News
With a new Administration in place, the dental benefits industry faced changing policies from every branch of the federal government throughout the year. NADP represented you in every instance. Following is a timeline of key developments, presented in reverse chronological order by branch of government.
Administrative Branch
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DEPARTMENTS NADP informed members on multiple notices and represented on numerous regulations from the Departments Labor and Health and Human Services plus the Internal Revenue Service. |
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Sept. |
CMS Finalizes 2022 NBPP and 1332 WaiversChanges in Sept. On Sept. 20, the Centers for Medicare and Medicaid Services (CMS) finalized “Patient Protection and Affordable Care Act; Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond” (CMS-9906-F), which
NADP submitted comments on the proposed rule in July. (See below). The final rule responds to NADP concerns over the potential effect of metal level changes on enrollment in standalone dental plans: “HHS clarifies that this proposal, and the resulting final rule, do not newly permit Exchange enrollees to change to a plan of a different metal level or make policy changes to plan category limitations for existing special enrollment periods. Rather, the new rule establishes a plan category limitation to address a newly created special enrollment period triggering event and makes a small technical clarification to the preceding paragraph, as further discussed earlier in this preamble. Further, Health and Human Services (HHS) has discussed and extensively investigated concerns about accidental standalone dental plan disenrollment due to a change in medical QHP and has not found this to be a problem in practice for HealthCare.gov enrollees, who are always offered the opportunity to select or re-select their standalone dental plan after completing medical QHP selection. Finally, HHS clarifies that the new monthly special enrollment period does not change or expand eligibility requirements for other special enrollment period qualifying events at § 155.420(d).” (p. 99).” Links |
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Aug. |
CMS Extends Transparency Rule Compliance Deadline On Friday, Aug. 20, the Centers for Medicare and Medicaid Services (CMS) released anupdateto the tri-agency FAQs on the Price Transparency final rules and the No Surprises Act. Included in the FAQ document is an extension of the enforcement deadline for compliance from January 1, 2022 to July 1, 2022. In its response to stakeholders, CMS agreed that that compliance “is likely not possible by January 1, 2022”. The Departments will defer enforcement of the requirement to make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges as well as its enforcement of the requirement that plans and issuers must provide an Advanced Explanation of Benefits. |
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May |
HHS Releases Enforcement and Interpretation Notice on ACA Section 1557 On May 10, U.S. Health and Human Services (HHS) Secretary Xavier Becerra released “Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972,” which will change the department’s policy on enforcing nondiscrimination policies under the Affordable Care Act. The new interpretation states that the changes are in response to last year’sBostock v. Clayton Countyruling that banned discrimination against LGBTQ+ individuals in the workplace. According to the notification: “Department of Health and Human Services will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include:
The announcement does not change the portions of the2019 final ruleon Section 1557 that removed the “top 15 languages” requirements on taglines and notification documents. In 2019, NADP commented on the Trump Administration’s rule. |
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May |
IRS Publishes COBRA Premium Subsidies Guidance On May 18, the Internal Revenue Service (IRS) publishedguidanceon the Consolidated Omnibus Budget Reconciliation Act (COBRA) premium subsidies created by theAmerican Rescue Plan Act(ARP), including further clarification of the inclusion of stand-alone dental plan’s in the subsidies. Link IRS COBRA Premium Subsidy Guidance(Notice 2021-31) |
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April |
CMS Releases Updated Exchange 2022 NBPP Notice and Letter to Issuers On April 30, the Centers for Medicare and Medicaid Services (CMS) filed“Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2022 and Pharmacy Benefit Manager Standards,” an update to the rule finalized in January (Note: the Federal Register publication date for the rule was May 5). The Rule finalizes changes to allow direct enrollment entities (DE) to offer certified off-exchange stand-alone dental plans alongside non-exchange dental plans. It also declines to allow independent purchase of dental plans on the federal marketplaces but does not rule out the possibility in the future. The update does not change the reduction in the user fee from the January final rule. NADPsubmitted commentsin December 2020 opposing the Enhanced Direct Enrollment (E-DE)method out of concern for the potential loss of coverage through the end of automatic renewal for exchange plans and consumer confusion about E-DE platforms. Letter to Issuers: On, May 6, CMS also released the finalized version of the Plan Year (PY) 2022 Letter to Issuers on the Federally Facilitated Exchanges. In summary, the letter finalizes the proposed letter’s increase to the stand-alone dental plan (SADP) annual cost sharing limit to $375 for one child and $750 for two or more children. NADP will continue to monitor CMS activity with respect to this final rule. Links: |
