Breaking: CMS throws out Trump's rancid #NBPP2022 turkeys!

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Last November, regular readers may recall I went on a bit of a personal crusade to rack up as much public comment as possible in opposition to several last-minute time bombs the Trump Administration attempted to plant on their way out the door:

I should also note that not every NBPP rule implemented by the Trump Administration (via CMS Administrator Seema Verma) has been terrible. Some are either perfectly in line with Obama-era NBPPs, inconsequential, and in a few cases have actually been good and helpful.

...Other proposed changes, however, can be either stupid or flat-out devastating. The proposed 2022 rule changes...which were pushed out after hours on Thanksgiving Eve, just 56 days before the Trump Administration ends...includes some OK ideas, but also includes some which would be harmful and one which would be disastrous (I've changed the order they're listed below to put the most troubling ones at the bottom):

The details get wonky, but the bottom line is that there were three proposed rule changes in particular which I was deeply concerned about:

  • Allowing states to flat-out privatize their ACA marketplaces
  • Pushing navigators and assisters to use private, 3rd-party direct enrollment brokers
  • Codifying the Trump Administration's warped interpretation of ACA Section 1332 waivers

The good news is that hundreds of commments, almost entirely negative, were indeed submitted in an attempt to prevent Trump's CMS Administrator, Seema Verma, from ramming these changes through before she lost power. The bad news is that she managed to get most of them through anyway by simply splitting the full list of bullets in half and locking in the ones I was most concerned about before the door hit her in the ass.

THANKFULLY, as I noted back in early April, the incoming Biden Administration said "Not so fast there, Sparky!" and decided to put the kibosh on those changes anyway until they had a chance to look them over themselves:

The final 2022 Notice of Benefit and Payments Parameters is under review by the White House more than three months after the Trump administration finalized some of the most controversial pieces of the proposed rule before leaving office in January but left remaining policies for the Biden CMS.

The draft rule out in December included several controversial policies, most notably, it allowed all states to drop a centralized exchange and instead rely on agents and brokers to enroll people into Affordable Care Act plans. The policy mirrored Georgia’s proposal approved in November, based on the parameters of the Trump administration’s revised 1332 waiver guidance, which let the state leave the exchange starting in 2023.

Although the Trump policy has been finalized, the Biden administration could now say that it plans to re-regulate, which would signal to everyone “don’t waste your time on it,” says a source following the issue.

Well, today, nearly three months later, that "re-regulation" is officially out:

Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule

In the Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond proposed rule released today, the Centers for Medicare & Medicaid Services (CMS) proposed standards for issuers, Exchanges, and Navigators. This rule is a continuation of the recent rulemaking process, as seen in part 1 and part 2 of the Health & Human Services (HHS) Notice of Benefit and Payment Parameters for 2022 final rule published on January 19 and May 5, 2021.

Overall, the proposed rule would expand access to health insurance coverage through the Exchanges by lengthening the annual open enrollment period, expanding Navigator duties, and minimizing burden and confusion for consumers. These changes further the Biden-Harris Administration’s goals of providing greater access to coverage, improving affordability for consumers, and reducing burden for issuers and consumers.

Let's take a look!

Navigator Duties

The Federally-facilitated Exchange (FFE) Navigator Program reaches vulnerable and underserved populations and is important to increasing awareness of coverage options available through the Exchanges, helping new consumers find affordable coverage that meets their needs, and narrowing health disparities. We propose to reinstate previous requirements that FFE Navigators provide consumers with information and assistance on post-enrollment topics, such as the eligibility appeals process, the Exchange-related components of the premium tax credit reconciliation process, and the basic concepts and rights of health coverage and how to use it. In addition, we propose to expand the interpretation of what activities are encompassed in the duty to provide consumers with information and assistance related to the basic concepts and rights of health coverage and how to use it.

Short Version: The Trump Administration gutted federal navigator funding and severely limited the ability of navigators to do their jobs properly. The Biden Administration is restoring both funding and the full range of tools and responsibilities of navigators to help people get and use their coverage.

2022 Open Enrollment

We are proposing an extension of the annual individual market open enrollment period for 2022 and future benefit years to allow consumers more time to review plan choices, seek in-person assistance, and enroll in a plan that best meets their needs. We are proposing to amend the dates of the upcoming annual open enrollment period for all individual market Exchanges and off-Exchange individual market plans to November 1, 2021-January 15, 2022, and to apply these dates to future benefit years after 2022.

Short Version: Under President Obama, the Open Enrollment Period (OEP) ran for 6 months the first year and 3 months (92 days, technically) for each year after that. Under Trump, it was cut in half again to just 45 days. (To be fair, the 45-day cut had already been proposed before Trump took office, though it wasn't supposed to kick in until the 2019 OEP; his administration bumped that up by a year). The Biden Admin is re-extending it again...but only part way, through January 15th, which is reasonable (76 days).

Monthly Special Enrollment Period (SEP) for Consumers with Household Income up to 150% of the Federal Poverty Level

To provide more opportunities for certain low-income consumers to access premium-free or very low-cost coverage made available by the American Rescue Plan Act of 2021, we are proposing to provide Exchanges the option to implement a monthly SEP for advance payments of the premium tax credit (APTC)-eligible consumers with a household income no greater than 150% of the federal poverty level.

This is a new one, and it's very interesting. This is the first SEP I'm aware of which is tailored specifically based on the enrollee's income level. In that sense it's very similar to Massachusetts' ConnectorCare program (which is available to enrollees earning under 300% FPL), as well as both Minnesota and New York's Basic Health Programs (BHPs), which are available up to 200% FPL. All three of these programs can be enrolled in year-round...just as Medicaid and the Children's Health Insurance Program (CHIP) are.

