NHeLP Comments – Program Integrity Proposed Rules

Executive Summary

NHeLP’s comments on HHS’s June 2013 proposed rule on Exchange program integrity focus on the need to preserve access to abortions in plans outside the Exchanges, the importance of special enrollment periods when non-Exchange entities engage in misconduct, strengthening the consumer protections in the FFE’s complaint resolution process, developing a robust consumer satisfaction survey process in the Exchanges, and ensuring that individuals without bank accounts can easily pay premiums.

Centers for Medicare & Medicaid Services Department of Health and Human Services
P.O. Box 8010
Baltimore, MD 21244-8010
Attention: CMS-9957-P
Patient Protection and Affordable Care Act; Program Integrity: Exchange, SHOP, Premium Stabilization Programs, and market Standards.
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. We appreciate the additional consumer protections proposed by HHS in these rules. We provide additional comments to strengthen these regulations.
Definitions ? § 155.20
In the preamble to the Exchange Establishment Rule and in the Premium Stabilization Rule, HHS states that a health plan that is ?substantially the same? as a Qualified Health Plan (QHP) is treated as the same QHP for purposes of 45 C.F.R. § 156.255(b) and the risk corridor program. HHS now proposes to revise that proposal to say that a plan offered outside of a health insurance Marketplace would be considered the same plan as one offered as a QHP through the Marketplace if, among other things, the benefits package offered is ?identical.? The plan sold outside of the Marketplace would be subject to the risk corridor program only if it is the same as a QHP actually offered by that issuer through the Marketplace. HHS seeks comment on all aspects of this approach.
We are concerned that HHS?s approach may penalize plans unable to provide for identical offerings solely because a state, pursuant to the ACA, enacts a law to prohibit qualified health plans from covering certain services in its Marketplace. Specifically, § 1303(a)(1) of the ACA creates ?special rules? for abortion coverage in state Marketplaces, including allowing a state to enact a law banning a QHP from covering abortion services in the Marketplace. Since the passage of the ACA, twenty-two states have passed abortion coverage bans in QHPs sold through a Marketplace.1 No other health care service has received similar treatment in the course of state legislation. In fourteen of these states, the abortion coverage bans do not apply to plans offered outside of the Marketplace.2 HHS?s proposal to modify the requirement from ?substantially the same? to ?identical? for purposes related to premium stabilization may prompt plans offered outside of the Marketplace to conform their offerings to mirror QHP offerings within the Marketplace. This would in effect create, without legislation, bans on abortion coverage outside of the Marketplace in those states. We therefore urge HHS to revise its rule so that a plan is eligible to participate in a risk corridor program if its benefits package would be identical except that the plan offered in the Marketplace fails to offer abortion services in a state with a Marketplace ban.
To avoid unintentional, widespread disruption of abortion coverage in states with Marketplace bans, HHS should revise its definition of a QHP to allow a health plan offered outside of the Marketplace to be considered the same plan as one certified as a QHP for purposes of the risk corridor program if the sole difference in benefits offerings is that that the outside-Marketplace plan covers abortion services in a state where such coverage is banned within the Marketplace.
Special Enrollment Periods ? § 155.420
We strongly support the addition of a special enrollment period for individuals who have been incorrectly or inappropriately enrolled in coverage due to misconduct on the part of a non- Exchange entity. Given the complex nature of new enrollment process and the availability of multiple programs with different eligibility requirements, the potential for confusion and errors for both enrollment helpers and consumers is high. Providing an opportunity to correct mis conduct will help ensure that those wronged by enrollment helpers will not suffer the consequences, which could include higher costs and fewer services, until the next open enrollment period. The preamble states that this option will be available to individuals incorrectly or inappropriately enrolled in coverage if they are not enrolled in QHP coverage as desired, are not enrolled in their selected QHP, or have been determined eligible for but are not receiving advance payments of the premium tax credit or cost-sharing reductions.
Since these same non-Exchange entities will also assist with Medicaid and CHIP applications, we believe those who engage in misconduct that results in an individual withdrawing a Medicaid or CHIP application should be required to notify affected individuals so they can reinstate a Medicaid or CHIP application and enroll if eligible. The preamble further notes that the non-Exchange entities that could be covered include but are not limited to:
  • Individuals and entities authorized by the Exchange to assist with enrollment in QHPs (such as a Navigator; non-Navigator consumer assistance personnel; or a certified application counselor);
  • agents or brokers assisting consumers in an Exchange;issuer customer service representatives assisting consumers in an Exchange; or
  • QHPs conducting direct enrollment.