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April |
2021 Marketplace Open Enrollment Reveals Increase in SADP Selections The U.S. Department of Health and Human Services (HHS) recently reported approximately 12millionconsumers selected or were automatically re-enrolled in Marketplace plans during the 2021 Open Enrollment Period, an increase of about 600,000 plan selections from the same time last year. Twenty-one percent of plan selections were made by consumers new to the Marketplaces (compared to 25% last year). An accompanying set of Public Use Files (PUFs) shows that 1.86 millionconsumers selected a Stand-alone Dental Plan (SADP), which includes 1.21millionfrom Marketplaces using healthcare.gov and 650,053 from State-Based Marketplaces (SBMs). HHS opened a Special Enrollment Period (SEP) in response to the COVID-19 Public Health Emergency from Feb. 15 to Aug. 15, 2021, so these numbers may increase. More than 500,000 Americans have signed up for Marketplace coverage through HealthCare.gov during the SEP. |
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April |
NADP Updates Members on DoL COBRA Model Notices and FAQs In April, the Department of Labor (DoL) releasedmodel notices for plans and FAQson the implementation of the Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidies authorized in the American Rescue Plan Act of 2021 (ARP). Please see below for a summary of the guidance, and links to the model notices. NADP is also expecting the Internal Revenue Service (IRS) to release guidance on the implementation of the COBRA subsidies soon. In short – the guidance states:
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Jan. |
CMS Finalizes Part of 2022 Exchange NBPP On Jan. 14, the Centers for Medicare and Medicaid Services (CMS) finalized the “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2022; Updates to State Innovation Waiver (Section 1332 Waiver) Implementing Regulations” (CMS-9914-F). The Administration continues to review other parts of the rule for “finalization at a later date.” Notably, language that would have allowed the sale of non-exchange standalone dental plans (SADPs) alongside exchange SADPs on direct enrollment platforms was not included in this final rule. NADP advocated against the inclusion of this language on grounds that it would cause consumer confusion if dental plans met the pediatric dental essential health benefit requirements or were eligible for subsidies. It is unclear if CMS intends to finalize the remainder of the rule before the regulatory freeze President-elect Biden is anticipated to enact upon his inauguration on Jan. 20. The final rule would create an Enhanced Direct Enrollment (E-DE) option for states to end the use of a central state or federal exchange, instead leaving consumer facing websites to brokers and plans through a process known as direct enrollment. The federal government would still conduct subsidy and eligibility checks for the platforms. NADP opposed the E-DE method out of concern for the potential loss of coverage through the end of automatic renewal for exchange plans and consumer confusion about E-DE platforms. Additionally, the final rule would codify sub-regulatory guidance from CMS on 1332 waivers, allowing states additional flexibility on enrollment preservation requirements for waivers. The rule also decreases exchange user fees by .75%. NADP will continue to monitor CMS activity for another final rule Links: |
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Jan. |
CMS Formally Withdraws MFAR from Federal Register In a tweet on Jan. 7 the Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma announced that the proposed Medicaid Fiscal Accountability Rule (MFAR) would be removed from the Federal Register and not finalized. NADP commented in opposition to the rule, focusing on the potential expansion of the definition of “permissible class” of healthcare for the purposes of Medicaid related taxes to include dental benefits plans. Verma had previously announced the rule would be withdrawn but left the MFAR rule in the federal register, which meant it could have technically still been finalized. |
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Jan. |
Final Medicare Reg for CY 2022 Clarifies Reimbursement of Opt-Out Providers by MA Supplemental Benefits In January, the Centers for Medicare and Medicaid Services (CMS) issued a final regulation for CY 2022 Medicare and Medicaid Programs, which covers a variety of policies in these programs. One noteworthy item is a finalized amendment to 42 CFR § 422.220, which will allow Medicare Advantage (MA) supplemental benefits to reimburse providers that have opted out of Medicare. This could mean that those dentists who responded to 2016-17 requirements (which wererescinded in 2018) to enroll in Medicare by opting out can participate in MA dental supplemental benefit networks. The final regulation isavailable online here. |
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EXECUTIVE ORDERS Following his inauguration, President Joe Biden signed key executive orders impacting the dental benefits industry. |
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Jan. |
President Biden Signs Executive Order on ACA and Medicaid On Jan. 28, President Biden signed “Executive Order on Strengthening Medicaid and the Affordable Care Act,” an executive order that will re-open federal exchanges for open enrollment from Feb. 15 to May 15. The order also includes directions for the Department of Health and Human Services (HHS) to review policies that:
