Today, the NC AIDS Action Network submitted comments in partnership with Duke Health Justice Clinic and the Southern HIV/AIDS Strategy Initiative to the Centers for Medicare and Medicaid Services related to proposed changes to the federal marketplaces that will negatively undermine the viability of the insurance marketplaces and impact the quality of healthcare for those living with HIV. Our complete comments are below.
March 7, 2017
Submitted via the Federal eRulemaking Portal
Centers for Medicare & Medicaid Services
Department of Health and Human Services
P.O. Box 8016,
Baltimore, MD 21244-8016
Re: RIN 0938-AT14 Patient Protection and Affordable Care Act: Market Stabilization Proposed Rules
To Whom It May Concern:
We are writing on behalf of the Duke Law School Health Justice Clinic, the Southern HIV/AIDS Strategy Initiative (SASI), and North Carolina AIDS Action Network (NCAAN). The Duke Health Justice Clinic is a project of Duke School of Law and has been providing free legal assistance to low-income people living with HIV/AIDS (PLWH) since 1996, as well as policy research and advocacy on issues related to HIV, including access to healthcare.
The Southern HIV/AIDS Strategy Initiative focuses its research-based advocacy on increasing resources for the HIV epidemic in the Deep South.
NCAAN is a statewide advocacy organization that aims to improve the lives of people living with HIV/AIDS and affected communities through outreach, public education, policy advocacy, and community-building to increase visibility and mutual support of people living with HIV/AIDS throughout the state.
We appreciate the opportunity to comment on the Proposed Market Stabilization Rules. We begin by noting the barrier to public input posed by the length of the comment period. With only 20 days to review and comment on the rules, consumers and other stakeholders are greatly disadvantaged in providing a meaningful response to the Secretary’s proposed rule changes. We recognize the desire to offer some support to issuers in an expedited fashion, given the timeline for submitting plans. But we believe the Secretary should adhere to the 30 day minimum comment period prescribed under the Administrative Procedures Act.
People living with HIV, like many others with serious chronic diseases, depend on meaningful access to affordable care so that they may live healthy, productive lives. The successful treatment of HIV is expensive, because of the need for consistent, lifetime adherence to an expensive medication regimen, along with regular monitoring by an experienced provider. The monthly medication cost alone exceeds $2000. However, when HIV is properly managed, not only do people living with the disease live well, but equally importantly, their virus is suppressed to the point that they are essentially unable to transmit the virus. This is only possible with adequate access to care and insurance coverage. Thus a robust Marketplace is critical to individuals and public health.
Though our comments largely focus on impacts to those living with HIV, it’s important to note that a robust marketplace supports HIV prevention efforts by linking individuals to preventive services like testing for sexually transmitted infections and Pre-exposure prophylaxis (PrEP).
The Marketplaces are an important source of coverage for many people living with HIV. We agree that it is important to strengthen the Marketplaces in 2018 and beyond. However, we have concerns that some of the proposed rules changes will impede consumer access to coverage and may not have the intended effect of expanding enrollment and making the Marketplace more attractive to issuers. We believe that many of the proposed changes are offered without any evidence that they will have the intended effect of expanding enrollment and improving financial viability for issuers. We have particular concerns about the following changes:
- cutting the open enrollment period in half at a time of great uncertainty about the ACA, thus likely reducing the number of consumers who enroll;
- restricting special enrollment periods and increasing paperwork for consumers, which may have the unintended effect of depressing SEP enrollment of younger, healthier consumers;
- restricting guaranteed availability by allowing issuers to use enrollment as a debt collection device;
- expanding the de minimis variation in actuarial value of plans, thus potentially increasing cost-sharing and deductibles and making plans less generous and more financially burdensome for people with chronic diseases.
- abdicating responsibility for network adequacy, potentially leaving consumers dependent on non-public accreditation standards; and
- reducing the requirements for inclusion of essential community providers, thus opening the door to issuers to deter enrollment by low income and vulnerable populations that rely on these providers.
