81_FR_89254 81 FR 89017 - Health Insurance Providers Fee

81 FR 89017 - Health Insurance Providers Fee

DEPARTMENT OF THE TREASURY
Internal Revenue Service

Federal Register Volume 81, Issue 237 (December 9, 2016)

Page Range89017-89019
FR Document2016-29487

This document contains proposed regulations that would modify the current definition of ``net premiums written'' for purposes of the fee imposed by section 9010 of the Patient Protection and Affordable Care Act, as amended. The proposed regulations will affect persons engaged in the business of providing health insurance for United States health risks.

Federal Register, Volume 81 Issue 237 (Friday, December 9, 2016)
[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Proposed Rules]
[Pages 89017-89019]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-29487]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 57

[REG-134438-15]
RIN 1545-BN10


Health Insurance Providers Fee

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document contains proposed regulations that would modify 
the current definition of ``net premiums written'' for purposes of the 
fee imposed by section 9010 of the Patient Protection and Affordable 
Care Act, as amended. The proposed regulations will affect persons 
engaged in the business of providing health insurance for United States 
health risks.

DATES: Comments and requests for a public hearing must be received by 
March 9, 2017.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-134438-15), room 
5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand-delivered Monday through 
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
134438-15), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue NW, Washington, DC 20224, or sent electronically, via the 
Federal eRulemaking portal at www.regulations.gov (IRS REG-134438-15)

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Rachel S. Smith, (202) 317-6855; concerning submissions of comments and 
request for a hearing, Regina Johnson, (202) 317-6901 (not toll-free 
numbers).

SUPPLEMENTARY INFORMATION: 

Background

    Section 9010 of the Patient Protection and Affordable Care Act 
(PPACA), Public Law 111-148 (124 Stat. 119 (2010)), as amended by 
section 10905 of PPACA, and as further amended by section 1406 of the 
Health Care and Education Reconciliation Act of 2010,

[[Page 89018]]

Public Law 111-152 (124 Stat. 1029 (2010)) (collectively, the 
Affordable Care Act or ACA) imposes an annual fee on covered entities 
that provide health insurance for United States health risks. Section 
9010 did not amend the Internal Revenue Code (Code) but contains cross-
references to specified Code sections. In this preamble all references 
to section 9010 are references to section 9010 of the ACA and all 
references to ``fee'' are references to the fee imposed by section 
9010.
    Section 9010(a) imposes an annual fee on each covered entity 
engaged in the business of providing health insurance. The fee is due 
by the annual date specified by the Secretary, but in no event later 
than September 30th of each calendar year in which a fee must be paid 
(fee year).
    Section 9010(b) requires the Secretary to determine the annual fee 
for each covered entity based on the ratio of the covered entity's net 
premiums written for health insurance for any United States health risk 
that are taken into account for the calendar year immediately before 
the fee year (data year) to the aggregate net premiums written for 
health insurance of United States health risks of all covered entities 
that are taken into account during the data year. In calculating the 
fee, the Secretary must determine each covered entity's net premiums 
written for United States health risks based on reports submitted to 
the Secretary by the covered entity and through the use of any other 
source of information available to the Secretary. Section 9010 does not 
define the term ``net premiums written.''
    On November 29, 2013, the Treasury Department and the IRS published 
in the Federal Register (TD 9643; 78 FR 71476) final regulations 
regarding the fee (final regulations). The final regulations define net 
premiums written to mean premiums written, including reinsurance 
premiums written, reduced by reinsurance ceded, and reduced by ceding 
commissions and medical loss ratio (MLR) rebates with respect to the 
data year. Net premiums written do not include premiums written for 
indemnity reinsurance (and are not reduced by indemnity reinsurance 
ceded) because indemnity reinsurance is not considered health insurance 
for purposes of section 9010. However, net premiums written do include 
premiums written (and are reduced by premiums ceded) for assumption 
reinsurance; that is, reinsurance for which there is a novation and the 
reinsurer takes over the entire risk.
    The preamble to the final regulations explained that, for covered 
entities that file the Supplemental Health Care Exhibit (SHCE) with the 
National Association of Insurance Commissioners (NAIC), net premiums 
written for health insurance generally will equal the amount reported 
on the SHCE as direct premiums written minus MLR rebates with respect 
to the data year, subject to any applicable exclusions under section 
9010. The instructions to Form 8963, Report of Health Insurance 
Provider Information, provide additional information on how to 
determine net premiums written using the SHCE and any equivalent forms 
as the source of data, and can be updated to reflect changes to the 
SHCE.