In 2020 NADP pressed both Congress and HHS for a special open enrollment period to allow individuals effected by the COVID-19 pandemic to purchase medical and dental coverage on the federal exchanges. Furthermore, NADP has also advocated that 1332 exchange waivers be used to protect and expand the availability of dental benefits. Looking ahead, it is likely that this EO will spur changes to rules and guidance issued by the Trump Administration on Medicaid and the exchanges. NADP will continue to push HHS for improvements to the exchange platforms, including the independent purchase of dental plans and the restoration of funding to exchange navigator and marketing budgets. |
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Jan |
President Biden Signs Executive Orders and Regulatory Freeze On Jan. 20, Joe Biden was officially sworn in as the 46th president and after his speech took immediate executive actions. Included in the list was a regulatory freeze; President Biden signed an executive order halting the finalization of any currently proposed rules from federal agencies, including from the Department of Health and Human Services (HHS). The freeze will allow Biden’s team to evaluate each proposed rule and make changes or remove them from the Federal Register and add 60 additional days of review for rules that were finalized but are not yet implemented. For rules that were finalized, the extension of the implementation time allows the Biden Administration to reverse them or develop changes through the rulemaking process. Proposed rules do not need to go through the full rulemaking process to be removed from the Federal Register. Biden also issued an executive order calling for a comprehensive review of the rulemaking process. In addition, Biden signed an executive order “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which directed every department to review existing policies that may involve gender discrimination. This will likely include an HHS review of the section 1557 rule finalized by the Trump Administration in 2020, which also included the repeal of the top 15 languages tagline requirement for dental plan publications. In 2019, NADP commented in support of the tagline repeal, but made no comment on the other portions of the rule and reiterated the industry’s commitment to civil rights and inclusion. NADP will continue to monitor developments on this issue and will provide updates as they emerge. |
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EEDERAL APPOINTMENTS President Biden also made key appointments affecting the dental benefits industry. |
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May |
US Senate Confirms Chiquita Brooks-LaSure as CMS Administrator On May 25, by a vote of 55-44, the Senate confirmed Chiquita Brooks-LaSure to be administrator of the Center for Medicare and Medicaid Services (CMS). She previously served as a deputy director of CMS under President Obama, and a senior staffer in the Senate where she helped to write the Affordable Care Act. Links Brooks-LaSure Nomination(Washington Post) |
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Feb. |
Biden Nominates California AG Xavier Becerra as HHS Secretary The Senate Finance and Health, Education, Labor and Pensions (HELP) committees held confirmation hearings for California Attorney General Xavier Becerra, President Biden’s nominee to be Secretary of Health and Human Services on Feb. 23 and 24. During the Finance Committee Hearing, Sen. Ben Cardin (D-MD) raised the issue of the importance of oral health. Becerra was ultimately confirmed by the Senate on March 19. The Administration has also nominated Elizabeth Fowler, who served as an advisor to President Obama’s National Economic Council as the director of the Center for Medicare and Medicaid Innovation (CMMI). Fowler was chief health counsel to former Senate Finance Chair Max Baucus (D-MT), and one of the key drafters of the Affordable Care Act. CMMI is tasked with developing models and methods of improving Medicare and Medicaid, including pilot programs to expand coverage. |
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Jan |
Biden Department of Health and Human Services Appointments Announced President Biden also announced nominations for Deputy Secretary of HHS and Assistant Secretary for Health. •HHS Deputy Secretary: Andrea Palm – Wisconsin Secretary of Health (Link) •HHS Assistant Secretary for Health: Dr. Rachel Levine – Pennsylvania Secretary of Health (Link) |
Legislative Branch
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DENTAL IN MEDICARE A popular issue in 2021, Congress considered multiple, ever-changing proposals regarding the addition of a dental benefit in Medicare. |
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Dec. |
Senator Manchin Signals Reconciliation Package Must be put on hold In an interview on December 19 Sen. Joe Manchin (D-WV), the pivotal vote for Senate Democrats, said he would not support the Build Back Better Act reconciliation package and has broken off negotiations with the White House. Because there are only 50 Senate Democrats, they need the entire caucus to support the legislation, with Vice President Harris casting a tie breaking vote. The White House and Democratic leadership have responded to Sen. Manchin by proposing that the bill will still come to a floor vote in January 2022, requiring him to vote the legislation down to show his opposition. The Senate version of the bill will differ from the version passed in the House, which included immigration reform proposals the Senate Parliamentarian ruled could not be in the bill and paid family medical leave requirements. There is no timeline for an alternative package or related bills to be put forward. While the legislative text as currently written did not include a dental benefit in Medicare, NADP and other groups asked congressional leadership to include a mandatory adult dental benefit in Medicaid programs as part of the Build Back Better Act in a letter in December 2021. |
