Your Comment Tracking Number:1jx-86jw-s12j
July 19, 2013
Marilyn Tavenner, Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
RE: Comments on proposed Marketplace regulations CMS–9957–P
Dear Ms. Tavenner:
The Georgetown University Center for Children and Families appreciates the opportunity to provide comment on the proposed rule on health insurance Marketplace program integrity and other topics(CMS–9957–P). The Center for Children and Families is an independent, nonpartisan policy and research center whose mission is to expand and improve health coverage for America's children and families.
Please find below our comments on several sections of the proposed rule:
§ 155.220 Ability of States to permit agents and brokers to assist qualified individuals, qualified employers, or qualified employees enrolling in QHPs.
In order for marketplaces to fulfill their purpose of fostering competition among insurance plans, families shopping for coverage must have the opportunity to learn about all of their plan options. Therefore, we strongly support the proposal’s requirement at (c)(3)(vii) for prominent display of notice that additional information may be available that would aid a family’s choice of plans. We urge the requirement to not only list the kinds of information to be displayed, but also to include a standard text that must be displayed. This will allow the notice to be consistent across different agent and broker websites and will help prevent families from missing out on important plan information because a broker’s notice is unclear, obscure, or otherwise ineffective.
In addition, HHS should clarify the process that web brokers must follow when a consumer using a web broker site (or a member of that consumer’s family) is determined or assessed as eligible for Medicaid, CHIP, or affordability programs other than those related to enrollment in a QHP. The web broker, as a condition of its work enrolling people “through the Exchange,” should, at minimum, be required to ensure that people are connected with the appropriate eligibility resources for those other programs.
§ 155.310 Eligibility process.
Because families applying for coverage must provide a wide range of information, including detailed income data and information on employers’ offers of coverage, we support the definition of a period during which incomplete applications can be completed. Because the single streamlined application will be used to determine Medicaid as well as advance premium tax credit and QHP eligibility, it is important that this period for completion does not disadvantage families regardless of how final eligibility is determined. For Medicaid, applicants benefit from an early application date because they can potentially qualify for retroactive coverage. Therefore, the rules should specify that submission of an incomplete application establishes an applicant’s application date. On the other hand, an eligibility determination that results in advance premium tax credit eligibility may disadvantage an applicant if it comes 90 days after application and any QHP enrollment period has ended—the APTC may not be able to be used because the enrollment period has ended. Therefore, we urge CMS to create a special enrollment period when an applicant is newly determined eligible for an advance premium tax credit. This will allow applicants whose determinations were delayed to enroll after they learn the true cost to them (accounting for the APTC) of enrolling in a QHP.
§ 155.340 Administration of advance payments of the premium tax credit and cost-sharing reductions.
We support requiring the Exchange to notify and refund the enrollee’s excess premium within 30 days of when the Exchange discovers it has made a mistake. These mistakes are different from income and other household changes and should be rectified as soon as possible by the Exchange.
§ 155.415 Allowing issuer customer service representatives to assist with eligibility applications.
We recommend that HHS clarify how issuer customer service representatives would be required to respond when someone they are assisting has income that would potentially make them eligible for Medicaid, the Children’s Health Insurance Program, or another affordability program, rather than premium credits and cost-sharing reductions related to a QHP offered in the exchange. We recommend that HHS ensure that the issuer continues to assist such persons and connect the consumer and family members with other programs for which they might be eligible, whether this occurs during a determination or redetermination.
§ 155.420 Special enrollment periods.
We strongly support the addition of a special enrollment period for individuals who have been incorrectly or inappropriately enrolled in coverage due to misconduct or error on the part of a non-Exchange entity. We support the inclusion of the entities included in the preamble, but suggest that HHS also broaden the list to include additional individuals and entities such as:
- individuals 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)
We also support the inclusion of the types of misconduct and error noted in the preamble, but we suggest including non-compliance with training for people certified to provide assistance in this list. If an exchange finds that an individual certified to provide enrollment assistance has provided erroneous information, the affected individual should automatically receive a special enrollment period without having to show actual harm.
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 entityproviding 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.
§ 155.705 Functions of a SHOP.
The ACA provides for navigators to ensure that families are aware of and have assistance in accessing not only qualified health plans but also insurance affordability programs. Many families in which some members are eligible for coverage due to employment in a small business will have other members who qualify for insurance affordability programs. Navigators should be available to assist such families understand and take advantage of their coverage options.
Proposed paragraph (d) allows certain navigators functions to be accomplished by referral to agents and brokers when a state operates only a SHOP. We are concerned that in such states, agents and brokers will be the only source of information for families served by the SHOP, i.e., there will be no one to fulfill the remaining navigator duties. We urge CMS to require states that operate only a SHOP to describe how all navigator duties will be offered. A key navigator duty is providing information about other health programs, especially insurance affordability programs, but this is not one of the duties permitted to be referred to agents and brokers. Because the proposed rules provide that referral to agents and brokers can only be used for two of the navigator duties, states in this situation should clearly demonstrate how the other navigator duties will be provided.
