Colo. Consumer Health Initiative Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Aug. 4 -- Adam Fox, deputy director of the Colorado Consumer Health Initiative, Denver, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Patient Protection and Affordable Care Act: Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule". The comment was written on July 27, 2021, and posted on July 28, 2021:

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Colorado Consumer Health Initiative (CCHI) appreciates the opportunity to comment on the Centers for Medicare & Medicaid Services (CMS) proposed rule - Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond (hereinafter "UPP Rule").

CCHI is a health care advocacy, non-profit organization that represents 500,000 Coloradans. CCHI advances the consumer voice to improve access to health care for all Coloradans by working statewide for progress toward equity, affordability, and quality.

We support many of the proposals in the UPP Rule which will expand enrollment opportunities, reduce the number of uninsured persons, and restore important Affordable Care Act (ACA) programs and protections.

Enrollment Opportunities in Health Care Marketplaces

CMS proposes several changes to improve and expand enrollment opportunities in Marketplace plans. We strongly support these changes, which include extending the open enrollment period and establishing a Special Enrollment Period (SEP) for low-income persons. According to the Congressional Budget Office, more than one-third of people who are uninsured are, in fact, eligible for Medicaid or for premium tax credits (PTCs) in the Marketplace. These strategies will go a long way to reduce the number of people who are uninsured.

Guaranteed Availability of Coverage - Sec. 147.104

CMS says that it is reconsidering its interpretation that persons who owe past due premiums are prohibited from enrolling in coverage until they satisfy arrearages. We strongly support revising this provision. The ACA is clear - an issuer "must accept every employer and individual in the State that applies for such coverage." (42 U.S.C. 300g-1) This policy has created significant hardship for individuals. For example, some consumers regularly paid their premiums but the issuers either failed to match the payment to a particular consumer's account, issued bills that did not match the amount consumers were supposed to pay, and other accounting irregularities that were of no fault of the consumers.

Navigator Program Standards - Sec. 155.210

The UPP Rule would reinstate previous requirements for Navigators to assist consumers in certain post-enrollment activities. In particular, Navigators would be required to help consumers: 1) file appeals on Exchange eligibility determinations; 2) understand basic concepts and rights associated with health coverage (such as explaining complex terms like deductible or coinsurance or helping them navigate drug formularies and provider networks); 3) apply for an exemption to maintaining minimum essential coverage from the exchange; 4) help consumers reconcile APTCs; and 5) find assistance with tax filing.

In our Consumer Assistance Program, which has helped over 1,300 clients in Colorado navigate issues in the health care and insurance system saving them over $3.3 million, we see how important continued support is for consumers on the ground. It is critical for people's health and financial wellbeing to ensure that they understand their coverage, make informed decisions about their care, and have resources to troubleshoot any issues they might encounter.

Evidence also shows that millions of people find the process of applying for and using health insurance overwhelming. Many lack basic health insurance literacy. Navigators can help demystify the complexity of applying for and using health insurance. They can also help reduce health disparities by improving health literacy in rural and underserved communities, including BIPOC communities. Given this, it is vital that Navigators be required not only to help consumers enroll in health coverage, but also be available to assist with post-enrollment activities.

Finally, while we support the proposal to require Navigators to engage in post-enrollment activities, we are concerned that CMS did not propose to restore the requirements to have at least two in-person Navigator organizations in each state and to ensure that at least one of those organizations was a trusted community nonprofit.

Face-to-face assistance is often critical to obtain the trust of applicants and to help walk them through the various components of application, plan selection, resolving data matching inconsistencies, and assisting with appeals. Community entities with a physical presence will better know their communities and be better able to serve them because they likely interact with the target populations on an ongoing basis and are able to build relationships that transcend the application process. In-person assistance is especially critical in rural and underserved communities where people may not have reliable access to a computer or telephone.

As an organization that has stepped up to address the need for post-enrollment navigational support for consumers in Colorado, we see the high demand for these services and strongly believe there should be greater investment and attention to expanding access to them nationwide, particularly for marginalized consumers. Our Consumer Assistance Program was created in 2018 to address increasing requests for direct assistance with medical bills and insurance issues from community members who were familiar with our advocacy for health equity and engagement on ACA implementation. Through our interactions with clients in our Consumer Assistance Program, we have seen the positive impacts that Navigators can have and what our clients miss out on when Navigator programs are underfunded and overextended. For example, interactions with Navigators can help consumers select a plan to maximize savings, including taking advantage of Cost Sharing Reduction (CSR) benefits which many find confusing to understand. We strongly suggest CMS consider reinstating the requirements to have at least two in-person Navigator entities in every state and to ensure that at least one of those entities is a consumer-facing nonprofit.

Direct Enrollment - Sec. 155.221(j)

The UPP Rule would repeal a provision allowing "direct enrollment" exchanges, which would circumvent the ACA Marketplaces and allow insurers and web brokers to operate enrollment websites through which consumers could apply for and enroll in coverage. We strongly support repealing this provision.

