CABINET FOR HEALTH AND FAMILY SERVICES

Kentucky Office of the Health Benefit and Health Information Exchange

(Amendment)

 

††††† 900 KAR 10:050. Individual Agent[or Business Entity] Participation with the Kentucky Health Benefit Exchange.

 

††††† RELATES TO: KRS 194A.050(1), 42 U.S.C. 18031, 45 C.F.R. Part 155

††††† STATUTORY AUTHORITY: KRS 194A.050(1)

††††† NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and Family Services, Kentucky Office of[the Kentucky] Health Benefit and Health Information Exchange, has responsibility to administer the state-based American Health Benefit Exchange. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet, and to implement programs mandated by federal law or to qualify for the receipt of federal funds. This administrative regulation establishes the policies and procedures relating to the registration of an[a business entity or] individual agent in accordance with 42 U.S.C. 18031 and 45 C.F.R. Part 155.

 

††††† Section 1. Definitions. (1) "Advanced payment of premium tax credits" or "APTC" means payment of the tax credits authorized by 26 U.S.C. 36B and its implementing regulations, which are provided on an advance basis to an eligible individual enrolled in a qualified health plan through an exchange in accordance with section 1412 of the Affordable Care Act, 42 U.S.C. 18082.

††††† (2) "Agent" is defined by KRS 304.9-020(1).

††††† (3) "Business entity" is defined by KRS 304.9-020(5).

††††† (4) "Certified application counselor" or "CAC" means an individual employed by, or a volunteer of, an entity designated by the office and the Department for Medicaid Services.

††††† (5) "Consultant" is defined in KRS 304.9-040.

††††† (6) "Cost-sharing reductions" or "CSR" means a reduction in cost sharing for an eligible individual enrolled in a silver level plan in an exchange or for an individual who is an Indian enrolled in a qualified health plan in an exchange.

††††† (7)[(6)] "Date of the notice" means the date on the notice plus five (5) calendar days.

††††† (8)[(7)] "Department of Insurance" or "DOI" is defined by KRS 304.1-050(2).

††††† (9) "Indian" is defined by 25 U.S.C. 450b(d).

††††† (10)[(8)] "Individual market" is defined by KRS 304.17A-005(26).

††††† (11)[(9)] "In-person assister" means an entity performing functions described in 45 C.F.R. 155.205 selected by the office[of KHBE].

††††† (12)[(10)] "Insurance affordability program" means one (1) of the following:

††††† (a) A state Medicaid program under title XIX of the Social Security Act, 42 U.S.C. 301 et seq.;

††††† (b) A state children's health insurance program (CHIP) under title XXI of the Social Security Act, 42 U.S.C. 301 et seq.;

††††† (c) A program that makes coverage in a qualified health plan through the exchange with advance payments of the premium tax credit established under section 36B of the Internal Revenue Code, 26 U.S.C. 36B, available to qualified individuals; or

††††† (d) A program that makes available coverage in a qualified health plan through the exchange with cost-sharing reductions established under section 1402 of the Affordable Care Act, 42 U.S.C. 18071.

††††† (13)[(11)] "Issuer" is defined by 45 C.F.R. 144.103.

††††† (14)[(12)] "Kentucky Health Benefit Exchange" or "KHBE" means the Kentucky state-based exchange[conditionally] approved by HHS pursuant to 45 C.F.R. 155.105 to offer a QHP or stand-alone dental plan (SADP)[beginning January 1, 2014], that includes an:

††††† (a) Individual exchange; and

††††† (b) Small Business Health Options Program (SHOP).

††††† (15)[(13)] "Kentucky Insurance Code" means KRS Chapter 304 and associated administrative regulations.

††††† (16) "Kentucky Office of Health Benefit and Health Information Exchange" or "office" means the office created to administer the Kentucky Health Benefit Exchange.

††††† (17)[(14)] "Kentucky Online Gateway" means the system for authentication services for users requesting access to the KHBE portal.

††††† (18)[(15)] "Kynectors" means CACs, in-person assisters, or navigators.

††††† (19) "Managed care organization" or "MCO" means an entity for which the Department for Medicaid Services has contracted to serve as a managed care organization as defined in 42 C.F.R. 438.2.

††††† (20)[(16)] "Navigator" means an entity as described in 45 C.F.R. 155.210 selected by the Office of KHBE.

††††† (21)[(17) "Office of the Kentucky Health Benefit Exchange" or "office" means the office created to administer the Kentucky Health Benefit Exchange.

