IMPORTANT: Submit public comment to stop Georgia's attempt to drop ANY official #ACA exchange!

UPDATE 12/17/21: I've already submitted my comment to the Health & Human Services Dept. Now, the National Health Law Program’s My Care Counts project has created an easy-to-use public comment tool for you to submit your own. PLEASE DO SO before January 9th!

MAKE SURE *NOT* TO USE THE GENERIC DEFAULT LANGUAGE IN THE FORM, HOWEVER; MAKE IT YOUR OWN.

See the rest of the post below for the background/details on this issue.

About 2 years ago, GOP Georgia Governor Brian Kemp submitted an ACA Section 1332 Waiver request to the Centers for Medicare & Medicaid Services. As Katie Keith of Health Affairs explained at the time, it consisted of two parts...the first of which was fairly noncontroversial, the second of which was...well, not good:

The application reflects a two-phase approach: a state-based reinsurance program to begin in plan year 2021, followed by a transition to the “Georgia Access” model beginning in plan year 2022. Both components of the waiver application would extend through plan year 2025.

As I noted in February 2020, the reinsurance portion of the waiver merits a shrug; over a dozen other states have instituted some sort of state-level reinsurance program using Section 1332 of the the ACA, and assuming the math all checks out and the state has a reasonable method of covering their portion of the costs, that's fine.

It's the second part that's a problem...a major problem:

The Georgia Access model would eliminate the use of HealthCare.gov, transitioning consumers to decentralized enrollment through private web-brokers and insurers. The state would establish its own subsidy structure to allow for 1) the subsidization of plans that do not comply with all the ACA’s requirements; and 2) enrollment caps if subsidy costs exceed federal and state funds.

There's not a single part of the paragraph above which shouldn't be setting off major alarms:

Georgia expects the waiver to increase enrollment in the individual market by about 30,000 people for plan year 2022. This is a significant number of individuals, but the waiver could result in coverage disruption for the more than 450,000 individuals who are already enrolled in ACA coverage through HealthCare.gov. The 30,000 number also pales in comparison to the 1.4 million people who are uninsured in Georgia, more than half of whom are already eligible for ACA subsidies but not enrolled.

It's important to note that this proposal wouldn't simply move Georgia from HealthCare.Gov over to a state-based ACA exchange the way that 18 other states already have; those are basically just state versions of the federal website. Health insurance policies sold on them are still required to be ACA compliant, and ACA subsidies are still restricted to enrollees in those policies, as they should be.

What Georgia's waiver would do is something very different which would completely undermine many of the primary reasons the Patient Protection & Affordable Care Act was passed in the first place. As I noted in February 2020:

Georgia's individual insurance market would convert into a state-based version of a proposal from Republican Senators Ted Cruz & Mike Lee back in summer 2017 during the "Repeal/Replace" saga known as the Cruz Amendment:

His proposal, which he’s circulating to his colleagues on typed handouts, wouldn’t explicitly create and fund the special insurance markets, as the House bill did. Instead, insurance experts said, it would create a sort of de facto high risk pool, by encouraging customers with health problems to buy insurance in one market and those without illnesses to buy it in another.

...There is no public legislative language yet, but here’s how Mr. Cruz’s plan appears to work, based on his handout and statements: Any company that wanted to sell health insurance would be required to offer one plan that adhered to all the Obamacare rules, including its requirement that every customer be charged the same price. People would be eligible for government subsidies to help buy such plans, up to a certain level of income. But the companies would also be free to offer any other type of insurance they wanted, freed from Obamacare’s rules.

People who bought the Obamacare-compliant plans would be eligible for subsidies that limit their cost, as long as their income was less than about $42,000 per year for a single person. And those who earn more — or wish to buy skimpier, cheaper plans without all the rules — may also get a discount on those premiums, in the form of pretax health savings accounts, which the legislation would let them use to buy insurance.

As Mr. Cruz told Dylan Scott of Vox.com, “You would likely see some market segmentation,” meaning that healthy and sick customers would probably pick different kinds of insurance. Healthier, wealthier people would tend to gravitate toward the skimpy plans. Sicker people would opt for the compliant plans, which cover more benefits. Even though the compliant plans wouldn’t technically be more expensive for the sick, those choices would mean that mostly sick people would buy them, and the prices could get extremely high.

It gets even worse:

Georgia would cap its contribution towards the Section 1332 waiver on an annual basis. Unlike in the current individual market, this cap could result in waiting lists even for individuals who qualify for subsidies. Georgia notes that subsidies will be granted on a first-come, first-served basis until the state’s funding cap is reached. If there are a larger number of subsidy-eligible residents than expected, those individuals could still enroll in coverage but would be placed on a waiting list for subsidies (meaning they would pay full premiums even though their income would qualify them for subsidies under the ACA).

The good news is that this section of Georgia's horrible waiver had already previously been delayed until 2023.