We believe that these changes, some of which are intended to increase enrollment of health individuals and limit “gaming” the system, may well have the opposite effect and further undermine the viability of the Marketplaces. Even if they do not, they will reduce value and access for many consumers, particularly those with HIV and other chronic conditions. Further, as discussed below, some of these changes are in conflict with law and thus may not be implemented by regulation.
- Open Enrollment Period:
The proposal cuts the open enrollment period in half, leaving it a week shorter than the enrollment period for Medicare. We strongly object to this reduction because it will undoubtedly result in fewer people enrolling, and very likely a sicker risk pool.
The reasons stated by the Secretary in support of shortening the 2018 open enrollment period are unpersuasive and are not based upon any data. The stated objective is to avoid gaming of the system and enrollment by persons who find out during open enrollment that they have needs for medical care. CMS has reported no evidence that this has happened at any significant level. Moreover, this posited potential for adverse selection, even if valid, is offset by the fact that consumers with serious illness and need for expensive medical care are likely to be the most diligent consumers. People with HIV who rely on health insurance for their life-saving, expensive medications, will be certain to enroll within the deadline. However, those without pressing healthcare needs, including the young and healthy who are needed in greater numbers to improve the risk pool, are precisely the consumers likely to be left out with a shorter open enrollment period. Although our constituency is people living with HIV, who are most likely to enroll, it is in the interest of our population that young, healthy people enroll to balance the risk pool. Shortening the risk pool is likely to have a net negative effect on the risk pool.
In the event the proposal to shorten the risk pool is implemented, it is essential that adequate resources be made available for outreach, both in aggressive advertising, as well as adequate funding and support for navigators and other enrollment assisters. Our state of North Carolina has had great success enrolling consumers in Qualified Health Plans. But with half the time, they will need extra support and adequate funding.
Further, to mitigate the impact of a shortened open enrollment period, the Secretary should release plan information and costs on healthcare.gov for window shopping, at least two weeks prior to the beginning of open enrollment. This is typical in employer sponsored insurance, and would enable consumers to shop and compare plans prior to the shortened open enrollment period. Issuers should also be required to ensure transparency with regard to provider networks and drug formularies so that consumers who have limited time to shop can ensure that they enroll in a plan that meets their needs and does not cause a disruption of care. One of the most difficult aspects of plan selection for people living with HIV and other chronic diseases is determining whether their providers and medications are covered under a plan. Provider directories and drug formularies available online continue to contain errors and incomplete information. With less time to research plans directly with issuers, there will be more consumers who end up in the wrong plan.
- Special Enrollment Periods:
We are disappointed in the proposed changes to Special Enrollment Periods. Special Enrollment Periods have been an important consumer protection to ensure access to health insurance following a significant life event or evidence of extenuating circumstances that prevented enrollment during the open enrollment period. The proposed rule changes have offered no evidence of abuse of SEPS, and we support retaining the current standards. We believe the plan to require verification prior to enrollment will present a barrier for many people who have a valid qualifying event.
The stated objective of this change, that it will avoid adverse selection by preventing consumers from enrolling until they are sick, is a valid concern. However, CMS’s own data indicates that rather than improving the quality of the risk pool, it is likely that advance verification requirements will be more likely to deter young, healthy consumers from taking advantage of SEPs. CMS data showed 73 percent of applications with a household contact ages 55-64 submitted documents after initial outreach, but only 55 percent of those ages 18-24 did so. We urge the Secretary to return to the original plan to pilot pre-enrollment verification beginning June 2017 and base further decisions on data rather than speculation.
- Guaranteed Availability
This proposed change to 45 CFR § 147.104 is not only unwise, it is in conflict with the statute and beyond the Secretary’s authority. The Secretary may interpret the law, but in this instance, the statute is clear. An issuer “must accept every employer and individual in the State that applies for such coverage.” (42 U.S.C. § 300gg–1(a)) Enrollment may only be restricted to open or special enrollment periods, and the Secretary does not have authority to expand these restrictions to include prior non-payment of premiums. There is no exception in the statute to permit issuers to refuse enrollment based on past unpaid premiums.
