National Immigration Law Center Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Jan. 1 -- Ben D'Avanzo, senior health policy analyst at the National Immigration Law Center, Los Angeles, California, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Patient Protection and Affordable Care Act: HHS Notice of Benefit and Payment Parameters for 2022 and Pharmacy Benefit Manager Standards". The comment was written on Dec. 30, 2020, and posted on Dec. 31, 2020:

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The National Immigration Law Center appreciates the opportunity to submit comments on the 2022 Notice of Benefit and Payment Parameters for 2022 and Pharmacy Benefit Manager Standards; Updates to State Innovation Waiver (Section 1332 Waiver) Implementing Regulations.

Founded in 1979, NILC is an organization exclusively dedicated to defending and advancing the rights and opportunities of low-income immigrants and their families. We believe that all people should have the opportunity to achieve their full human potential - regardless of their race, gender, immigration, and/or economic status. For over 40 years, NILC has focused on issues that affect the well-being and economic security of low-income immigrants: health care and safety net programs; education and training; workers' rights; and federal and state policies affecting immigrants. When necessary, NILC has successfully defended low-income immigrants and their families in litigation against the government to protect their fundamental and constitutional rights. We engage in policy analysis and advocacy, strategic communications, and provide technical assistance to partner organizations across the country.

Thank you for the opportunity to comment on this proposed rule. We have concerns about several proposals in this Notice that could disproportionately harm the health of immigrants.

Direct Enrollment (Sec. 155.205, 155.220, and 155.221)

On November 1, CMS approved a section 1332 waiver submitted by the state of Georgia, conceptualizing for the first time that a major underpinning of the Affordable Care Act, the ability of consumers to compare, shop and enroll in plans in a single website, could be waived. By endorsing this dramatic departure from the plan shopping and enrollment experience currently available to people nationwide through either Healthcare.gov or a state-based marketplace, CMS is causing harm to consumers, particularly those who are low income, Limited English Proficient or who have low health literacy. If implemented, the approved waiver will end Georgia's participation in Healthcare.gov, through which half a million Georgians enroll, and instead privatize the enrollment function, with consumers able to shop only through agents and brokers and particularly dependent on web brokers. This waiver is bound to lead to lower enrollment in comprehensive coverage, through sheer consumer confusion during the transition, brokers' reluctance to refer people to plans that don't pay commissions or to Medicaid, and increased pressure for consumers to enroll in short-term and other sub-par plans.

The proposed rule would allow other states to make the same radical change without even going through the waiver process. This would deprive consumers of a public comment period before such a change is made. Currently, states submitting 1332 waivers must have a 30 day comment period and at least two hearings. For example, Georgia, which would have been allowed to implement its "Georgia Access" program without comments under this proposed rule, received hundreds of comments expressing concern for its waiver that would not have been considered in this new process./1

Brokers and agents' practices vary widely from state to state and allowing a state to unilaterally eliminate a major component of the private health insurance market without the detailed review that a 1332 waiver entails could cause many consumers to go or become uninsured. For example, in some states organizations that assist consumers with health insurance enrollment report that there are few to no brokers or agents who speak languages of predominant immigrant groups, such as Vietnamese in the gulf coast area.

Not only would privatizing the marketplace harm consumers, allowing states to do so without a waiver clearly violates the Affordable Care Act (ACA). Under the rule, the state would provide a rudimentary website that displays basic plan information without a means to enroll, then direct people to private websites to complete the application. This is in violation of the statutory requirement in section 1311(d)(2) of the ACA, which requires a marketplace to "make available qualified health plans to qualified individuals." In general, individuals would not be able to enroll in qualified health plans through the state website.

We are particularly concerned about the implications of abandoning the Healthcare.gov platform, as well as the associated call center, for people who are Limited English Proficient. While Sec. 155.205(c)(2)(i) applies language access standards to web brokers, in practice, it appears that not all Enhanced Direct Enrollment (EDE) entities comply. For example, among EDE entities, VIA Benefits lacks taglines on its website, instead having an English language link to Language Assistance information, while Welltheos and Health Sherpa have no notice of the availability of language services on their homepages. GetInsured has a link to Spanish language assistance, but no links to assistance in other languages on their homepage. Catch has no notices about language assistance, nor any sort of clearly available phone number to contact to receive telephonic interpretation services.

We also oppose further weakening the already far too weak requirements for issuers and web brokers to translate their websites into languages spoken by populations making up to 10 percent of a state's population. There are currently only two states that meet this criteria, California and Texas, and only the later utilizes the federal platform./2

Research shows that language barriers are a major source of health disparities for immigrants./3

Instead of allowing more time for entities covered by this provision to comply, CMS should propose lowering the threshold for website translations to allow more LEP individuals to utilize the platforms.

