My Policy Hub

Improving health is our policy

  • Dashboard
  • Impact Insights
  • Issues
  • ACA Now
  • Search
  • Contact
  • Dashboard
  • Impact Insights
  • Issues
  • ACA Now
  • Search
  • Contact

ACA Now

1312 - Consumer Choice

 
Implementation Status 
Statutory Text 

Summary

Amended by section 10104 of the Manager’s Amendment. Permits qualified individuals, excluding incarcerated individuals and including only U.S. citizens or nationals or aliens who are lawfully present, to enroll in any available Qualified Health Plan (QHP) for which they are eligible.

Specifies that qualified employers – generally defined as a small employer that elects to make all full-time employees of such employer eligible for one or more QHPs – may provide support for employees’ QHP coverage by selecting a metallic coverage level; employees of such employers would have a choice of QHPs in that coverage tier. Beginning in 2017, allows States to permit issuers in the large group market in the State to offer QHPs through an Exchange and correspondingly allows large employers to be considered qualifying employers under this section.

Requires issuers to consider all enrollees in all health plans (other than grandfathered health plans) offered by such issuer in the individual and small group markets, respectively – both inside and outside of Exchanges – to be members of a single risk pool for each market and allows a State to require a merger of these markets if determined appropriate.

Generally provides for the continued operation of the outside-of-Exchange market and includes provisions regarding the voluntary nature of Exchanges, such as individuals’ ability to enroll in any QHP except in the case of a catastrophic plan created under ACA section 1302. Requires that Members of Congress and congressional staff receive only health plans created by the ACA or offered through Exchanges.

#Health Insurance Exchanges, #Qualified Health Plans

Implementation Status

 
Summary 
Statutory Text 

2012

The March 27, 2012, Exchange establishment final rule codifies several of this section’s provisions, including on SHOP options with respect to employer choice requirements (see p. 18464) and eligibility standards such as those relating to citizenship, status as a national or lawful presence (see p. 18452), among others.

2013

On February 27, 2013, HHS issued a final rule implementing this section’s single risk pool provisions. Also on February 27, 2013, CCIIO issued a technical fact sheet providing an overview of the key provisions, including the single risk pool provisions.

HHS’s March 11, 2013, SHOP proposed rule would implement a transitional policy regarding employees’ choice of Qualified Health Plans in the SHOP Exchange.

In an April 26, 2013, Q&A on health insurance market reforms, CCIIO addresses the withdrawal of non-grandfathered business; States’ maintenance of “alternative mechanisms” for HIPAA eligible individuals in light of 2014 guaranteed availability; geographic rating areas; issues associated with the definition of association coverage; and premium adjustment when coverage becomes secondary to Medicare.

On June 4, CCIIO issued a final rule on the Small Business Health Options Program (SHOP) and, in tandem, finalized SHOP applications for small employers (3 pages) and their employees (2 pages) to use starting on October 1, 2013, in SHOP Marketplaces. In the final rule, CCIIO adopts a transitional approach to employee choice; all SHOPs will allow small businesses to let their employees choose coverage from a number of plans starting in 2015.

On August 30, CCIIO published a wide-ranging final rule (also see a factsheet) on Marketplace program integrity and other provisions, noting that it “generally is finalizing previously proposed policies without change.” The rule addressed oversight of Qualified Health Plan (QHP) issuers in Federally Facilitated Marketplaces; individual and SHOP eligibility appeals, including details on a “federally-managed appeals process [that] will be available for appellants in the individual market”; HHS privacy and security-related Marketplace compliance monitoring; an option for a state to operate a State-based SHOP, while having a Federally Facilitated Individual Marketplace; standards regarding issuers’ acceptance of various payment methods from Marketplace consumers; provisions addressing agents and brokers; QHP issuer direct enrollment; and a clarification regarding certain outside-the-Marketplaces plans’ participation in the risk corridors program.

On August 30, HHS released a Paperwork Reduction Act (PRA) Package including details on information collections associated with the August 30 Marketplace Program Integrity final rule, the provisions of which addressed an aspect of the risk corridors program, agents and brokers in Federally Facilitated Marketplaces and various other issues. The PRA package also contains provisions on additional information collections related to Navigators, certified application counselors and habilitative services, among other topics.

On September 30, OPM released a final rule – largely following an August 8 proposed rule – stating that Members of Congress and congressional staff employed by the official office of a Member of Congress may not purchase health insurance through OPM/FEHBP but may instead purchase insurance through a SHOP Marketplace. Further, Members and staff may continue to receive a government contribution toward such coverage if they purchase through the District of Columbia’s SHOP. CCIIO released guidance, “Members of Congress and Staff Accessing Coverage through Health Insurance Exchanges.”

On October 24, CMS released a final rule (see a CCIIO fact sheet) codifying certain program integrity-related components of the ACA pertaining to Exchanges, premium stabilization programs and market standards that were delineated in a June 2013 proposed rule. The final rule also amends and adopts as final provisions delineated in the Amendments to the HHS Notice of Benefit and Payment Parameters for 2014 interim final rule with comment issued in March 2013 related to risk corridors and reconciliation of cost-sharing.