We support the inclusion of these entities but suggest that HHS also broaden the list to include individuals and entities:
  • employed by an Exchange (including call center staff and customer representatives);
  • authorized by a Medicaid or CHIP agency to assist with enrollment (including Medicaid and CHIP certified application counselors, eligibility workers and out-stationed enrollment assisters); and
  • other issuer personnel who assist with enrollment (for example, this could include staff other than customer assistance representatives who may provide assistance).
The preamble also states that misconduct could include, but would not be limited to, the failure of a non-Exchange entity to comply with applicable requirements set forth in Exchange regulations or other applicable Federal or State laws. We support this list and also suggest specifically including non-compliance with training for those individuals who are certified to provide assistance. If an Exchange finds that an individual certified to provide enrollment assistance engage in misconduct, the affected individual should automatically receive a special enrollment period without having to show actual harm.
We appreciate the information about how an Exchange could determine misconduct occurred. We also suggest that if an Exchange identifies more than one error arising from the same individual/entity that the Exchange seek to identify all individuals who may have sought that individual/entity for assistance and notify them that an error may occurred and that the individual could request a special enrollment period.
RECOMMENDATION:  Amend § 155.420(d)(10) as follows:
(10) It has been determined by the Exchange that a qualified individual was not enrolled in QHP coverage, was not enrolled in the QHP selected by the individual, not enrolled in Medicaid or CHIP, or is eligible for but is not receiving advance payments of the premium tax credit or cost- sharing reductions as a result of misconduct on the part of a non-Exchange entity, Exchange personnel (including enrollment and call center staff) or a Medicaid or CHIP agency or contractor providing enrollment assistance or conducting enrollment activities. For purposes of this provision, misconduct includes, but is not limited to, the failure of the non-Exchange entity to comply with applicable standards under this part (including § 155.215), part 156 of this subchapter, or other applicable Federal or State laws, as determined by the Exchange.
Cases Forwarded to Qualified Health Plans and Qualified Health Plan Issuers in Federally Facilitated Exchanges ?  § 156.1010
NHeLP strongly supports requiring QHP issuers to have grievance procedures for cases, which we understand to be problems that arise other than adverse benefit determinations or eligibility determinations. We agree with the discussion in the preamble that concludes that cases will frequently involve customer service issues. We especially applaud HHS for specifying reasonable timeframes by which QHP issuers must resolve the cases they receive. We do urge HHS, however, to amend subsection (f) to require issuers to notify complainants of the resolution of their cases in seven calendar days, rather than business days. We applaud the requirement in subsection (d) that issuers resolve cases within 72 hours when life, health, or functioning is at risk. This rule will help to ensure that enrollees do not come to harm while waiting for a review of their case. We suggest that HHS consider adding language to this subsection to include situations of administrative urgency?for example, when the complainant must resolve her complaint before the an enrollment period.
We are concerned, however, by the narrow scope of this proposed regulation, which only applies when complaints about these problems are made about a QHP in an FFE. We urge HHS to consider adopting parallel requirements for Partnership Exchanges, and giving states guidance about complaints that are made to state-based Exchanges.
We appreciate the proposal to require QHP issuers in an FFE to investigate and resolve cases forwarded to the issuer by HHS. We are concerned, however, that the proposed rule lays out two different ways in which QHP issuers will resolve cases: the issuers will follow these rules when the case is brought to the issuer by HSS, but the issuer is to use its internal customer service processes for cases that are brought to the issuer directly. We urge HHS to use the process set out in these regulations for all cases, regardless of where they originate. Many consumers will not be sure where to make their complaint, but should not be subject to a different process based on where they lodge their complaint. We are similarly concerned that cases will only be tracked in HHS?s casework tracking system when they are brought to the issuer by HSS, but not when the issuer receives cases directly. HHS should have a complete picture of the problems that consumers in the FFE are experiencing with QHPs and QHP issuers, and therefore must track all complaints, regardless of where they originate. Further, information about the number and type of complaints made to each issuer should be available to the public.