Explanation of Provisions

    The proposed regulations would amend and clarify the rules for how 
``net premiums written'' take into account certain premium adjustments 
and payments.

1. Retrospective Premium Adjustments

    Following the publication of the final regulations, the Treasury 
Department and the IRS received comments requesting that premium 
adjustments related to retrospectively rated contracts be taken into 
account in determining net premiums written. The NAIC's Accounting 
Practices and Procedures Manual Statement of Statutory Accounting 
Principles No. 66, Retrospectively Rated Contracts, defines a 
retrospectively rated contract as a contract which has the final policy 
premium calculated based on the loss experience of the insured during 
the term of the policy (including loss development after the term of 
the policy) and on the stipulated formula set forth in the policy or a 
formula required by law. These premium adjustments, made periodically, 
may involve either the payment of return premium to the insured (a 
``retrospectively rated contract payment'') or payment of an additional 
premium by the insured (a ``retrospectively rated contract receipt''), 
or both, depending on experience.
    Commenters recommended that in calculating net premiums written, 
premiums written should be increased by retrospectively rated contract 
receipts and reduced by retrospectively rated contract payments. 
Commenters asserted that retrospectively rated contract payments are 
refunded to policyholders in much the same way as MLR rebates. 
Therefore, without an adjustment for retrospectively rated contract 
payments, covered entities that make these payments will bear a 
liability for an amount of the annual fee that correlates to premiums 
from which they do not actually receive an economic benefit.
    In response to these comments, the proposed regulations would 
modify the current definition of net premiums written to account for 
premium adjustments related to retrospectively rated contracts, 
computed on an accrual basis. These amounts are received from and paid 
to policyholders annually based on experience. Retrospectively rated 
contract receipts and payments do not include changes to funds or 
accounts that remain under the control of the covered entity, such as 
changes to premium stabilization reserves.

2. Risk Adjustment Payments and Charges

    Following the publication of the final regulations, questions also 
arose about the treatment of risk adjustment payments under the ACA. 
Section 1343 of the ACA provides a permanent risk adjustment program 
for certain plans in the individual and small group markets. In 
general, the program transfers risk adjustment funds from health 
insurance plans with relatively lower-risk enrollees to issuers that 
disproportionately attract high-risk populations, such as individuals 
with chronic conditions. Section 1343(a)(1) generally requires each 
state, or the Department of Health and Human Services (HHS) acting on 
behalf of the state, to assess a charge on health plans and health 
insurance issuers in the individual or small group markets within a 
state (with respect to health insurance coverage) if the actuarial risk 
of the enrollees of such plans or coverage for a year is less than the 
average actuarial risk of all enrollees in all plans or coverage in the 
state for the year that are not self-insured group health plans. 
Section 1343(a)(2) generally requires each state, or HHS acting on 
behalf of the state, to make a payment to health plans and health 
insurance issuers in the individual or small group markets within a 
state (with respect to health insurance coverage) if the actuarial risk 
of the enrollees of such plans or coverage for a year is greater than 
the average actuarial risk of all enrollees in all plans and coverage 
in the state for the year that are not self-insured group health plans.
    Although not specifically listed, net premiums written, as defined 
in the final regulations, include risk adjustment payments received by 
a covered entity under section 1343(a)(2) of the ACA and are reduced 
for risk adjustment charges paid by a covered entity under section 
1343(a)(1) of the ACA. Nonetheless, several covered entities asked 
whether net premiums

[[Page 89019]]

written included risk adjustment payments received and charges paid. 
Therefore, these proposed regulations add specific language to the 
definition of net premiums written to clarify that net premiums written 
include risk adjustment payments received and are reduced for risk 
adjustment charges paid. If a covered entity did not include risk 
adjustment payments received as direct premiums written on its SHCE or 
did not file an SHCE, these amounts are still part of net premiums 
written and must be reported as such on Form 8963. For this purpose, 
risk adjustment payments received and charges paid are computed on an 
accrual basis.

3. Other Premium Adjustments

    These proposed regulations would authorize the IRS to provide rules 
in guidance published in the Internal Revenue Bulletin for additional 
amounts to be taken into account in determining net premiums written. 
If the Treasury Department and the IRS determine that published 
guidance providing additional adjustments to net premiums written is 
warranted, such guidance will be published in the Internal Revenue 
Bulletin.

Proposed Effective/Applicability Date

    These regulations are proposed to apply with respect to any fee 
that is due on or after September 30, 2018.