Considering that enrollees who earn 100 - 138% FPL in non-Medicaid expansion states are effectively utilizing heavily subsidized ACA exchange plans in place of that, and considering the expanded subsidies under the American Rescue Plan reduce net premiums for those enrollees to $0 in most states, this actually makes perfect sense; it's one more way of at least partially resolving the Medicaid Gap issue for the under-138% FPL population.

It makes even more sense when you consider that all 13 of the remaining non-expansion states are hosted via the federal exchange anyway.

Federally-facilitated Exchange and State-based Exchange on the Federal Platform (SBE-FP) User Fees

For the 2022 benefit year, we propose to increase the FFE user fee rate to 2.75% of premiums and the SBE-FP user fee rate to 2.25% of premiums. This increase from the rates currently finalized in part 1 of the 2022 Payment Notice – 2.25% and 1.75%, respectively – would account for an increase in funding for consumer information and outreach and the FFE Navigator program. These proposed rates are still lower than the current 2021 benefit year user fee rates.

This was the fourth issue I was concerned about under Verma's NBPP proposal. I was perfectly fine with slashing the user fees the first time it was done a few years ago, as they seemed to be somewhat excessive from where I stood...but she wanted to slash them a second time, down to the bone (this is actually a big part of what sparked Nevada, New Jersey and Pennsylvania to drop entirely and move onto their own state-based ACA exchanges in the first place, I should note).

It sounds like Biden's CMS is splitting the difference here: They're whittling the rates down somewhat but not nearly as much as the Trump Admin attempted to.

SEP Clarification

To ensure consistent application of SEPs based on APTC eligibility across the Exchanges, we propose to clarify that, for purposes of the § 155.420 SEPs, an enrollee with a maximum APTC amount of zero dollars is not considered APTC-eligible, and an enrollee is not considered newly APTC-eligible when they become eligible for zero APTC after having previously been APTC-ineligible for another reason, such as having other minimum essential coverage. This clarification will mitigate the potential risk of inconsistent interpretation of this eligibility requirement across different Exchanges and other stakeholder groups, such as agents, brokers, and Exchange enrollment assisters.

This one confuses me a bit, but it sounds like it's designed to eliminate confusion for some technical weirdness which pops up under certain circumstances.

Separate Billing

We propose repealing the separate-billing regulation that requires individual market qualified health plan (QHP) issuers to send a separate bill for that portion of a policyholder’s premium attributable to coverage for abortion services for which federal funding is prohibited, and to instruct such policyholders to pay for the separate bill in a separate transaction. Specifically, we propose to revert to and codify 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). We believe the proposed changes offer issuers options for meaningful compliance with section 1303 of the ACA without imposing the operational and administrative burdens of the separate-billing policy, and without causing additional consumer confusion and loss of coverage.


I've explained this insanity several times before, so here's a link if you're interested. This took one of the dumbest, most offensive provisions of the ACA (yet a necessary one in order to get the bill passed in the first place back in 2009-2010) and attempted to make it even dumber and more offensive. Thankfully, the Biden Administration is putting the kibosh on the latter part of it.

The original provision remains, unfortunately.

Exchange Direct Enrollment Option Repeal

We propose to repeal the Exchange Direct Enrollment option. This option permits a state Exchange, SBE-FP, or an FFE state to facilitate enrollment of qualified individuals into individual market QHPs primarily through private-sector direct enrollment entities, including QHP issuers and web brokers, as well as agents and brokers. Under current regulations, this option will be available to state Exchanges beginning in plan year 2022, and to SBE-FP and FFE states beginning in plan year 2023. We believe repealing the Exchange Direct Enrollment option will best support the health care priorities of the Biden-Harris Administration. Since no state has yet expressed interest in implementing the Exchange Direct Enrollment option, we also believe that repealing it now will mitigate potential impacts to stakeholders.


It's important to understand that I have no problem with authorized 3rd-party web brokers selling ACA exchange healthcare policies. Hell, two of them are even sponsors of this website (Health Sherpa at the top, W3LL on the sidebar). Of course, those two happen to only sell ACA compliant plans, and to the best of my knowledge includes all ACA plans available in your area.

As I've explained before, my main problem is with EDEs which either hawk short-term plans (or other non-ACA plans) side by side with them and/or which only list certain ACA plans, etc.

HOWEVER, there's a big difference between allowing private 3rd-party brokers to sell ACA plans and completely privatizing the exchanges, which is effectively what the Trump Administration was proposing to let happen (and in fact was openly encouraging).

Section 1332 State Innovation Waiver Policies

HHS and the Department of the Treasury (collectively, the Departments) propose modifications to section 1332 State Innovation Waivers implementing regulations, including changes to many of the policies and interpretations of the statutory guardrails recently codified in part 1 of the 2022 payment notice final rule, as well as new information regarding the process for amendments and extensions of approved section 1332 waivers.

The changes in the rule, if finalized, would supersede and replace those outlined in the October 2018 “State Relief and Empowerment Waivers” guidance, and repeal the previous codification of those guardrail interpretations in part 1 of the 2022 payment notice final rule. The Departments also propose to modify regulations to set forth flexibilities in the public-notice requirements and post-award public participation requirements for section 1332 State Innovation Waivers under future emergent situations, if certain criteria are met.

he Departments also propose in this rule processes and procedures for amendments and extensions for approved waiver plans. Through section 1332 waivers, the Departments aim to assist states with developing health insurance markets that expand coverage, lower costs, and ensure that health care truly is accessible for all Americans.

Short Version: It sounds like pretty much everything I was worried about in this post is about to be flushed down the toilet. Good riddance.