NHeLP Letter to Issuers Comments

Gary Cohen
Deputy Administrator & Director
Center for Consumer Information and Insurance Oversight
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Bethesda, MD
RE: Letter to Issuers on Federally-facilitated and State Partnership Exchanges
Dear Deputy Administrator Cohen:
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 opportunity to review the Letter to Issuers. We submit these comments addressing our concerns and look forward to conversations with you and your staff to continue to improve the requirements for issuers to ensure compliance with the ACA and to protect
consumers? rights.
Our comments address concerns with specific sections of Chapters 1, 3, 4, 5 and 6.


Chapter 1: Certification Standards for Qualified Health Plans

i. Network Adequacy

CMS should establish more robust network adequacy standards for QHPs and create a transparent monitoring system to ensure compliance and better inform consumers.
Federal regulations require QHPs to maintain a network with a sufficient number of providers ?to assure that all services will be accessible without unreasonable delay.? 45 C.F.R. 156.230(a)(2). However, this network adequacy standard is overly broad and will have little meaning without effective monitoring and oversight.
In its Letter to Issuers, CMS describes a myriad of ways QHPs can demonstrate network adequacy. For some QHPs, CMS will rely on state-level network adequacy reviews as part of the licensing process; for others, CMS will rely on the accreditation process; for others CMS will require QHPs to submit an access plan as part of the QHP application. CMS will also monitor network adequacy through complaint tracking.
This diffuse oversight of network adequacy and lack of uniform standards and reporting will create significant challenges in effective compliance monitoring. CMS should require all QHPs to meet and adhere to specific network adequacy standards. Medicaid managed care regulations may serve as a useful starting point for establishing a baseline of network adequacy metrics for QHPs.[1] These include reporting primary care provider-enrollee ratios, provider-enrollee ratios by specialty, hours of operation, geographic accessibility, identifying providers who are not accepting new patients, and listing the waiting times for appointments with participating providers.[2]
However, network adequacy standards in Medicaid managed care have proven difficult to monitor and enforce.[3] For this reason, CMS should establish a more robust monitoring and enforcement system that requires QHPs to publicly report compliance with network adequacy standards. Reports showing compliance with network adequacy measures including provider capacity and average wait times, should be posted in a prominent place on the QHP?s website and be updated periodically (at least on a quarterly basis). The website for the Marketplaces should also link to these reports. QHPs should also provide its network adequacy reports to consumers along with the Summary of Benefits and Coverage (SBC). CMS and states should monitor QHPs for compliance and conduct random audits to verify the data reported.
QHPs will be more likely to meet and adhere to network adequacy standards if they are required to publicly report their compliance. Moreover, information such as average wait times for appointments will be useful to potential enrollees when selecting a QHP.
CMS should establish uniform network adequacy standards and methodologies because state models may be insufficient. If a state?s assessment of network adequacy does not evaluate whether the essential health benefits are actually available to enrollees without unreasonable delay or travel, CMS should not rely on the state?s findings of network adequacy. A standard that merely counts the numbers and types of providers should not be considered sufficient. Before relying on state reviews, CMS must ensure that states account for the range of services offered by participating providers, and whether providers are accepting new patients. If an enrollee needs contraception, for example, but her plan only offers OB/GYNs who perform pelvic exams and provide prenatal care but are personally opposed to contraception, the services she needs are not actually accessible to her. Similarly, if an enrollee needs primary care, but his plan does not offer any primary care providers who are accepting new patients, the services he needs are not actually accessible to him. Additionally, before relying on state findings, CMS should ensure that state assessments include evaluation of appropriate travel times and distances that account for variation in specialty type and geography.
Particularly in states without sufficient network adequacy review, CMS should conduct its own thorough review, ensuring that the provider network of each QHP is sufficient in numbers and types of providers to assure that all covered services will be accessible to enrollees without unreasonable delay or travel. While CMS can take an issuer?s accreditation into account when conducting its review, it should not be sufficient to show compliance.
ii. Essential Community Providers
The Minimum Expectation of only 10% articulated in this letter is unreasonably low and does not guarantee a sufficient number and geographic distribution of providers to ensure reasonable and timely access for low-income, medically underserved individuals in the QHP?s service area as required under the law. At a minimum, all issuers should be required to meet the Safe Harbor standard articulated in the letter. If an issuer fails to meet the Safe Harbor standard, the issuer should be required to show a good faith effort to contract with the required numbers and categories of essential community providers. The issuer should also provide a narrative description of how the insurer?s provider networks, as currently designed and after taking into account new 2014 enrollment, provide an adequate level of service for low-income and medically underserved 4 enrollees. It should be difficult for issuers that do not meet the Safe Harbor requirements to meet the regulatory standard.
Further, the Safe Harbor standard itself must be strengthened in order to fulfill the regulatory requirement that qualified health plans include ?a sufficient number and geographic distribution of essential community providers, where available, to ensure reasonable and timely access to a broad range of such providers.? Under the standard outlined in the Letter, issuers must offer contracts during the first coverage year to at least one ECP in each ECP category in each county, in addition to demonstrating that 20 percent of available ECPs in the service area are included in network.