§ 156.460 Reduction of enrollee’s share of premium to account for advance payments of the premium tax credit.
We support requiring QHPs to notify and refund enrollee’s excess premiums within 30 days of when the QHP discovers that it has made a mistake. These mistakes are different from income and other household changes and should be rectified as soon as possible by the QHP.
§ 156.1010 Standards.
We support the provisions in § 156.1010 that require QHP issuers operating in the FFE to investigate and resolve complaints forwarded by HHS. However, we have a few suggestions to improve this process.
While we agree that there should be a customer service system and process that both HHS and QHPs can use, we also suggest that state insurance departments in FFE states also have access to this customer service system and process and have the ability to refer cases to QHPs through this system, or track cases, as needed. We also suggest that states be required to follow the same process as the federal government when they receive complaints about QHPs operating in their state and need to refer those to QHPs.
We also agree it makes sense to give QHP issuers a time limit for resolving complaints and notifying complainants. However, 15 calendar days to resolve the case and 7 business days to notify the complainant could be as long as 24 days from when the complaint was made to the QHP. We suggest you modify this to 15 calendar days to resolve the case and 5 calendar days to notify the complainant. Some of these complaints may regard an individual’s eligibility for coverage in a QHP and while not meeting the standard for “urgency” in (§ 156.1010(e)), could be critical for the individual’s access to coverage and health care services.
In addition, we suggest that there be a similar process and timing when a complaint from an individual is given directly to a QHP or QHP issuer and when it is referred by HHS or a state insurance regulatory agency.
We also suggest that CCIIO aggregate the data from the customer service system and make it publicly available on a regular basis. Many states have required this type of annual reporting of external review cases that provides the number of external review cases reviewed, the types of cases, the nature of the cases, and the disposition of the cases. A similar type of report from QHPs, compiled from the customer service system, would hold QHPs accountable for handling complaints that are not in regard to adverse benefit determinations. Such a report could include complaint data by FFM state, by QHP, the number of complaints, the type and nature of the complaint, the disposition of the case, and the length of time it took to resolve the case.
Recommendation: Amend § 156.1010 (b), (d), (e), (f), and (g).
(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 and by state insurance regulatory agencies. Cases received (…).
(d) Cases received by a QHP issuer operating in a Federally-facilitated Exchange from HHS and state insurance regulatory agencies must be resolved within 15 (…).
(e) For cases received from HHS and state insurance regulatory agencies by a QHP issuer (…).
(f) For cases received from HHS and state insurance regulatory agencies, QHP issuers operating in a Federally-facilitated Exchange are required to notify complainants regarding the disposition of the case as soon as possible upon resolution of the case, but in no event later than 5 calendar days after the case is resolved (…).
(g) For cases received from HHS and state insurance regulatory agencies, 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 five calendar days after resolution of the case (…).
add:
For cases received by a QHP issuer directly from a complainant, the QHP issuer must use the casework tracking system described in § 156.1010(c) and must follow the timelines provided in § 156.1010(d), § 156.1010 (f) and § 156.1010 (g).
§ 156.1240 Enrollment process for qualified individuals.
We strongly support provisions in the proposed regulation that ensure that payment options do not discriminate against individuals without bank accounts or credit cards (§ 156.1240(a)(2)). Given the high percentages of low- and moderate-income households that are unbanked or underbanked, we agree with that there need to be alternative premium payment methods for these individuals.[1]
There is ample existing precedent for this type of flexibility in accepting premiums. In the CHIP program, under federal regulations, states have broad flexibility in determining how and where to collect premiums and enrollment fees from families. They often accept multiple methods of payment from multiple locations. Methods used to pay premiums and enrollment fees include: personal check, money order, credit card, EFT/Debit Card, online payment, employer wage withholding and cash/ in person. Locations where premium payments are accepted include: in person to state agencies, in person to vendors, stores (grocery, banks, drug/convenience), and via mail.[2]
In order to strengthen these provisions, we suggest that the regulation demonstratehow QHPs can avoid discrimination by enumerating the types of payment methods that are included in the preambleand others that are already used in practice in the CHIP program or by low and moderate-income households.
Recommendation: Amend § 156.1240(a)(2) to include:
(2) Offer method of payment options that do not discriminate against individuals without bank accounts or credits cards.For all payments, QHP issuers must allow payment by at least one method that does not require a bank account or credit card. These methods include, but are not limited to, cash, cashier’s checks, money orders, pre-paid debit cards, online payment, employer wage withholding, and electronic funds transfer.
Thank your for considering our comments. Any questions on these comments may be directed to Joe Touschner at or Sonya Schwartz at .
Sincerely,
Georgetown University Center for Children and Families
1
[1]Fair Premium Payment Policies and Practices in Covered California (Consumers Union: June 20, 2013). Uninsured + Unbanked = Unenrolled (Jackson Hewitt Tax ServiceL May 2013).
[2]Charting CHIP IV: A Report on State Children’s Health Insurance Programs Prior to Major Federal Policy Changes in 2009 and 2010 (National Academy for State Health Policy: January 2011), p. 61-64.