the basic        (JSC p. 5-6)
          consumers and businesses” and       Director,
          invites comments regarding         creating a fund, managed by the             health program, if established.
          such functions. 76 Fed. Reg. at     Board, for administrative expenses,         § 7010(2)(H).
          41,875.                            handling, according and auditing of       Requires Exchange to determine
                                              money and other assets of the               minimum requirements for carrier
                                              Exchange,                                   participation and standards & criteria


***
   The more active of a role the Exchange plays in administering plans, the more attractive the Exchange will be to small employers. Small employers will be more inclined to purchase coverage through the Exchange if it is
convenient and shoulders administrative burdens that would normally need to be performed by the employer, such as processing enrollments and dis-enrollments and ensuring compliance with applicable laws, such as ERISA and the
ADEA. The Exchange will also be more likely to attract small employers if it facilitates an employer’s receipt of the federal tax credit.



                                                                                                                     15
                                                                                                                                        Recommendations By                     State of Washington                Advisory Committee
              Decision Point(s)*                          LD 1497†                                    LD 1498*
                                                                                                                                        Committee Reports‡                      Legislation (5445)*                Recommendation
                                            a program to foster public awareness         for selecting qualified plans offered
                                              of the Exchange and to publicize the        through Exchange. § 7010(2)(I).
                                              eligibility requirements and               Requires Exchange to consider
                                              enrollment procedures for coverage          establishment of basic health program
                                              and subsidies under the Exchange,           for eligible individuals.
                                            requirements that only licensed              § 7010(2)(O).
                                              producers may enroll individuals and       Prohibits Exchange toll-free
                                              small employers in qualified health         telephone hotline from being
                                              plans offered through the Exchange          automated. § 7010(2)(B).
                                            requirements to assist individuals in       Requires Exchange to provide, in
                                              applying for premium-tax credits and        each region of the State, a choice of
                                              cost-sharing reductions, and                qualified health plans at each of the
                                            any matters necessary and proper for         five levels. § 7010(2)(J)
                                              the execution of the Board’s powers,       Requires each participating carrier to
                                              duties, and obligations.                    offer at least one product in all five
                                           § 7006(1).                                     coverage levels. § 7010(2)(K)
                                                                                         Requires carriers to offer same
                                                                                          products outside Exchange as those
                                                                                          offered inside Exchange.
                                                                                          § 7010(2)(L).
19.   Inter-agency Coordination:           Authorizes the Exchange to enter into      Authorizes the Exchange to enter into        Recognizes that ACA requires          WA state health care authority     Exchange should be established
      Responsibilities of State agencies   information sharing agreements with        information sharing agreements with          coordination with state agencies      and the Exchange Board (after      under the Commissioner of
      coordinating with the Exchange.      federal and state agencies and other       federal and state agencies and other         and that overall coordination may     March 15, 2012) have the           Professional and Financial
      ACA § 1311.                          states’ exchanges (with adequate           states’ exchanges (with adequate             be less complex if the exchange       authority to enter into            Regulation. Accordingly, it will
                                           protections for confidentiality).          protections for confidentiality).            is located within a state or quasi-    information sharing              be subject to current rules and
         HHS invites comments on how
                                           § 7003(3).                                 § 7003(3).                                   state agency. (ACHSD p. 43)              agreements with federal and     practices that exist for
         to implement or construct a
                                           Requires other State agencies to provide   Requires other State agencies to provide                                              state agencies, and other       coordination among state
         partnership model for state and
                                           technical assistance, § 7008(7), and       technical assistance, § 7010(7), and                                                  states’ exchanges (with         agencies. Proposed Legislation §
         federal exchanges to share
                                           Attorney General to provide legal          Attorney General to provide legal                                                     adequate protections for        7003(4).
         information and ideas. 76 Fed.
                                           assistance. § 7008(8).                     assistance. § 7010(8).                                                                confidentiality). § 6(1)(a).
         Reg. at 41,871.
                                                                                      Superintendent authorized to coordinate                                             interdepartmental agreements
         HHS “encourage[s] the                                                                                                                                              with insurance commissioner
         Exchange and the State                                                       with Exchange. § C-3.
                                                                                                                                                                            office, dep’t of social and
         department of insurance to                                                                                                                                         health services, dep’t of
         collaborate in” rate increase                                                                                                                                      health, and any other state
         justification process. See 76                                                                                                                                      agency necessary to
         Fed. Reg. at 41,892.                                                                                                                                               implement the act. § 6(1)(b).