Special Analyses

    Certain IRS regulations, including these, are exempt from the 
requirements of Executive Order 12866, as supplemented and reaffirmed 
by Executive Order 13563. Therefore, a regulatory assessment is not 
required. Because these regulations do not include a collection of 
information, a Regulatory Flexibility Analysis under the Regulatory 
Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to Code 
section 7805(f), this notice of proposed rulemaking will be submitted 
to the Chief Counsel for Advocacy of the Small Business Administration 
for comment on its impact on small business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written (a signed original and eight 
(8) copies) or electronic comments that are submitted timely to the 
IRS. Comments are requested on all aspects of these proposed 
regulations. The Treasury Department and the IRS specifically request 
comments on the following:
    1. How the adjustments to net premiums written under these proposed 
regulations tie to amounts reported on the SHCE.
    2. Whether there should be a transition rule for premium 
adjustments related to retrospectively rated contracts and how any such 
rule should be implemented.
    All comments will be available for public inspection and copying. A 
public hearing may be scheduled if requested in writing by any person 
that timely submits written comments. If a public hearing is scheduled, 
notice of the date, time, and place for the hearing will be published 
in the Federal Register.

Drafting Information

    The principal author of these proposed regulations is Rachel S. 
Smith, IRS Office of the Associate Chief Counsel (Passthroughs and 
Special Industries). However, other personnel from the Treasury 
Department and the IRS participated in their development.

List of Subjects in 26 CFR Part 57

    Health Insurance, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 57 is proposed to be amended as follows:

PART 57--HEALTH INSURANCE PROVIDERS FEE

0
1. The authority citation for part 57 continues to read in part as 
follows:

    Authority: 26 U.S.C. 7805 * * *
* * * * *
0
2. Section 57.2 is amended by revising paragraph (k) to read as 
follows:


Sec.  57.2  Explanation of terms.

* * * * *
    (k) Net premiums written--(1) In general. The term net premiums 
written means premiums written, adjusted as provided in paragraph 
(k)(2) of this section.
    (2) Adjustments. Net premiums written include adjustments to 
account for:
    (i) Assumption reinsurance, but not indemnity reinsurance. Net 
premiums written include reinsurance premiums written, reduced by 
reinsurance ceded, and reduced by ceding commissions with respect to 
the data year. Net premiums written do not include premiums written for 
indemnity reinsurance and are not reduced by indemnity reinsurance 
ceded because indemnity reinsurance within the meaning of paragraph 
(h)(5)(i) of this section is not health insurance under paragraph 
(h)(1) of this section. However, in the case of assumption reinsurance 
within the meaning of paragraph (h)(5)(ii) of this section, net 
premiums written include premiums written for assumption reinsurance, 
reduced by assumption reinsurance premiums ceded.
    (ii) Medical loss ratio (MLR) rebates. Net premiums written are 
reduced by MLR rebates with respect to the data year. For this purpose, 
MLR rebates are computed on an accrual basis.
    (iii) Premium adjustments related to retrospectively rated 
contracts. Net premiums written include retrospectively rated contract 
receipts and are reduced by retrospectively rated contract payments 
with respect to the data year. For this purpose, net premium 
adjustments related to retrospectively rated contracts are computed on 
an accrual basis.
    (iv) Amounts related to the risk adjustment program under section 
1343 of the ACA. Net premiums written include risk adjustment payments 
(within the meaning of 42 U.S.C. 18063(b)) received with respect to the 
data year and are reduced by risk adjustment charges (within the 
meaning of 42 U.S.C. 18063(a)) paid with respect to the data year. For 
this purpose, risk adjustment payments and risk adjustment charges are 
computed on an accrual basis.
    (v) Additional adjustments published in the Internal Revenue 
Bulletin. The IRS may provide rules in guidance published in the 
Internal Revenue Bulletin (see Sec.  601.601(d)(2) of this chapter) for 
additional adjustments against premiums written in determining net 
premiums written.
0
3. Section 57.10 is amended by revising paragraph (a) and adding 
paragraph (c) to read as follows:


Sec.  57.10   Effective/applicability date.

    (a) In general. Except as provided in paragraphs (b) and (c) of 
this section, Sec. Sec.  57.1 through 57.9 apply to any fee that is due 
on or after September 30, 2014.
* * * * *
    (c) Paragraph (k) of Sec.  57.2. Paragraph (k) of Sec.  57.2 
applies to any fee that is due on or after September 30, 2018.