We support suggestions in comments by other organizations, including the Federal AIDS Policy Partnership HIV Health Care Access Work Group and South Carolina Appleseed to provide some relief to issuers by providing mechanisms for issuers to collect unpaid premiums along with new premiums, as well as to require clear procedures for issuers to notify consumers in advance of past due amounts and how they may be repaid or contested.
- Actuarial Value De Minimis Variation
We strongly oppose the Secretary’s proposal to expand the range of de minimis actuarial value variation. While we understand the Secretary’s wish to provide additional, less costly options for consumers, that objective cannot be met by expanding the de minimis range. It will require legislation. This proposal is unlawful.
Under the statute, actuarial value variations are permitted only on a de minimis basis, “to account for differences in actuarial estimates.” 42 U.S.C. § 18022(d)(3). This statutory authority recognizes the challenges of reaching an exact actuarial value while creating workable cost sharing arrangements. There is absolutely no statutory authority to extend de minimis variation to achieve the laudable objectives of “help[ing] issuers design new plans for future plan years, thereby promoting competition in the market.” Congress imposed specific actuarial values for each metal level, and if the Secretary wishes to give issuers more flexibility, he cannot do so by regulation.
On a practical level, expanding the de minimis actuarial value variation would further undermine the Marketplace by reducing the attractiveness of plans and increasing costs for consumers who wish to maintain their current level of coverage. The Secretary predicts that the de minimis expansion will result in a 1-2 percent reduction in gross premiums. This is intended to attract additional, cost sensitive consumers to the marketplace. However, it is unlikely that this small a premium reduction would have a meaningful impact on consumers’ decision to purchase insurance.
In contrast, expanding the de minimis actuarial value for silver plans, would erode the advance premium tax credits for many consumers. By statute, the premium tax credit is calculated based on the second lowest cost silver plan. Currently, that plan must have an actuarial value of 70, with a de minimis variation of +/- 2. However, the proposal would permit silver plans with an actuarial value as low as 66. This means the benchmark plan in many rating areas could well be a plan with a 66 AV, and that the benchmark for calculating tax credits will likewise be lowered. This effect is illustrated in detail in the comments of the Federal AIDS Policy Partnership Healthcare Access Work Group. With a lower AV benchmark plan, tax credits are reduced. This will leave consumers with a difficult choice: they can maintain their net premium by accepting a lower value plan, or they can pay a higher net premium (receiving a smaller tax credit) to maintain a plan of the same value, with the same deductible and cost sharing as they had enjoyed in the previous year. This change will disproportionately impact people with regular, costly medical expenses, including people living with HIV. A common consumer complaint about the Marketplace is the high deductibles and cost sharing, and the de minimis variation change would exacerbate rather than improve this problem.
Increasing the range of AVs in a metal tier will also create consumer confusion, making it more difficult for consumers to distinguish among different metal tiers and might result in some consumers who would be eligible for a sliver cost sharing reduction plan to purchase at a metal tier that does not offer cost sharing reductions.
We urge the Secretary to withdraw this proposed change, because it is contrary to the statute. However, if the Secretary goes forward with this proposal, we urge that the impact on premium tax credits be mitigated by requiring that the silver benchmark plan have an actuarial value of at least 70. Further, we urge that the Secretary maintain the +/- 1 percent de minimis actuarial value variation for cost sharing reduction plans available to consumers with incomes below 250 percent of the federal poverty level.