The other good news is that CMS Administrator Chiquita Brooks-LaSure has just informed Gov. Kemp and the Georgia Office of Health Strategy & Coordination that she's putting the entire "Georgia Access Model" back under the microscope given that a) it's a terrible idea and b) a lot has changed since it was originally approved (and I don't just mean the administration):

The Departments are committed to working in partnership with states on policies that improve health care coverage in their states. Through waivers under section 1332 of the Affordable Care Act (ACA), the Departments aim to assist states with developing health insurance markets that expand coverage, lower costs, and ensure that health care is a right available to all Americans. The Departments are also committed to fulfilling their duties to oversee and monitor any approved waiver to ensure that it does not reduce access to high quality, affordable coverage.

As you know, on June 3, 2021, and July 30, 2021, the Departments sent the State of Georgia (the State) two letters requesting an updated analysis to reflect recent changes in circumstances to determine ongoing compliance of the Georgia Access Model with the statutory requirements (referred to as the statutory “guardrails”). The State’s analysis was originally due on July 3, 2021. When the State did not submit the requested updated analysis, the Departments sent the State a second letter on July 30, 2021, which provided the State an additional 30 days to comply with that request and submit an updated analysis to the Departments by August 29, 2021. The July 30, 2021, letter noted that the Departments may consider the State to be in violation of the Georgia waiver’s specific terms and conditions (STCs) if the State did not provide the requested updated analysis. Georgia did not submit the requested updated analysis.

In other words, the state of Georgia utterly blew off the Biden Administration...twice.

As previously stated, there have been changes in federal law and policies since the initial approval of the Georgia waiver on November 1, 2020, including the enactment of the American Rescue Plan Act of 2021 (ARP), as well as the adoption of Executive Order 13985 and Executive Order 14009. In light of these recent changes, the Departments are reviewing all section 1332 waivers for compliance with the guardrails. We are evaluating the Georgia Access Model’s compliance with the statutory guardrails in light of these changes in federal law and policy, many of which have increased enrollment in Georgia and nationally. For example, 8 million existing consumers had a new or updated plan selection for individual market plans after the implementation of the ARP’s enhanced subsidies, including 356,487 consumers in Georgia5 Due to the ARP, Georgia consumers saw a 54 percent reduction in average monthly premiums after advance payments of premium tax credits (APTC), an average of $49 per person per month in savings.

In other words, the ARP has vastly expanded ACA subsidies (both eligibility and generousity), which makes Georgia's previous financial estimates about projected costs, savings and potential increased enrollment complete garbage now. In addition, the Executive Orders referred to involve a) Advancing Racial Equity & Support for Underserved Communities and b) Strengthening Medicaid & the ACA. The "GA Access Model" doesn't exactly advance either of these goals, to put it mildly.

Nationally, 12.2 million people were enrolled on HealthCare.gov and State-based Marketplaces in August, of which more than 2.8 million people signed up for affordable health insurance for the first time under the COVID-19 2021 Special Enrollment Period (SEP) from February 15, 2021 to August 15, 2021. In Georgia, 147,463 people signed up for Exchange coverage during the COVID-19 SEP—which is more than three times the number of Georgia consumers who signed up during the same time period in 2020.

Georgia's boasting about how their "Access Model" would lead to 30,000 more Georgians getting covered sounds a bit silly now, seeing how the ARP & COVID SEP led to over 106,000 more enrolling via HealthCare.Gov this year than during the same period in 2020.

Furthermore, there have been significant investments in outreach, with $100 million nationally for the COVID-19 SEP in plan year (PY) 2021, and $80 million in grant funding for Navigators in states with a Federally-facilitated Exchange (FFE) for PY 2022 ($2.54 million in grant funding for three Navigator grantee organizations in Georgia for PY 2022) to serve the uninsured and underserved communities.9 These investments are expected to continue or even increase in future years. The ARP, combined with the Administration’s actions to increase funding for public outreach, marketing, and in-person assistance, are already increasing enrollment and reducing the cost of health care coverage for many who have been uninsured and for those currently receiving financial assistance. In addition, on October 1, 2021, the HHS Office of the Assistant Secretary for Planning and Evaluation (ASPE) published an issue brief which found that outreach and enrollment assistance play a crucial role in increasing enrollment and retention of consumers seeking health insurance.

I believe one of Georgia's justifications for scrapping HC.gov (or even an official state-based exchange) was that the "private market" could do a better job of marketing. I mean I suppose that's true if HC.gov's marketing budget has been slashed to the bone. The Biden Administration has restored it to full strength, so that argument doesn't fly anymore either.

Taking into account the increased enrollment resulting from these changes in federal law and policy, the Departments remain concerned about the ability of the Georgia Access Model to demonstrate that it will satisfy the statutory guardrails and cover as many individuals as would have been covered without the waiver given changes in federal law and policy. More specifically, Georgia’s earlier without-waiver baseline projections were based on assumptions about the amount of funding for marketing and outreach for the FFE that are no longer true. Increased subsidies as well as funding for FFE outreach and marketing could result in greater enrollment than was anticipated without the waiver, decreasing the number of uninsured individuals in Georgia. To the extent the private market is less motivated to invest in outreach because the uninsured population has declined, fewer new enrollees may be expected to take up coverage.