††††† (18)] "Participating agent" means an agent who has been certified by the office to participate on the KHBE.

††††† (22)[(19)] "Qualified employee" means an individual employed by a qualified employer who has been offered health insurance coverage by the qualified employer through the SHOP.

††††† (23)[(20)] "Qualified employer" means an employer that elects to make, at a minimum, all full-time employees of the employer eligible for one (1) or more QHPs or SADPs in the small group market offered through the SHOP.

††††† (24)[(21)] "Qualified health plan" or "QHP" means a health plan that meets the standards described in 45 C.F.R. 156 Subpart C and that has in effect a certification issued by the office.

††††† (25)[(22)] "Qualified individual" means an individual who has been determined eligible to enroll through the KHBE in a QHP or SADP in the individual market.

††††† (26) "SHOP" means a Small Business Health Options Program operated by the KHBE through which a qualified employer can provide a qualified employee and the employee's dependents with access to one (1) or more QHPs or SADPs.

††††† (27)[(23)] "Small group" is defined by KRS 304.17A-005(42) until superseded by 45 C.F.R. 155.1065.

††††† (28) "Stand-alone dental plan" or "SADP" means a dental plan as described by 45 C.F.R. 155.1065 that has been certified by the office to provide a limited scope of dental benefits as defined in 26 U.S.C. 9832(c)(2)(A), including a pediatric dental essential health benefit.

††††† (29)[(24)] "Training" means the training established by the office for individual agents and kynectors.

††††† (30) "Web broker" means an individual engaged in the activities described in 45 C.F.R. 155.220(c)(3).

 

††††† Section 2. Requirements to be a Participating Individual Agent[or Business Entity].[(1)] An individual agent seeking to be a participating agent shall:

††††† (1)[(a)] Be licensed by DOI with a health line of authority;

††††† (2)[(b)] Complete the office approved agent training in accordance with 45 C.F.R. 155.220(d)(2);

††††† (3)[(c)] Sign an individual agent participation agreement;

††††† (4)[(d)] Comply with the privacy and security standards of 45 C.F.R. 155.260;

††††† (5)[(e) 1.] Except for an employee of an issuer or an individual agent directly contracted with an issuer:

††††† (a) Maintain an appointment with at least two (2) QHP or SADP issuers participating on the KHBE; or

††††† (b)[2.] Maintain a designation with a business entity having an appointment with at least two (2) QHP or SADP issuers participating on the KHBE;[and]

††††† (6)[(f)] Register with the KHBE through the Kentucky Online Gateway; and

††††† (7) Not serve as a web broker or consultant while assisting individuals with the activities described in Section 3 of this administrative regulation[(2) A business entity licensed as an agent with a health line of authority seeking to participate with the KHBE shall:

††††† (a) Select an individual to serve as the participating business entity representative who shall:

††††† 1. Register with KHBE through the Kentucky Online Gateway as the individual authorized by the business entity;

††††† 2. Serve as a primary contact for the office;

††††† 3. Ensure that the business entity signs a participation agreement with the office; and

††††† 4. Be responsible for ensuring that only an active Kentucky licensed agent designated with the business entity is provided access to the KHBE through the Kentucky Online Gateway;

††††† (b) Designate the individual agents who shall participate on the KHBE through the participating business entity and who shall:

††††† 1. Complete the agent training provided by the office or an approved party;

††††† 2. Sign an agent participation agreement;

††††† 3. Comply with the privacy and security standards of 45 C.F.R. 155.260; and

††††† 4. Register with the KHBE through the Kentucky Online Gateway; and

††††† (c) Maintain an appointment with at least two (2) QHP issuers participating on the KHBE].

 

††††† Section 3. Permitted Activities of a Participating Individual Agent[or Business Entity]. (1) Upon completion of the registration requirements as set forth in Section 2 of this administrative regulation, a participating individual agent[or business entity] may:

††††† (a) Enroll a qualified individual in any QHP or SADP offered by an issuer with which the individual agent has the appropriate designation or appointment as defined in Section 2(5) of this administrative regulation through the KHBE in the individual market;

††††† (b) Assist qualified employers in selecting a QHP or SADP and enroll qualified employees in a QHP or SADP offered by an issuer with which the individual agent has the appropriate designation or appointment as defined in Section 2(5) of this administrative regulation through the KHBE in the small group market; or

††††† (c) Assist an individual in applying for advance payments of the premium tax credit and cost-sharing reductions.

