NHeLP Comments: Patient Protection and Affordable Care Act; Establishment of Ex

VIA ELECTRONIC SUBMISSION 
 
Centers for Medicare & Medicaid Services
Department of Health and Human Services
PO Box 8010
Baltimore, MD 21244-8010
Attention:
CMS-9989-F
Patient Protection and Affordable Care Act;
Establishment of Exchanges and Qualified Health Plans;
Exchange Standards for Employers
Final rule; Interim final rule
 
Dear Sir/Madam:
The National Health Law Program (NHeLP) is a public interest law firm working to advance access to quality health care and protect the legal rights of low-income and underserved people. NHeLP provides technical support to direct legal services programs, 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. With the implementation of the Patient Protection and Affordable Care Act, it is critical to ensure that low-income and underserved individuals who are eligible for Advanced Premium Tax Credits, cost-sharing assistance, Medicaid and CHIP are found eligible for relevant subsidies and programs so they can fully benefit from the promises of health reform. We appreciate the ability to provide comments on the Interim final rule and offer some additional thoughts as well.
§ 155.220(a)(3)
This interim final provision permits agents and brokers to assist individuals in applying for advanced payments of premium tax credits and cost-sharing reductions. CMS would require agents and brokers to comply with the terms of an agreement with the exchange, including a requirement to register before assisting consumers, receiving training, and abiding by information privacy and security standards, and with state law. 
NHeLP believes CMS should adopt stronger federal standards in this portion of the rule to appropriately define the ?producer? role and to ensure that consumers receive adequate information about their options for obtaining coverage information and enrolling in the plan that is right for them. A key role of the exchanges is to connect people with insurance affordability programs for which they may be eligible, whether federally financed premium tax credits and cost-sharing reductions in an exchange or programs such as Medicaid and CHIP. We note that applicants to the individual market exchange generally will be screened for eligibility for these affordability programs and many of them will have incomes low enough to qualify. This is, therefore, a new type of marketplace and a very different population than agents and brokers typically serve. Any agent or broker operating in this role must be held to a very high standard. They should be working in the best interests of consumers and the exchanges, not in the service of health insurance companies with which they may have financial arrangements or business relationships. 
 
The exchanges are intended to be consumer-friendly marketplaces where families find important, unbiased information to help them make smart decisions about their health insurance. Producers can play a useful role in this system if they are similarly unbiased and if they provide useful assistance to customers. In the absence of explicit protections, the relationship agents and brokers have with health insurers raises the risk that some agents and brokers may not act in consumers? best interests or may engage in activities that undermine the stability of the exchanges. The federal standards should address this.
 
RECOMMENDATIONS for § 155.220(a)(3):
1. States that choose to allow agents and brokers to assist with applications for insurance affordability programs (i.e., advance payment of premium tax credits and cost-sharing subsidies as well as Medicaid and CHIP) should ensure that agents and brokers serve consumers in an optimal manner if they elect to use an agent or broker. CMS should require states that permit agents and brokers to provide assistance with applying for insurance affordability programs to:
  • Ensure that agents and brokers performing this function demonstrate to the exchange that they have adequate ability and knowledge to serve the needs of low-income, vulnerable, and underserved populations; 
  • Require conflict-of-interest and code-of-conduct standards that, at a minimum, require agents and brokers to act in the best interest of consumers and that prohibit steering or other activities that could undermine the stability of the exchange. Without such standards, some agents and brokers may have incentives (arising from their arrangements with health insurance issuers inside or outside the exchange) to engage in activities that promote adverse selection against the exchange or to guide people to choose a plan within the exchange based on factors other than consumers? best interests. States should also require agents and brokers to disclose to the exchange and to consumers all payment arrangements with health insurance issuers (including QHP and non-QHP issuers) and ensure consumers have access to legal and financial recourse if they are adversely affected by the actions of an agent or broker.
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