                                                                                                                    16
                                                                                                                                         Recommendations By         State of Washington                   Advisory Committee
              Decision Point(s)*                             LD 1497†                                    LD 1498*
                                                                                                                                         Committee Reports‡          Legislation (5445)*                     Recommendation
20.   Exchange Subject to State               Does not exempt the Exchange from any       Does not exempt the Exchange from any --                            --                                    Exchange itself should not be
      Licensing:                              licensing requirements that would apply     licensing requirements that would apply                                                                   subject to licensing requirements.
      Whether the Exchange should be          to the Exchange in performing duties        to the Exchange in performing duties                                                                      However, employees of the
      exempt from the State’s insurance       typically performed by an insurance         typically performed by an insurance                                                                       Exchange should not be permitted
      producer or consultant licensing        producer or consultant.                     producer or consultant.                                                                                   to engage in activities that would
      requirements or whether the             Exchange does not have the authority to     Exchange does not have the authority to                                                                   otherwise require state licensing.
      Exchange or its employees need to       exempt any carriers from state licensure    exempt any carriers from state licensure                                                                  Proposed Legislation § 7009(4).
      obtain such a license.                  or solvency requirements. § 7009(4).        or solvency requirements. To the
                                                                                          contrary, Bill expressly provides that
                                                                                          licensing requirements continued to
                                                                                          apply to issuers of health plans that are
                                                                                          certified to participate in the Exchange.
                                                                                          § 7011(4); § 4319(1).
21.   Entities Eligible to Contract with      Allows the Exchange to contract with        Allows the Exchange to contract with      --                        Allows Exchange to make and           The Exchange should be permitted
      Exchange:                               “eligible entities” to perform one or       “eligible entities” to perform one or                               execute agreements, contracts,        to outsource functions to eligible
      (a) Whether to authorize the            more of the responsibilities of the         more of the responsibilities of the                                 and other instruments with any        entities. Proposed Legislation
      Exchange to enter into agreements       exchange. Defines “eligible entities” to    exchange. Defines “eligible entities” to                            public or private person or entity.   § 7003(3).
      with “eligible entities” to carry out   include the MaineCare program or any        include the MaineCare program or any                                § 4(1)(b). Statute includes
      one or more of the responsibilities     entity that has experience in individual    entity that has experience in individual                            savings clause for any provision
      of the Exchange. ACA                    and small group health insurance. Uses      and small group health insurance. Uses                              that is in conflict with ACA. § 9.
      § 1311(f)(3).                           the NAIC model legislation definition to    the NAIC model legislation definition to
                                              carves out a health carrier or an           carves out a health carrier or an
      (b) Whether to define “eligible
                                              “affiliate” of a health carrier from the    “affiliate” of a health carrier from the
      entities” by reference to ACA
                                              definition of eligible entity. § 7003(2).   definition of eligible entity. § 7003(2).
      § 1311(f)(3)(B) or by using the less
      precise NAIC model legislation
      definition: ACA prohibits entities
      who are within the same controlled
      group of corporations as (under
      common control with) a health
      insurance issuer within the meaning
      of IRC § 52(a) or (b). The NAIC
      model legislation uses the term
      “affiliates.”
           Exchange remains responsible
           for ensuring that all federal
           requirements related to
           contracted functions are met.
           45 C.F.R. § 155.110(b) (prop.).
           HHS invites comment on
            extent regulation should
             place conflict of interest
             requirements on contracted