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Nov. |
Dental in Medicare Not Included in House Version of Build Back Better Act By a vote of 220-213 the House passed a modified version of the Build Back Better Act, which included $1.75 trillion in spending over 10 years. While it was included in previous drafts, the version of the bill that passed the House did not include a dental benefit in Medicare. In its healthcare section the bill would:
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Oct. |
Congress Continues Debate on Reconciliation Package, Adding Dental Benefit to Medicare As part of the ongoing negotiations in October regarding the Build Back Better package, congressional Democrats debated varying proposals for adding a dental benefit to Medicare. In September, a comprehensive dental benefit passed both the Energy and Commerce and Ways and Means Committees. The benefit would begin in 2028. However, negotiations between Senate Democrats including Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) changed the makeup of the overall bill by shrinking its size from the original $3.5 trillion over 10 years. As a result, competing proposals emerged to cut costs, including an $800 voucher for dental care proposed by President Biden in a town hall on Oct. 21. During the town hall President Biden stated that a dental benefit in Medicare is a “reach,” and that both Sens. Sinema and Manchin were opposed to the expansion. House Democratic Leadership alsobalancedpassage of the reconciliation package with a bipartisan infrastructure bill, as well as federal funding or breach of the federal debt limit. These other priorities slowed the progress of the reconciliation bill. Links President Biden Town Hall Transcript Full Text of House Reconciliation Bill(Dental on Page 635) |
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June |
Senate interest in Dental in Medicare Grows Marking an shift in Senate Democratic interest in adding a dental benefit to the Medicare program, Senate Majority Leader Chuck Schumer (D-NY) tweeted in June that he is “working with @Sen. Sanders to push to include dental, vision and hearing coverage in the American Jobs and Families Plans.” Additionally, new draft Senate Budget Committee documents call for inclusion of a dental benefit in the Medicare program, noting “roughly half of seniors on Medicare have not been to the dentist in the past year, and of those that do, millions of seniors spend thousands of dollars out-of-pocket to get dental care.” A draft document sets aside approximately $234 billion over 10 years for a Medicare dental benefit. |
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Jan. |
Bills Addressing Dental Benefits in Medicare Introduced in Congress On Jan. 28, Sen. Cardin (D-MD) and Rep. Barragan (D-CA-44) introduced S.97/H.R.502, the Medicare Dental Benefit Act. This bill provides for Medicare coverage of dental and oral health services, including routine diagnostic and preventive services, basic and major dental services, and emergency care; dental prostheses are also covered. On Feb. 17, Senators Bennet (D-CO) and Kaine (D-VA) announced the introduction of the Medicare-X Choice Act. They see the bill as a way to achieve universal health care. It is the 3rd iteration of the bill and changes are that it is closer aligned with Biden campaign’s health care plan. The prospects are unclear at this moment. Notably, the bill directs the Centers for Medicare and Medicaid Services (CMS) to study the impact of covering services, such as dental, on the health market. |
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ADDITIONAL LEGISLATIVE ISSUES |
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July |
NADP Submits Comments to Department of Labor on No Surprises Act On Friday, July 9, NADP sent comments to the U.S. Department of Labor seeking clarity on the scope of requirements for broker and consultant disclosures in theNo Surprises Act. The law, passed as part ofConsolidated Appropriations Act, 2021in December 2020 includes requirements that “covered service entities” (brokers and consultants) disclose direct and indirect compensation to a “responsible plan fiduciary.” However, because of conflicting definitions in the law, there is uncertainty over the inclusion of dental benefits in the requirements for brokers. NADP sought clarity from the Department and will continue to engage on the issue as implementation guidance is developed for the No Surprises Act |
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May |
Federal NCS Legislation Introduced in House and Senate On Friday, May 21, Rep. Clarke (D-NY) introduced the “Dental and Optometric Care Access Act of 2021” (“DOC Access” Act) H.R. 3461. The bill was cosponsored by Reps. Carter (R-GA), Soto (D-FL), and McKinley (R-WV). At the time of this posting bill text is not yet available, however the bill is expected to be identical to H.R. 3762, that was introduced in the 116th Congress by Rep. Loebsack (D-IA) and that was cosponsored by Reps. Clarke, and Carter. That bill would have:
NADP has been actively opposed to the House version of DOC Access for thepast several years and recently advocated against the reintroduction of any federal non-covered services legislation during Advocacy in Action. |
