By Joe Touschner

Though the Institute of Medicine, the administration, and many states spent more than a year developing the essential health benefits, the resulting approach was intended to be temporary. The “benchmark plan” method for choosing the EHBs initially applied to plan years 2014 and 2015, with a review of the approach promised for 2016.

HHS recently published its Notice of Benefit and Payment Parameters for Plan Year 2016, so we can now see the direction the department is moving on EHBs. The proposed rule signals some helpful changes to the EHBs and provides some useful clarifications, but overall it would maintain most elements of the current approach. For those seeking to improve the EHBs, responding to HHS’s proposed rule may be the best opportunity to do so—and the deadline is coming before year’s end.

To set the EHBs for this year and next, states had the chance to choose a benchmark plan from a list of 10 employer-based options from 2012. States then had to supplement their chosen (or default) plan to assure their EHB package met the standards of the ACA. Under the proposed rule, states will once again have the opportunity to select a benchmark, this time from 2014 plans, with the 10 options defined the same way. This new benchmark selection would go into effect for the 2017 plan year.

While many stakeholders have called for HHS to provide greater definition of the 10 categories of essential health benefits the ACA outlines, the department has largely declined to do so. But in the proposed rule, it does offer a definition for part of one category—habilitation services and devices. The federal definition would only be used when a benchmark plan does not include coverage for habilitation services and would encompass “health care services that help a person keep, learn, or improve skills and functioning for daily living.” While this may leave some uncertainty as to exactly which services must be covered, it seems like an improvement over the current approach, which in some states allows insurers to set their own definition for habilitation services.

The proposed rule would also make extensive changes in determining which prescription drugs EHB plans must cover. Currently, plans must cover the same number of drugs (with a minimum of one) in each drug category listed in the US Pharmacopeia. The proposal contemplates requiring each plan to convene a committee to decide which drugs to include and/or switching from US Pharmacopeia to an alternative, the American Hospital Formulary Service.

In addition to these EHB rule changes, the Notice offers what could be a useful clarification on how plans should avoid discriminatory benefit designs. The Notice’s preamble reminds both issuers and states, who have the primary responsibility for enforcing EHB standards, that “age limits are discriminatory when applied to services that have been found clinically effective at all ages.” Some 2014 benchmark plans though, seem to have such limits. Utah’s benchmark plan provides eye exams and eyeglasses starting at age 5, not for younger children, while Maine’s benchmark plan offers autism assessments only up to age 5, not for older children. While this clarification is an important one, enforcement of the non-discrimination provision will depend on the active review of plans by state and federal regulators.

While the Notice proposes some improvements to the EHBs, in general it continues the approach to defining benefits in the non-group and small-group markets that was first outlined by HHS in late 2011. The very same benchmark plans in effect now will continue through 2016. When states have the opportunity to choose a new benchmark for 2017, they will still select among employer-sponsored plans, not plans developed specifically to meet children’s needs, like Medicaid’s EPSDT package or CHIP. And while the ACA requires coverage of “pediatric services, including oral and vision care” in the EHBs, only oral and vision care are required to be added to plans, not other pediatric services vital to many children, like hearing aids and exams or autism services.

Those hoping for a broader revision to the EHBs have the chance to weigh in now by submitting comments on the Notice. But time is short—comments are due to HHS by December 22.