                                                                                                                       17
                                                                                                                                       Recommendations By                    State of Washington                 Advisory Committee
              Decision Point(s)*                         LD 1497†                                    LD 1498*
                                                                                                                                       Committee Reports‡                     Legislation (5445)*                 Recommendation
            entities. 76 Fed. Reg. at
            41,872.
           coordination with web-based
            entities for performing
            outreach and enrollment
            functions of the Exchange.
            76 Fed. Reg. at 41,878.
22.   Navigators:                         Requires any navigator to be licensed as   Exchange will select entities qualified to   Navigators must be accountable       Requires the WA state health        Navigators should be required to
      Whether to impose any additional    a producer. § 7012.                        serve as navigators, in accordance with      and qualified with consideration     care authority, in collaboration    meet training and registration or
      requirements on Navigators in the                                              federal standards. However, an               of the need for licensing. Should    with the joint select committee     licensing requirements established
      Exchange beyond the minimum in                                                 individual licensed as an insurance          consider role for insurance          on health reform implementation     by the Bureau of Insurance in
      ACA. § 1311(i). Whether such                                                   producer may serve as a navigator in the     producers, especially small          and the Exchange Board, to          consultation with the Exchange
      decisions can or should be                                                     SHOP Exchange, but not in the                businesses, but need to avoid        recommend to the Governor and       and DHHS. Proposed Legislation
      delegated to the Exchange.                                                     individual Exchange. § 7010(2)(T).           conflict of interest and determine   legislature the role and services   § 7008(2)(N).
                                                                                                                                  compensation. (JSC p. 6)             that should be provided by
          Navigators must not be a
                                                                                                                                                                       producers and navigators,
          health insurance issuer or
                                                                                                                                                                       including whether to use private
          receive direct or indirect
                                                                                                                                                                       insurance market brokers as
          consideration from an issuer
                                                                                                                                                                       navigators. § 5(2)(f).
          in connection with enrollment
          of individuals. 45 C.F.R.
          § 155.210(c) (prop.).
          In order to receive grant:
            Navigators must have
             relationships with
             employers, employees, or
             consumers likely to be
             eligible; and be capable of
             carrying out duties. 45
             C.F.R. § 155.210(b)(1)
             (prop.).
            Navigator must not have
             conflict of interest during
             term. 45 C.F.R.
             § 155.210(b)(1)(iv) (prop.).
             HHS invites comment on
             whether there should be
             additional requirements. 76
             Fed. Reg. 41,877.
            Exchange must include as
             Navigators entities from at
             least two categories
             (community and consumer-
             focused groups, trade and

                                                                                                                   18
                                                                                                                                    Recommendations By                  State of Washington                 Advisory Committee
              Decision Point(s)*                          LD 1497†                                  LD 1498*
                                                                                                                                    Committee Reports‡                   Legislation (5445)*                 Recommendation
            professional organizations,
            commercial fishing,
            ranching and farming
            organizations, chambers of
            commerce, unions, resource
            partners of the SBA, agents
            and brokers, or other
            entities). 45 C.F.R.
            § 155.210(b)(2) (prop.).
23.   Participation by Brokers and                                                                                                                                                                   Agents/brokers should be
      Agents:                                                                                                                                                                                        permitted to participate in the
      Whether to allow agents and                                                                                                                                                                    Exchange. Proposed Legislation
      brokers to assist individuals                                                                                                                                                                  § 7008(2)(T).
      enrolling in plans through the
      Exchange.††† ACA § 1312(e).
         Exchange may allow agents
         and brokers to enroll qualified
         individuals, employers, or
         employees in plans and to assist
         individuals with advance
         payments of the premium tax
         credit and cost-sharing
         reductions. However, an
         agent/broker serving as a
         Navigator may not receive any
         financial compensation from
         an issuer for helping an
         individual or small group select
         a specific plan. 45 C.F.R.
         § 155.210 (prop.); 76 Fed. Reg.
         at 41,878.




†††
   The Exchange should ensure that it allows brokers and agents who currently market to (and have relationships with) small employers to participate in the Exchange because small employers are likely to look to their existing agents
and brokers to advise them on whether to purchase coverage through the Exchange.



