2011-22042. Delegation of Authorities

Notice is hereby given that I have delegated to the Administrator, Centers for Medicare & Medicaid Services (CMS), or his or her successor, the authorities vested in the Secretary for the following provisions of Titles I, II, and X of the Affordable Care Act, including Title XXVII of the Public Health Service Act insofar as such parts pertain to CMS' mission, as described in section F.00 of CMS' Statement of Organization, Functions, and Delegations of Authority, last published at 55 FR 9363 (March 13, 1990).

Title I—Quality, Affordable Health Care for All Americans

Subtitle B—Immediate Actions to Preserve and Expand Coverage

Section 1101—The authorities pursuant to section 1101 [42 U.S.C. 18001], as amended, to establish a temporary high risk health insurance pool program to provide health insurance coverage for eligible individuals during the period beginning on the date on which such program is established and ending on January 1, 2014.

Section 1102—The authorities pursuant to section 1102 [42 U.S.C. 18002], as amended, to establish a temporary reinsurance program to provide reimbursement to participating employment-based plans for a portion of the cost of providing health insurance coverage to early retirees (and to the eligible spouses, surviving spouses, and dependents of such retirees) during the period beginning on the date on which such program is established and ending on January 1, 2014. The authority to accept and review appeals of adverse reimbursement determinations under the reinsurance program is, however, delegated to the Chair of the Departmental Appeals Board, Office of the Secretary, who will designate one or more Board Members to decide each appeal. The Board's decision on an appeal will be final and binding unless reopened and revised pursuant to 45 CFR 149.610.

Section 1103—The authorities pursuant to section 1103 [42 U.S.C. 18003], as amended, to establish a mechanism, including an Internet Web site, through which a resident of any State may identify affordable health insurance coverage options in that State.

Subtitle C—Quality Health Insurance Coverage for All Americans

Part II—Other Provisions

Section 1251—The authorities pursuant to section 1251 [42 USC 18011], as amended, to preserve the right of individuals and groups to maintain existing health insurance coverage.

Section 1252—The authorities pursuant to section 1252 [42 USC 18012], as amended, to uniformly apply rate reforms to all health insurance issuers and group health plans.

Subtitle D—Available Coverage Choices for All Americans

Part I—Establishment of Qualified Health Plans

Section 1301—The authorities pursuant to section 1301 [42 U.S.C. 18021], as amended, pertaining to defining qualified health plans.

Section 1302—The authorities pursuant to section 1302 [42 U.S.C. 18022], as amended, pertaining to essential health benefits requirements, including a certification from the Chief Actuary of the Centers for Medicare & Medicaid Services that such essential health benefits meet the limitation described in Section 1302(b)(2) [42 U.S.C. 18022(b)(2)].

Section 1303—The authorities pursuant to section 1303 [42 U.S.C. 18023], as amended, pertaining to State opt-out of abortion coverage, special rules relating to coverage of abortion services, applying State and Federal laws regarding abortion, and applying emergency services.

Section 1304—The authorities pursuant to section 1304 [42 U.S.C. 18024], as amended, pertaining to definitions related to quality, affordable health care for all Americans.

Part II—Consumer Choices and Insurance Competition Through Health Benefit Exchanges

Section 1311—The authorities pursuant to section 1311 [42 USC 18031], as amended, pertaining to affordable choices of health benefit plans, in particular, the American Health Benefit Exchanges (AHBE). CMS will coordinate with the Department of Labor under section 1311(e)(3)(B) [42 USC 18031(e)(3)(B)].

Section 1312—The authorities pursuant to section 1312 [42 USC 18032], as amended, pertaining to consumer choice, payment of premiums by qualified individuals, single risk pool, enrollment through agents or brokers, and qualified individuals and employers (access limited to citizens and lawful residents).

Section 1313(a)—The authorities pursuant to section 1313(a) [42 USC 18033(a)], as amended, pertaining to financial integrity involving accounting for expenditures, investigations, audits, pattern of abuse, protections against fraud and abuse, and applying the False Claims Act. CMS will coordinate with the Office of the Inspector General to investigate the affairs of an AHBE, to examine the properties and records of an AHBE, and to require periodic reports in relation to activities undertaken by an AHBE under section 1313(a)(2) [42 USC 18033(a)(2)].

Part III—State Flexibility Relating to Exchanges

Section 1321—The authorities pursuant to section 1321 [42 U.S.C. 18041], as amended, pertaining to the State's flexibility in operation and enforcement of AHBE and related requirements. CMS will consult with the National Association of Insurance Commissioners under section 1321(a)(2) [42 U.S.C. 18041(a)(2)].