In addition, we urge HHS to adopt additional protections to ensure that QHP issuers? processes for resolving cases are accessible to limited English proficient (LEP) individuals and those with disabilities. Without such accessibility, QHP issuers will offer substandard assistance to groups of individuals who have a high potential for losing assistance. In situations where the case resolution process is not accessible ? whether due to information about it being provided in a language that the individual does not understand or the failure to provide augmentative or assistive communication assistance to an individual with a disability ? the case resolution process must cease until cured. Only when the issuer provides a meaningful assistance in the case resolution process will the process be valid. These requirements apply pursuant to Title VI of the Civil Rights Act, the Rehabilitation Act, the Americans with Disabilities Act, and section 1557 of the ACA.
Finally, we ask HHS to consider adopting additional protections to ensure that the case resolution process is as fair and impartial as possible. HHS should ensure that the decision- maker in a case has not been involved in the case previously, and should ensure that clinical personnel handle cases that involve clinical issues.
RECOMMENDATION: Revise § 156.1010 as follows:
§ 116.1010 ? Standards
.  . .
(b) QHP issuers operating in a Federally-facilitated Exchange must investigate and resolve, as appropriate, cases from the complainant forwarded to the issuer by HHS. C , and any cases received by a QHP issuer operating in a Federally-facilitated Exchange directly fromor a complainant or the complainant?s authorized representative will be handled by the issuer through its internal customer service process.
(c) Cases may be forwarded to a QHP issuer operating in a Federally-facilitated Exchange through a casework tracking system developed by HHS or other means as determined by HHS. All cases must be recorded and tracked in the casework tracking system developed by HHS or other means as determined by HHS. HHS shall make information about the number and type of cases received by each QHP issuer available to the public.
(d) Cases received by a QHP issuer operating in a Federally-facilitated Exchange from HHS must be resolved within 15 calendar days of receipt of the case. Urgent cases as defined in § 156.1010(e) that do not otherwise fall within the scope of § 147.136 of this subchapter must be resolved no later than 72 hours after receipt of the case. Where applicable State laws and regulations establish timeframes for case resolution that are stricter than the standards contained in this paragraph, QHP issuers operating in a Federally-facilitated Exchange must comply with such stricter laws and regulations.
(e) For cases received from HHS by a QHP issuer operating in a Federally-facilitated Exchange, an urgent case is one either (i) in which there is an immediate need for health services because the non-urgent standard could seriously jeopardize the enrollee?s or potential enrollee?s life, or health or ability to attain, maintain, or regain maximum function; or (ii) where urgency is required due to a relevant administrative deadline, such as the impending end of an enrollment period.
(f) For cases received from HHS, QHP issuers operating in a Federally-facilitated Exchange are required to notify complainants regarding the disposition of their case as soon as possible upon resolution of the case, but in no event later than seven (7) business calendar days after the case are resolved. Notification may be by verbal or written means as determined most appropriate by the QHP issuer.
(g) For cases received from HHS, QHP issuers operating in a Federally-facilitated Exchange must use the casework tracking system developed by HHS, or other means as determined by HHS, to document, no later than seven (7) business days after
resolution of the case, that the case has been resolved. The record must include a clear and concise narrative explaining how the case was resolved including information about how and when the complainant was notified of the resolution.
(h) n resolving cases, QHP issuers must meet the following requirements:
(i) Give enrollees any reasonable assistance in completing forms and taking other procedural steps. This includes, but is not limited to, providing interpreter services and toll-free numbers that have adequate TTY/TTD and interpreter capability.
(ii) Acknowledge the receipt of each case. Such acknowledgement must be provided in an appropriate cultural and linguistic manner including the following:
(A) For any individual with a visual impairment who is unable to read a standard acknowledgement, the issuer must provide the acknowledgement in a large print, Braille, or alternate format appropriate to the individual?s disability.
(B) For any individual the issuer knows or should reasonably know is LEP, the acknowledgement must be provided in that individual?s language; and
(C) For all acknowledgements, the issuer must provide taglines in at least 15 languages informing individuals of the availability of written translations or oral assistance to understand the information provided and a toll0free telephone number to request assistance.
(iii) Ensure that the individuals who make decisions on cases are individuals?
(A) Who were not involved in any precious level of review or decision-making; and
(B) Who, if deciding any of the following, are health care professionals who have the appropriate clinical expertise, as determine by the State, in treating the enrollee?s condition or disease.
a. A case regarding the denial of expedited resolution of an appeal of an adverse benefit determination.
b. A case involving clinical issues.
