On February 21, 2013, NHeLP submitted comments to proposed regulations (identification number: CMS-2334-P) from HHS concerning Exchanges and Medicaid. These regulations covered an expansive range of topics, building upon prior regulations proposed in 2012 and also introducing some new issues. The proposed regulation, and NHeLP?s comments, deals with eight broad topics. [Bracketed references refer to page numbers in NHeLP?s comments.]
1. Medicaid Plan Administration
This part of the proposed rule addresses submittal of state plans and state plan amendments. NHeLP?s comments commend HHS for some of the proposed policies, but makes additional recommendations to ensure more robust transparency and consumer stakeholder participation. [2-4]
2. Medicaid General Administration
The proposed rules address notice and appeals, including permission to delegate authority. NHeLP?s comments commend a new proposed policy (previously requested by NHeLP) limiting Medicaid agencies? delegation of appeals to government agencies or other public agencies meeting good standards of oversight. [5] However, NHeLP suggests HHS strengthen requirements for clear written agreements setting out delegated relationships. [6]
NHeLP recommends strengthening the content of notices, to ensure enrollees have all relevant information, and improving the ways appellants can make their appeal. [8] NHeLP suggests important language to ensure that appellants have a full review of their case. [9] NHeLP also commends and makes additional recommendations regarding efforts to improve the hearings and notice system for limited English proficient (LEP) individuals. [7]
NHeLP strongly commends HHS for a critical policy in the proposed rule, allowing an applicant to automatically file two eligibility appeals at once (one for Medicaid, one for Exchange), although NHeLP provides additional suggestions including aligning timeframes. [9] In particular, NHeLP recommends appellants have the choice of which appeal is conducted first. [11, 14] NHeLP reiterates its previously stated concerns about a proposed HHS policy promoting ?withdrawal? of appeals. [11, 30, 91] NHeLP also suggests standards to ensure impartial hearing officers [13] and recommends public access to hearing decisions [14].
NHeLP enthusiastically commends HHS for provisions requiring expedited hearings for individuals with urgent health needs. [12]
3. Medicaid Eligibility
NHeLP offers numerous recommendations to improve terminology and underlying eligibility rules for immigrants, including opposing the exclusion of eligibility for individuals granted deferred action by the Department of Homeland Security under the Deferred Action for Childhood Arrivals (DACA) policy. [15-20]
NHeLP commends HHS for shifting its policy and agreeing to ?convert? minimum eligibility thresholds from current standards to MAGI equivalents for parents, caretaker relatives, and pregnant women. [21] NHeLP recommends deeming more newborn children eligible for coverage [21] and improving eligibility for foster care children, pregnant women, and other populations [22-23]. NHeLP also recommends policies regarding verification and documentation of citizenship. [24-25]
HHS? proposed rule sets out new policies for MAGI income counting rules. NHeLP reiterates its opposition to HHS? proposed policy to count the income of stepparents under MAGI income counting rules (even though they may not be legally responsible for supporting their stepchildren). [26] NHeLP also opposes HHS? proposed policy to only apply the required 5% income disregard to individuals who need it to become eligible. [26- 27]
NHeLP addresses concerns with HHS? effort to simplify eligibility rules for the ?medically needy? population and proposed policies for availability of information for individuals who are LEP or have a disability. [28-29] NHeLP also commends HHS and makes addition recommendations regarding policies for application assistance for vulnerable populations. [31-33]
NHeLP recommends ensuring decision notifications provide individuals with full information about the coverage they have been approved eligible for and any other coverage they could be eligible for through other channels. [35] NHeLP also repeats prior recommendations to ensure these notices are accessible to vulnerable populations. [34, 36] NHeLP commends the development of electronic notification systems for enrollees, but recommends that written notification also be used for all important critical information, unless the enrollee chooses electronic contact only. [36-37] NHeLP also suggests improving policies regarding authorized representatives. [38] NHeLP strongly supports HHS? policy to promote continuous eligibility of children. [39]
NHeLP strongly commends HHS for requiring states to allow self-attestation for eligibility criteria if documentation is not available [39], and makes other suggestions to improve the verification process for various types of information, such as social security numbers, immigration status, or disability. [39-43]
NHeLP commends HHS for various policies supporting presumptive eligibly and payment for presumptive eligibility services [43], and makes some suggestions to improve the system for children [44], others [45-46], and hospitals. [47] However, NHeLP generally opposes and suggests protections and limitations on HHS? proposed expansion of authority for Medicaid premium assistance programs, where states use Medicaid dollars to buy private insurance coverage for eligible individuals. [44]
NHeLP supports HHS? effort to create alignment between Exchange and Medicaid eligibility rules in the 2013 to 2014 transition, and makes suggestions to improve the system. [47-48]
4. Medicaid Services
HHS? proposed rule sets out additional details for the ?Alternative Benefits Plans? (ABP) that Medicaid Expansion enrollees will generally receive, and how those plans will meet the requirement to cover at least as much as the Essential Health Benefits (EHB) standard.