                                                                                                                  19
                                                                                                                                       Recommendations By          State of Washington               Advisory Committee
              Decision Point(s)*                           LD 1497†                                    LD 1498*
                                                                                                                                       Committee Reports‡           Legislation (5445)*                Recommendation
24.   Auditing and Reporting:               Subjects Exchange to annual audit by        Subjects Exchange to annual audit by      --                        Requires the WA state health       The Exchange will be subject to
      Whether to grant specific authority   State Auditor with a copy of the audit to   State Auditor with a copy of the audit to                           care authority, in collaboration   the oversight of the Commissioner
      to the insurance commissioner (in     be provided to the Superintendent           be provided to the Superintendent                                   with the joint select committee    of Professional and Financial
      Maine, Superintendent of the          (among others). Also requires Board to      (among others). Also requires Board to                              on health reform implementation    Regulation.
      Bureau of Insurance) to investigate   provide annual report (beginning Feb. 1,    provide annual report (beginning Feb. 1,                            and the Exchange Board, to make    Proposed Legislation § 7003(1).
      the affairs of the Exchange,          2015) regarding operation of the            2015) regarding operation of the                                    recommendations to the
      examine the properties and records    Exchange to Governor and joint              Exchange to Governor and joint                                      Governor and legislature
      of the Exchange, or require the       committees of Legislature with              committees of Legislature with                                      regarding the administrative,
      Exchange to provide periodic          jurisdiction. § 7008(4), (6).               jurisdiction. § 7010(4), (6).                                       fiduciary, accounting,
      reporting on its activities. ACA      Does not give specific authority to         Requires website publication of average                             contracting, and other services
      § 1311.                               Superintendent to investigate the affairs   costs of licensing, regulatory fees, and                            that should be provided by the
                                            of the Exchange, but it does give           other payments required by the                                      Exchange. § 5(a)(v).
                                            Superintendent the authority to approve     Exchange; the administrative costs to
                                            plan of operation for the Exchange.         the Exchange; and money lost to waste,
                                            § 7006(2).                                  fraud, and abuse. § 7010(11).
                                                                                        Does not give specific authority to
                                                                                        Superintendent to investigate the affairs
                                                                                        of the Exchange.