Sections 1322(a)-(b)(1) and (2), (c)-(g) and (h)(1)—The authorities pursuant to sections 1322(a)-(b)(1) and (2), (c)-(g) [42 USC 18042] and (h)(1) [26 U.S.C. 501(c)(29)], as amended, to establish the Consumer Operated and Oriented Plan Program to assist establishment and operation of non-profit, member-run health insurance issuers. CMS will coordinate with the Department of the Treasury to establish criteria and procedures for tax exemption under section 501(c)(29) of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)(29)] for qualified nonprofit health insurance issuers.

Section 1323—The authorities pursuant to section 1323 [42 U.S.C. 18043], as amended, to fund territories that elect to establish an AHBE.

Section 1324—The authorities pursuant to section 1324 [42 U.S.C. 18044], as amended, pertaining to health insurance coverage offered by a private health insurance issuer, which would not be subject to the Federal or State laws described in section 1324(b) [42 U.S.C. 18044(b)] if a qualified health plan offered under the Consumer Operated and Oriented Plan program under section 1322 [42 U.S.C. 18042] or a multi-State qualified health plan under section 1334 [42 USC 18054] were not subject to such laws.

Part IV—State Flexibility to Establish Alternative Programs

Section 1331—The authorities pursuant to section 1331 [42 USC 18051], as amended, to establish basic health programs for low-income individuals not eligible for Medicaid, and allowing States the flexibility to establish alternative programs by entering into contracts to offer one or more standard health plans providing at least the essential health benefits described in section 1302(b) [42 U.S.C. 18022(b)] to eligible individuals in lieu of offering such individuals coverage through an Exchange. The Chief Actuary in the Office of the Actuary, CMS, will certify whether the methodology used to make determinations pursuant to section 1331(d)(3) (A)(iii) [42 U.S.C. 18051(d)(3)(A)(iii)], and such determinations, meet the requirements of section 1331(d)(3)(A)(ii) [42 U.S.C. 18051(d)(3)(A)(ii)] in consultation with the Office of Tax Analysis of the Department of the Treasury.

Section 1332—The authorities pursuant to section 1332 [42 U.S.C. 18052], as amended, pertaining to waivers for State innovations with respect to health insurance coverage within the State for plan years beginning on or after January 1, 2017. CMS will coordinate with the Department of the Treasury to publish regulations pursuant to section 1332(a)(4)(B) [42 U.S.C. 18052(a)(4)(B)].

Section 1333—The authorities pursuant to section 1333 [42 U.S.C. 18053], as amended, pertaining to offering plans in more than one State. CMS will coordinate with the National Association of Insurance Commissioners to publish regulations pursuant to section 1333(a)(1) [42 U.S.C. 18053(a)(1)].

Part V—Reinsurance and Risk Adjustment

Section 1341—The authorities pursuant to section 1341 [42 U.S.C. 18061], as amended, pertaining to the transitional reinsurance program for individual and small group markets in each State. CMS will coordinate with the National Association of Insurance Commissioners to publish regulations pursuant to section 1321(a) [42 U.S.C. 18041].

Section 1342—The authorities pursuant to section 1342 [42 U.S.C. 18062], as amended, to establish and administer a program of risk corridors under which a qualified health plan offered in the individual or small group market shall participate in a payment adjustment system based on the ratio of the allowable costs of the health plan to the health plan's aggregate premiums based on the program for regional participating provider organizations under part D of Title XVIII of the Social Security Act.

Section 1343(b)—The authorities pursuant to section 1343(b) [42 U.S.C. 18063(b)], as amended, to establish criteria and methods used in carrying out risk adjustment activities pursuant to section 1343 [42 USC 18063] with respect to health insurance plans and coverage.

Subtitle E—Affordable Coverage Choices for All Americans

Part I—Premium Tax Credits and Cost-Sharing Reductions

Subpart A—Premium Tax Credits and Cost-Sharing Reductions

Section 1401(a)—The authorities pursuant to section 1401(a) [26 USC 36B], as amended, pertaining to refundable credit for coverage under a qualified health plan. CMS will consult with the Department of the Treasury pursuant to the Internal Revenue Code of 1986 section 36B(e)(3) [26 U.S.C. 36B(e)(3)] to prescribe rules setting forth the methods by which calculations of family size and household income are made, and carry out the activities set out pursuant to 26 U.S.C. 36B [26 U.S.C. 36B], such as determinations of premiums.

Section 1402—The authorities pursuant to section 1402 [42 U.S.C. 18071], as amended, pertaining to reduced cost-sharing for individuals enrolling in qualified health plans. CMS will consult with the Department of the Treasury pursuant to section 1402(e)(3) [42 U.S.C. 18071(e)(3)].

