May 13—Continued ambiguity in federal rules may endanger some existing assistance programs created by providers to help health insurance policyholders afford their premiums or co-sharing payments, HFMA stated in a letter to the Centers for Medicare & Medicaid Services (CMS).

HFMA President and CEO Joseph J. Fifer, FHFMA, CPA, wrote CMS Administrator Marilyn Tavenner May 6 to warn about continuity ambiguity surrounding the legality of the assistance, despite new guidance included in a recent interim final rule.

Fifer wrote that the interim final rule’s attempt to codify previous guidance related to third-party premium payment for individuals enrolling in plans offered through marketplaces created by the Affordable Care Act “does little to resolve the ambiguity created by CMS’s somewhat conflicting statements on the issue.” 

Foundational Uncertainty

For instance, the interim final rule left unaddressed an apparent conflict in previous federal guidance on whether providers’ foundations could give marketplace plan policyholders assistance. A Nov. 4, 2013, CMS document encouraged marketplace plans to reject third-party payments for coverage, but other CMS guidance issued Feb. 7, 2014, appeared to allow foundation-provided assistance.

The unresolved conflict could leave providers that give such assistance facing fraud-related prosecution—despite an Oct. 31, 2013, letter to Congressman Jim McDermott (D-Wash.) from the U.S. Department of Health and Human Services that federal subsidies to marketplace plans did not make them federal healthcare programs. That distinction presumably left marketplace plans not subject to the antikickback laws.

Fifer wrote that providers were concerned that “the decision that [qualified health plans (QHPs)] are not federal health programs may be reinterpreted exposing healthcare providers who have provided third-party QHP coverage for individuals who could not afford it to unintended violations of the antikickback statute.” 

In addition to raising concerns among providers that have established assistance programs through their foundations, the ongoing uncertainty has kept other providers from offering such assistance, he wrote.

Fifer’s letter followed an April request from the American Hospital Association and the Catholic Health Association of the United States that HHS clarify that it allowed hospital-affiliated and other charitable foundations from subsidizing health insurance premiums for exchange plans.

Rich Daly is a senior writer/editor in HFMA’s Washington, D.C., office. Follow Rich on Twitter @rdalyhealthcare.

Publication Date: Tuesday, May 13, 2014