In recent months public comments on government attempts to undermine the Affordable Care Act and Medicaid have helped to counter and slow the Trump administration’s agenda to weaken both health care laws that are vital to tens of millions of people from coast to coast.
For example, public comments recently helped to protect the ACA’s essential health benefits (EHBs.) Earlier this year, the U.S. Department of Health and Human Services (HHS) changed the selection process for states to update their EHB base benchmark plans. Benchmark plans set the floor for what coverage health insurance plans in the individual and small group market, including the ACA Marketplace, must provide in their plans. They also ensure that individuals enrolling in these plans get quality affordable coverage. The new selection process provides significant leeway for states to change their EHB benchmark plan minimum requirements in ways that could harm consumers. Two states opted to use the new selection process for plan year 2020: Alabama and Illinois. Under the new process, states have to provide reasonable notice and opportunity for public comment on any changes to their state’s EHB benchmark plan.
Alabama submitted a proposal to change its prescription drug EHB category. The proposed changes would have excluded coverage of drugs critical to treating life-threatening illnesses, such as cancer, HIV, Hepatitis C, and opioid use disorder, among others. Alabama opened a short two-week public comment period without providing important information that would enable the public to fully review the impact of the proposed changes. These proposed changes worried advocacy organizations on the ground in Alabama, but given the short comment timeline, many organizations were unable to write comment letters. This truncated public process could have set a dangerous example for states looking to change their EHBs for future years. In response to this action, National Health Law Program quickly submitted comments to Alabama’s Department of Insurance, raising concerns with both the state’s inadequate public process and the impact the proposed changes would have on Alabaman’s access to critical medical care. While our comments were shared with advocacy networks to provide other organizations with key information to draft their own comments, the truncated time to comment made it challenging for many people to provide meaningful input.
A week after comments were due, the Alabama Department of Insurance withdrew its application to change the state’s EHB benchmark plan for 2020. While it deserves some credit for making the right decision for consumers, the withdrawal also demonstrates the importance of administrative advocacy. Though it can be discouraging to submit comments without knowing whether they were ever considered, this example shows that these efforts can have a direct and tangible impact on policy decisions and play an important role in providing decision-makers with a window into the impact of proposed policy changes.
Similar efforts have paid off in the Medicaid waiver context, demonstrating the importance of public comments to establish an administrative record before a federal or state agency. Earlier this year, National Health Law Program filed litigation challenging HHS’s approval of Kentucky’s Sec. 1115 Medicaid waiver packagage that would have reduced health care coverage. The administrative record was an important part of the legal case. In that case, the judge vacated Kentucky’s waiver approval, which halted more than a half dozen harmful actions planned by the state. National Health Law Program argued that HHS failed to fulfill its legal duty to make a reasonable decision based on the record, as the agency did not account for the volumes of evidence submitted through public comments. The takeaway for advocates – even if you believe the administration will not take your comments seriously, remember the administration is legally obligated to review and account for the evidence present in public comments.
Filing comments can also provide a federal administration with “cover” to deny approving a state policy that it dislikes, or a governor with cover to reject a bill he or she determines to be problematic policy. Finally, when an administration changes and takes a new position on Medicaid waivers or other health care policies, it will be easier to reverse course on prior administration policies if there is a strong record of evidence showing the policies are harmful.