UPDATE: Comment period closed. Public Comments needed by 12/30 to prevent CMS from letting states privatize HC.gov & more!

UPDATE 12/31/20: The deadline to submit public comments has passed. In the end, there are 320 comments, 243 of which were submitted after I posted this entry. The wording on a random check of some finds that at least a couple dozen appear to have been guided by my own sample comment below, which I'm glad to see.

Now we'll just have to wait and see. Thank you to everyone who helped out!

Last month, I wrote about the annual Notice of Benefit & Payment Parameters for 2022 (NBPP) from the Centers for Medicare & Medicaid (CMS). This is a long, wonky document published each year which includes a bunch of proposed modifications to various aspects of how the ACA is administered and implemented.

Some of the proposed changes each year are pretty much mandatory. Some are completely up to whoever is running CMS/HHS at the time. Some are nominal tweaks; some are major changes.

However, the document introduced last month consists of proposed changes only. Before they can actually be implemented, the NBPP has to undergo a public comment period...and while you may assume that public comments are simply ignored or shrugged off by the Trump Administration, in some cases enough feedback (either positive or negative) can make a big difference.

For example, last year there were federal judicial rulings against Medicaid work requirements in several states, including Arkansas, Kentucky and my home state of Michigan. In some cases the work requirement programs had the plug pulled just before the COVID-19 pandemic hit, and thank God for that. Can you imagine what would have happened if millions of people who only became financially eligible for Medicaid expansion because they just lost their jobs weren't eligible to enroll in the program because they weren't working? Insanity.

Well, it turns out that in at least a couple of cases, the Public Comments in opposition to CMS's approval of requiring people to work in order to qualify for Medicaid made a difference in the judge's decision to strike them down:

The Judge’s reasoning in the New Hampshire case follows closely on his decisions in the Arkansas and Kentucky cases.  As the Judge noted, “we have all seen this movie before.”  He explained again that under Section 1115, the Secretary is required to determine that a demonstration is “likely to assist in promoting the objectives of” the Medicaid statute.  He reaffirmed that the provision of Medicaid coverage is a “core objective” of the Medicaid statute. He repeated the experience in Arkansas, where 16,900 beneficiaries lost coverage as a result of the imposition of work reporting requirements.  He noted that as of July 8 (two weeks before the hearing on the case and three weeks before his decision) about 17,000 of the 25,000 non-exempt Medicaid beneficiaries had not reported compliance information to the state Medicaid agency, which suspended the requirements until September 30.  He referenced the “numerous” public comments in the record projecting coverage losses, listing them in an Appendix to his opinion. (Note to self: comments matter).  He reviewed the Secretary’s approval letter for any indication that the Secretary considered coverage loss but did not find any. He ruled that the Secretary’s approval was “arbitrary and capricious.”  Full stop.

The Public Comment period is happening RIGHT NOW for the proposed NBPP 2022 rule, and ACA Signups readers can speak out against some of the worst proposals!

The problem this year in particular, as I laid out last month, is that the outgoing Trump Admin CMS is proposing to make several terrible changes which would undermine major provisions of the ACA on their way out the door...changes which the incoming Biden Administration may or may not be able to change in time (and even if they can, it would require dealing with even more headaches on top of the numerous others they're already going to have on their plate). I'd prefer to avoid that if possible by heading this off at the pass.

As I said earlier, some of the proposals are reasonable; you can review a summary here or read the full text (it's hundreds of pages) here. Some of them, however, have MAJOR warning signs/red flags all over them, including proposals to:

• Push enrollees away from ACA exchanges over to 3rd-party sites which can in turn try to pressure them into enrolling in junk plans
• Allowing states to simply abandon the official ACA exchanges altogether and completely privatize ACA enrollment
• Continuing to skimp out on funding of HealthCare.Gov marketing/outreach (they've already been doing this)
• Weakening ACA enrollee subsidies while raising enrollee out-of-pocket costs by more than necessary, and
• Codifying the bastardization of ACA Section 1332 waivers to weaken protections on coverage of pre-existing conditions

As Families USA Senior Fellow Stan Dorn noted at the time:

Comments!!!!!!!! CMS must respond to each comment, building a factual record justifying the rule. If they get many, many discrete comments with strong content, they either (1) take a lot of time to respond or (2) rush and risk losing a later Administrative Procedures Act lawsuit.

