Pennsylvania Health Access Network Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Dec. 29 -- Ann Bacharach, senior consultant at the Pennsylvania Health Access Network, Philadelphia, 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 posted on Dec. 28, 2020:

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Pennsylvania Health Access Network (PHAN) is Pennsylvania's only statewide consumer-driven organization working to expand and protect access to high-quality, equitable, affordable healthcare for all Pennsylvanians.

Since 2007, PHAN has brought together health care consumers and community organizations across the state to advocate for expanded access to health care in Pennsylvania. To achieve this, PHAN blends coalition-building and policy advocacy with our unique model of community health organizing that focuses on supporting and empowering consumers to get the treatment they need and become advocates for better healthcare in their local communities and statewide.

Since the inception of the federal Marketplace and now through the state-run marketplace, PHAN has provided application assistance for Medicaid, CHIP and the federal and state marketplace plans initially through its Navigator grant and more recently through Certified Application Assisters.

We write today to express our concerns regarding the critical changes proposed by the HHS Notice of Benefits and Payment Parameters for 2022, CMS-9914-P.

Allowing States to Privatize Marketplaces 155.221 (j)

Enrolling in health coverage is hard.

Most consumers are unfamiliar with choosing insurance plans. They can be easily overwhelmed by the array of choices, networks, types of plans, out of pocket costs, available subsidies, and annual premiums. Consumers need reliable, informed, and unbiased assistance in navigating the choices available to them and the actual application and enrollment processes.

PHAN has assisted countless individuals through this process and has found that consumers are reassured that we do not represent any insurance company, that we do not receive any payments for enrolling consumers into specific plans and that we are trained and certified to federal and state standards. Informing consumers of their options provides them with peace of mind during a challenging task.

For 2020, Pennsylvania has moved to a state-run marketplace but remains affected by the rules set forth by HHS. We are concerned that the proposed changes will undermine our effectiveness and jeopardize fully informed consumer choice.

The official ACA marketplaces serve several critical functions that support consumer choice:

* They are fully integrated with the various federal and/or state agency systems needed to determine subsidy eligibility, legal residency, etc. that allow enrollees to receive subsidies.

* They offer a one-stop shop for consumers to compare and contrast all ACA-compliant polices without any undue bias towards or against any particular carrier or plan.

* As the official source for ACA enrollment, they offer peace of mind for consumers to know that they won't be subjected to "junk" plans or outright scams.

* They offer a "no wrong door" solution for those who turn out to be eligible for Medicaid, CHIP or other public programs instead of having to start all over again from scratch.

Properly regulated Direct Enrollment entities may be allowed to operate in addition to the official ACA marketplaces. However, allowing them to completely replace the federal exchange altogether is highly problematic.

Since the first Open Enrollment Period, technological advances have made it easier for Direct Enrollment entities (DEs) to utilize the federal system to assess eligibility for subsidies and become Enhanced Direct Enrollment (EDEs), removing much of the first item above. However, the other three critical functions would be jeopardized by this change.

This proposed rule would allow any state to completely undermine all four of these functions. It would cause tremendous confusion among consumers as to which websites and brokerages they could trust. It also creates the strong possibility that people eligible for Medicaid would be incorrectly and unethically pushed towards private plans they can't afford or to be abandoned altogether by brokers who know they won't receive a commission. It could also result in people being pressured into enrolling in short-term and other non-ACA compliant policies that do not provide adequate coverage but return a significant commission to the broker.

Finally, many enrollees would likely never be made aware of their eligibility for APTC and/or CSR subsidies to reduce their premiums and out-ofpocket expenses.

Worse yet, this proposed change would allow states opt out of their participation in an official ACA exchange without any public input while also violating the statutory requirements of PPACA Section 1311(d)(2), requiring an officially authorized marketplace to "make available qualified health plans to qualified individuals." PHAN strongly oppose this provision.

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

When Pennsylvania's then Governor Corbett initially designed a state-based Exchange, it was an open invitation to chaos and confusion. By proposing to allow any entity to create an "exchange", Pennsylvania ran the substantial risk of misleading consumers on their eligibility for subsidies, their eligibility for Medicaid or CHIP, and selling insurance that was little better than a junk policy.

The proposed rules lead in this direction by letting states abandon the use of an official ACA Exchange and promoting the use of non-official Direct Enrollment entities. Some DEs include non-QHP insurance products along with QHP plans, shifting and apples-to-apples comparison to one more like an apples-to-snow tires experience.

Further, the reputation of existing informed and unbiased entities such as PHAN would be tarnished by DE assisters working on commission.

Pennsylvania has a history of bad marketing practices in its early Medicaid managed care system. No one wants to return to a period of false advertising, and sleazy enrollment come-ons such as free zoo tickets or notoriously, a free turkey for Thanksgiving. PHAN strongly opposes this provision.

The current Administration claims that these 3rd-party websites have additional functionality not offered by HealthCare.Gov. The solution to this is to take action to add more functionality to the federal exchange, not to push people away from it towards 3rd-party sites.

Reducing the User Fee 156.50

The proposed rule would reduce the user fee from 3.0% to 2.25% for FFM states and from 2.5% to 1.75% for FF-SBM states. PHAN opposes making these reductions.

Lowering the fees seems highly unwarranted, especially since the current Administration, CMS has eliminated nearly all marketing/outreach for the Federal exchange and Open Enrollment as well as slashing Navigator funding to the bone. Lowering the fees would make restoring these functions almost impossible.

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

Section 1332 of the PPACA requires that waivers must: a) cover at least as many people; b) with coverage at least as comprehensive and affordable as the status quo; and c) that it do both a) and b) without increasing the federal deficit.

In 2018, the current Administration offered a warped version of these criteria, pushing to allow stats to weaken protections for coverage of preexisting conditions, reduce financial assistance for low-income enrollees and increase out-of-pocket costs.

The proposed rule would effectively codify this misinterpretation into official policy. Not only should it not be implemented, the 2018 guidance should be completely abandoned.

In addition to reversing 2018 guidance on 1332 waivers, PHAN would recommend giving states more flexibility when it comes to defining waiver requests as being deficit-neutral. Instead of mandating that all waiver applications be deficit neutral for each and every year, making them so over a 10-year period makes more sense; that's how CBO scores are generally analyzed, after all, and it would also be consistent with requiring states to include a 10-year budget projection in such waiver applications.

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

In 2019, the current Administration modified the formula used to calculate the Premium Adjustment Percentage Index (PAPI) in a way which resulted in less-generous APTC & CSR assistance for subsidized enrollees and a higher maximum for out-of-pocket costs. The end result of this is that millions of enrollees ended up paying hundreds of dollars more in premiums and out-of-pocket costs.

The proposed rule would continue using the modified PAPI. PHAN urges HHS to revert back to the pre-2019 PAPI formula.

Again, our thanks for this opportunity to comment.

Ann Bacharach

Senior Consultant

Pennsylvania Health Access Network

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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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