Jay Angoff, Director
Office of Consumer Information and Insurance Oversight
Department of Health and Human Services
Baltimore, MD 21244-8010
Re: OCIIO-9989-NC
Dear Mr. Angoff:
The National Health Law Program (NHeLP) is a national public interest law firm that seeks to improve health care for America?s working and unemployed poor, minorities, the elderly and people with disabilities. NHeLP serves legal services programs, disability advocates, community-based organizations, the private bar, providers and individuals who work to preserve a health care safety net for the millions of uninsured or underinsured low-income people. As the health care system changes during the implementation of the new health reform law, it is critical to focus on ensuring that the private market can improve health delivery for all populations, including diverse and low-income vulnerable populations. Accordingly, NHeLP is pleased to offer comments on the Office of Consumer Information and Insurance Oversight?s (OCIIO) Planning and Establishment of State-Level Exchanges; Request for Comments Regarding Exchange-Related Provisions in Title I of the Patient Protection and Affordable Care Act (PPACA).
We have separately submitted joint comments with a number of other organizations as well as individual comments discussing access for individuals with limited English proficiency. In the discussion below, we provide additional information in response to some of the questions posed in the August 3, 2010 Request for Comments.
Planning
- What are some of the major considerations for States in planning for and establishing Exchanges?
Due Process Exchanges will be responsible for establishing and administering an appeals process for individuals denied eligibility for premium tax credits. These tax credits are the key to ensuring that health care coverage is affordable and available to individuals and families. It is therefore crucial that Exchanges establish appropriate due process protections to protect the rights of applicants.
Individuals who meet relevant eligibility criteria and qualify for premium tax credits have a legitimate claim of entitlement to them. And, the Exchanges that will determine eligibility for these credits will either be state entities, or will be operated with significant State and federal funding. Thus, they must comply with constitutional protections set forth in Goldberg v. Kelly, 397 U.S. 254 (1970), just as state Medicaid agencies must do when determining eligibility for Medicaid coverage. These protections are embodied in the federal Medicaid regulations governing notice and appeal at 42 C.F.R. §§ 431.200-.250. Exchanges should be required to comply with the requirements of these regulations when eligibility for tax credits is denied in whole or in part. Among other requirements, notices must clearly state the reason for the denial and the authority upon which the decision is based. And, hearings must include the right to an impartial hearing officer, to be represented, to examine the evidence relied upon by the Exchange, and to present evidence and witness. See 42 C.F.R. §§ 431.206, .244.
This is particularly true because, in many cases, the Exchanges will also be responsible for determining eligibility for Medicaid. It makes no operational sense to have two sets of notice and appeals procedures that are administered by one entity. Moreover, compliance with due process requirements helps assure transparency and accountability for the significant public funding that is provided to states, Exchanges, and private health insurance plans.
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