HHS took the sub-regulatory route last December when it released an information bulletin on essential health benefits, the items and services that the Patient Protection and Affordable Care Act says health plans in the individual and small-group markets—both within and outside of the exchanges—must offer.
Similarly, HHS has not issued a regulation on what a federally facilitated exchange will look like, even though states have until Nov. 16 to submit blueprints on what type of exchange they will operate.
In May, the CMS' Center for Consumer Information and Insurance Oversight released “general guidance” on the federally facilitated exchanges, a 19-page document that outlined some functions of the federal exchange and information about state partnerships with the federal government to operate an exchange. The agency has not yet followed up with regulations or further guidance.
“I assume it's a combination of incredible complexity of some of the rules and the politics of issuing very weighty regulations in an election year,” said Sara Rosenbaum, professor of health law and policy at George Washington University.“If the president wins, I would expect a backup of regulations.”
But neither HHS nor the CMS would say if that scenario is likely to happen. A spokesman for the CMS declined to comment, while a spokeswoman for HHS did not respond to a request for an interview.
Meanwhile, there are several other regulations unrelated to the health insurance exchanges that HHS has yet to release.
“I would add the market-conduct rules—the rules insurers will have to follow in 2014 with respect to guaranteed issue, preexisting conditions and guaranteed rating,” said Timothy Jost, a professor of law at Washington and Lee University.
Providers are also awaiting a final rule from HHS on a provision in the law that requires Medicaid to reimburse primary-care physicians at Medicare levels in 2013 and 2014, with the federal government paying entirely for the increased payments.
“Because it starts Jan. 1, they need to give states some time to make system changes,” said Molly Collins Offner, director for policy at the American Hospital Association. “The thought is it could be out before Nov. 1.”
Julie Allen, government relations director at Drinker, Biddle and Reath, said some past administrations have chosen to release a flood of regulations before an election so that a new administration could not undue the work of the preceding one. But because the current administration has met much resistance from the states regarding the Affordable Care Act, federal officials have tried collaborating with them—a pattern she said could continue.
“I don't see those rules coming forward this year,” Allen said. “Even though the timing is tight, I see the administration wanting to work with the states.”