Exactly: The ARP + beefed-up Navigator program have basically removed any legitimate excues Georgia might have to pursue this section of their waiver (and those excuses were pretty thin to begin with).

In addition, when Georgia applied for its waiver, the State acknowledged that some individuals would likely drop coverage in the transition to the Georgia Access Model but that increased enrollment attributable to private sector outreach would more than offset any transition-related coverage losses. The Departments remain concerned that, in light of recent changes in Georgia’s individual health insurance market, there may no longer be sufficient increased enrollment to offset potential coverage losses. Assuming incidental coverage losses are proportionate to total enrollment, higher baseline individual market enrollment could increase the number of individuals expected to drop coverage during the transition. This could result in fewer individuals with coverage under the waiver than would have had coverage absent the waiver. Accordingly, the number of uninsured individuals in Georgia and the number of individuals who would enroll in coverage under the waiver are likely to be different than the numbers Georgia projected.

Again: Georgia's waiver basically claimed that it would add 30,000 new enrollees which would more than cancel out the number who would drop coverage...but the beefed-up enrollment this year makes it pretty likely that this is no longer the case (even assuming it was accurate to begin with, which I seriously doubt).

FINALLY WE GET TO THE ACTION ITEM FOR YOU, DEAR READER:

Absent the requested updated information from the State, the Departments are proceeding to review the continued compliance of the Georgia Access Model with the statutory guardrails set forth in section 1332(b)(1)(A)–(D) of the ACA. As such, we are writing to inform you that the Departments are opening a 60-day federal comment period to receive input from the public on the impact of changes in federal law and policy on the Georgia Access Model, as approved on November 1, 2020, and whether the Georgia Access Model continues to meet the guardrails in light of these changed circumstances. This comment period will provide stakeholders and the general public an opportunity to review and provide input on the impact of these and other changes such as on the ground implementation efforts that may affect the statutory-guardrails analysis. This comment solicitation will be posted along with the state’s waiver application and corresponding documents on the Centers for Medicare & Medicaid Services’ (CMS) section 1332 website, and will be open to Georgia, stakeholders, and the public for comment from November 9, 2021 through January 9, 2022.

BOOM. There you go.

Here's the formal solicitation for public comment. It's a little strange, because usually there'd be an online web form posted at CMS, the Federal Register or Regulations.Gov...but in this case, for now they're simply asking people to submit comments via a standard email, although it sounds like they'll be adding an online form version soon as well:

This comment solicitation will be posted along with the State’s waiver application and corresponding documents on CMS’s section 1332 website and is open for comment from November 9, 2021 through January 9, 2022. Please submit comments to stateinnovationwaivers@cms.hhs.gov and include "Georgia Access Model section 1332 waiver comments" in the subject heading. Please include your name, organization (if any), and email address with the comments.

The solicitation request includes all of the background info, links to the waiver request itself and so forth. It also includes more details on what sort of issues the're looking for input on:

We request comment on whether and how the changes in law and policy, such as changes in federal law (for example, the ARP), and changes in policy (for example, the Special Enrollment Period (SEP) provided in response to the COVID-19 PHE, and the recently increased budget for outreach, marketing, and Navigators for the Federally-facilitated Exchanges (FFEs)) influence the Georgia Access Model’s baseline for the waiver and the relationship between the baseline and with-waiver scenarios, as discussed in more detail below in Appendix A, or impact whether the Georgia Access Model complies with the statutory guardrails.

Commenters may also wish to consider a recent HHS Office of the Assistant Secretary for Planning and Evaluation (ASPE) issue brief, which examined evidence with respect to factors affecting enrollment in health coverage among uninsured populations, barriers faced by individuals trying to enroll in health coverage, and the impacts of various outreach strategies and consumer assistance on helping uninsured people gain coverage.

In particular, the Departments request comments, including any supporting data or analysis, on the following:

• The impact of the changes in federal law and policy on the Georgia Access Model’s compliance with the statutory guardrails.

• The impact of the changes in federal law and policy on coverage, as well as the comprehensiveness of such coverage, for individuals who are low-income, have high health care costs, represent underserved or vulnerable populations, are older adults, people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality in terms of compliance with the statutory guardrails.

• In light of changes in federal law and policy, the continued validity of data or other assumptions from the waiver application that the Departments should consider as part of their evaluation of the Georgia Access Model’s continued compliance with the statutory guardrails. (Note: Should legislation that impacts the individual health insurance market (such as eligibility or affordability changes for individual market coverage) pass during this comment period, please also comment on any potential impact to the statutory guardrails in light of such legislation.)

• Any considerations with regard to on-the-ground implementation and coordination efforts, past implementation experience, or other operational or enrollment factors the Departments should consider as part of the Departments’ evaluation, in light of changes in federal law and policy, of the Georgia Access Model’s continued compliance with the statutory guardrails.

So let's get to it!

UPDATE 12/17/21: Again, the National Health Law Program’s My Care Counts project has created an easy-to-use public comment tool for you to submit your own. PLEASE DO SO before January 9th!