As we reported earlier this week, the U.S. Department of Health & Human Services (“HHS”) recently issued a letter concluding that HHS “does not consider [Qualified Health Plans (QHPs)], other programs related to the Federally-facilitated Marketplace, and other programs under Title I of the Affordable Care Act to be federal health care programs.”  Since that issuance, three related developments have occurred:

  • On November 4, 2013, the Centers for Medicare & Medicaid Services (“CMS”) posted an “FAQ” on its website regarding “Third Party Payments of Premiums for Qualified Health Plans in the Marketplaces”.    CMS expressed “significant concerns” with third parties “supporting premium payments and cost-sharing obligations with respect to qualified health plans purchased by patients in the Marketplaces…because it could skew the insurance risk pool and create an unlevel field in the Marketplaces.”
  • On November 6, 2013, at a Senate Finance Committee Hearing on Health Insurance Exchanges, Senator Chuck Grassley (R-IA)  called into question HHS Secretary Kathleen Sebelius’ October 30, 2013, letter to Representative Jim McDermott (D-WA) (discussed in our previous post) and suggested that she was “trying to exempt Obamacare from a host of criminal and civil laws designed to protect taxpayer dollars from fraud.”
  • On November 7, 2013, Senator Grassley followed up his comments at the hearing with a letter to Secretary Sebelius further questioning the Secretary’s October 30, 2013, letter, and seeking additional detailed information regarding the determination as to QHPs not being “federal health care programs.”

As guidance continues to evolve, companies should continue to carefully evaluate their financial relationships with respect to QHPs to ensure compliance with applicable fraud and abuse laws.

Posted by Kathleen Peterson

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