By Consumers For Quality Care, on December 30, 2020
December 30, 2020
Administrator, Centers for Medicare & Medicaid Services
Hubert H. Humphrey Building
200 Independence Avenue, S.W., Room 445-G
Washington, D.C. 20201
David J. Kautter
Assistant Secretary for Tax Policy
U.S. Department of the Treasury
1500 Pennsylvania Avenue
Washington, D.C. 20220
RE: Patient Protection and Affordable Care Act; CMS Notice of Benefit and Payment Parameters for 2022 and Pharmacy Benefit Manager Standards
Dear Administrator Verma and Assistant Secretary Kautter:
Consumers for Quality Care (CQC), a coalition of advocates and former policy makers working to provide a voice for patients in the health care debate as they demand better care, appreciates the opportunity to provide comments on the Centers for Medicare and Medicaid Services (CMS) proposed rule on the plan year 2022 Notice of Benefit and Payment Parameters (NBPP). CQC is concerned that several of the provisions in this proposed rule will harm patient access to high quality, affordable health care. We are committed to ensuring patients and their right to affordable, high-quality care remains at the forefront in the development of health care policies and regulations and it is with this goal in mind that we submit the following comments.
Standards for Direct Enrollment Entities and for Third Parties to Perform Audits of Direct Enrollment Entities (§155.221)
Under the proposed rule, CMS would add §155.221(j) to establish a process for states to elect a new Enhanced Direct Enrollment (EDE) option in which they can request to allow private sector entities to operate enrollment pathways. In this scenario, private entities would operate the enrollment pathways where consumers would shop, select a plan, and enroll in coverage.
This proposal follows the Centers for Medicare & Medicaid Services’ (CMS) approval of Georgia’s Section 1332 waiver request to eliminate HealthCare.gov and instead require people to use private insurance companies and brokers to compare plans, apply for financial assistance, and enroll in coverage. Allowing Direct Enrollment (DE) entities, such as non-exchange web-brokers, to display non-ACA compliant plans alongside Qualified Health Plans (QHPs) could lead to more consumers choosing non-ACA compliant plans like barebones short-term, limited duration insurance plans (STLDIs), which offer scant benefits. For example, these plans are not guaranteed to cover essential health benefits, such as pregnancy, childbirth, and mental health services, and often do not include prescription drug coverage. When using a DE, individuals who may intend to enroll in a QHP may unintentionally sign up for non-QHP coverage and be left with an inadequate plan.
Furthermore, we are concerned that allowing states to opt-out of Healthcare.gov or a state-maintained online exchange platform will increase the number of uninsured Americans. EDE and DE entities are not enrollment substitutes for HealthCare.gov and existing, high-functioning state-based exchanges. At present, EDE and DE entities – which have functioned alongside Exchanges for years – represent just one-third of all enrollments in the federally facilitated exchange (FFE).
Under this proposal, Exchanges would still be responsible for conducting Medicaid and Children’s Health Insurance Program (CHIP) eligibility determinations, but individuals who do not know they are eligible for these services may not enroll if the primary consumer-facing websites are DE websites.
A proposal to allow states to eliminate HealthCare.gov in favor of an EDE or DE pathway is dangerous and ill-advised, particularly in the midst of a nationwide health crisis.
Section 1332 Application Procedures (31 CFR 33.108 and 45 CFR 155.1308), Monitoring and Compliance (31 CFR 33.120 and 45 CFR 155.1320), and Periodic Evaluation Requirements (31 CFR 33.128 and 45 CFR 155.1328)
Under the proposed rule, CMS seeks to “provide states with consistency and predictability” by codifying into regulation a guidance document from 2018 concerning how CMS will apply Section 1332 of the ACA to determine whether applications for Section 1332 waivers will be approved. While CMS is of the view that this proposal will help to increase state innovation, leading to more affordable health coverage for individuals and families in states that choose to implement a Section 1332 waiver, we strongly disagree.
We are concerned that this proposal will have a damaging effect on affordability and access to care and undermine patient protections by allowing junk insurance plans – such as short-term limited duration insurance (STLDI) plans – to count toward a state’s total number of insured residents, by allowing analysis to focus on access to coverage as opposed to actual coverage, by reversing the requirement that the waiver cannot harm specific sub-populations, and by allowing states to enact a waiver without legislation.
ACA guardrails work to protect patients, but this proposal opens the door for states to erode the individual market by bolstering availability of non-ACA compliant plans (such as STLDIs). CQC urges CMS not to finalize the proposal to incorporate 2018 guidance on Section 1332 waivers into the NBPP regulation.
Maximum Annual Limitation on Cost Sharing (§ 156.130(d))
The proposed rule continues the Trump Administration’s 2019 harmful change in the formula used to calculate the maximum annual limit on consumers’ total out-of-pocket costs, which applies to both marketplace and employer plans. Under the proposed rule, the maximum annual limit on cost sharing will increase from $8,550 to $9,100 (self only) and $17,100 to $18,200 (other than self only). CCQ strongly urges CMS to reverse the 2019 formula change and not to include this formula in the final rule.
Special Enrollment Periods (§ 155.420)
CQC supports CMS’ proposals to create three new special enrollment periods (SEPs) for individuals to enroll in Marketplace coverage.
The proposed flexibility to allow current Exchange enrollees and their dependents to enroll in a new QHP of a lower metal level if they qualify for a special enrollment period due to becoming newly ineligible for an Advanced Premium Tax Credit (APTC) may help impacted enrollees’ ability to maintain continuous coverage for themselves and for their dependents.
The proposal to allow individuals who did not receive timely notice of an SEP triggering event to select a new plan within 60 days of the date he or she knew of the event also provides further needed protection for consumers, particularly at a time when many are losing their jobs during the pandemic. To that end, we also support the proposal that complete cessation of employer contributions for COBRA continuation coverage would serve as triggering event for an SEP.
CQC supports continuous coverage during the COVID-19 pandemic and we believe these three SEPs are critical to allowing individuals to maintain their coverage. We suggest CMS implement these changes earlier than their 2022 effective dates.
Thank you for the opportunity to comment on the Notice of Benefit and Payment Parameters for plan year 2022 proposed rule.
Finally, CQC was disappointed that the 2021 Notice of Benefit and Payment Parameters (NBPP) allows insurers to bar drug manufacturer coupons that consumers often use to lower their drug costs at the pharmacy counter from counting toward their annual cost-sharing limit. We remain concerned about co-pay accumulator adjustment programs and their negative impacts on patients, especially the chronically ill, and would like to see this rule rescinded.
Consumers for Quality Care