Establishment of standards for HHS-approved enrollee satisfaction survey vendors for use by QHP issuers in Exchanges – § 156.1105
NHeLP supports the development of a robust and patient centered survey to measure care experience and satisfaction run by HHS-approved survey vendors. One key factor in conducting an effective satisfaction survey is demonstrated experience with cultural and linguistic competency and delivering the survey in alternative formats to ensure accurate and comprehensive data collection. HHS?s final Exchange eligibility and enrollment regulations, at
§ 155.120, specifically require states and exchanges ? and thus the survey vendors connected with the exchanges ? to comply with applicable nondiscrimination statutes and not discriminate based on race, color, national origin, disability, age, sex, gender identity or sexual orientation.3 Additionally, survey vendors are likely also directly subject to compliance with federal civil rights laws including ACA § 1557, Title VI of the Civil Rights Act of 1964, § 504 of the Rehabilitation Act, and the Americans with Disabilities Act, as indirect recipients of federal financial assistance since all exchanges have received federal financial assistance and could not abrogate their responsibilities to comply with these laws by hiring subcontractors.
We recommend that vendors translate the survey into any language for which a QHP?s enrollment meets a threshold of 5% or 1000 primary speakers in a target population. CMS should establish this as a translation threshold for enrollee satisfaction surveys. The Agency for Healthcare Research and Quality (AHRQ), which administers the CAHPS® surveys, includes guidelines and recommendations for translation on its website.4 At a minimum, prospective survey vendors should be required to demonstrate competency in complying with these guidelines for the languages that meet the thresholds for their target population. Vendors should also demonstrate experience providing surveys in large print or using auxiliary aids and services to accommodate the needs of individuals with disabilities.
The preamble discussion of Subpart L cites the current Medicare CAHPS survey as a model for the Exchange enrollee satisfaction survey. We note that the vendor business requirements for Medicare CAHPS only require prior experience conducting surveys in English and Spanish. Estimates are that 23% of prospective Exchange applicants speak a language other than English at home, many of whom will not be Spanish-speakers. A more expansive minimum requirement is necessary to adequately capture the care experiences of beneficiaries whose primary language is not English or Spanish. Otherwise, the surveys may produce inaccurate results that fail to register experience of all people with limited English proficiency or individuals with disabilities who require alternative formats. We recommend that CMS include cultural and linguistic competence and experience delivering surveys using alternative formats as a vendor standard for administering consumer surveys on the Exchanges. The minimum requirement should exceed the current standard for the CAHPS Medicare survey to have prior experience with only English and Spanish.
Recommendation: Add the following paragraphs to subsection (b):
(12) Demonstrate prior experience in conducting surveys in a culturally and linguistically appropriate manner, including the capacity to provide trained professional interpretation services when requested and translate surveys if 5% or 1000 individuals in the target population are primary speakers of that language;
(13) Ensure their capacity to provide auxiliary aids and services for individuals with disabilities, at no cost, when requested by the consumer for effective survey administration
Enrollment process for qualified individuals ? § 156.1240
We applaud HHS for taking swift action to ensure that people eligible for premium tax credits who do not have bank accounts will nevertheless be able to access coverage in the Exchanges. By requiring QHPs to ensure that premium payment methods do not discriminate against those who lack bank accounts or credit cards, the proposed rule will ensure that individuals do not miss out on coverage simply because they are ?unbanked.? It is critical that QHPs be explicitly required to accept a variety of payment methods, including paper checks, cashier?s checks, money orders and replenishable, pre-paid debit cards. Electronic fund transfers from bank accounts and automatic deductions from credit or debit cards are also important and convenient ways for beneficiaries to pay monthly premiums. Section 156.1240(a)(2) currently requires that a QHP?s accepted methods of payment be nondiscriminatory against individuals without bank accounts or credit cards. We strongly recommend HHS to list in regulation the minimum acceptable methods of payment, as detailed in the preamble.
We are encouraged that many elements of the Proposed Rule will provide additional consumer protections for those who purchase insurance through Exchanges. We hope that you will consider the improvements we have suggested. If you have any questions or need any further information, please contact Abbi Coursolle ([email protected]; (310) 736-1652), Staff Attorney, at the National Health Law Program. Thank you for your consideration.
Emily Spitzer
Executive Director

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