NHeLP commends HHS for expanding the ability of providers to work to the full extent of their scope of practice. [49]
While most Medicaid Expansion enrollees will receive an ABP benefit, some individuals will be exempt and receive the traditional Medicaid benefit. NHeLP commends HHS for providing exemptions to a wider range of ?medically frail? individuals, and recommends expanding exemptions to chronically ill populations on those in need of substance abuse services. [49]
NHeLP strongly commends HHS for providing clear authority for states to add any of a wide range of Medicaid and EHB services to the ABP benefits package using the Secretary approved coverage option. [50] NHeLP also commends HHS for protections regarding Secretary approved coverage, but suggests one more critical protection. [50]
NHeLP considers it critical that HHS ensure that states follow all existing applicable Medicaid requirements when providing ABPs, and commends HHS for explicitly referencing EPSDT compliance. [51] NHeLP recommends a policy to ensure ABPs cover a wide range of drugs as Medicaid generally does, without the Medicaid authority to limit monthly number of prescriptions that some states have used. [52]
HHS proposed extreme flexibility for states in defining the EHB for their ABP ? allowing states to pick an ABP EHB that is different from their Exchange EHB, and to pick multiple different EHBs if they choose to adopt multiple ABPs. NHeLP recommends that states be required to use one consistent EHB for all purposes. [53]
NHeLP commends HHS for including a wide range of preventive services in the ABP, but strongly recommends HHS should apply the same cost-sharing protections to lower income individuals as are required for higher income individuals. [53, 69] NHeLP recommends that HHS set a strong definition for habilitative services, with no flexibility for insurers to make up their own definition. [54] NHeLP also makes recommendations to ensure these services comply with nondiscrimination requirements. [55-57]
NHeLP makes numerous suggestions to ensure the ABP is designed and changed through a transparent process including robust stakeholder participation. [57-59]
5. Medicaid Cost-sharing
HHS? proposed rule intends to ?simplify? current Medicaid cost-sharing rules. While HHS does make some sensible proposals, HHS? proposed policy implements cost-sharing which is gravely detrimental to vulnerable populations and weakens critical Medicaid protections.
NHeLP?s comments provide a rich discussion about why copayments are an ineffective, and in fact detrimental, policy for populations near or below the poverty line. [59-61]
NHeLP recommends that any cost-sharing applied to ?non-emergency? use of ERs be limited to situations where an acceptable alternative was actually available. [61]
HHS? proposed policy sets a new minimum (?nominal?) copay standard of $4 for outpatient services for individuals below the poverty line. NHeLP strongly objects to this standard as creating a massive barrier for low income individuals and HHS must lower it for numerous reasons — it is above Medicare minimums, above the highest current ?nominal? minimum, and almost double the current average nominal minimum, just to name a few reasons. NHeLP recommends the standard be set at $1.10 ? the lowest current Medicare minimum. [62]
NHeLP strongly opposes a policy maintaining an inpatient hospital copayment for individuals below the poverty line at 50% of the first day care. Such an amount could be essentially half of the monthly income of the wealthiest individuals living below the poverty line. NHeLP recommends a $10 charge. [63]
NHeLP also objects to HHS? proposed $4 to $8 copayments for prescription drugs for individuals below 150% of the poverty line, and recommends HHS model the copayments on the Medicare system. [64] NHeLP also recommends ensuring that individuals pay the lowest cost-sharing rate possible if they need a ?preferred? medication for clinical reasons, and suggests electronic systems facilitate the ability of providers to make these indications. [65]
NHeLP objects to proposals allowing up to $8 copays for hospital ER use for individuals up to 150% of the poverty line, since this amount is illegally above the ?nominal? limit for individuals below 100% of poverty, and is exorbitant (twice the nominal amount) for individuals from 100% to 150%. NHeLP also opposes no limit for individuals above 150%. NHeLP recommends: maximums of $3.30 (below 100%), $6.30 (100-150%), and $12 (above 150%). [66-67]
NHeLP?s comments identify legal requirements which must be added to HHS? proposed policy for Medicaid premiums, and makes other recommendations to improve premiums. [68]
NHeLP makes important recommendations to eliminate the use of cost-sharing for individuals with chronic illness, in need of home and community based supports, or who are victims of medical errors. [70-71]
NHeLP expressed special concern over a provision which (perhaps unintentionally) eliminates one of the most important cost-sharing protections for some low income individuals. Medicaid law says that individuals below the poverty line never have to pay.
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