CHA News Article

HHS Determines QHPs are not ‘Federal Health Care Programs’

Yesterday, the U.S. Department of Health and Human Services (HHS) issued guidance regarding whether qualified health plans (QHPs) are considered federal health care programs under section 1128B of the Social Security Act. HHS concluded that it does not consider QHPs, other programs related to the federally facilitated marketplace, and programs under Title I of the Affordable Care Act to be federal health care programs.

Because the federal anti-kickback statute only applies to federal health care programs, it will not apply to qualified health plans and, as a result, will not be a barrier for hospitals or health systems that wish to subsidize premiums for health plans purchased on the exchanges for individuals in need of assistance. However, California providers may still face risks under state law if they offer premium assistance programs. It is possible that this risk may be addressed by participating in a properly structured foundation; hospitals should seek the advice of counsel. The rules are more clear when applied to a Certified Enrollment Entity (CEE) and Certified Enrollment Counselor (CEC). Recent regulations adopted by Covered California prohibit a CEE or CEC from paying any part of the premium to or on behalf of an enrollee. These regulations would apply to a hospital that is a CEE.

The HHS guidance applies to the state-based and federally facilitated marketplace; the cost-sharing reductions and advance payments of the premium tax credit; navigators for the federally facilitated marketplaces and other federally funded consumer assistance programs; consumer-oriented and operated health insurance plans; and the risk adjustment, reinsurance and risk corridor programs. 

Certified Entity Agreement