††††† (2) A qualified individual may be enrolled in a QHP or SADP through the KHBE by a participating individual agent[or business entity] if the participating individual agent[or business entity] ensures the applicantís completion of an application as described in 42 C.F.R. 155.405.

††††† (3) A participating individual agent[or business entity] shall:

††††† (a) Disclose to potential applicants any relationships the individual agent[or business entity] has with QHP or SADP issuers, insurance affordability programs, or other potential conflicts of interest identified by the office; and

††††† (b) Not:

††††† 1. Impose any charge or fee on an applicant for assistance in completing an application for, or enrolling in, a QHP, an SADP, or an insurance affordability program[or enrolling in a QHP];

††††† 2. Provide compensation or a referral fee to a kynector; and

††††† 3. Enter into an exclusive referral agreement with a kynector.

††††† (4) If the office finds noncompliance with the terms and conditions of the individual agent participation agreement[, business entity participation agreement,] or an administrative regulation of the office, the office shall withdraw an agentís[or business entityís] registration and participation with the KHBE after:

††††† (a) Giving notice to the participating individual agent[or participating business entity]; and

††††† (b) An opportunity to respond in accordance with Section 5 of this administrative regulation.

 

††††† Section 4. Renewal of Participation and Registration with the office. To maintain registration with the office, a participating individual agent[or participating business entity] shall:

††††† (1) Comply with annual training prescribed by the office;

††††† (2) Sign an agent[or business entity] participation agreement;[and]

††††† (3) Maintain licensure, appointments, and designations as identified in Section 2 of this administrative regulation;

††††† (4) Comply with the requirements of 45 C.F.R. 155.220; and

††††† (5) Comply with 900 KAR Chapter 10.

 

††††† Section 5. Withdrawal of Registration and Appeals. (1)(a) Except as provided in subsection (2) of this section, if the office finds noncompliance with the terms and conditions of an individual agent participation agreement[, a business entity participation agreement,] or an administrative regulation of the office, the office shall:

††††† 1. Provide the participating individual agent[or the participating business entity] with notice that the applicable registration shall be withdrawn as of the date of notice;

††††† 2. Allow the participating individual agent[or participating business entity] an opportunity to submit evidence of compliance or additional information within ten (10) business days;

††††† 3. Review any information submitted by the participating individual agent[or participating business entity]; and

††††† 4. Based on a review of the information provided, issue a decision to uphold the withdrawal or reinstate the applicable registration of a participating individual agent[or participating business entity].

††††† (b) A participating individual agent[or participating business entity] shall have the right to appeal a decision to withdraw registration in accordance with paragraph (a) of this subsection through the office.

††††† (2)(a) If the health line of authority or licensure of an agent[or business entity] is suspended, revoked, or expired, the registration of the agent[or business entity] shall be withdrawn by the office based on DOIís administrative action.

††††† (b) Any appeal or request of an action by DOI pursuant to paragraph (a) of this subsection shall be made to DOI in accordance with the Kentucky Insurance Code.

††††† (3) After one (1) year following a decision to withdraw the registration of a participating individual agent[or participating business entity], the individual agent[or business entity] may reapply in accordance with Section 2 of this administrative regulation.

 

CARRIE BANAHAN, Executive Director

AUDREY TAYSE HAYNES, Secretary

††††† APPROVED BY AGENCY: May 13, 2015

††††† FILED WITH LRC: May 14, 2015 at 4 p.m.

††††† PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on June 22, 2015, at 9:00 a.m. in the Public Health Auditorium located on the First Floor, 275 East Main Street, Frankfort, Kentucky 40621. Individuals interested in attending this hearing shall notify this agency in writing by June 15, 2015, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. You may submit written comments regarding this proposed administrative regulation until June 30, 2015. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

††††† CONTACT PERSON: Tricia Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone (502) 564-7905, fax (502) 564-7573, email address tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Carrie Banahan

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes the policies and procedures of the Kentucky Office of Health Benefit and Health Information Exchange relating to the registration of an individual agent in accordance with 42 U.S.C. 18031 and 45 C.F.R. Part 155.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to inform individual agents of the registration requirements for participation on the Kentucky Health Benefit Exchange.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation is necessary to provide the registration requirements for individual agents seeking to participate on the Kentucky Health Benefit Exchange as required by 45 C.F.R. Parts 155 and 156.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation provides detailed information about the registration requirements for individual agents seeking to participate on the Kentucky Health Benefit Exchange to comply with 42 U.S.C. 18031 and 45 C.F.R. Part 155.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: The amendments to this administrative regulation clarify that the regulation is specific to an individual agent and not a business entity, an employee of an issuer or an individual agent directly contracted with an issuer will not be required to maintain an appointment with other issuers, include references to dental plans as well as health plans, specify an agent cannot serve as a web broker or consultant, and specify an individual agent cannot charge a fee for assisting an applicant in the application and enrollment process.