John Dalrymple,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2016-29487 Filed 12-8-16; 8:45 am]
 BILLING CODE 4830-01-P



                                                                           Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Proposed Rules                                                89017

                                                    Department requests information as to                      The Department has received                          Dated: December 1, 2016.
                                                    why this should be so. Additionally, the                numerous proposals from various Tribes                Lawrence S. Roberts,
                                                    Department seeks views and proposals                    pertaining to Indian Trader regulation.               Principal Deputy Assistant Secretary—Indian
                                                    on what an entirely new proposed rule                   Many of these proposals suggest that                  Affairs.
                                                    may look like. For instance, if the                     trade regulated under part 140 should                 [FR Doc. 2016–29253 Filed 12–8–16; 8:45 am]
                                                    Department should no longer issue                       include not only commercial activities,               BILLING CODE 4337–15–P
                                                    licenses, what do commenters envision                   but also mineral and energy
                                                    Federal involvement to be?                              development and any form of natural-
                                                       3. How can revisions to the existing                 resources extraction or agriculture.                  DEPARTMENT OF THE TREASURY
                                                    rule ensure that persons who conduct                       Currently, section 140.5(a)(1) of the
                                                    trade are reputable and that there are                  existing rule has the following                       Internal Revenue Service
                                                    mechanisms in place to address traders                  definitions:
                                                    who violate Federal or Tribal law?                         (5) Contract means any agreement                   26 CFR Part 57
                                                       If there is a need to update 25 CFR                  made or under negotiation with any
                                                                                                            Indian for the purchase, transportation               [REG–134438–15]
                                                    part 140, we solicit information and
                                                    suggestions on how revisions to the                     or delivery of goods or supplies.                     RIN 1545–BN10
                                                                                                               (6) Trading means buying, selling,
                                                    existing rule can ensure that there are
                                                                                                            bartering, renting, leasing, permitting               Health Insurance Providers Fee
                                                    reputable actors in Indian Country.
                                                                                                            and any other transaction involving the
                                                    Further, the Department requests                                                                              AGENCY: Internal Revenue Service (IRS),
                                                                                                            acquisition of property or services.
                                                    information and suggestions on                             (7) Commercial trading means any                   Treasury.
                                                    revisions to the existing rule to ensure                trading transaction where an employee                 ACTION: Notice of proposed rulemaking.
                                                    that violations of Federal or Tribal law                engages in the business of buying or
                                                    are properly addressed. The Department                  selling services or items which he/she is             SUMMARY:   This document contains
                                                    acknowledges that many Tribes have                      trading.                                              proposed regulations that would modify
                                                    comprehensive schemes in place                                                                                the current definition of ‘‘net premiums
                                                                                                            The Department seeks comments on
                                                    regulating traders conducting business                                                                        written’’ for purposes of the fee imposed
                                                                                                            whether the definitions of contract,
                                                    within their jurisdiction.                                                                                    by section 9010 of the Patient Protection
                                                                                                            trading, and commercial trading should
                                                       4. How do Tribes currently regulate                                                                        and Affordable Care Act, as amended.
                                                                                                            be revised, or struck in their entirety,
                                                    trade in Indian Country, and how might                                                                        The proposed regulations will affect
                                                                                                            and why.
                                                    revisions to 25 CFR part 140 help Tribes                   Additionally, the current definitions              persons engaged in the business of
                                                    regulate trade in Indian Country?                       do not define the type of trader                      providing health insurance for United
                                                       As mentioned, the Department                         conducting business with an Indian                    States health risks.
                                                    recognizes that many Tribes have                        Tribe. The draft proposals the                        DATES: Comments and requests for a
