Chapter 420-N: Federal Health Care Reform 2010

The intent of this chapter is to preserve the state's status as the primary regulator of the business of insurance within New Hampshire and the constitutional integrity and sovereignty of the state of New Hampshire under the Tenth Amendment to the United States Constitution and part I, article 7 of the New Hampshire constitution and the insurance commissioner's administration of the insurance reforms required under the Patient Protection and Affordable Care Act of 2009, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, including any amendments thereto, and related provisions of the Public Health Service Act (42 U.S.C. section 300gg et seq.), federal regulations, interpretations, standards, or guidance issued thereunder (hereinafter "the Act").

In this chapter:

I. "Act" means the Patient Protection and Affordable Care Act of 2009, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, including any amendments thereto, and related provisions of the Public Health Service Act (42 U.S.C. section 300gg et seq.), federal regulations, interpretations, standards, or guidance issued thereunder.

II. "Commissioner" means the insurance commissioner.

III. [Repealed.]

The commissioner shall have authority to:

I. Make, adopt, and amend rules and regulations pursuant to RSA 541-A for, or as an aid to, the administration of any provision of the Act relating to insurance;

II. Apply for any public or private grant funds available under the Act;

III. Apply for any waiver available under any specific provision of the Act;

IV. Adopt and apply standards consistent with the Act for form and rate review of insurance products and any other regulatory oversight functions performed by the department; and

V. Enforce the consumer protections and market reforms set forth in the Act that relate to insurance. This shall not include the medical assistance program under RSA 167.

If such action is supported by the recommendations of actuarial experts retained by the department as being consistent with the purposes of RSA 404-G:1, I, the commissioner shall, at the earliest practicable date, submit an application on behalf of the state to the United States Secretary of the Treasury, and if required, to the United States Secretary of Health and Human Services, to waive certain provisions of the Act, as provided in section 1332 of the Act, or any other applicable waiver provision in order to create a risk sharing or reinsurance mechanism for the individual market under RSA 404-G which is eligible to draw down federal pass-through funding to support such mechanism. The commissioner shall publish and accept public comment on the 1332 waiver application and the plan of operation for the individual market mechanism prior to approving such plans. The commissioner shall implement any federally approved waiver.

I. No New Hampshire state agency, department, or political subdivision shall plan, create, participate in or enable a state-based exchange for health insurance under the Act, or contract with any private entity to do so.

II. State agencies or departments may interact with the federal government with respect to the creation of a federally-facilitated exchange for New Hampshire.

III. Subject to the requirements of this chapter, state agencies or departments may operate specific functions of a federally-facilitated exchange consistent with this subdivision to enable the continuation of traditional areas of state regulation and authority.

IV. State agency activities relating to any federally-facilitated exchange for New Hampshire shall be consistent with the following objectives:

(a) Promoting preservation of the private, commercial delivery of health coverage through carriers and producers to the greatest degree possible under the Act and minimizing interference with the operation of commercial markets.

(b) Minimizing overhead and administrative expenses.

(c) Promoting competition and consumer choice, for example by advocating for allowing all health and dental plans that meet the minimum requirements necessary to be certified as qualified plans under the Act to be offered in the exchange.

(d) Preserving to the greatest extent possible the state's insurance regulatory authority and the state's flexibility in determining Medicaid eligibility standards and program design and operation.

I. In the event a federally-facilitated exchange is established for New Hampshire, the commissioner shall retain authority with respect to insurance products sold in New Hampshire on the federally-facilitated exchange to the maximum extent possible by law as provided in title XXXVII, including but not limited to producer and insurer licensing, form and rate approval, reinsurance and other risk-sharing mechanisms, network adequacy, industry assessments, internal grievance standards, external review, and unfair trade practices.

II. Any person who sells, solicits, or negotiates insurance within the meaning of RSA 402-J:3 through a federally-facilitated exchange shall be licensed as a producer under RSA 402-J; provided, that nothing in this subdivision shall prohibit the sale of health coverage by an exchange or health carrier directly to the consumer without the use of a producer. This paragraph shall not be interpreted to require that all navigators as defined under the Act be licensed as producers, but rather that any individual who in fact performs a producer function be licensed, whether or not that person is employed by a navigator.

III. The commissioner may establish standards and training requirements for navigators on a federally-facilitated exchange consistent with section 1311(i) of the Act and regulations implemented under the Act, including provisions to ensure that any private or public entity that is selected as a navigator avoids conflicts of interest and is appropriately qualified to engage in navigator activities.

IV. The commissioner shall, consistent with the requirements of the Act, allow producers to enroll individuals, employers, or employees in qualified health plans offered through a federally-facilitated exchange in this state, including enrollment using Internet websites.

V. The commissioner may adopt rules, pursuant to RSA 541-A, as necessary to perform the duties specified in this section and to protect against adverse selection by creating a level playing field between a federally-facilitated exchange and the commercial health insurance market.

I. The commissioner of health and human services shall have authority to establish New Hampshire eligibility standards, enrollment procedures, and outreach mechanisms for persons who are enrolled through a federally-facilitated exchange in this state in the Medicaid program under title XIX of the Social Security Act or the Children's Health Insurance Program (CHIP) under title XXI of the Social Security Act.

II. The commissioner of health and human services may establish navigator guidelines for New Hampshire consistent with section 1311(i) of the Act, and regulations implemented under the Act, to ensure that navigators are qualified to reach and assist the Medicaid-eligible and other populations served by a federally-facilitated exchange in New Hampshire.

III. The commissioner of health and human services may adopt rules, pursuant to RSA 541-A, as necessary to fulfill the purposes of this subdivision.