††††† (b) The necessity of the amendment to this administrative regulation: The amendment to this administrative regulation is necessary to establish that the regulation is specific to individual agents and not a business entity, an employee of an issuer or an individual agent directly contracted with an issuer not be required to maintain an appointment with other issuers, include references to dental plans as well as health plans, specify an agent cannot serve as a web broker or consultant, and specify an individual agent cannot charge a fee for assisting an applicant in the application and enrollment process.

††††† (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statues by providing registration requirements for those agents seeking to participate on the Kentucky Health Benefit Exchange.

††††† (d) How the amendment will assist in the effective administration of the statutes: This administrative regulation provides detailed requirements for individual agents seeking to participate on the Kentucky Health Benefit Exchange.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation will affect approximately 7,500 individual agents that may request to be registered to participate on the Kentucky Health Benefit Exchange.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Each individual agent will be licensed by DOI, complete KOHBHIE training, sign a participation agreement, meet privacy and security standards, register with KHBE through the Kentucky Online Gateway, and maintain an appointment with at least two (2) QHP issuers participating on the KHBE or be a captive agent of an issuer.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There will be no cost to the individual agent or business entity for participation on the KHBE.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This administrative regulation will benefit each individual agent that seeks to participate on the Kentucky Health Benefit by providing detailed instructions regarding the registration requirements.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: No additional costs will be incurred to implement this administrative regulation.

††††† (b) On a continuing basis: No additional costs will be incurred.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The source of funding to be used for the implementation and enforcement of this administrative regulation will be from Kentucky Office of Health Benefit and Health Information Exchange existing budget. No new funding will be needed to implement the provisions of this regulation.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: No increase in fees or funding is necessary.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish any fees and does not increase any fees either directly or indirectly.

††††† (9) TIERING: Is tiering applied? Tiering was not appropriate in this administrative regulation because the administrative regulation applies equally to all those individuals or entities regulated by it.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation affects the Kentucky Office of Health Benefit and Health Information Exchange within the Cabinet for Health and Family Services.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1), 42 U.S.C. ß 18031, and 45 C.F.R. Part 155.

††††† (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will not generate any revenue.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will not generate any revenue.

††††† (c) How much will it cost to administer this program for the first year? No additional costs will be incurred to implement this administrative regulation.

††††† (d) How much will it cost to administer this program for subsequent years? No additional costs will be incurred to implement this administrative regulation on a continuing basis.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation:

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† 1. Federal statute or regulation constituting the federal mandate. 42 U.S.C. Section 18031 and 45 C.F.R. Part 155.

††††† 2. State compliance standards. KRS 194A.050(1) requires the secretary of the cabinet to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth; to operate the programs and fulfill the responsibilities vested in the cabinet, and to implement programs mandated by federal law or to qualify for the receipt of federal funds. This administrative regulation establishes the policies and procedures of the Kentucky Office of Health Benefit and Health Information Exchange relating to the registration of a an individual agent in accordance with 42 U.S.C. 18031 and 45 C.F.R. Part 155.

††††† 3. Minimum or uniform standards contained in the federal mandate. The Affordable Care Act establishes the creation of the American Health Benefit Exchange as identified in Section 1311(a) of the Affordable Care Act. The "Kentucky Health Benefit Exchange" (KHBE) is the Kentucky state-based exchange conditionally approved by HHS established by 45 C.F.R. 155.105 to offer a Qualified Health Plan (QHP) in Kentucky beginning January 1, 2014. An Exchange must make qualified health plans available to qualified individuals and qualified employers. At a minimum, an Exchange must implement procedures for participation of individual agents seeking to participate on the Exchange. This registration may be done if the individual agent is licensed by DOI, completes KOHBHIE training, signs a participation agreement, meets privacy and security standards, registers with KHBE through the Kentucky Online Gateway, and maintains an appointment with at least two (2) QHP issuers participating on the KHBE or is a captive agent of an issuer.

††††† 4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? No.

††††† 5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This administrative regulation does not impose stricter requirements than those required by the federal mandate.