On Nov. 25, HHS issued a proposed rule establishing the CY 2015 benefit and payment parameters for the cost-sharing reductions (including the annual limitation on cost-sharing for stand-alone dental plans), advance premium tax credit, reinsurance, and risk adjustment programs as required by the ACA.  In addition, the proposed rule establishes the user fees for the Federally-facilitated Exchanges (FFEs), the annual open enrollment period for 2015, the actuarial value (AV) calculator, and other key provisions as required by the law.  Note that the rule allows for adjustments to the risk corridors and other premium stabilization programs in 2014 to account for the “transitional policy” (see the Nov. 14 CCIIO letter to Insurance Commissioners) that addressed plan cancellations, which could equate to broader risk corridors and thus higher stabilization payments to plans. Comments are due by Dec. 26, 2013.

2014

In July of 2014, HHS issued letters (Virgin Islands, Northern Mariana Islands, Guam, American Samoa, Puerto Rico) indicating that health insurers issuing coverage in U.S. territories are exempt from certain ACA market reforms since they are not considered “states.”

2015

On Feb. 2, the Senate Small Business Committee opened an investigation regarding Congress’ participation in D.C.’s Small Business Exchange. In a letter to the DC Health Benefit Exchange, the committee asserts that false information was provided, leading Congress to qualify for the Small Business Exchange.

2017

On Aug. 18, Sen. Ron Johnson (R-WI), chairman of the Senate Homeland Security and Government Affairs Committee, wrote a letter to the Office of Personnel Management (OPM) that asked for information related to OPM’s 2013 regulation that allowed Members of Congress and their staff to purchase health insurance through an exchange for small businesses with fewer than 50 employees.

 

Statutory Text

 
Implementation Status 
Summary 

SEC. 1312 [42 U.S.C. 18032]. CONSUMER CHOICE.
(a) CHOICE.—
(1) QUALIFIED INDIVIDUALS.—[As revised by section
10104(i)(1)] A qualified individual may enroll in any qualified
health plan available to such individual and for which such individual
is eligible.
(2) QUALIFIED EMPLOYERS.—
(A) EMPLOYER MAY SPECIFY LEVEL.—A qualified employer
may provide support for coverage of employees
under a qualified health plan by selecting any level of coverage
under section 1302(d) to be made available to employees
through an Exchange.
(B) EMPLOYEE MAY CHOOSE PLANS WITHIN A LEVEL.—
Each employee of a qualified employer that elects a level
of coverage under subparagraph (A) may choose to enroll
in a qualified health plan that offers coverage at that level.
(b) PAYMENT OF PREMIUMS BY QUALIFIED INDIVIDUALS.—A
qualified individual enrolled in any qualified health plan may pay
any applicable premium owed by such individual to the health insurance
issuer issuing such qualified health plan.
(c) SINGLE RISK POOL.—
(1) INDIVIDUAL MARKET.—A health insurance issuer shall
consider all enrollees in all health plans (other than grandfathered
health plans) offered by such issuer in the individual
market, including those enrollees who do not enroll in such
plans through the Exchange, to be members of a single risk
pool.
(2) SMALL GROUP MARKET.—A health insurance issuer
shall consider all enrollees in all health plans (other than
grandfathered health plans) offered by such issuer in the small
group market, including those enrollees who do not enroll in
such plans through the Exchange, to be members of a single
risk pool.
(3) MERGER OF MARKETS.—A State may require the individual
and small group insurance markets within a State to be
merged if the State determines appropriate.
(4) STATE LAW.—A State law requiring grandfathered
health plans to be included in a pool described in paragraph
(1) or (2) shall not apply.
(d) EMPOWERING CONSUMER CHOICE.—
(1) CONTINUED OPERATION OF MARKET OUTSIDE EXCHANGES.—Nothing
in this title shall be construed to prohibit—
(A) a health insurance issuer from offering outside of
an Exchange a health plan to a qualified individual or
qualified employer; and
(B) a qualified individual from enrolling in, or a qualified
employer from selecting for its employees, a health
plan offered outside of an Exchange.
(2) CONTINUED OPERATION OF STATE BENEFIT REQUIREMENTS.—Nothing in this title shall be construed to terminate,
abridge, or limit the operation of any requirement under State
law with respect to any policy or plan that is offered outside
of an Exchange to offer benefits.
(3) VOLUNTARY NATURE OF AN EXCHANGE.— (A) CHOICE TO ENROLL OR NOT TO ENROLL.—Nothing
in this title shall be construed to restrict the choice of a
qualified individual to enroll or not to enroll in a qualified
health plan or to participate in an Exchange.
(B) PROHIBITION AGAINST COMPELLED ENROLLMENT.— Nothing in this title shall be construed to compel an individual
to enroll in a qualified health plan or to participate
in an Exchange.
(C) INDIVIDUALS ALLOWED TO ENROLL IN ANY PLAN.— A qualified individual may enroll in any qualified health
plan, except that in the case of a catastrophic plan described
in section 1302(e), a qualified individual may enroll
in the plan only if the individual is eligible to enroll in the
plan under section 1302(e)(2).
(D) MEMBERS OF CONGRESS IN THE EXCHANGE.—
(i) REQUIREMENT.—Notwithstanding any other
provision of law, after the effective date of this subtitle,
the only health plans that the Federal Government
may make available to Members of Congress and
congressional staff with respect to their service as a
Member of Congress or congressional staff shall be
health plans that are—
(I) created under this Act (or an amendment
made by this Act); or
(II) offered through an Exchange established
under this Act (or an amendment made by this
Act).
(ii) DEFINITIONS.—In this section:
(I) MEMBER OF CONGRESS.—The term ‘‘Member
of Congress’’ means any member of the House
of Representatives or the Senate.
(II) CONGRESSIONAL STAFF.—The term ‘‘congressional
staff’’ means all full-time and part-time
employees employed by the official office of a
Member of Congress, whether in Washington, DC
or outside of Washington, DC.
(4) NO PENALTY FOR TRANSFERRING TO MINIMUM ESSENTIAL
COVERAGE OUTSIDE EXCHANGE.—An Exchange, or a qualified
health plan offered through an Exchange, shall not impose any
penalty or other fee on an individual who cancels enrollment
in a plan because the individual becomes eligible for minimum
essential coverage (as defined in section 5000A(f) of the Internal
Revenue Code of 1986 without regard to paragraph (1)(C)
or (D) thereof) or such coverage becomes affordable (within the
meaning of section 36B(c)(2)(C) of such Code).
(e) ENROLLMENT THROUGH AGENTS OR BROKERS.—øAs revised
by section 10104(i)(2)¿ The Secretary shall establish procedures
under which a State may allow agents or brokers—
(1) to enroll individuals and employers in any qualified
health plans in the individual or small group market as soon
as the plan is offered through an Exchange in the State; and
(2) to assist individuals in applying for premium tax credits
and cost-sharing reductions for plans sold through an Exchange.

