TakeAction Minnesota Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

Targeted News Service

WASHINGTON, Aug. 4 -- Kenza Hadj-Moussa, director of public affairs at TakeAction Minnesota, St. Paul, 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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TakeAction Minnesota 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 (UPP Rule).

TakeAction Minnesota is a multi-racial people's organization building power for a government and economy that works for all of us. We and our partners have been on the frontlines of fighting to grow and sustain access to comprehensive, equitable health care in Minnesota, and we led the grassroots campaign to expand Medicaid and establish the country's first Basic Health Plan. We believe everyone should have access to quality, affordable, culturally appropriate health care, no exceptions.

Below are our comments on the proposed rule from the perspective of equitable access to health care for all.

Repeal of the separate billing requirement for abortion services

We strongly support the proposed rule's repeal of the separate-billing regulation for abortion services. The separate-billing requirement discourages insurers from offering abortion coverage, and creates a barrier to consumers enrolling in and receiving such coverage. The prior policy finalized in the preamble of the 2016 payment notice, under which QHP issuers offering coverage of abortion services for which federal funding is prohibited have flexibility in selecting a method to comply with the separate-payment requirement under section 1303 of the Affordable Care Act (ACA), is still unduly burdensome, however it is preferable to the separate-billing regulation.

Interpretation of Deficit Neutrality Guardrail for Section 1332 Waivers

We would strongly urge CMS to reconsider the proposed rule's interpretation of federal deficit neutrality for Section 1332 waivers.

Section 1332 of the ACA permits states to apply for a waiver to pursue innovative strategies for providing access to high value, affordable coverage. Under the ACA, the Secretaries of HHS and Treasury may approve a waiver only if they determine that four statutory guardrails have been met. One of these guardrails is that the waiver proposal will not increase the federal deficit. Federal guidance issued in October 2018 provided more information about interpretation of the 1332 guardrails. Interpretation of Section 1332 guardrails was also addressed in part 1 of the 2022 Payment Notice final rule. This proposed rule addresses this statutory guardrail again.

We applaud the clear statements made in the proposed rule about the Departments' support for coverage expansion through Section 1332. The proposed rule states:

Through section 1332 waivers, the Departments aim to assist states with developing health insurance markets that expand coverage, lower costs, and make high-quality health care accessible for every American. (emphasis added)

We also commend the Departments for their consideration of guidance from two recent and highly relevant Executive Orders./1

Upon review of these EOs, the Departments state that this proposed rule is:

...designed to align with the Administration's commitment to protect and expand Americans' access to high quality, comprehensive and affordable health care coverage and to ensure that systemic barriers to opportunities and benefits for people of color and other underserved groups are not perpetuated. (emphasis added)

However, the subsequent interpretation of deficit neutrality within the proposed rule contradicts the Departments' stated goals, as well as the intent of the Affordable Care Act. The proposed interpretation of federal deficit neutrality is overly strict. A state that pursues a Section 1332 waiver that successfully results in an increase in ACA eligible enrollment would fail to meet this deficit neutrality test because the increase in enrollment would increase the federal deficit. This interpretation creates a harmful disincentive for states to pursue promising innovations in health coverage under Section 1332. It runs counter to the intent of the Affordable Care Act, which is to assure coverage to all ACA eligible Americans. And, it contradicts the Departments' stated goals to use Section 1332 to promote innovations - including those to expand coverage.

We would strongly urge the Departments to instead use full ACA enrollment as the baseline for evaluation of federal deficit neutrality. States who wish to pursue a Section 1332 waiver should estimate the impact on the federal budget of the waiver scenario compared to full ACA enrollment in their state. The Departments should assess the impact on the federal budget based on the same scenarios - Section 1332 waiver implementation vs full ACA enrollment. Any other comparison fails to reflect the true intent of the Affordable Care Act, and fails to provide states with the flexibility to pursue innovative options their residents need.

Achieving full Affordable Care Act enrollment should be a shared policy goal for both federal and state governments. We would strongly urge the Departments to reconsider this harmful and restrictive interpretation of deficit neutrality, and instead interpret this guardrail in a way that aligns more fully with the intent of the Affordable Care Act.

Thank you for your consideration of these comments.

Sincerely,

Kenza Hadj-Moussa

Director of Public Affairs

TakeAction Minnesota

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Footnote:

1/ On January 20 2021, President Biden issued Executive Order 13985 -"On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government." This EO calls for centering equity across all federal agency decision-making, including those agencies that oversee the Affordable Care Act. On January 28, 2021, President Biden issued E.O. 14009 "Strengthening Medicaid and the Affordable Care Act." This Executive Order directed agencies to "look at demonstrations and waivers, as well as demonstration and waiver policies that may reduce coverage under or otherwise undermine Medicaid or the ACA."

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

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