- Network Adequacy
We oppose the Secretary’s proposal to wholly defer to states on network adequacy determinations. It is essential for people living with HIV and other chronic diseases to have access to providers with the appropriate expertise and experience to manage their conditions. One of the chief complaints of consumers about the Marketplaces and health insurance in general has been the ongoing narrowing of provider networks. While we do recognize that this is an industry trend aimed at improving value for consumers, that is all the more reason why the Secretary should not abdicate responsibility for protecting consumers’ access to providers through network adequacy review. Further, such abdication is in violation of the statute’s requirement that the Secretary “shall, by regulation, establish criteria for the certification of health plans” to “ensure a sufficient choice of providers.” 42 U.S.C. § 18031. These criteria must be subject to the full notice and comment requirements. The proposal to defer to private standards does not meet the requirement that such standards be established by regulation, as the public is unable to review and comment on these private accreditation standards.
It is a legitimate goal to avoid duplication of effort by federal and state regulators, but there are many states that lack robust network adequacy standards and review. In these states, is not appropriate to permit reliance on accreditation standards alone. We would support deference to states only when the existing standards are at least as protective as standards in the Affordable Care Act the NAIC’s Managed Care Plan Network Adequacy Model Act. Further, state review must be robust, and not left to the issuers.
- Essential Community Providers
We are especially concerned about the Secretary’s proposed step backwards with regard to Essential Community Providers. It is puzzling that the Secretary would offer this change when issuers have with only a few exceptions been able to meet the current 30% ECP standard. As noted in the proposed rules, in 2017, only six percent of issuers were required to submit a justification for their networks. Thus 94 percent of plans can simply maintain their existing ECP networks, with little regulatory burden.
Essential Community Provider requirements are especially important for people living with HIV, who often rely on Ryan White HIV/AIDS clinics for their specialty care. ECPs also promote the health of vulnerable populations by offering culturally appropriate care and providers. We are concerned that with lower requirements and trends toward network narrowing, issuers will reduce ECP provider numbers, causing interruptions in care for people living with HIV and other chronic conditions. Additionally, by dropping ECP providers, issuers may cause consumers who seek continuity of care to change issuers, which could result in higher costs for the consumer. We also are concerned that eliminating ECPs may also be a way for issuers to seek a more favorable risk pool by making themselves less desirable for patients with high healthcare needs.
- Continuous Coverage Requirements
We appreciate the Secretary’s request for input on the possibility of implementing continuous coverage requirements. We are strongly opposed to such requirements as they will adversely impact consumers with serious and chronic diseases such as HIV. While people with serious health issues are uniquely aware of the need to maintain insurance coverage, those very health issues make them vulnerable to periods of incapacitation or hospitalization, which can lead to loss of income, employment, and insurance coverage. Consumers who lose income due to illness are often unable to maintain basic living expenses, including insurance premiums and cost sharing. Those who lose a job may lose employer-sponsored health insurance and be unable to afford COBRA or even Marketplace premiums. Some who are left without income of at least 100% FPL will become ineligible for advance premium tax credits that would make insurance coverage affordable. Thus, there are many reasons why an individual with a serious illness may be uninsured for a period of time.
Continuous coverage requirements are in conflict with the guaranteed issue consumer protections of the Affordable Care Act. Imposing waiting periods before effectuating enrollment, pre-existing condition exclusions, and penalties for people who experience a gap in insurance coverage will harm consumers, particularly those who may be living with disabilities or with serious chronic conditions who are more likely to experience changes in employment and life circumstances throughout the year. Additionally, we note that individuals who need care but are denied coverage due to such rules are more likely to forgo early treatment and prevention and risk needing more expensive uncompensated care later on.
Thank you for the opportunity to offer comments to the proposed regulations. If we can be of further assistance, please contact Allison Rice, firstname.lastname@example.org.
Duke Health Justice Clinic
North Carolina AIDS Action Network
 CMS, Pre-Enrollment Verification for Special Enrollment Periods, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwizzavXgcLSAhVB4CYKHW7HCuAQFggfMAA&url=https%3A%2F%2Fwww.cms.gov%2Fcciio%2Fresources%2Ffact-sheets-and-faqs%2Fdownloads%2Fpre-enrollment-sep-fact-sheet-final.pdf&usg=AFQjCNFJc1cw-aBRpWfLG1ePtejETvYu-g&sig2=81R895tP-rJoxfmf8EwKiA