                                                    enacted comprehensive laws concerning                   Department has received recommend                     public hearing must be received by
                                                    economic activity occurring on Tribal                   that the revised rule apply to any person             March 9, 2017.
                                                    lands and that many Tribal courts retain                conducting trade in Indian Country,                   ADDRESSES: Send submissions to:
                                                    jurisdiction over Indian traders. For                   including non-Indians. The Department
                                                    example, the Department is aware that                                                                         CC:PA:LPD:PR (REG–134438–15), room
                                                                                                            solicits comments on whether an                       5203, Internal Revenue Service, PO Box
                                                    some Tribes have required disclosure of                 updated part 140 should define who the
                                                    violations of business licenses and of                                                                        7604, Ben Franklin Station, Washington,
                                                                                                            rule would apply to and whether or not                DC 20044. Submissions may be hand-
                                                    enforcement actions taken by a Federal,                 this definition should broadly include
                                                    Tribal, or State entity for trade-related                                                                     delivered Monday through Friday
                                                                                                            any person conducting trade within                    between the hours of 8 a.m. and 4 p.m.
                                                    activity. Tribes have also required the                 Indian Country.
                                                    disclosure of any pending lawsuits                                                                            to CC:PA:LPD:PR (REG–134438–15),
                                                                                                               6. How might revisions to the                      Courier’s Desk, Internal Revenue
                                                    involving the person and the business,                  regulations promote economic viability
                                                    and disclosure of tax liens against the                                                                       Service, 1111 Constitution Avenue NW,
                                                                                                            and sustainability in Indian Country?                 Washington, DC 20224, or sent
                                                    business and other unsatisfied                             The Department is interested in
                                                    judgments. Other items that Tribes have                                                                       electronically, via the Federal
                                                                                                            receiving feedback on how revisions to                eRulemaking portal at
                                                    required include a Federal employer                     the trade regulations could facilitate
                                                    identification number, a State                                                                                www.regulations.gov (IRS REG–134438–
                                                                                                            economic activity in Indian country and               15)
                                                    registration number, insurance or                       tribal economic self-sufficiency.
                                                    bonding information, copies of all                         7. What services do Tribes currently               FOR FURTHER INFORMATION CONTACT:
                                                    licenses (state, county, city or Tribal)                provide to individuals or entities doing              Concerning the proposed regulations,
                                                    currently held by the business, and                     business in Indian Country and what                   Rachel S. Smith, (202) 317–6855;
                                                    affiliation with any other businesses.                  role do tax revenues play in providing                concerning submissions of comments
                                                       With this in mind, the Department                    such services?                                        and request for a hearing, Regina
                                                    requests information on how Tribes                         The Department recognizes that                     Johnson, (202) 317–6901 (not toll-free
                                                    currently regulate trade within their                   Tribes provide a range of services to                 numbers).
                                                    jurisdiction. The Department requests                   Indians and non-Indians doing business                SUPPLEMENTARY INFORMATION:
                                                    specific information and suggestions,                   within their Indian Country. The
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    including language on how the Federal                   Department seeks comments identifying                 Background
                                                    government can bolster those Tribes that                the types of services offered, such as law              Section 9010 of the Patient Protection
                                                    currently comprehensively regulate                      enforcement, food sanitation and health               and Affordable Care Act (PPACA),
                                                    trade, as well as those Tribes that do not              inspections, transportation and other                 Public Law 111–148 (124 Stat. 119
                                                    do so presently.                                        infrastructure, etc. The Department also              (2010)), as amended by section 10905 of
                                                       5. What types of trade should be                     seeks information on whether and to                   PPACA, and as further amended by
                                                    regulated and what types of traders                     what extent Tribes are able to rely on                section 1406 of the Health Care and
                                                    should be subject to regulation?                        tax revenues to provide such services.                Education Reconciliation Act of 2010,


