1. (a)

   1. (1) Subject to paragraphs (b) through (e) of this section, for plan years beginning on or after January 1, 2020, through December 31, 2025, a State may change its EHB-benchmark plan by:

      1. (i) Selecting the EHB-benchmark plan that another State used for the 2017 plan year under §§ 156.100 and 156.110;
      2. (ii) Replacing one or more categories of EHBs established at § 156.110(a) in the State's EHB-benchmark plan used for the 2017 plan year with the same category or categories of EHB from the EHB-benchmark plan that another State used for the 2017 plan year under §§ 156.100 and 156.110; or
      3. (iii) Otherwise selecting a set of benefits that would become the State's EHB-benchmark plan.
   2. (2) Subject to paragraphs (b) through (e) of this section, for plan years beginning on or after January 1, 2026, a State may change its EHB-benchmark plan by selecting a set of benefits that would become the State's EHB-benchmark plan.

2. (b) A State's EHB-benchmark plan must:

   1. (1) EHB coverage. Provide coverage of items and services for at least the categories of benefits at § 156.110(a), including an appropriate balance of coverage for these categories of benefits.

   2. (2) Scope of benefits.

      1. (i) For plan years beginning on or after January 1, 2020, through December 31, 2025:

         1. (A) Provide a scope of benefits equal to the scope of benefits provided under a typical employer plan (supplemented by the State as necessary to provide coverage within each EHB category at § 156.110(a)), defined as either:

            (1) One of the selecting State's 10 base-benchmark plan options established at § 156.100, and available for the selecting State's selection for the 2017 plan year; or

            (2) The largest health insurance plan by enrollment within one of the five largest large group health insurance products by enrollment in the State, as product and plan are defined at § 144.103 of this subchapter, provided that:

            (i) The product has at least 10 percent of the total enrollment of the five largest large group health insurance products in the State;

            (ii) The plan provides minimum value, as defined under § 156.145;

            (iii) The benefits are not excepted benefits, as established under §§ 146.145(b), and 148.220 of this subchapter; and

            (iv) The benefits in the plan are from a plan year beginning after December 31, 2013.

         2. (B) Not exceed the generosity of the most generous among a set of comparison plans, including:

            (1) The State's EHB-benchmark plan used for the 2017 plan year, and

            (2) Any of the State's base-benchmark plan options for the 2017 plan year described in § 156.100(a)(1), supplemented as necessary under § 156.110.

      2. (ii) For plan years beginning on or after January 1, 2026, provide a scope of benefits that is equal to the scope benefits of a typical employer plan in the State. The scope of benefits in a typical employer plan in a State is any scope of benefits that is as or more generous than the scope of benefits in the least generous plan (supplemented by the State as necessary to provide coverage within each EHB category at § 156.110(a)), and as or less generous than the scope of benefits in the most generous plan in the State (supplemented by the State as necessary to provide coverage within each EHB category at § 156.110(a)), among the following:

         1. (A) One of the selecting State's 10 base-benchmark plan options established at § 156.100, and available for the selecting State's selection for the 2017 plan year; or

         2. (B) The largest health insurance plan by enrollment within one of the five largest large group health insurance products by enrollment in the State, as product and plan are defined at § 144.103 of this subchapter, provided that:

            (1) The product has at least 10 percent of the total enrollment of the five largest large group health insurance products in the State;

            (2) The plan provides minimum value, as defined under § 156.145;

            (3) The benefits are not excepted benefits, as established under § 146.145(b), and § 148.220 of this subchapter; and

            (4) The benefits in the plan are from a plan year beginning after December 31, 2013.

      3. (iii) Not have benefits unduly weighted towards any of the categories of benefits at § 156.110(a);
      4. (iv) Provide benefits for diverse segments of the population, including women, children, persons with disabilities, and other groups; and
      5. (v) Not include discriminatory benefit designs that contravene the non-discrimination standards defined in § 156.125.
3. (c) The State must provide reasonable public notice and an opportunity for public comment on the State's selection of an EHB-benchmark plan that includes posting a notice on its opportunity for public comment with associated information on a relevant State website.

4. (d) A State must notify HHS of the selection of a new EHB-benchmark plan by the first Wednesday in May of the year that is 2 years before the effective date of the new EHB-benchmark plan.

   1. (1) If the State does not make a selection by the first Wednesday in May of the year that is 2 years before the effective date of the new EHB-benchmark plan, or its benchmark plan selection does not meet the requirements of this section and section 1302 of the ACA, the State's EHB-benchmark plan for the applicable plan year will be that State's EHB-benchmark plan applicable for the prior year.
   2. (2) [Reserved]

5. (e) A State changing its EHB-benchmark plan under this section must submit documents in a format and manner specified by HHS by the first Wednesday in May of the year that is 2 years before the effective date of the new EHB-benchmark plan. These must include:

   1. (1) A document confirming that the State's EHB-benchmark plan definition complies with the requirements under paragraphs (a), (b) and (c) of this section, including information on which selection option under paragraph (a) of this section the State is using, and whether the State is using another State's EHB-benchmark plan;
   2. (2) An actuarial certification and an associated actuarial report from an actuary, who is a member of the American Academy of Actuaries, in accordance with generally accepted actuarial principles and methodologies, that affirms that the State's EHB-benchmark plan complies with the applicable scope of benefits requirements at paragraph (b)(2) of this section.
   3. (3) The State's EHB-benchmark plan document that reflects the benefits and limitations, including medical management requirements, a schedule of benefits and, if the State is changing the number of prescription drugs pursuant to § 156.122(a)(1)(ii), a formulary drug list in a format and manner specified by HHS; and
   4. (4) Other documentation specified by HHS, which is necessary to operationalize the State's EHB-benchmark plan.

[83 FR 17068, Apr. 17, 2018, as amended at 85 FR 29261, May 14, 2020; 87 FR 27390, May 6, 2022; 89 FR 26424, Apr. 15, 2024; 89 FR 85431, Oct. 28, 2024]