                                                                                                                     20
                                                                                                                                     Recommendations By                   State of Washington              Advisory Committee
              Decision Point(s)*                            LD 1497†                                 LD 1498*
                                                                                                                                      Committee Reports‡                   Legislation (5445)*              Recommendation
25.   Finances/Revenues:                     Exchange has authority to charge         Requires monthly access payments to      Outlines pros and cons of 8         Requires Exchange Board/ WA        Exchange Board should
                                             assessments or user fees to health       the Exchange (currently 2.14% of         policy options originally           State Health Care Authority to      recommend to the
      Whether to give the Exchange
                                             carriers or otherwise generate funding   claims to Dirigo), which may be used to presented by Governor’s Steering     submit to HHS an initial plan       Commissioner of Professional
      authority to charge assessments or
                                             necessary to support its operations.     support the following:                   Committee with respect to the       discussing the means to achieve     and Financial Regulation a
      user fees to health carriers or
      otherwise generate funding             § 7010(1).                                administration and operations          current access payments to          financial sustainability by 2015.   budget for being self-sustaining
                                                                                         expenses;                             Dirigo. The 8 policy options        § 5(1)(b)(ii).                      by 2015. Budget will include a
      necessary to support its operations,   Revenues and expenditures of the
                                                                                       Maine Quality Forum;                   include using the access                                                recommendation regarding the
      to ensure that the Exchange is self-   Exchange are subject to legislative                                                                                   Creates health benefit exchange
                                                                                       consumer assistance and navigator      payments for subsidies of small                                         source for the revenue. Any
      sustaining by 2015. ACA                approval. § 7008(3).                                                                                                  account in custody of the state
                                                                                         programs;                             business, subsidies for employees                                       revenue-raising initiatives will
      § 1311(d)(5)(A). Whether                                                                                                                                     treasurer. Expenditures only
                                                                                                                                                                                                       be subject to review and
      legislation should impose a cap on                                               coverage subsidies for sole            of small business, administrative   authorized by administrator of
                                                                                                                               costs of the exchange, a                                                approval by the Legislature.
      the amount the Exchange may                                                        proprietors and small businesses;                                         WA State Health Care Authority
                                                                                                                               reinsurance program, subsidies                                          Proposed Legislation § 7008(3).
      collect.                                                                         if funds available (after meeting                                          prior to March 15, 2012. After
                                                                                                                                                                                                      The State should apply to the
          In order to be self-sustaining,                                                above 4 uses), subsidies for benefits for individuals purchasing          March 15, 2012, Exchange Board
                                                                                                                                                                                                       federal government for funds to
          may charge assessments or                                                      in addition to the minimum essential coverage, quality improvement        may authorize expenditures. § 7.
                                                                                                                               initiatives, or subsidies for                                           study funding options for the
          user fees on participating                                                     health benefits, or reductions to the
                                                                                                                               benefits in addition to federal                                         Exchange.
          issuers; any user fees must be                                                 access payments.
                                                                                      §§ A-35, A-37.                           minimum essential health
          announced in advance of the
                                                                                                                               benefits. (JSC p. 14-16; ACHSD
          plan year. 45 C.F.R.                                                        Creates Maine Health Benefit Exchange p. 66-69)
          § 155.160(b)(4) (prop.). HHS                                                Enterprise Fund for deposit of Exchange
          invites comment on whether                                                  funds. § 7012.
          there should be other                                                       Revenues and expenditures of the
          limitations on how and when                                                 Exchange are subject to legislative
          user fees are charged. See 76                                               approval. § 7010(3).
          Fed. Reg. at 41,874.
          The Exchange also “may
          otherwise generate funding for
          Exchange operations.” 45
          C.F.R. § 155.160(b)(2) (prop.).
          HHS contemplates “broad
          flexibility to generate funds.”
          76 Fed. Reg. at 41,874.
          The State must develop a plan
          for ensuring that the Exchange
          will have sufficient funding. 76
          Fed. Reg. at 41,874; 45 C.F.R.
          § 155.105(c)(1) (prop.).
26.   Rulemaking Authority:                  Exchange has rulemaking authority.       Exchange has rulemaking authority.       --                                  --                                The Exchange should have
      Whether the Exchange or the            § 7008(5).                               § 7010(5).                                                                                                     rulemaking authority governed by
      agency responsible for                                                                                                                                                                         state Administrative Procedures
      administration or oversight of the                                                                                                                                                             Act. Proposed Legislation
      Exchange will have rulemaking                                                                                                                                                                  § 7008(4).
      authority.

