Nebraska Appleseed Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Dec. 25 -- Molly McCleery, director of health care access program at Nebraska Appleseed, Lincoln, 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. 22, 2020, and posted on Dec. 23, 2020:

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Nebraska Appleseed submits its comments in response to the Department of Health and Human Services' ("HHS") and the Centers for Medicare and Medicaid Services ("CMS") "Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2022" Notice of Proposed Rulemaking ("proposed rule").

Nebraska Appleseed is a nonprofit organization that fights for justice and opportunity for all Nebraskans. A core part of our mission is working to ensure that all Nebraskans have access to quality, affordable health care, including maintaining coverage for the 260,000 Nebraskans enrolled in Medicaid and the more than 80,000 Nebraskans enrolled in Marketplace coverage.

This proposed rule represents an effort to privatize essential Marketplace functions and reduce Marketplace funding. It will result in barriers to access and increased out of pocket costs for consumers. In a pandemic, the goal should be to increase access to quality, affordable insurance coverage, not create barriers. The marketplace has provided coverage to tens of thousands of Nebraskans for several years, and we are concerned that these changes will negatively impact those important coverage gains. Nebraska Appleseed appreciates the opportunity to comment on the proposed rule; however, we have serious concerns about several sections of the proposed rule and believe it should be finalized only with significant changes.

Promoting the Use of Direct Enrollment Among Assisters - 155.220(c)(3)(iii)(A)

We oppose this provision. The proposed rule would privatize core marketplace functions through encouraging enrollment assisters (Navigators and Certified Application Counselors) to use direct enrollment entities. Assisters would be directed to web brokers that sell products other than Qualified Health Plans ("QHP"), and these methods of enrollment are not guaranteed to enroll consumers in plans that do not pay a commission. This proposal will lead to confusion among consumers and assisters and will result in assisters spending time looking across websites to enroll consumers in the correct plan. Nebraska has maintained steady marketplace enrollment, in large part due to high quality enrollment assistance from local groups who are able to provide clear, unbiased information to consumers.

The Administration's rationale for this proposal is that these websites have additional functionality that assisters would find helpful. However, rather than moving to a more privatized model, there should be further investment in HealthCare.gov to expand its functionality.

Privatizing Marketplaces - 155.221(j)

We oppose this provision. CMS's approval of Georgia's Section 1332 waiver in November 2020, which allowed the state to dramatically depart from the plan shopping and enrollment experience contemplated by the Affordable Care Act (ACA), set a dangerous precedent. If implemented, Georgia's plan will result in privatization which would allow consumers only to shop through agents and brokers and become particularly dependent on web brokers. This plan is likely to lead to reduced enrollment in quality coverage due to confusion, the refusal of brokers to refer consumers to plans that do not pay commissions or to Medicaid, and increased encouragement of consumers to enroll in low-quality and short-term plans.

The proposed rule would allow other states to follow Georgia's lead without going through the Section 1332 waiver process. Not only would this privatization be harmful for consumers, it would also deprive the public of the opportunity to comment before a change is made. With such proposals that could impact the coverage and, therefore, the daily lives of thousands of consumers in a state, public input and strong transparency protections are needed.

Additionally, allowing states to privatize the marketplace without a waiver violates the ACA. Under the proposed rule, the state would provide a simple website displaying basic plan information. This site would not include a means to enroll; instead, consumers would be directed to private websites to complete their application for coverage. This violates the ACA's Section 1311(d)(2), which requires the marketplace to "make available qualified health plans to qualified individuals," as consumers could not enroll in QHPs through the state website.

Nebraska Appleseed is seriously concerned about how this proposed rule would impact potential Medicaid enrollees. The coordination between Medicaid and the marketplace and the ACA's "No Wrong Door" requirement are important consumer protections for Medicaid enrollees. We are concerned this rule makes Medicaid less accessible because consumers will no longer be able to easily ascertain whether they may actually be eligible for Medicaid while seeking out marketplace coverage. The rule would eliminate the "one-stop shop" experience that is so important for Medicaid enrollees.

Reducing the User Fee - 156.50

We oppose this provision which would cut the federal marketplace user fee from 3 percent to 2.25 percent and the user fee for state-based marketplaces that use the federal platform from 2.5 percent to 1.75 percent. The marketplace user fee supports essential functions of the marketplace, including the operation and improvement of the HealthCare.gov website, the Marketplace call center, the Navigator program, advertising, and consumer outreach. This reduction will limit the ability to carry out these essential functions.

CMS has, in essence, stopped marketing and outreach activities for marketplace coverage and dramatically reduced funding for Navigators. Nebraska, like other states, has seen a significant decrease in support for Navigators, assisters, and other outreach and enrollment activities. The proposed rule's justification for the user fee cut is that a lower fee would adequately fund current marketplace activities; however, these activities are not sufficient. Organizations doing the important work of informing and helping thousands of Nebraskans sign up for coverage have already been forced to make changes and adapt to reduced funding; this funding cut will only hurt consumers who need information about enrolling in coverage, especially harder to reach populations.

Instead of reducing the user fee, it should be increased to 3.5 percent (the level in effect prior to 2020) to reestablish outreach and enrollment activities and fund continued improvement of Healthcare.gov.

Weakening the 1332 Waiver Protections - 31 CFR Part 33 and 45 CFR Part 155

We oppose this provision. The statutory guardrails for Section 1332 waivers 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. In 2018, the current administration sought to undercut these statutory requirements by releasing a concept paper encouraging states to submit waiver proposals that would weaken protections for people with pre-existing conditions, cut financial assistance for older consumers and those with low incomes, and increase out-of-pocket costs. The proposed rule would codify the 2018 guidance - which contradicts the statutory guardrails -without engaging in the regulatory process. Codifying nonregulatory policy/guidance by reference is both bad policy and a legally suspect practice.

We are concerned about waivers that erode consumer protections and decrease access through increasing costs, especially for consumers with low incomes and the hundreds of thousands of Nebraskans with preexisting conditions. We are also deeply concerned about the precedent that this rulemaking activity would set in allowing legally questionable guidance to be codified into regulation without going through the proper process.

Continuation of a Policy that Raises Premiums and Out-of-Pocket Costs - 156.130(e)

The proposed rule continues the 2019 change in formula used to calculate premium tax credits. The result of this formula change was a cut in financial assistance for millions of people. We strongly urge the reversal of the 2019 formula change.

If continued, the 2019 formula change will be even more harmful in 2022, raising premiums by an estimated 4.7 percent for most subsidized marketplace consumers after accounting for tax credits, about two percent more than this year. This equates to a $360 annual premium increase for a family of four with a household income of $80,000. The 2019 formula change also increases the limit on consumers' total out-of-pocket costs for both marketplace and employer plans, making it $400 more for an individual and $800 more for a family than if the 2019 change were reversed.

Increased costs for consumers will be barriers to accessing care. In a time when access to health care is increasingly important, we should make accessing such care easier, not harder.

Thank you for consideration of these comments.

Sincerely,

Molly McCleery, JD

Health Care Access Program Director

Nebraska Appleseed

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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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