Section 10-16-1306 - Failure to meet premium rate requirements - notice - public hearing - rules(1)(b) If a carrier or health-care provider anticipates that the carrier will be unable to meet network adequacy standards or the premium rate requirements in section 10-16-1305 due to a reimbursement rate dispute for the standardized plan, the carrier or health-care provider may initiate nonbinding arbitration prior to filing rates for the standardized plan. The rate filing deadline issued by the commissioner pursuant to section 10-16-107 must still be met and may not be delayed due to arbitration. The commissioner shall not be required to participate or otherwise manage any nonbinding arbitration implemented under this section.(2) If a carrier is unable to offer the standardized plan as required by section 10-16-1305 (1) at the premium rate required in section 10-16-1305 (2) in any year, the carrier, by March 1 of the year preceding the year in which the premium rates go into effect, shall: (a) Notify the commissioner of the reasons why the carrier is unable to meet the requirements and the steps the carrier will take to meet the premium rate requirements; and(b) Provide to the commissioner any supporting documentation related to the hospital or health-care provider that the carrier claims is a cause for the carrier's failure to meet the premium rate requirements.(3)(a) If, on or after January 1, 2023, and pursuant to subsection (2) of this section, a carrier notifies the commissioner that the carrier is unable to offer the standardized plan at the premium rate required in section 10-16-1305 (2) or the commissioner otherwise determines, with support from an independent actuary and based on a review of the notification submitted pursuant to subsection (2) of this section or the rate and form filings, that a carrier has not met the premium rate requirements in section 10-16-1305 (2) or the network adequacy requirements, the division may hold a public hearing prior to the approval of the carrier's final rates; except that, for the purposes of holding a public hearing, if a carrier does not meet the network adequacy requirements in section 10-16-1304 (1)(g), the commissioner shall consider a carrier to have met network adequacy requirements if the carrier files the action plan required in section 10-16-1304 (2)(b). A public hearing held pursuant to this subsection (3)(a) must be conducted in accordance with subsection (3)(c) of this section and the rules promulgated pursuant to such subsection. The public hearing is not subject to section 24-4-105 except for subsections (13), (14), and (15) of such section.(b) Information submitted by a party for purposes of a public hearing held pursuant to subsection (3)(a) of this section is subject to the "Colorado Open Records Act", part 2 of article 72 of title 24.(c)(I) The commissioner shall give notice of the public hearing to the carriers, hospitals, health-care providers, insurance ombudsman, and public at least fifteen days prior to the date of the hearing.(II) The commissioner shall establish by rule:(A) The manner in which the commissioner will notify the parties specified in subsection (3)(c)(I) of this section and interested persons of the public hearings;(B) The manner in which the public may participate in public hearings. The commissioner shall limit the public comment and evidence presented at the hearing to information that is related to the reason the carrier failed to meet the network adequacy requirements or the premium rate requirements in section 10-16-1305 for the standardized plan in any single county.(C) The manner in which documents must be served on the parties;(D) The manner in which a carrier shall notify the division and affected hospitals, health-care providers, and the insurance ombudsman of a carrier's failure to meet the network adequacy requirements or the premium rate requirements in section 10-16-1305;(E) The time frames within which the parties will be given the opportunity to submit a complaint and answer and any other necessary pleadings for the hearing;(F) The manner in which the carrier, affected health-care providers, affected hospitals, the insurance ombudsman, and any other person the commissioner determines may be aggrieved by the commissioner's action may present evidence, examine and cross-examine witnesses, and offer oral and written arguments at the hearing;(G) The procedures for keeping requested information confidential and for handling confidential information; and(H) Any other matter the commissioner deems necessary for the implementation of the public hearings.(III) The commissioner may issue procedural orders during the public hearing process to facilitate the efficient operation of the public hearing, including ordering the consolidation of proceedings involving the same carrier, hospitals, or health-care providers in counties in the same geographic rating area as established by the commissioner pursuant to section 10-16-107 (5) and the limitation of discovery.(d) The office of the insurance ombudsman established in section 25.5-1-131 shall participate in the public hearings and represent the interests of consumers.(4) Based on evidence presented at a hearing held pursuant to subsection (3) of this section and other available data and actuarial analysis, the commissioner may:(a)(I) Establish carrier reimbursement rates under the standardized plan for hospital services, if necessary, to meet network adequacy requirements or the premium rate requirements in section 10-16-1305.(II) The base reimbursement rate for hospital services shall not be less than one hundred fifty-five percent of the hospital's medicare reimbursement rate or equivalent rate.(III) A hospital that is an essential access hospital or that is independent and not part of a health system must receive a twenty-percentage-point increase in the base reimbursement rate.(IV) A hospital that is an essential access hospital that is not part of a health system must receive a forty-percentage-point increase in the base reimbursement rate.(V) A hospital that is part of a pediatric specialty hospital system where over ninety percent of the health system's population served is under eighteen years of age and that has a level one pediatric trauma center must receive a fifty-five-percentage-point increase in the base reimbursement rate and is not eligible for additional factors under this subsection (4).(VI) A hospital with a combined percentage of patients who receive services through programs established through the "Colorado Medical Assistance Act", articles 4 to 6 of title 25.5, or medicare, Title XVIII of the federal "Social Security Act", as amended, that exceeds the statewide average must receive up to a thirty-percentage-point increase in its base reimbursement rate, with the actual increase to be determined based on the hospital's percentage share of such patients.