— Stan Dorn (@standorn) November 26, 2020

With this in mind, SUBMIT COMMENTS NOW! As noted in the headline, the deadline to do so is 5:00pm on Wednesday, December 30th.

UPDATE: The link at the Federal Register website says that the deadline is midnight Wednesday, but the guidance at Regulations.gov (which is where you can actually review comments) states "To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on December 30, 2020."

I think this is targeted more towards regular/express mail, but to be safe I'd strongly advise sticking to the 5pm deadline anyway.

Here's where you can submit a comment:

• Federal Register
• Regulations.Gov

You can also review the existing comments (there's only 77 (update: 190) as of this writing...) to get a feel for different ways of wording it--some are more formal than others; some are longer than others; some only focus on one or two proposals, others cover several (see my own comment below). It may take a few hours (days?) for your comment to show up in the database.

Important: Be clear and firm about your concerns, but also be polite and professional. Remember, most of the actual staff at CMS, including those who will be reviewing the comments, are career employees who are trying to make the ACA work to the best of their ability. Also, while my own comment and many of the others already posted are deep in the weeds & wonky, yours doesn't necessarily have to be; use a few of them as guidelines but make the language your own.

 To whom it may concern:

Re: Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2022, CMS-9914-P

I'm writing to express concern and/or opposition to several of the proposed 2022 NBPP changes:

• Allowing States to Privatize Marketplaces 155.221(j): STRONGLY OPPOSE

Last month, CMS approved a legally-dubious 1332 waiver request which allows Georgia to opt out of using EITHER the federal marketplace at HealthCare.Gov OR a state-based marketplace in favor of relying purely on private agents, brokers and 3rd-party web broker sites. While I appreciate properly-regulated Direct Enrollment entities being allowed to operate IN ADDITION TO the official ACA marketplaces, I strongly oppose allowing them to completely REPLACE the federal exchange altogether.

The official ACA marketplaces serve several critical functions:

• They're fully integrated with the various federal and/or state agency systems needed to determine subsidy eligibility, legal residency, etc. to 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

• Related to #2: By being sanctioned 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.

Since the first Open Enrollment Period, technological advances have made it easier for Direct Enrollment entities (DEs) to hook into the federal back-end 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.

Unfortunately, this proposed rule would allow ANY state to completely undermine ALL FOUR of these functions. It would cause tremendous confusion among the public as to which websites and brokerages they could trust. It would also cause people eligible for Medicaid to be 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 would also result in people being pressured into enrolling in short-term and other non-ACA compliant policies which are a much worse value (but which result in a fat commission for 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-of-pocket expenses.

Worse yet, this would let other states wipe out 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." I strongly oppose this provision.

 

• Promoting the Use of Direct Enrollment Among Assisters 155.220(c)(3)(iii)(A): OPPOSE

The proposed rule would push Navigators and CACs (Certified Application Counselors) towards Direct Enrollment entities instead of the FFM. Just as letting states abandon use of an official ACA exchange would cause confusion, promoting the use of non-official entities would also lead to confusion since some DEs feature non-QHP products which have massive gaps in coverage and don't feature some or potentially any of the protections required under ACA-compliant policies.

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: OPPOSE

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. I oppose making these reductions.

I was among the first to question whether or not a 3.5% user fee was still necessary several years after the first ACA Open Enrollment Period as both enrollment and unsubsidized premiums had increased significantly, and at the time, making *modest* fee reductions to the current levels (3.0% and 2.5% respectively) seemed reasonable. I've also long called for CMS to provide a public accounting of how user fees are spent each year, both in the past and going forward.

However, FURTHER lowering the fees seems highly unwarranted, especially seeing how under 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.

In addition, while making a further reduction might have made sense had average unsubsidized premiums on the Marketplace continued to climb dramatically, they've flattened and even gone down in many states over the past few years. There's no justification for cutting the fee beyond current levels at this time, and ample reason to keep them as is (or even to consider bumping them back up a notch).

 

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

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 pre-existing conditions, reduce financial assistance for low-income enrollees and INCREASE out-of-pocket costs.

The proposed rule would effectively codify this mutated, backwards-facing interpretation 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, I would recommend giving states more elbow room 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): OPPOSE

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 MOOP. 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. I urge you to revert back to the pre-2019 PAPI formula.