                                                                                                                  21
                                                                                                                                       Recommendations By        State of Washington                 Advisory Committee
              Decision Point(s)*                            LD 1497†                                   LD 1498*
                                                                                                                                       Committee Reports‡         Legislation (5445)*                 Recommendation
D. Plans Offered By Exchange
27.   Qualified Plan Certification:          Follows the minimum certification          Follows the minimum certification         --                        Requires the WA state health       The enabling legislation should
      Whether to impose any certification    standards required under ACA               standards required under ACA                                        care authority, in collaboration   include only the minimum
      standards for qualified health plans   § 1311(c)(1) and reflected in the NAIC     § 1311(c)(1) and reflected in the NAIC                              with the joint select committee    certification standards. Proposed
      beyond the minimum in ACA,             model legislation. § 7009(1).              model legislation. § 7011(1).                                       on health reform implementation    Legislation § 7009.
      considering factors such as                                                                                                                           and the Exchange Board, to make
      consumer choice and additional                                                                                                                        recommendations to the
      costs, in light of the value to                                                                                                                       Governor and legislature
      enrollees provided by the proposed                                                                                                                    regarding certifying, selecting,
      standards. ACA § 1311(c)(1).                                                                                                                          and facilitating the offer of
                                                                                                                                                            individual and small group plans
                                                                                                                                                            through the Exchange. § 5(2)(e).
28.   Qualified Plan Certification:          Exchange may certify health benefit        Exchange may certify health benefit       --                        Indicates that government intends  Rates should be subject to
                                             plan as a qualified health plan only if    plan as a qualified health plan only if                             for regulation of health insurance   existing processes under Bureau
      Whether the Exchange should
                                             premium rates and contract language        premium rates and contract language                                 market, both inside and outside      of Insurance. Proposed
      delegate all or part of the plan
                                             have been approved by Superintendent.      have been approved by Superintendent.                               the Exchange, to continue to be      Legislation § 7009(1)(B).
      certification function to the
      insurance commissioner pursuant to     § 7009(1)(B). No provision of Bill         § 7011(1)(B). Superintendent retains                                performed by the Insurance          Exchange should otherwise
                                             intended to preempt or supersede the       this authority. § C-3. No provision of                              Commissioner. § 1(2)(i).             retain responsibility for
      the commissioner’s rate and form
                                             Superintendent’s authority to regulate.    Bill intended to preempt or supersede                                                                    certifying issuers and plans.
      review responsibilities. ACA
                                             § 7011.                                    the Superintendent’s authority to                                                                        Proposed Legislation § 7009(1).
      § 1311(c)(1).
                                                                                        regulate. § 7014.
                                             Exchange retains authority to make rules
                                             regarding certification requirements and   Exchange retains authority to make rules
                                             make determination whether plan is in      regarding certification requirements and
                                             interest of individuals and employers.     make determination whether plan is in
                                             § 7009(1)(F), (G).                         interest of individuals and employers.
                                                                                        However, Superintendent is authorized
                                                                                        to enter into agreements with Exchange
                                                                                        to assume authority relating to
                                                                                        certification of qualified plans or
                                                                                        authorization of a carrier to participate
                                                                                        in the Exchange. § 7011(1)(F), (G),
                                                                                        § 4319 of C-2 .




                                                                                                                     22
                                                                                                              Recommendations By                State of Washington                  Advisory Committee
               Decision Point(s)*                 LD 1497†                  LD 1498*
                                                                                                               Committee Reports‡                Legislation (5445)*                  Recommendation
29.   Additional Benefits:                   --              Requires the Dep’t of Insurance to          Noting that current state law may --                                 The state should not require
      Whether to require additional                          review and evaluate the HHS minimum require health benefits not                                                  qualified health plans to provide
      benefits in the Exchange beyond                        essential health benefits package; hold a mandated by federal law,                                               benefits in addition to essential
      the essential health benefits (and, if                 public hearing on whether to include        identifies issue and potential                                       health benefits.
      so, how the State will assume those                    additional benefits; and submit a report factors to consider once federal
      costs). ACA § 1311(d)(3).                              and recommendations to the legislature. regulations released. (JSC p. 13;
                                                             § D-1.                                      ACHSD p. 20-21)
                                                             Provides that if funds are available (after
                                                             supporting the administration and
                                                             operation of the Exchange), the access
                                                             payments (2.14% of claims) may be
                                                             used to subsidize benefits in addition to
                                                             the minimum essential health benefits.
                                                             § A-35.
30.   Basic Health Program:                  --              Requires Exchange to consider             Without making specific             Requires the WA state health       Exchange and DHHS should
      Whether the Exchange should                            establishment of basic health program     recommendations, provides pros      care authority, in collaboration   evaluate whether Basic Health
      establish a basic health program to                    for eligible individuals. § 7010(2)(O).   and cons of providing basic         with the joint select committee    Program is in best interests of
      provide health coverage to                                                                       health plan to individuals          on health reform implementation    State and its citizens.
      individuals between 133-200% of                                                                  between 133-200% of FPL. (JSC       and the Exchange Board, to
      FPL instead of offering these                                                                    p. 9-10; ACHSD p. 48-49)            recommend to the Governor and
      individuals coverage through the                                                                                                     legislature whether to adopt and
      Exchange. ACA § 1331.                                                                                                                implement a federal basic health
                                                                                                                                           plan as authorized in ACA.
                                                                                                                                           § 5(2).
31.   Regulation Beyond Exchange             --              As a condition to participation in        Supports requiring health plans     --                                 Exchange requirements should not
      Plans:                                                 Exchange, carriers that sell products     in and out of the exchange to be                                       be extended to the outside
      Whether to extend any of the                           outside of Exchange must offer outside    subject to the same insurance                                          insurance market beyond what is
      Exchange requirements to the                           of the Exchange any products available    rules. (JSC p. 5)                                                      required in ACA.
      outside insurance market, beyond                       in the Exchange. § 7010(2)(K).
      what is required in ACA.