As CMS notes, direct enrollment lacks key consumer protections and is contrary to the ACA's "No Wrong Door" policy. Moreover, as a recent report from the Leukemia and Lymphoma Society and approximately thirty other patient advocacy organizations exposed, web brokers often steer consumers to Short Term Limited Duration Plans, Health Sharing Ministries, and other health plans and insurance-like products that do not comply with key ACA protections including Essential Health Benefits.

Colorado is one of the ten states with the highest rates of participation in health care sharing arrangements. At CCHI, we have encountered consumers who have thought they were purchasing health insurance until they end up with bills for denied claims and no recourse due to the lack of consumer protections for these unregulated plans. While work beyond the scope of this rule needs to be done to address this growing issue across the country, disallowing direct enrollment exchanges is one positive step towards ensuring that consumers are able to make informed decisions without undue pressure from financially motivated stakeholders to get the coverage they need for themselves and their families.

Expanded open enrollment - Sec. 155.410

CMS proposes to extend the annual open enrollment period for the Federally Facilitated Marketplaces (FFMs) to January 15. We support this change and urge CMS to extend the deadline even further. As states' experience has shown, extending open enrollment greatly benefits consumers and helps reduce the number of uninsured. CMS should follow the lead of California and New Jersey and extend open enrollment to January 31 in the FFMs, and require coverage to begin February 1. Applying for health insurance and selecting a plan can be challenging and has a significant impact on someone's finances and health. For many consumers, buying health insurance is one of the most complicated, and consequential, financial decisions they make, second only to buying a car or a house. Requiring people to make these important and complicated decisions in just a few weeks during the holiday season makes it more difficult to get the best coverage and for navigators to adequately support consumers through enrollment.

Extending open enrollment to January 31 would be especially valuable for those who are auto-reenrolled into coverage, but receive a lower subsidy than the prior year because the cost of their benchmark plan has dropped. These enrollees may have to contribute a higher level of premium towards coverage. Because these consumers are auto-reenrolled, they may not be aware of their higher premium contribution until they receive their bill in early January.

In Colorado, we have found the longer open enrollment period is vital to ensure our navigators/assisters have enough time and appointments available to help Coloradans who encounter barriers in enrollment. Additionally, extending the open enrollment period will better parallel the open enrollment periods in Colorado and other states with state-based marketplaces.

Giving people more time to enroll means that more people can enroll in health coverage and select the plan that is best for them. Extending open enrollment will greatly benefit consumers and help reduce the number of uninsured.

Special enrollment period for low income persons - Sec. 155.420

The UPP Rule would establish a new SEP for individuals and dependents who are eligible for advance premium tax credits (APTCs) and whose household income is under 150 percent of the federal poverty level (FPL). The low-income SEP would allow those eligible to enroll at any time during the year based on their income or upon learning of their eligibility. We strongly support this proposal, but encourage CMS to expand eligibility to at least 250 percent of the FPL. Individuals between 138% and 250% FPL are more than twice as likely to be uninsured than the general population in Colorado--there are significant barriers for individuals and families under 250% FPL in our state and across the nation and the proposed SEP policy should be expanded to reflect this reality.

SEPs that are currently available can be so overly complex and restrictive that few of the people who qualify actually use SEPs. A new, year-round SEP for low income people would reduce the number of uninsured. Some states already provide year-round enrollment to low-income people without any significant signs of adverse selection or market disruption. In Massachusetts, people with incomes up to 300 percent of poverty (about $36,000 for an individual or $75,000 for a family of four) can generally enroll in marketplace coverage year-round.

Data from 2020 state COVID-related SEPs in Colorado, the District of Columbia, and Massachusetts show that opening enrollment and reducing barriers to SEPs may actually attract younger and subsequently healthier enrollees.

Easing barriers to SEPs has been an important strategy to counter COVID-19. According to CMS, more than 1.5 million people signed up for coverage via HealthCare.gov between February 15 - June 30 under the COVID-19 SEP. We fully expect the final data to show that adverse selection was not a factor influencing enrollment, particularly those who qualify for $0 premium coverage.

Despite ongoing outreach efforts in Colorado by our SBM, surveys continue to indicate there are thousands of Coloradans who likely qualify for APTCs, but do not realize it. Allowing more low-income consumers to enroll through an SEP year round would help our state and network of navigators reach these populations for enrollment.

Double billing and segregation of funds for abortion services - Sec. 156.28

The UPP Rule would rescind the 2019 Trump administration "double billing" rule, which requires issuers to send a separate premium bills on abortion services to consumers and to instruct consumers to pay a separate bill in a separate transaction. The double billing rule would have impeded access to abortion care, with devastating results for individuals and families. We strongly support rescinding this rule.