Reducing the User Fee - (Sec. 156.50)

The proposed rule would cut the federal marketplace user fee by 25 percent, from 3 percent to 2.25 percent and would cut the user fee for state-based marketplaces that use the federal platform from 2.5 percent to 1.75 percent. We oppose this provision which would deprive CMS of the resources to meet its statutory obligations to provide a functioning marketplace and engage in consumer assistance activities.

The marketplace user fee supports critical functions, including the operation and improvement of the Healthcare.gov website, the Marketplace call center, the Navigator program, consumer outreach, and advertising. Immigrants rely on all of these consumer support mechanisms, given the complexity inherent in insurance eligibility and the language barriers they face in even an otherwise simple enrollment process. The proposed rule's rationale for the cut is that the lower user fee would be sufficient to fund current marketplace activities. But current activities are inadequate. Under the current Administration, CMS has virtually ceased marketing and outreach and has slashed funding for Navigators, core marketplace functions funded by user fees. Rather than decreasing the user fee, CMS should increase the fee to 3.5 percent (the level in effect prior to 2020) or higher to increase funding of outreach and enrollment assistance programs and to fund continued improvements to Healthcare.gov, including technological enhancements and improved customer service.

The prior cuts to consumer outreach and assistance have been particularly harmful to immigrants, who often require extensive one on one assistance from navigators to overcome language barriers and to work through complex enrollment situations. The Protecting Immigrant Families Campaign, which NILC co-founded, has tracked immigrant families' increased fear and lack of access to care over the past several years. The Campaign has compiled research which demonstrates that the need for consumer assistance among immigrant families has increased./4

In addition, immigrant families often face data matching issues (DMI), such as identity and immigration status verification while completing the eligibility process for ACA marketplace coverage. As a result, many become or remain uninsured if they are unable to resolve the DMI, and frequently do not even know it existed because they did not receive a notice in their primary language. Increasing the user fee can address DMIs by improving the data hub's capabilities and by funding consumer assistance programs that work with immigrants to ensure their applications are accurate and complete. CMS could further improve the Healthcare.gov technology to allow notices to be sent in the preferred written language a consumer indicates on their application and to allow assisters to track notices of clients they have helped to enroll.

Navigator and Certified Application Counselor Use of Web-Broker Websites-

(155.220(c)(3)(iii)(A))

The proposed rule would also allow Navigators and Certified Application Counselors to use direct enrollment entities instead of Healthcare.gov. We oppose this provision. This additional form of privatization of consumer assistance functions intended to be held by public programs would direct assisters to web brokers that are permitted to sell non-ACA compliant plans, which could confuse both consumers and less experienced assisters. In addition, these entities have no incentive to facilitate enrollment in plans that don't pay them a commission, which could require assisters to undertake a time-consuming hunt across multiple websites to enroll a consumer in the right plan. Non-profit consumer assisters serve a critical role that must be kept distinct from for-profit brokers. CMS fails to provide any evidence or reasoning for why it should adopt this proposal now when it correctly chose to reject it in the 2021 Notice of Benefit and Payment Parameters regulation because assister programs did not want it.

The Administration's justification for the proposal is that these direct enrollment entities have additional functionality that would be useful to assisters. Rather than shifting to a more privatized model, this points to the need for CMS to further invest in Healthcare.gov to expand its functionality for assisters and consumers. For example, Enhanced Direct Enrollment entities have been given special access to allow brokers and agents to see information about their clients, such as pending notices and actions, that Navigators and CACs using Healthcare.gov do not have access to. This creates a problematic imbalance where the populations served by brokers have better service than those served by navigators and assisters. Instead of cutting the user fee, as discussed above, CMS should invest in creating these features and ensuring an even ground for both non-profit and for-profit entities working with consumers, particularly considering the fact that Navigators and CACs serve a distinct and more vulnerable clientele./5

In addition, the impartiality of consumer assistance programs, many of which are community connected, is important for helping consumers to understand when they are working with a trusted entity that has no profit motive in their health insurance choices. This is of particular importance for consumers with low health literacy. As has been documented, some brokers have steered consumers to plans that do not cover the full range of benefits./6

Formula for determining tax credits and premiums 156.130(e)

The proposed rule also continues the Administration's 2019 change in the formula used to calculate premium tax credits, which cut financial assistance for millions of people. If continued, the 2019 formula will have an even greater impact in 2022, raising after-tax credit premiums by an estimated 4.7 percent for most subsidized marketplace consumers (compared to about 2.7 percent this year). That amounts to a $360 annual premium increase for a family of four with $80,000 in income.