                                                                                          23
                                                                            Appendix A: Section 1311(d)(4) of ACA
                                                                       eligible for any such program, enroll such individuals in               but who was determined to be eligible for the premium
(4) FUNCTIONS.— An Exchange shall, at a minimum—                       such program;                                                           tax credit under section 36B of the Internal Revenue
    (A) implement procedures for the certification,                    (G) establish and make available by electronic means a                  Code of 1986 because—
    recertification, and decertification, consistent with guidelines   calculator to determine the actual cost of coverage after the                    (I) the employer did not provide minimum
    developed by the Secretary under subsection (c), of health         application of any premium tax credit under section 36B of                       essential coverage; or
    plans as qualified health plans;                                   the Internal Revenue Code of 1986 and any cost-sharing                           (II) the employer provided such minimum
    (B) provide for the operation of a toll-free telephone hotline     reduction under section 1402;                                                    essential coverage but it was determined under
    to respond to requests for assistance;                             (H) subject to section 1411, grant a certification attesting                     section 36B(c)(2)(C) of such Code to either be
    (C) maintain an Internet website through which enrollees           that, for purposes of the individual responsibility penalty                      unaffordable to the employee or not provide the
    and prospective enrollees of qualified health plans may            under section 5000A of the Internal Revenue Code of 1986,                        required minimum actuarial value; and
    obtain standardized comparative information on such plans;         an individual is exempt from the individual requirement or              (iii) the name and taxpayer identification number of
                                                                       from the penalty imposed by such section because—                       each individual who notifies the Exchange under section
    (D) assign a rating to each qualified health plan offered
    through such Exchange in accordance with the criteria                   (i) there is no affordable qualified health plan available         1411(b)(4) that they have changed employers and of
    developed by the Secretary under subsection (c)(3);                     through the Exchange, or the individual's employer,                each individual who ceases coverage under a qualified
                                                                            covering the individual; or                                        health plan during a plan year (and the effective date of
    (E) utilize a standardized format for presenting health                                                                                    such cessation);
    benefits plan options in the Exchange, including the use of             (ii) the individual meets the requirements for any other
    the uniform outline of coverage established under section               such exemption from the individual responsibility              (J) provide to each employer the name of each employee of
    2715 of the Public Health Service Act;                                  requirement or penalty;                                        the employer described in subparagraph (I)(ii) who ceases
                                                                       (I) transfer to the Secretary of the Treasury—                      coverage under a qualified health plan during a plan year
    (F) in accordance with section 1413, inform individuals of
                                                                                                                                           (and the effective date of such cessation); and
    eligibility requirements for the Medicaid program under title           (i) a list of the individuals who are issued a certification
    XIX of the Social Security Act, the CHIP program under                  under subparagraph (H), including the name and                 (K) establish the Navigator program described in
    title XXI of such Act, or any applicable State or local public          taxpayer identification number of each individual;             subsection (i).
    program and if through screening of the application by the              (ii) the name and taxpayer identification number of
    Exchange, the Exchange determines that such individuals are             each individual who was an employee of an employer




DC: 4072741-5                                                                                  24

								
To top