(VII) A hospital that is efficient in managing the underlying cost of care as determined by the hospital's total margins, operating costs, and net patient revenue must receive up to a forty-percentage-point increase in its base reimbursement rate.(VIII) Notwithstanding subsections (4)(a)(III) to (4)(a)(VII) of this section, in determining the reimbursement rates for hospitals, the commissioner may consult with employee membership organizations representing health-care providers' employees in Colorado and with hospital-based health-care providers in Colorado, and shall take into account the cost of adequate wages, benefits, staffing, and training for health-care employees to provide continuous quality care.(b) Establish reimbursement rates under the standardized plan, if necessary, for health-care providers for categories of services within the geographic service area for the standardized plan to meet network adequacy requirements or the premium rate requirements in section 10-16-1305 (2), which rates may not be less than one hundred thirty-five percent of the medicare reimbursement rates within the applicable geographic region for the same services;(c) Require hospitals that are licensed pursuant to section 25-1.5-103 to accept the reimbursement rates established pursuant to subsection (4)(a) of this section if necessary to ensure the standardized plan meets the premium rate requirements and the network adequacy requirements;(d)(I) Require health-care providers to accept the reimbursement rates established pursuant to subsection (4)(b) of this section, if necessary, to ensure the standardized plan meets the premium rate requirements and the network adequacy requirements.(II) The commissioner shall not require a health-care provider, other than a hospital that provides a majority of covered professional services through a single, contracted medical group for a nonprofit, nongovernmental health maintenance organization, to contract with any other carrier.(e) Require the carrier to offer the standardized plan in specific counties where no carrier is offering the standardized plan in that plan year in either the individual or small group market. In determining whether the carrier is required to offer the standardized plan in a specific county, the commissioner shall consider: (I) The carrier's structure, the number of covered lives the carrier has in all lines of business in each county, and the carrier's existing service areas; and(II) Alternative health-care coverage available in each county, including health-care coverage cooperatives.(5) Notwithstanding subsection (4) of this section, the commissioner shall not set the reimbursement rates for: (a) A hospital at less than one hundred sixty-five percent of the medicare reimbursement rate or the equivalent rate; and(b) Any hospital for any plan year at an amount that is more than twenty percent lower than the rate negotiated between the carrier and the hospital for the previous plan year.(6)(a) The commissioner shall promulgate rules to ensure that there is not an unfair competitive advantage for a carrier that intends to offer the standardized plan in the individual or small group market in a county where it has not previously offered health benefit plans in that market or with a hospital with which the carrier has not previously had a contract.(b) The rules promulgated pursuant to this subsection (6) must align with the hospital reimbursement methodologies described in subsections (4) and (5) of this section.(7) Notwithstanding subsections (4) and (5) of this section, for a hospital with a negotiated reimbursement rate that is at least ten percent less than the statewide hospital median reimbursement rate measured as a percentage of medicare for the 2021 plan year using data from the Colorado all-payer health claims database described in section 25.5-1-204, the commissioner shall set the reimbursement rate for that hospital at no less than the greater of: (a) The hospital's commercial reimbursement rate as a percentage of medicare minus one-third of the difference between the hospital's 2021 commercial reimbursement rate as a percentage of medicare and the rate established by subsection (4) of this section;(b) One hundred sixty-five percent of the hospital's medicare reimbursement rate or equivalent rate; or(c) The rate established by subsection (4) of this section.(8) A carrier or health-care provider may appeal a decision by the commissioner made pursuant to subsection (4) of this section to the Colorado court of appeals. The decision of the commissioner is a final agency action subject to judicial review pursuant to section 24-4-106 (11).(9) For the purpose of making the determination in subsection (3) of this section: (a) A health-care coverage cooperative, and a carrier offering health benefit plans under agreement with the health-care coverage cooperative, that has offered one or more health benefit plans to purchasers in the individual and small group markets that previously achieved and maintained at least a fifteen percent reduction in premium rates, regardless of the first year the health benefit plans were offered, shall be deemed by the commissioner as having met the requirements for carriers in sections 10-16-1304 and 10-16-1305 with respect to the counties in which the individual and small group plans are being offered by the health-care coverage cooperative.(b) The commissioner shall take into account: (I) Any actuarial differences between the standardized plan and the health benefit plans the carrier offered in the 2021 calendar year;(II) Any changes to the standardized plan; and(III) State or federal health benefit coverage mandates implemented after the 2021 plan year.(10) A hospital or a health-care provider in Colorado shall not balance bill consumers enrolled in the standardized plan for services covered by the standardized plan and shall accept the reimbursement rates established by the commissioner pursuant to subsection (4) of this section, if applicable, for the service provided to the consumer.(11)(a) The commissioner shall only set reimbursement rates pursuant to this section for hospitals or health-care providers that: (I) Prevented a carrier from meeting the premium rate requirements for a standardized plan being offered in a specific county; or(II) Caused the carrier to fail to meet network adequacy requirements.(b) The carrier shall provide the commissioner with reasonable information necessary to identify which hospitals or health-care providers were the cause of the carrier's failure to meet the premium rate requirements or to meet network adequacy requirements.(12) The commissioner shall not use the failure of a carrier to meet the premium rate requirements for the standardized plan in a county as a reason to deny premium rates for a nonstandardized plan of a carrier in that county.Amended by 2023 Ch. 159,§ 4, eff. 5/10/2023.Added by 2021 Ch. 241, § 1, eff. 6/16/2021.