(f) QUALIFIED INDIVIDUALS AND EMPLOYERS; ACCESS LIMITED
TO CITIZENS AND LAWFUL RESIDENTS.—
(1) QUALIFIED INDIVIDUALS.—In this title:
(A) IN GENERAL.—The term ‘‘qualified individual’’
means, with respect to an Exchange, an individual who—
(i) is seeking to enroll in a qualified health plan
in the individual market offered through the Exchange;
and
(ii) øAs revised by section 10104(i)(3)¿ resides in
the State that established the Exchange.
(B) INCARCERATED INDIVIDUALS EXCLUDED.—An individual
shall not be treated as a qualified individual if, at
the time of enrollment, the individual is incarcerated,
other than incarceration pending the disposition of
charges.
(2) QUALIFIED EMPLOYER.—In this title:
(A) IN GENERAL.—The term ‘‘qualified employer’’
means a small employer that elects to make all full-time
employees of such employer eligible for 1 or more qualified
health plans offered in the small group market through an
Exchange that offers qualified health plans.
(B) EXTENSION TO LARGE GROUPS.—
(i) IN GENERAL.—Beginning in 2017, each State
may allow issuers of health insurance coverage in the
large group market in the State to offer qualified
health plans in such market through an Exchange.
Nothing in this subparagraph shall be construed as requiring
the issuer to offer such plans through an Exchange.
(ii) LARGE EMPLOYERS ELIGIBLE.—If a State under
clause (i) allows issuers to offer qualified health plans
in the large group market through an Exchange, the
term ‘‘qualified employer’’ shall include a large employer
that elects to make all full-time employees of
such employer eligible for 1 or more qualified health
plans offered in the large group market through the
Exchange.
(3) ACCESS LIMITED TO LAWFUL RESIDENTS.—If an individual
is not, or is not reasonably expected to be for the entire
period for which enrollment is sought, a citizen or national of
the United States or an alien lawfully present in the United
States, the individual shall not be treated as a qualified individual
and may not be covered under a qualified health plan
in the individual market that is offered through an Exchange.

Browse ACA Titles

  • I-Quality, Affordable Health Care for all Americans
  • II-Role of Public Programs
  • III-Improving the Quality and Efficiency of Health Care
  • IV-Prevention of Chronic Disease and Improving Public Health
  • V-Health Care Workforce
  • VI-Transparency and Program Integrity
  • VII-Improving Access to Innovative Medical Therapies
  • VIII-Community Living Assistance Services and Supports (CLASS ACT)
  • IX-Revenue Provisions

ABOUT

  • Home
  • About Policy Hub
  • Free Newsletter
  • Team
  • Mission and Values
  • Contact Us

Contact Us

Impact Health Policy Partners 1301 K Street, NW, Suite 300W
Washington, D.C. 20005

(202) 309-0796
Contact Us

Copyright © 2025 ‐ Impact Health Policy Partners ‐ All Rights Reserved ‐ Privacy Policy ‐ Terms and Conditions ‐ Log in