Abortion is health care -- a common and safe medical intervention, and a legally and constitutionally protected form of medical care in the United States. For many, coverage for abortion care means the difference between getting the health care they need when they need it and being denied that care. Individuals denied abortions are more likely to experience eclampsia, death, and other serious medical complications, remain in relationships where interpersonal violence is present, and suffer anxiety after being denied an abortion. We support the repeal of the 2019 changes to Sec. 156.280.

User Fee Rates for the 2022 Benefit Year - Sec. 156.50

In the UPP Rule, CMS proposes a modest increase to user fees - 2.75 percent for FFMs. The Marketplace user fee ― a fixed percentage of premium revenue paid by insurers ― supports critical functions, including the operation and improvement of the HealthCare.gov website, the Marketplace call center, the Navigator program, consumer outreach, and advertising. Under the previous administration, CMS slashed user fees and virtually ceased marketing and outreach and slashed funding for Navigators, core marketplace functions funded by user fees.

While Colorado benefits from having our state-based marketplace and our own outreach and marketing, federal outreach and advertising did provide some benefit in our state because of the overlap of media markets in the early years of ACA enrollment.

Additionally, fully funding the call center and navigator programs are vital for consumer access to information.

User fees are essential to operate the Marketplace, improve the consumer interface, provide consumer support, fund outreach, and overall ensure a smooth enrollment system for consumers. These include enhancing the consumer experience through improvements to the application and HealthCare.gov, as well as addressing other behind-the-scenes issues. We believe CMS should increase user fees and make much needed fixes and enhancements to Marketplace enrollment.

Network Adequacy - Sec. 156.230

CMS requests comments and input regarding how the federal government should approach network adequacy reviews. Reviews should include whether the provider network is sufficient to deliver culturally competent, anti-biased care, and with providers fully accessible to persons with disabilities. One enforcement tool would be to review the number of out-of-network claims denials and assess plans with high numbers of out-of-network denials for their size. High rates of denials should prompt further review of those plans' networks. Further, states and CMS should conduct some direct tests for provider availability, discussed in the 2014 HHS Office of the Inspector General Report highlighting the importance of direct testing of Medicaid provider networks.

In our own testing of provider network accuracy and adequacy, we have found high levels of errors that could lead to consumer confusion, difficulty accessing care, or consumers being hit by surprise out-of-network charges. This has included out-of-date provider information posted on the plans' network (sometimes more than a year out of date), providers being listed who are deceased, or the contact information given not corresponding to a provider at all. It is important to set clear standards for provider network accuracy as well as testing those networks for adequacy and the ability to access care in a timely manner.

Restoration of Section 1332 Waiver Guardrails - Secs. 33.108-33.132, 155.1308, 155.1318

The UPP Rule would reverse attempts to undermine important guardrails governing Section 1332 waivers. The ACA's 1332 guardrails require that waivers cover at least as many people, with coverage at least as comprehensive and affordable as would be the case without the waiver, without increasing the federal deficit. We support the proposed changes.

Specifically with regard to Sec. 155.1318, the UPP Rule proposes to allow states to avoid adequate public notice and opportunity to comment for Section 1332 waivers in certain "emergent situations" such as natural disasters, public health emergencies, and other situations. Requirements for Section 1332 public notice and opportunity for a "meaningful level of public input" are statutory, designed to ensure public input and transparency in state efforts to transform their health delivery systems. Section 1332 waivers are designed to implement health system innovations, not to respond to disasters and other emergencies. Congress has provided other authority to respond to natural disasters and other emergencies. We urge CMS to withdraw this proposal.

As a consumer advocacy organization, we rely on public comment periods with sufficient notice in order to understand and respond to changes in policy that affect consumers and inform our membership of the implications of such changes. Protecting public notice and opportunities for comment is imperative to maintaining transparency and accountability for our state in the implementation of any innovation through a Section 1332 waiver. Consumers and consumer advocates need to have an avenue to engage in order to ensure our state--and others--continue to advance health equity and protect low and moderate-income consumers.

Conclusion

We have included citations and direct links to research and other materials. We request that the full text of material cited, along with the full text of our comment, be considered part of the formal administrative record for purposes of the Administrative Procedure Act. If CMS is not planning to consider these citations part of the record as we have requested here, we ask that you notify us and provide us an opportunity to submit copies of the studies into the record.

However, we object to the truncated 30-day comment period. We also strongly object to tolling the comment period from the posting of the public inspection version, and not the actual Notice of Proposed Rulemaking published in the Federal Register. This practice undermines the intent and purpose of the Administrative Procedure Act and must not become the norm in rulemaking.

Thank you for the opportunity to comment on this important issue. If you have further questions, please contact Adam Fox at Colorado Consumer Health Initiative, [email protected].

Sincerely,

Adam Fox

Deputy Director

Colorado Consumer Health Initiative

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The proposed rule can be viewed at: https://www.regulations.gov/document/CMS-2021-0113-0002

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