                                               VerDate Sep<11>2014   16:22 Dec 08, 2016   Jkt 241001   PO 00000   Frm 00007   Fmt 4702   Sfmt 4702   E:\FR\FM\09DEP1.SGM   09DEP1


                                                    89018                  Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Proposed Rules

                                                    Public Law 111–152 (124 Stat. 1029                      file the Supplemental Health Care                     they do not actually receive an
                                                    (2010)) (collectively, the Affordable Care              Exhibit (SHCE) with the National                      economic benefit.
                                                    Act or ACA) imposes an annual fee on                    Association of Insurance Commissioners                  In response to these comments, the
                                                    covered entities that provide health                    (NAIC), net premiums written for health               proposed regulations would modify the
                                                    insurance for United States health risks.               insurance generally will equal the                    current definition of net premiums
                                                    Section 9010 did not amend the Internal                 amount reported on the SHCE as direct                 written to account for premium
                                                    Revenue Code (Code) but contains                        premiums written minus MLR rebates                    adjustments related to retrospectively
                                                    cross-references to specified Code                      with respect to the data year, subject to             rated contracts, computed on an accrual
                                                    sections. In this preamble all references               any applicable exclusions under section               basis. These amounts are received from
                                                    to section 9010 are references to section               9010. The instructions to Form 8963,                  and paid to policyholders annually
                                                    9010 of the ACA and all references to                   Report of Health Insurance Provider                   based on experience. Retrospectively
                                                    ‘‘fee’’ are references to the fee imposed               Information, provide additional                       rated contract receipts and payments do
                                                    by section 9010.                                        information on how to determine net                   not include changes to funds or
                                                       Section 9010(a) imposes an annual fee                premiums written using the SHCE and                   accounts that remain under the control
                                                    on each covered entity engaged in the                   any equivalent forms as the source of                 of the covered entity, such as changes to
                                                    business of providing health insurance.                 data, and can be updated to reflect                   premium stabilization reserves.
                                                    The fee is due by the annual date                       changes to the SHCE.                                  2. Risk Adjustment Payments and
                                                    specified by the Secretary, but in no
                                                                                                            Explanation of Provisions                             Charges
                                                    event later than September 30th of each
                                                    calendar year in which a fee must be                       The proposed regulations would                        Following the publication of the final
                                                    paid (fee year).                                        amend and clarify the rules for how                   regulations, questions also arose about
                                                       Section 9010(b) requires the Secretary               ‘‘net premiums written’’ take into                    the treatment of risk adjustment
                                                    to determine the annual fee for each                    account certain premium adjustments                   payments under the ACA. Section 1343
                                                    covered entity based on the ratio of the                and payments.                                         of the ACA provides a permanent risk
                                                    covered entity’s net premiums written                                                                         adjustment program for certain plans in
                                                                                                            1. Retrospective Premium Adjustments                  the individual and small group markets.
                                                    for health insurance for any United
                                                    States health risk that are taken into                     Following the publication of the final             In general, the program transfers risk
                                                    account for the calendar year                           regulations, the Treasury Department                  adjustment funds from health insurance
                                                    immediately before the fee year (data                   and the IRS received comments                         plans with relatively lower-risk
                                                    year) to the aggregate net premiums                     requesting that premium adjustments                   enrollees to issuers that
                                                    written for health insurance of United                  related to retrospectively rated contracts            disproportionately attract high-risk
                                                    States health risks of all covered entities             be taken into account in determining net              populations, such as individuals with
                                                    that are taken into account during the                  premiums written. The NAIC’s                          chronic conditions. Section 1343(a)(1)
                                                    data year. In calculating the fee, the                  Accounting Practices and Procedures                   generally requires each state, or the
                                                    Secretary must determine each covered                   Manual Statement of Statutory                         Department of Health and Human
                                                    entity’s net premiums written for United                Accounting Principles No. 66,                         Services (HHS) acting on behalf of the
                                                    States health risks based on reports                    Retrospectively Rated Contracts, defines              state, to assess a charge on health plans
                                                    submitted to the Secretary by the                       a retrospectively rated contract as a                 and health insurance issuers in the
                                                    covered entity and through the use of                   contract which has the final policy                   individual or small group markets
                                                    any other source of information                         premium calculated based on the loss                  within a state (with respect to health
                                                    available to the Secretary. Section 9010                experience of the insured during the                  insurance coverage) if the actuarial risk
                                                    does not define the term ‘‘net premiums                 term of the policy (including loss                    of the enrollees of such plans or
                                                    written.’’                                              development after the term of the                     coverage for a year is less than the
                                                       On November 29, 2013, the Treasury                   policy) and on the stipulated formula                 average actuarial risk of all enrollees in
                                                    Department and the IRS published in                     set forth in the policy or a formula                  all plans or coverage in the state for the
                                                    the Federal Register (TD 9643; 78 FR                    required by law. These premium                        year that are not self-insured group
                                                    71476) final regulations regarding the                  adjustments, made periodically, may                   health plans. Section 1343(a)(2)
                                                    fee (final regulations). The final                      involve either the payment of return                  generally requires each state, or HHS
                                                    regulations define net premiums written                 premium to the insured (a                             acting on behalf of the state, to make a
                                                    to mean premiums written, including                     ‘‘retrospectively rated contract                      payment to health plans and health
                                                    reinsurance premiums written, reduced                   payment’’) or payment of an additional                insurance issuers in the individual or
                                                    by reinsurance ceded, and reduced by                    premium by the insured (a                             small group markets within a state (with
                                                    ceding commissions and medical loss                     ‘‘retrospectively rated contract receipt’’),          respect to health insurance coverage) if
                                                    ratio (MLR) rebates with respect to the                 or both, depending on experience.                     the actuarial risk of the enrollees of such
                                                    data year. Net premiums written do not                     Commenters recommended that in                     plans or coverage for a year is greater
                                                    include premiums written for indemnity                  calculating net premiums written,                     than the average actuarial risk of all
                                                    reinsurance (and are not reduced by                     premiums written should be increased                  enrollees in all plans and coverage in
                                                    indemnity reinsurance ceded) because                    by retrospectively rated contract                     the state for the year that are not self-
                                                    indemnity reinsurance is not considered                 receipts and reduced by retrospectively               insured group health plans.
                                                    health insurance for purposes of section                rated contract payments. Commenters                      Although not specifically listed, net
                                                    9010. However, net premiums written                     asserted that retrospectively rated                   premiums written, as defined in the
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    do include premiums written (and are                    contract payments are refunded to                     final regulations, include risk
                                                    reduced by premiums ceded) for                          policyholders in much the same way as                 adjustment payments received by a
                                                    assumption reinsurance; that is,                        MLR rebates. Therefore, without an                    covered entity under section 1343(a)(2)
                                                    reinsurance for which there is a                        adjustment for retrospectively rated                  of the ACA and are reduced for risk
                                                    novation and the reinsurer takes over                   contract payments, covered entities that              adjustment charges paid by a covered
                                                    the entire risk.                                        make these payments will bear a                       entity under section 1343(a)(1) of the
                                                       The preamble to the final regulations                liability for an amount of the annual fee             ACA. Nonetheless, several covered
                                                    explained that, for covered entities that               that correlates to premiums from which                entities asked whether net premiums


