National Consumers League Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Jan. 29 -- Jeanette Contreras, director of health policy at the National Consumers League, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "HHS Notice of Benefit and Payment Parameters for 2023". The comment was written and posted on Jan. 27, 2022:

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The National Consumers League is America's pioneering consumer advocacy organization founded in 1899 by women social reformers. Early in its history, the League was a vocal advocate for national health insurance, social security legislation for the elderly and disabled, and the establishment of Medicare and Medicaid. We appreciate the opportunity to provide public comment on behalf of consumers and in support of increased access to health care for all.

We are pleased to see that HHS has reinstated the consumer protections outlined in Section 1557 of the Affordable Care Act, which prohibits Marketplaces, brokers and other health insurer issuers from discrimination based on sexual orientation and gender. The National Consumers League applauds this as an important step toward fulfilling the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

We are however disappointed that the proposed 2023 NBPP rule does not include any reference to copay accumulator adjustment policies, which financially benefit insurance issuers and pharmacy benefit managers while making crucial treatments unaffordable for patients. We strongly urge you to address this issue in the final rule by requiring that insurers count all copayments made by or on behalf of an enrollee toward the enrollee's annual deductible and out-of-pocket limit.

Many patients rely on copay assistance to afford and access their prescribed medications and manage their health when no other options exist for their condition. Increasingly, health plans are instituting "copay accumulator" programs, which do not count the value of copay assistance towards your out-of-pocket responsibility, often leading to exorbitant unexpected OOP costs in the middle of the plan year once the copay assistance has run out. Separate studies conducted by the Centers for Disease Control and Prevention (CDC) and IQVIA show that OOP can contribute substantially to reduced adherence or to patients not taking their medication altogether.

Through our Script Your Future campaign, the National Consumers League encourages patients to pledge to take their medication and adhere to their treatment plans as an important step toward a longer healthier life. The campaign supports outreach and education efforts to help consumers manage health problems such as diabetes, COPD, asthma, high blood pressure or high cholesterol. We have long advocated for increasing medication adherence as a way to address health disparities and improve health outcomes for patients with chronic conditions. It is important to consider the effects of these copay accumulator policies on health disparities. Having higher prescription drug costs affects minority communities, who are more likely to have higher rates of chronic disease. About 45% of the U.S. population is expected to have one or more chronic diseases, and of this population, racial and ethnic minorities are 1.5 to 2.0 times more likely than whites to have most of the major chronic diseases. These diseases include asthma, diabetes, obesity, hypertension, and mental illness. Higher OOP are more likely to deter people from these communities to adhere to their medication/treatment plans, which will inevitably lead to poorer health outcomes. Increasing the cost of accessing medications will further exacerbate the barriers that already exist in minority communities, and worsen health disparities.

Accumulator adjustment policies are especially harmful to patients with high-deductible health plans. Consumers with limited means may choose high-deductible health plans (HDHPs) because of the low premiums, but they do not realize the weight of the overall out-of-pocket (OOP) costs until they have exhausted their copay assistance. Additionally, we know that the vast majority of patients who depend on copay assistance have no generic options for their treatment.

There is wide, bipartisan consensus amongst patients and caregivers on the need for the federal action to require health insurers to count the value of copay assistance towards patients' out-of-pocket costs. In the 2020 NBPP, CMS restricted the use of copay accumulator adjustment policies, allowing them only in cases where an enrollee used manufacturer copay assistance for a brand drug when a medically equivalent generic is available. However, HHS reversed course in the 2021 NBPP, allowing issuers to disregard any manufacturer copay assistance when determining whether an enrollee has met their annual deductible and/or out-of-pocket limit.

We are also concerned that health insurers are manipulating the "Essential Health Benefits" provision of the ACA at the expense of patients and the prescription medications they rely on to manage their health. The EHB provision in the Affordable Care Act (ACA) ensures that health plans cover a set of 10 categories of essential healthcare items and services, including prescription drugs. Some plans, however, have applied a loose interpretation by defining some prescription drugs as "non-essential" - although the law explicitly includes all prescription drugs as one of the 10 essential categories. When drugs are deemed "non-essential," the patient's insurer will not count any cost-sharing toward the patient's deductible and out-of-pocket maximum, even when they are lifesaving or medically necessary.

As consumer advocates, we strongly urge you to require that insurers count all copayments made by or on behalf of an enrollee toward the enrollee's annual deductible and out-of-pocket limit. Copay accumulator programs are counterproductive because if patients do not take their medications as directed, this will result in higher costs in other parts of the healthcare system and further exacerbation of health disparities. Therefore, in order to increase medication adherence and ensure access to necessary treatment in minority communities, it is critical to ensure that OOP costs are not increased through these copay accumulator policies.

Sincerely,

Jeanette Contreras, MPP

Director of Health Policy

National Consumers League

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The proposed rule can be viewed at: https://www.regulations.gov/document/CMS-2021-0196-0001

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