Section 1411—The authorities pursuant to section 1411 [42 U.S.C. 18081], as amended, to determine eligibility for exchange participation, premium tax credits and reduced cost-sharing, and individual responsibility exemptions. CMS will consult with: (1) The Department of Homeland Security pursuant to section 1411(b)(2)(B) [42 U.S.C. 18081(b)(2)(B)]; 2) the Departments of the Treasury, and Homeland Security, and the Social Security Administration pursuant to sections 1411(c)(4)(A) [42 U.S.C. 18081(c)(4)(A)] and 1411(f)(1) [42 U.S.C. 18081(f)(1)]; and 3) the Department of the Treasury pursuant to section 1411(i)(1) [42 U.S.C. 18081(i)(1)].

Section 1412—The authorities pursuant to section 1412 [42 U.S.C. 18082), as amended, pertaining to advance determinations made pursuant to section 1411 [42 U.S.C. 18081] with respect to the income eligibility of individuals enrolling in a qualified health plan in the individual market through the AHBE for the premium tax credit allowable pursuant to section 1401(a) [26 U.S.C. 36B] and the cost-sharing reductions under section 1402 [42 U.S.C. 18071]. CMS will consult with the Department of the Treasury.

Section 1413—The authorities pursuant to section 1413 [42 U.S.C. 18083), as amended, to streamline procedures for enrollment through an AHBE and State Medicaid, CHIP, and health subsidy programs.

Section 1414(a)(1)—The authorities pursuant to section 6103(l)(21) of the Internal Revenue Code of 1986 [26 U.S.C. 6103(l)(21)], as amended, pertaining to disclosure of taxpayer return information and Social Security numbers.

Section 1414(a)(2)—The authorities pursuant to section 205(c)(2)(C)(x) of the Social Security Act [42 U.S.C. 405(c)(2)(C)(x)], as amended, to collect and use the names and Social Security account numbers of individuals as required to administer the provisions of the Social Security Act and amendments made by the Affordable Care Act.

Section 1415—The authorities pursuant to section 1415 [42 U.S.C. 18084], as amended, pertaining to premium tax credit and cost-sharing reduction payments disregarded for Federal and federally-assisted programs.

Subtitle F—Shared Responsibility for Health Care

Part I—Individual Responsibility

Sections 1501(a) and (b)—The authorities pursuant to section 1501(a) [42 U.S.C. 18091(a)], as amended, and pursuant to section 1501(b) [26 U.S.C. 5000A], as amended, to maintain minimal essential coverage for health care, except for the last paragraph of 26 U.S.C. 5000A(e)(4).

Part II—Employer Responsibilities

Section 1511—The authorities pursuant to 29 USC 218A, as amended, to automatically enroll employees of large employers that have more than 200 full-time employees, and that offer employees enrollment in 1 or more health benefits plans (subject to any waiting period authorized by law) and to continue the enrollment of current employees in a health benefits plan offered through the employer.

Section 1512—The authorities pursuant to 29 U.S.C. 218B, as amended, to provide notice to employees of coverage options.

Section 1513(a)—The authorities pursuant to section 1513(a) [26 U.S.C. 4980H], as amended, pertaining to shared responsibility for employers regarding health coverage. CMS will consult with the Department of Labor pursuant to 26 U.S.C. 4980H(c)(4)(B) to determine the hours of service of an employee necessary to qualify under 26 U.S.C. 4980H(c)(4) as a “full-time employee” for purposes of coverage under the Affordable Care Act.

Section 1514(a)—The authorities pursuant to section 6056 [26 U.S.C. 6056] of the Internal Revenue Code of 1986, as amended, to review the accuracy of health insurance information provided by large employers who are required to report on health insurance coverage.

Subtitle G—Miscellaneous Provisions

Section 1558—The authority pursuant to section 1558 [29 U.S.C. 218C], as amended, to prohibit employers from discharging or in any manner discriminating against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment because the employee (or an individual acting at the request of the employee) has: (1) Received a credit pursuant to section 36B of the Internal Revenue Code of 1986 or a subsidy pursuant to section 1402 of the Affordable Care Act; (2) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of this title (or an amendment made by this title); (3) testified or is about to testify in a proceeding concerning such violation; (4) assisted or participated, or is about to assist or participate, in such a proceeding; or (5) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of Title 29 of the United States Code (or amendment), or any order, rule, regulation, standard, or ban pursuant to Title 29 of the United States Code (or amendment).

Title II—Role of Public Programs

Subtitle C—Medicaid and CHIP Enrollment Simplification

Section 2201—The authority pursuant to section 2201 [42 U.S.C. 1396w-3, section 1943 of the Social Security Act], as amended, pertaining to enrollment simplification and coordination with State Health Insurance Exchanges.