It is imperative that HHS revise this standard to ensure issuers are offering contracts prior to QHPs being available on the Marketplace in October 2013. Allowing plans to meet the Safe Harbor by simply offering a contract during the first coverage year does nothing to ensure that patients entering the Marketplace in 2013 will have access to providers. Instead, we recommend that issuers must to offer a contract before the start of the coverage year. Likewise, consistent with the expectation HHS outlined in the Final Exchange Rule, the Letter should make clear that those contracts must be meaningful in that they include all of the services the plan covers and the ECP provides and offer reimbursement at generally applicable payment rates. In addition, HHS must revise the standard to increase the number of ECPs per category per county and, at minimum, increase it to at least 3 ECPs per category per county.
iii. Alternate ECP Standard for Integrated Issuers
As stated above, we do not believe the Minimum Expectation standard is sufficient to guarantee the required number and geographic distribution of providers to ensure reasonable and timely access for low-income, medically underserved individuals.
The Letter to Issuers mentions that CMS is adopting a phased approach to accreditation, as stated in the final Essential Health Benefits (EHB) rule. We urge HHS to provide further subregulatory guidance on the EHB rule. In particular, HHS should issue further guidance on provision of the EHB and the ?substantially equal? standard maintained in the EHB final rule to ensure issuer compliance.[4]
In § 156.115(a)(1) of the final rule, HHS suggests that insurers will be considered in compliance with EHB coverage requirements so long as they provide benefits that are ?substantially equal? to the EHB benchmark plan. The use of ?substantially equal? terminology creates an additional loosening of the EHB standard which has no basis in law and threatens to further weaken an EHB standard. This concern is exacerbated by the fact that HHS provides no guidance or framework for analyzing whether covered benefits or limits on coverage meet the ?substantially equal? standard. NHeLP previously recommended that HHS eliminate this language. The final rule retains this language. Therefore, HHS must set a strong standard for ?substantial equivalence? and will need to monitor this proactively.
The EHB final rule also expressly allows insurer flexibility to substitute benefits within a category of services if they meet certain actuarial equivalence requirements. Although NHeLP strongly disagrees with this substitution policy, we commend HHS for at least limiting the substitutions within categories, as opposed to across categories, which would be even more problematic. We urge HHS to issue further guidance to issuers and states outlining the limits on substitution authority, as well as the procedures that must be in place to ensure that all substitutions are adequately reviewed and monitored for compliance with other QHP and EHB requirements, including on discrimination and actuarial equivalence. Allowing insurers to substitute services creates dangerous potential for discrimination and insurance rating through benefit design. The EHB standard should serve as a floor, not a ceiling. We once again urge HHS to eliminate any provision for issuer substitution. It completely undercuts the letter and intent of the ACA in a number of areas, including on discrimination and meaningful coverage of the ten statutory benefit categories.
Subregulatory guidance on benefit substitution should also reiterate the following protections created by the EHB final rule, including:
  • Exclusion of drug coverage from substitution;
  • State flexibility to limit or eliminate substitution; and
  • A general prohibition to prevent plans from excluding enrollees from any category of coverage.
We appreciate the additional guidance provided on EHB prescription drug coverage, including the detailed process outlined in Appendix C for the prescription drug exceptions process. We urge HHS to require that where an individual is experiencing a serious health condition, or where any delays in immediate access to the drug could cause harm, the issuer must provide a decision as soon as possible, and absolutely no later than 24 hours after receiving the request. We appreciate HHS? recognition that plans offering the EHB should allow the enrollee to have the medication in dispute during the entire review process and, when the exception request is granted, during subsequent plan/policy years.
i. Non-discrimination
We recommend that CCIIO include additional information regarding nondiscrimination requirements in the Letter to Issuers. We support the language CCIIO has already 6 included that QHPs must attest they will not discriminate on the basis of health status, race, color, national origin, disability, age, sex, gender identity or sexual orientation, consistent with 45 C.F.R. § 156.200(e). To ensure that QHPs do not employ market practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs, we believe a deeper analysis, beyond a costsharing analysis, will be required and recommend CCIIO set up standards to do so. CIIO should look beyond cost-sharing and compare actual benefit designs for outliers on limits and restrictions, such as visit limits and prior authorization requirements, associated with specific benefits.
In particular, four provisions in the ACA specifically relate to nondiscrimination and CCIIO should specifically require compliance with them:
  • § 1557 prohibits discrimination on the basis of race, color, national origin, language, sex, sexual orientation, gender identity, age and disability in health programs or activities that receive federal financial assistance, are administered by an Executive agency, or were established by Title I of the ACA.
  • § 1302(b)(4)(B) requires that the Secretary ?not make coverage decisions, determine reimbursement rates, establish incentive programs, or design benefits in ways that discriminate against individuals because of their age, disability, or expected length of life.?
  • § 1302(b)(4)(C) requires the Secretary to ?take into account the health care needs of diverse segments of the population, including women, children, persons with disabilities, and other groups.?
  • § 1302(b)(4)(D) requires the Secretary to ensure ?that health benefits established as essential not be subject to denial to individuals against their wishes on the basis of the individuals? age or expected length of life or the individuals? present or predicted disability, degree of medical dependency, or quality of life.?
These four provisions provide CCIIO ample authority to implement stronger provisions to prevent discrimination.
RECOMMENDATION: Add specific information regarding the nondiscrimination requirements with regards to EHB:
45 C.F.R. § 156.125, which codifies § 1302(b)(4) of the Affordable Care Act, prohibits issuers providing EHB from employing or implementing benefit designs that have the effect of discriminating against individuals based on age, expected length of life, present or predicted disability, quality of life, or other health conditions. Similar to other EHB standards, the nondiscrimination requirements are subject to state enforcement. QHPs seeking Exchange certification must meet additional non-discrimination standards generally related to plan cost sharing.


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