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March |
Senators Introduce Oral Health for Moms Act On March 3, Sens. Debbie Stabenow (D-MI), Cory Booker (D-NJ), and Ben Cardin (D-MD) introduced theOral Health for Moms Act, which would expand oral health coverage in Medicaid for those who are pregnant or postpartum. The bill would also expand funding for dental services at Federally Qualified Heath Centers and make oral health coverage during pregnancy and postpartum an Essential Health Benefit (EHB). NADP provided recommendations related to the EHB provision and will continue to engage with bill sponsors moving forward.The bill will not be considered as part of the COVID relief package currently moving in the Senate. Summary
NADP will continue to monitor the bill’s progress and work with congressional offices on its development. Links |
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NADP Joins Broad Coalition Push for COBRA Subsidies On Feb. 10, NADP joined a coalition of nearly 90 companies and organizations including public-and private-sector employers, nonprofits, chambers of commerce, patient advocacy groups, insurers, hospitals, brokers, church plans, unions, and multinational companies in the letter to congressional leaders asking them to include COBRA funding in the next COVID-19 relief package. NADP has longadvocated forCongress to provide temporary federal subsidization of COBRA premiums. Last Spring, NADP urged Congress to consider taking actions to help cover the cost of coverage for the furloughed and newly unemployed during an unfortunate time of economic instability. NADP will continue to engage in efforts to ensure people keep their employment-based health insurance coverage astalks on COVID relief continuenext week.
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Feb. and March |
The American Rescue Plan Act Signed by President Biden The following is a summary of the legislative language and process of the American Rescue Plan Act, which was signed into law on March 11, 2021. On the week of Feb. 16 , the House Education and Labor, Ways and Means, and Energy and Commerce committees held mark-ups for their respective sections of “Concurrent Resolution on the Budget for Fiscal Year 2021” (S. Con. Res. 5), the planned $1.9 trillion COVID relief package. The various House Committee bills were later combined into one package. In response to each Committee’s bill, NADP sent letters of support reflecting the Association’s policy goals for COVID relief. These goals include support forCOBRA premium subsidies, an increase to theFederal Medical Assistance Percentage (FMAP)for Medicaid programs, and increased subsidies to consumers on the exchange platforms. NADP has advocated for relief included in the sections highlighted in green Below are summaries of relevant sections of the packages as approved by their respective committees. Packages differ because of the jurisdiction of different congressional committees. The language will be combined in the final relief package.
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Jan |
McCarran-Ferguson Repeal Signed into Law The Justice Department (DOJ) announced that the Competitive Health Insurance Reform Act of 2020 was signed into law on Jan. 13. Per the DOJ, the repeal of the McCarran-Ferguson exemption for health and dental insurance “will assist the Antitrust Division in its mission to enforce the antitrust laws by narrowing this defense and clarifying that, except for certain activities that improve health insurance services for consumers, the conduct of health insurers is subject to the federal antitrust laws.” The McCarran-Ferguson exemption repeal may not expose carriers to additional risk or regulation given dental carriers generally do not engage in those activities governed by McCarran. Regarding data sharing, the legislation provides an exception with respect to types of data collection and dissemination in section 2(a)(2). The primary concern will be potential costly litigation prompted by the repeal to test any new legal precedent, the costs of which could be borne by employers and enrollees via increased premium. NADP and our partners across the insurance industry have been actively assessing the implications of this repeal and any need or opportunity for technical amendments. |
Judicial Branch
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SUPREME COURT DECISION NADP informed members regarding two US Supreme Court decisions influencing the dental benefits industry. |
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June |
Supreme Court Upholds Affordable Care Act in California v. Texas In aJune 7-2 ruling, the Supreme Court held inCalifornia v. Texasthat the plaintiffs seeking to repeal the Affordable Care Act (ACA) did not have standing and dismissed the case. The court held that Texas and the businesses it interceded on behalf of in front of the court did not prove they would suffer injury from the law, leaving the ACA unchanged from its current form. See the full decision here. In his opinion for the court, Justice Breyer writes: “Plaintiffs do not have standing to challenge §5000A(a)’s minimum essential coverage provision because they have not shown a past or future injury fairly traceable to defendants’ conduct enforcing the specific statutory provision they attack as unconstitutional.” |
As always, NADP served as the voice of the dental benefits, representing our members on every front. Should you have any questions about the above, contact the NADP Advocacy team.