The 2019 formula also increases the limit on consumers' total out-of-pocket expenses, which applies to both marketplace and employer plans. In 2022, that limit will be $400 higher for an individual, and $800 higher for families, than if the 2019 formula change were reversed. Nearly a quarter of lawfully present immigrants are currently uninsured./7

Increasing costs will likely cause that number to rise.

We strongly urge you to reverse the 2019 formula change.

Addressing DACA Eligibility - 45 CFR Sec. 152.2

While not raised in the Notice of Proposed Rulemaking, we urge CMS to repeal the provision at Sec. 152.2(8) that excludes recipients of Deferred Action for Childhood Arrivals (DACA) from the definition of lawfully present for the purposes of eligibility for marketplace coverage. This decision arbitrarily excludes DACA recipients from access to health coverage for no principled reason.

Particularly in the context of the pandemic, where lack of access to health insurance can be deadly or increase the likelihood of bankrupting medical bills, it is important to ensure that everyone has access to coverage. DACA recipients pay over $5 billion in federal taxes annually yet are excluded from buying even unsubsidized on-exchange coverage./8

Two in five people eligible for DACA are uninsured. If they were granted access to exchange coverage, they would likely improve the health insurance risk pools, bringing costs down for everyone, because many are young and nearly 70% are in excellent or very good health./9

As we explained in comments to the original Interim Final Rule creating Sec. 152.2(8), the decision to make DACA recipients ineligible increased complexity and confusion among immigrants and likely led to higher costs for all exchange users./10

DACA recipients meet longstanding definitions of lawfully present and there is no rationale for excluding them from other groups granted administrative relief.

Thank you for the consideration of these comments. Please contact Ben D'Avanzo with any questions at [email protected]

Sincerely,

Ben D'Avanzo

Senior Health Policy Analyst

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Footnotes:

1/ Lawrence, Matthew and Haley Gintis, "Concerns Raised by 'Georgia Access' 1332 Waiver Application," Bill of Health at Harvard Law. (September 21, 2020). https://blog.petrieflom.law.harvard.edu/2020/09/21/concerns-georgia-access-1332-waiver/

2/ According to LEP.gov data 13% of the California populations speaks Spanish, while the same is true for 12% of Texans. https://www.lep.gov/maps/lma2015/Final_508

3/ Timmins CL. The impact of language barriers on the health care of Latinos in the United States: a review of the literature and guidelines for practice. J Midwifery Womens Health. 2002 Mar-Apr;47(2):80-96

4/ "Summary of Research at the Intersection of Public Charge and Health," Protecting Immigrant Families. (June 2020). https://protectingimmigrantfamilies.org/wp-content/uploads/2020/06/Public-Charge-and-Health-Literature-Review-2020-06-16.pdf

5/ Pollitz, Karen, Jennifer Tolbert and Ashley Semanskee, "2016 Survey of Health Insurance Marketplace Assister Programs and Brokers," Kaiser Family Foundation. (June 8, 2016). https://www.kff.org/health-reform/report/2016-survey-of-health-insurance-marketplace-assister-programs-and-brokers/

6/ Corlette, Sabrina et al, "The Marketing of Short-Term Health Plans," Georgetown University Health Policy Institute. (January 31, 2019). https://www.rwjf.org/en/library/research/2019/01/the-marketing-of-short-term-health-plans.html

7/ "Health Coverage of Immigrants", Kaiser Family Foundation. (March 18, 2020). https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/

8/ Svajlenka, Nicole Prchal and Philip Wolgin, "What We Know About the Demographic and Economic Impacts of DACA Recipients: Spring 2020 Edition," Center for American Progress. (April 6, 2020). https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economic-impacts-daca-recipients-spring-2020-edition/

9/ "Key Facts on Individuals Eligible for the Deferred Action for Childhood Arrivals (DACA) Program," Kaiser Family Foundation. (Feb 1, 2018). https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-individuals-eligible-for-the-deferred-action-for-childhood-arrivals-daca-program/

10/ "Comments on CMS' Interim Final Rule Changes to Definition of "Lawfully Present" in the Pre-Existing Condition Insurance Plan Program of the Affordable Care Act of 2010," National Immigration Law Center. (October 29, 2012). https://www.nilc.org/wp-content/uploads/2015/12/NILCCommentsonCMS9995IFC2_IFRChangingDefinitionofLawfullyPresentinPCIP_FINAL-formatted.pdf

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0151-0005

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