By Joe Touschner

For nearly a year now, we’ve been tracking the process of defining the essential health benefits.  The EHB package will define the minimum set of benefits to be covered by insurance plans in the individual and small group markets as well as benchmark Medicaid plans and Basic Health Programs.

On Friday afternoon, HHS released a bulletin to give some indication of its approach to defining the essential health benefits and to request continued comment.  The bulletin indicates that rather than one national standard, each state will have a choice of how to define which health benefits are deemed essential for its residents.  Under this approach, states would tie their EHB package to the benefit package offered under one of several benchmark options:

• One of the three largest small group products in the state
• One of the three largest state employee health plans
• One of the three largest federal employee health plans
• The largest HMO plan in the state

Once the benchmark is selected, the package still must comply with the ACA’s requirement that the EHBs cover ten required categories of services.  So if the selected benchmark does not cover all ten categories, those services must be added to the package.  The state’s EHB package must also comply with additional ACA requirements that prevent discrimination based on age and disability and mandate consideration for the needs of certain populations, among them children.

What does this mean for the benefits kids will receive under the ACA?  Unlike what many had expected, it means there is less likely to be a strong federal minimum benefit standard–instead benefits will be tied to the existing insurance offerings in many states, which can certainly leave a lot to be desired in many cases.  A key point yet to be determined is how services under the ten categories will be added to benchmark packages that lack them.  “Pediatric services, including oral and vision care,” is one of the ten categories that must be covered, but the bulletin seems to indicate that HHS will interpret this category to mean only oral and vision care for kids, not other needed pediatric services.  Further, habilitation services is another of the categories and is important for many children, but is usually excluded from the types of plans identified as potential benchmarks.  The bulletin suggests some possible ways to add these services, but the details are sketchy.  It’s also unclear how the ACA’s provisions preventing discrimination and requiring consideration of children’s needs will be applied–these could become key protections if they are the only standard for assuring kids get what they need.

Where do we go from here?  The process for defining EHBs is still very much underway.  HHS put out the bulletin to let us know the direction it is moving, but it still has yet to formally propose regulations that define EHBs.  It has requested further comments on the ideas in the bulletin to further inform the rulemaking process, which will later include its own comment period.  But if the scheme in the bulletin remains in place, publishing federal regulations will not be the last step in defining EHBs.  Each state will have to choose which benchmark to adopt and how to augment it, so advocates for kids will need to weigh in to make sure those choices are good ones for children.