Subtitle K—Protections for American Indians and Alaska Natives

Sections 2901(a) and (b)—The authorities pursuant to section 2901(a) and (b) [25 U.S.C. 1623(a) and (b)], as amended, pertaining to special rules relating to Indians. CMS will coordinate with the Indian Health Service pursuant to section 2901(b) [25 U.S.C. 1623(b)].

Title X—Strengthening Quality, Affordable Health Care for All Americans

Section 10108(a)-(e)—The authorities under section 10108(a)-(e) [42 USC 18101(a)-(e)], as amended, pertaining to an offering employer providing free choice vouchers to each qualified employee through an employer-sponsored health insurance plan.

Title XXVII of the Public Health Service Act, as amended, including the authority to conduct studies and demonstration projects, as directed by Congress, relating to Title XXVII of the Public Health Service Act. The delegation includes, but does not limit the authority to, directing performance, entering into contracts or cooperative agreements, making grants, approving payments for contracts, cooperative agreements, and grants, and approving authorized waivers of compliance with certain requirements of Title XXVII of the Public Health Service Act when such authorities are for the purpose of conducting studies and demonstration projects.

This delegation of authorities excludes the authorities to issue regulations, to submit reports to Congress, and the following authorities, as amended by the indicated sections of the Affordable Care Act:

(1) Section 1302(b)(2)(A) and (B)—The authority to conduct a survey of employer-sponsored coverage pursuant to section 1302(b)(2)(A) [42 U.S.C.18022(b)(2)(A)] to determine the benefits typically covered by employers, including multi-employer plans and the authority to submit a report pursuant to section 1302(b)(2)(B) [42 U.S.C. 18022(b)(2)(B)] to the appropriate committees of Congress.

(2) Section 1311(e)(3)(D)—The authority to update and harmonize rules concerning the accurate and timely disclosure to participants by group health plans of plan disclosure, plan terms and conditions, and periodic financial disclosure with the standards established pursuant to section 1311(e)(3)(D) [42 U.S.C. 18031(e)(3)(A)].

(3) Sections 1322(b)(4)—The authority to appoint 15 members to the Consumer Operated and Oriented Plan Advisory Board pursuant to section 1322(b)(4) [42 U.S.C. 18042(b)(4)].

(4) Section 1332—The authorities with respect to health insurance coverage within the State for plan years beginning on or after January 1, 2014, pursuant to section 1332(a)(2)(D) [42 U.S.C. 18052(a)(2)(D)] including sections 36B [26 U.S.C. 36B], 4980H [26 U.S.C. 4980H], and 5000A [26 U.S.C. 5000A] of the Internal Revenue Code of 1986, pertaining to reports to Congress pursuant to section 1332(a)(4)(C) [42 U.S.C. 18052(a)(4)(C)], and to notify the appropriate committees of Congress pursuant to section 1332(d)(2)(B) [42 U.S.C. 18052(d)(2)(B)].

(5) Section 1411(i)(2)—The authority under section 1411(i)(2) [42 U.S.C. 18081(i)(2)] of the Affordable Care Act to issue a report of the results of the study conducted under section 1411(i)(1) [42 U.S.C. 18081(i)(1)], including any recommendations for legislative changes to the Committees on Finance and Health, Education, Labor, and Pensions of the Senate, and the Committees of Education and Labor and Ways and Means of the House of Representatives.

(6) Section 1412(c)(2)—The authority under section 1412(c)(2) [42 U.S.C. 18082(c)(2)] to make advance payments under section 1412 [42 U.S.C. 18082] of any premium tax credit allowed under section 36B of the Internal Revenue Code of 1986 [26 U.S.C. 36B] to the issuer of a qualified health plan on a monthly basis.

(7) Section 1414(a)(1)—The authority to prescribe regulations to disclose return information indicating whether the taxpayer is eligible for a tax credit or reduction (and the amount thereof) pursuant to 26 U.S.C. 6103(l)(21)(A)(v).

(8) Section 1501(b)—The authority to prescribe rules for the collection of the penalty imposed in cases where continuous periods include months in more than one taxable year pursuant to the last paragraph of 26 U.S.C. 5000A(e)(4).

This delegation of authorities supersedes the authorities delegated under Title XXVII of the Public Health Service Act that were published in the Federal Register notice on June 23, 1998 (63 FR 34190).

This delegation of authorities is effective immediately.

These authorities may be re-delegated.

These authorities shall be exercised under the Department's policy on regulations and the existing delegation of authority to approve and issue regulations.

I hereby affirm and ratify any actions taken by the Administrator, CMS, or his or her subordinates, which involved the exercise of the authorities under Titles I, II, and X of the Affordable Care Act, including Title XXVII of the Public Health Service Act delegated herein prior to the effective date of this delegation of authorities.

Authority: 44 U.S.C. 3101.

Dated: August 2, 2011.

Kathleen Sebelius,

Secretary.