                                               VerDate Sep<11>2014   16:22 Dec 08, 2016   Jkt 241001   PO 00000   Frm 00008   Fmt 4702   Sfmt 4702   E:\FR\FM\09DEP1.SGM   09DEP1


                                                                           Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Proposed Rules                                                   89019

                                                    written included risk adjustment                        regulations tie to amounts reported on                reinsurance within the meaning of
                                                    payments received and charges paid.                     the SHCE.                                             paragraph (h)(5)(ii) of this section, net
                                                    Therefore, these proposed regulations                      2. Whether there should be a                       premiums written include premiums
                                                    add specific language to the definition                 transition rule for premium adjustments               written for assumption reinsurance,
                                                    of net premiums written to clarify that                 related to retrospectively rated contracts            reduced by assumption reinsurance
                                                    net premiums written include risk                       and how any such rule should be                       premiums ceded.
                                                    adjustment payments received and are                    implemented.
                                                                                                               All comments will be available for                   (ii) Medical loss ratio (MLR) rebates.
                                                    reduced for risk adjustment charges
                                                    paid. If a covered entity did not include               public inspection and copying. A public               Net premiums written are reduced by
                                                    risk adjustment payments received as                    hearing may be scheduled if requested                 MLR rebates with respect to the data
                                                    direct premiums written on its SHCE or                  in writing by any person that timely                  year. For this purpose, MLR rebates are
                                                    did not file an SHCE, these amounts are                 submits written comments. If a public                 computed on an accrual basis.
                                                    still part of net premiums written and                  hearing is scheduled, notice of the date,               (iii) Premium adjustments related to
                                                    must be reported as such on Form 8963.                  time, and place for the hearing will be               retrospectively rated contracts. Net
                                                    For this purpose, risk adjustment                       published in the Federal Register.                    premiums written include
                                                    payments received and charges paid are                  Drafting Information                                  retrospectively rated contract receipts
                                                    computed on an accrual basis.                                                                                 and are reduced by retrospectively rated
                                                                                                              The principal author of these                       contract payments with respect to the
                                                    3. Other Premium Adjustments                            proposed regulations is Rachel S. Smith,
                                                                                                                                                                  data year. For this purpose, net
                                                       These proposed regulations would                     IRS Office of the Associate Chief
                                                                                                                                                                  premium adjustments related to
                                                    authorize the IRS to provide rules in                   Counsel (Passthroughs and Special
                                                                                                                                                                  retrospectively rated contracts are
                                                    guidance published in the Internal                      Industries). However, other personnel
                                                                                                            from the Treasury Department and the                  computed on an accrual basis.
                                                    Revenue Bulletin for additional
                                                    amounts to be taken into account in                     IRS participated in their development.                  (iv) Amounts related to the risk
                                                    determining net premiums written. If                                                                          adjustment program under section 1343
                                                                                                            List of Subjects in 26 CFR Part 57
                                                    the Treasury Department and the IRS                                                                           of the ACA. Net premiums written
                                                    determine that published guidance                         Health Insurance, Reporting and                     include risk adjustment payments
                                                    providing additional adjustments to net                 recordkeeping requirements.                           (within the meaning of 42 U.S.C.
                                                    premiums written is warranted, such                     Proposed Amendments to the                            18063(b)) received with respect to the
                                                    guidance will be published in the                       Regulations                                           data year and are reduced by risk
                                                    Internal Revenue Bulletin.                                                                                    adjustment charges (within the meaning
                                                                                                              Accordingly, 26 CFR part 57 is
                                                    Proposed Effective/Applicability Date                                                                         of 42 U.S.C. 18063(a)) paid with respect
                                                                                                            proposed to be amended as follows:
                                                                                                                                                                  to the data year. For this purpose, risk
                                                      These regulations are proposed to                                                                           adjustment payments and risk
                                                    apply with respect to any fee that is due               PART 57—HEALTH INSURANCE
                                                                                                            PROVIDERS FEE                                         adjustment charges are computed on an
                                                    on or after September 30, 2018.
                                                                                                                                                                  accrual basis.
                                                    Special Analyses                                        ■ 1. The authority citation for part 57                 (v) Additional adjustments published
                                                      Certain IRS regulations, including                    continues to read in part as follows:
                                                                                                                                                                  in the Internal Revenue Bulletin. The
                                                    these, are exempt from the requirements                     Authority: 26 U.S.C. 7805 * * *                   IRS may provide rules in guidance
                                                    of Executive Order 12866, as                            *     *    *     *     *                              published in the Internal Revenue
                                                    supplemented and reaffirmed by                          ■ 2. Section 57.2 is amended by revising              Bulletin (see § 601.601(d)(2) of this
                                                    Executive Order 13563. Therefore, a                     paragraph (k) to read as follows:                     chapter) for additional adjustments
                                                    regulatory assessment is not required.                                                                        against premiums written in
                                                    Because these regulations do not                        § 57.2   Explanation of terms.
                                                                                                                                                                  determining net premiums written.
                                                    include a collection of information, a                  *     *     *    *     *
                                                                                                              (k) Net premiums written—(1) In                     ■ 3. Section 57.10 is amended by
                                                    Regulatory Flexibility Analysis under
                                                    the Regulatory Flexibility Act (5 U.S.C.                general. The term net premiums written                revising paragraph (a) and adding
                                                    chapter 6) is not required. Pursuant to                 means premiums written, adjusted as                   paragraph (c) to read as follows:
                                                    Code section 7805(f), this notice of                    provided in paragraph (k)(2) of this
                                                                                                                                                                  § 57.10    Effective/applicability date.
                                                    proposed rulemaking will be submitted                   section.
                                                    to the Chief Counsel for Advocacy of the                  (2) Adjustments. Net premiums                         (a) In general. Except as provided in
                                                    Small Business Administration for                       written include adjustments to account                paragraphs (b) and (c) of this section,
                                                    comment on its impact on small                          for:                                                  §§ 57.1 through 57.9 apply to any fee
                                                    business.                                                 (i) Assumption reinsurance, but not                 that is due on or after September 30,
                                                                                                            indemnity reinsurance. Net premiums                   2014.
                                                    Comments and Public Hearing                             written include reinsurance premiums
                                                                                                            written, reduced by reinsurance ceded,                *      *     *    *     *
                                                      Before these proposed regulations are
                                                    adopted as final regulations,                           and reduced by ceding commissions                       (c) Paragraph (k) of § 57.2. Paragraph
                                                    consideration will be given to any                      with respect to the data year. Net                    (k) of § 57.2 applies to any fee that is
                                                    written (a signed original and eight (8)                premiums written do not include                       due on or after September 30, 2018.
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    copies) or electronic comments that are                 premiums written for indemnity
                                                                                                                                                                  John Dalrymple,
                                                    submitted timely to the IRS. Comments                   reinsurance and are not reduced by
                                                    are requested on all aspects of these                   indemnity reinsurance ceded because                   Deputy Commissioner for Services and
                                                    proposed regulations. The Treasury                      indemnity reinsurance within the                      Enforcement.
                                                    Department and the IRS specifically                     meaning of paragraph (h)(5)(i) of this                [FR Doc. 2016–29487 Filed 12–8–16; 8:45 am]
                                                    request comments on the following:                      section is not health insurance under                 BILLING CODE 4830–01–P
                                                      1. How the adjustments to net                         paragraph (h)(1) of this section.
                                                    premiums written under these proposed                   However, in the case of assumption


                                               VerDate Sep<11>2014   16:22 Dec 08, 2016   Jkt 241001   PO 00000   Frm 00009   Fmt 4702   Sfmt 9990   E:\FR\FM\09DEP1.SGM    09DEP1



Document Created: 2018-02-14 09:03:55
Document Modified: 2018-02-14 09:03:55
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed rulemaking.
DatesComments and requests for a public hearing must be received by March 9, 2017.
ContactConcerning the proposed regulations, Rachel S. Smith, (202) 317-6855; concerning submissions of comments and request for a hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).
FR Citation81 FR 89017 
RIN Number1545-BN10
CFR AssociatedHealth Insurance and Reporting and Recordkeeping Requirements

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR