October 4, 2010
The Honorable Kathleen Sebelius
Secretary of Health and Human Services
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
RE: File Code OCIIO-9989-NC (Planning and Establishment of State-Level Exchanges; Request for
Comments Regarding Exchange-Related Provisions in Title I of the Patient Protection and Affordable
Care Act)
Dear Secretary Sebelius:
On behalf of the National Partnership for Women & Families, I want to commend the Department for the
extraordinary effort that has gone into implementing the Affordable Care Act (ACA) to date. The National
Partnership represents women and families across the country who are counting on the ACA to finally put
in place a health care system that works for them. The launch of the Web portal, Healthcare.gov, and the
implementation of the Patients Bill of Rights protections have started us in the right direction. Significant
work remains between now and 2014, though, to ensure that the health insurance exchanges and
remaining insurance market reforms are implemented effectively.
We believe that exchanges hold incredible potential to make a real difference in the lives of women and
families across the country. For millions of families, women are the primary health care decision makers –
they gather the information, compare plans and providers, and make the decisions about which are best.
Today they are often left to fend for themselves, with little to no standardized, understandable, or
unbiased information. Exchanges can be a trusted, independent resource where they can assess plans
on the metrics that measure to them and their families, such as cost, quality, provider network, and
comprehensiveness of benefits.
Exchanges also hold the key to systemic change. If implemented effectively, exchanges can bring fresh
competition to the insurance market, enforce and expand consumer protections, and drive delivery and
payment system reform and quality improvement. They also have the ability to improve access to health
care and reduce health and health care disparities.
Following, we offer a number of recommendations that are critical to capitalizing on this potential. In
general, as the Department continues the Exchange implementation process, we urge HHS to take into
account the needs of vulnerable populations, including low-income women and families who depend on
safety net providers and programs.
If you have any questions, please contact Kirsten Sloan of our staff at [email protected].
We look forward to continuing to work with you over the coming months and years on the successful
implementation of the ACA.
Sincerely,
Debra L. Ness, President
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax: 202.986.2539
email: [email protected] ~ web: www.nationalpartnership.org
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NONDISCRIMINATION
As entities established under Title I of the Affordable Care Act (ACA), the exchanges must comply with
the nondiscrimination provisions of section 1557 of the ACA. Section 1557 forbids discrimination on the
grounds of race, national origin, gender, age, or disability in health programs or activities that are
receiving federal financial assistance, or by programs administered by an executive agency, or any entity
established under Title I of the ACA. Because Title I of the ACA requires the establishment of the
exchanges, all exchanges, whether administered by the federal government or by the states, must
comply with section 1557. In addition, plans offered through the exchanges must not discriminate on
these prohibited bases, because exchanges may not aid or perpetuate discrimination by providing
significant assistance to entities. Finally, most if not all plans will receive federal financial assistance
(including credits, subsidies or contracts of insurance) and therefore would be independently covered by
section 1557.
Therefore, the Department of Health and Human Services (HHS) must develop the nondiscrimination
requirements of section 1557 as it establishes rules for both the exchanges and health plans that will be
sold in the exchanges. Specifically, HHS should work to ensure that the exchanges and plans sold in the
exchanges are designed to provide equitable services and benefits that are accessible to all groups so
that health care reform will eliminate discrimination and reduce health care disparities. HHS needs to
establish procedures to ensure that the exchanges are in compliance with section 1557 and require that
exchanges have procedures, including compliance assistance, notice to enrollees of their rights, and
periodic reviews, to ensure that health plan issuers are in compliance with section 1557. Finally, it is
important that HHS require that states seek out diverse representation from a variety of groups, including
women; ethnic, cultural, and language minorities; low income individuals; seniors; people with disabilities;
and individuals from the lesbian, gay, bisexual, and transgender (LGBT) community, at all stages of the
planning and implementation process.
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A. STATE EXCHANGE PLANNING AND ESTABLISHMENT GRANTS
General Comments on State Exchange Grants
We believe that the exchange planning and establishment grants, required under section 1311 of the
ACA, can help ensure that states have the resources they need to successfully implement health
insurance exchanges, provide access to affordable, good-quality health coverage, and make effective use
of taxpayer dollars. These grants should also ensure that states have sufficient funding to implement
exchanges that meet the needs of the diverse constituencies that will be served by the exchanges,
including women; low-income individuals; ethnic, cultural, and language minorities; seniors; LGBT
individuals; and people with disabilities.
Any further documents or guidance provided by HHS to states regarding planning and establishment
grants must make clear that the states, by virtue of the fact that they are accepting federal funds for
planning and establishing the exchanges, are subject to the non-discrimination requirements of section
1557 of the ACA, as well as other laws prohibiting nondiscrimination by federal fund recipients such as
Title VI of the Civil Rights Act of 1964 and the Rehabilitation Act. Thus, they must not discriminate against
individuals as prohibited under these laws. Equally important, the states should be cognizant of the fact
that the exchanges, as entities established under the ACA, are also subject to section 1557. In particular,
exchanges must set their requirements for insurer participation in the exchanges in a manner that
ensures that individuals seeking to purchase insurance through the exchange will not face discrimination
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prohibited by section 1557.
Comments to Specific Questions on Exchange Grants
3. What are some of the major factors that States are likely to consider in determining how to
structure their Exchanges (e.g. separate or combined individual Exchanges and SHOP
Exchanges; regional or interstate Exchanges; subsidiary Exchanges, State agency versus
nonprofit entity)? What are the pros and cons of these various options?
We believe that a key factor that states will have to consider in structuring the exchanges is how to limit
the risk of adverse selection against the exchanges. Adverse selection – the separation of healthier and
less-healthy people into different insurance arrangements – will occur if a disproportionate number of
people who are in poorer health and have high health expenses enroll in coverage through the
exchanges, while healthier people disproportionately enroll in plans offered through the individual and
small-business markets outside the exchanges.
If that occurs, the cost of exchange coverage will be higher than the cost of plans offered outside the
exchange thereby driving up costs for consumers and small firms purchasing coverage through the
exchanges, and for the federal government, which must provide premium subsidies to enable low- and
moderate-income people to afford coverage in the exchanges. Higher premiums would depress
participation in the exchanges by individuals and small businesses, particularly by those people and
businesses that can obtain better deals in outside markets. That, in turn, could raise premiums even
higher in the exchanges and could ultimately result in their failure over time.
States, however, could take a number of steps in structuring their exchanges to minimize the risk of
adverse selection. HHS should explain the risk adverse selection poses to exchanges and the options
states have to limit such risk, and also encourage states to take up these options:
•
1
Making the rules for any insurance markets outside the exchanges consistent with the rules that
apply inside the exchanges. States can apply the same standards that HHS sets for qualified
health plans (QHPs) offered in the exchanges to plans offered in markets outside the exchanges.
Additionally, most, if not all, plans offered in the exchanges may receive federal financial assistance, including
credits, subsidies, or contracts of insurance, and there fore would be independently covered by the requirements of
section 1557.
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This step would eliminate any disparities that might discourage insurers from participating in the
exchanges or permit insurers operating outside the exchanges to design benefit packages and
marketing campaigns to attract healthier people away from the exchanges.
•
Requiring insurers to offer the same products inside and outside the exchanges with an exception
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to account for the special rules that govern abortion. Some insurers may decide not to offer
coverage through the exchanges because it is easier to operate in the outside markets if the rules
there are weaker. They may also wish to offer products inside and outside the exchange that
differ in ways that result in adverse selection against the exchange. States could require all
insurers who wish to offer products in outside markets to also offer coverage in the exchanges
and to offer the same products (with the same pricing) both inside and out. Those states that may
wish to create a more selective or competitive process to determine which plans can be offered in
the exchanges can require insurers outside the exchanges to offer products in the same
coverage levels (at least the Silver and Gold levels) as is required for health insurers participating
in the exchanges. States should also bar insurers from offering only the least comprehensive
Bronze level plans or catastrophic plans outside of the exchanges.
•
Merging the individual and small group markets over time. This would substantially increase the
potential enrollment volume and make it more likely (but not guarantee) that the exchanges would
have a well-balanced risk pool. However, such a merger could take place several years after the
ACA’s major market reforms, particular those related to premium rating rules, are instituted in
2014, which would limit the disruption that might occur when the markets are combined.
4. What kinds of factors are likely to affect States’ resource needs related to Establishing
Exchanges?
c. For what kinds of activities are States likely to seek funding using the Exchange establishment
and planning grants?
Section 1311(a)(3) of the ACA permits the use of grant funds for any activities related to establishing
exchanges (emphasis added). This broad language permits funding to be put towards a wide array of
purposes. Such flexibility is critical because states will be commencing their health reform implementation
efforts in earnest at the same time they are still facing deep budget deficits. Despite the recent enactment
of legislation extending the American Recovery and Reinvestment Act’s temporary increase in federal
Medicaid funding to states through the middle of 2011, as well as increased funding for education, states
will continue to face severe budget deficits. Due to continued high unemployment and depressed tax
revenue, state budget shortfalls are expected to still reach $101 billion in state fiscal year 2011 and $134
billion in state fiscal year 2012. As a result, state agencies will likely lack the resources they need for
implementation and the exchange planning and establishment grants may well be the only major source
of funding they will have available to set up their exchanges by 2014.
When considering the size of the grants, HHS should take into account the following range of activities
that states will have to conduct:
•
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implementing an exchange, or exchanges, that will perform the functions required under federal
law, including certifying QHPs, providing required information and assistance to consumers, and
Because the ACA created “special rules” for the treatment of abortion coverage in private health plans sold through
the exchange, the requirement we are seeking, if applied without exception, could result in far less abortion coverage
than the federal government or individual states intend. This is particularly true in states that have chosen to ban
abortion coverage in state-run exchanges but have chosen not to ban abortion coverage in private plans sold outside
the exchanges. To account for the special rules that govern abortion, we urge HHS to consider an exception to any
rule that requires insurers to offer the same plans inside and outside the exchanges for coverage of abortion. This
would still avoid problems with adverse selection but would do so without running afoul of Congress’ intent of
preserving insurance coverage of abortion care.
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determining eligibility for federal premium credits and cost-sharing reductions;
•
applying related state requirements under the ACA, such as operating a risk adjustment system
and implementing the requirement that issuers calculate risk across all of their health plans inside
and outside an exchange;
•
implementing related insurance market reforms, including reforms that will minimize adverse
selection between the exchanges and markets outside the exchanges and between benefit
standards in the individual and small group markets;
•
building capacity at the state level to enforce the new requirements;
•
abiding by the nondiscrimination requirements under section 1557 and other federal laws
prohibiting discrimination by federal fund recipients, including establishing procedures, such as
periodic reviews, to verify that health insurance issuers participating in the exchanges are in
compliance with section 1557;
•
establishing extensive consumer education campaigns, including education about how the new
exchanges will operate, how and where consumers will be able to access information about and
enroll in exchange plans, the availability of culturally and linguistically appropriate and accessible
navigators and consumer assistance programs, and the tax implications related to eligibility for
premium subsidies;
•
conducting extensive consumer testing and focus groups with women; low-income individuals;
ethnic, cultural, and language minorities; seniors; LGBT individuals; and people with disabilities to
ensure that the exchanges, outreach efforts (such as web portals), consumer assistance
programs, and the language used in standard forms are widely accessible; and
•
expanding technical capabilities and creating electronic information systems and interfaces
needed to operate the exchanges and fulfill related requirements of the ACA, such as creating
eligibility and enrollment systems that are coordinated seamlessly with existing stateadministered health programs and routing premium payments from individuals and small
businesses to multiple insurers.
Some states have made progress on initial exchange planning; others have not. This variation makes it
challenging to determine upfront the appropriate amount each participating state should receive. It is
important to recognize that different states will have differing needs and that grant amounts should, as a
result, vary by state.
We also recommend that forthcoming grant awards should be based, at least in part, on certain state
characteristics that could be used as proxies for the resources states will need to successfully implement
insurance exchanges and related reforms. The state’s population (to the extent that this is expected to
affect exchange planning and establishment costs), the number or percentage of low- or moderateincome residents in the state, the percentage of people in the state who are uninsured, and the potential
market size or number of insurers in the small-group and individual insurance markets are among the
factors that could be considered. Another relevant factor is the extent of improvements needed to the
state’s regulation of insurance markets, though this is likely to be hard to quantify. Where feasible, the
estimated cost of specific implementation activities should be incorporated into the decision about initial
grant awards.
In subsequent grant years, HHS should provide states with the opportunity to apply for increased grant
funding if they can demonstrate that their initial grant award levels were inadequate to pay for the state’s
actual implementation costs.
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Additional Grant Awards for States Exercising their Flexibility to Ensure Well-Functioning, Viable
Exchanges
As noted, section 1311 of the ACA makes clear that the grants can be used for a broad array of activities.
Upon application by a state, HHS should provide additional grant amounts, above the state’s regular
grant award level, to encourage certain policy decisions by states that are a matter of flexibility under
federal law and regulation and entail additional costs and work by the state but are likely to better ensure
that the exchanges are successful and sustainable. For example:
•
States could be eligible for additional grant amounts if they decide to reform the individual and
small-group markets outside the exchanges so that the rules are fully consistent with those
governing QHPs inside the exchange or exchanges, thereby minimizing the risk of adverse
selection against the exchanges.
•
States could receive additional grant amounts if they create a process for the exchanges to collect
premiums from individuals and small businesses and allocate them to the correct insurer in order to
ease the burden on individuals and small firms and increase participation in exchanges.
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B. IMPLEMENTATION TIMEFRAMES AND CONSIDERATIONS
Comments to Specific Questions
1. What are the key implementation tasks that need to be accomplished to meet Exchange
formation deadlines and what is the timing for such tasks? What kinds of business functions will
need to be operational before January 1, 2014, and how soon will they need to be operations?
3. What potential criteria could be considered in determining whether an electing State is making
sufficient progress in establishing a Exchange and implementing the insurance market reforms in
Subtitles A and C of Title I of the Affordable Care Act? What are important milestones for States
to show they are making steady and sufficient progress to implement reforms by the statutory
deadlines?
We believe HHS should establish specific milestones and deadlines in a number of areas. States should
be immediately required to assess and report to HHS on what implementing legislation will be necessary
to enforce the various insurance market reforms required under the ACA and establish an exchange.
States should also outline an expected timeline for passage of that implementing legislation (particularly
in states with biennial legislatures). As soon as practicable, HHS should begin identify milestones for
each year and then refine those targets with more specific benchmarks as the implementation effort
proceeds.
As outlined below, we believe that the renewal process for the exchange planning and establishment
grants can be the principal tool used to determine whether states have demonstrated progress in meeting
the milestones HHS sets – such as those related to implementing the exchanges and the related
insurance market reforms – as well as to provide an opportunity for states to provide input on appropriate
interim goals. Renewal of future exchange planning and establishment grants (beyond the initial grants
that will be provided in 2010 and early 2011) should be tied to states annually submitting documentation
and meeting certain deadlines and benchmarks.
Failure to submit the required documentation or meet most or all of the annual deadlines and benchmarks
should trigger a determination by HHS that the state is not making sufficient progress towards
establishing exchanges and therefore the federal government will have to establish its own exchange in
the state. Tying the determination of whether a state is making sufficient progress to these reporting,
deadline and benchmark requirements would have the benefit of establishing a clear and transparent
process for both HHS and the states.
We note that as discussed below, some benchmarks and deadlines could be set on a uniform basis and
apply to all states; others could be applied on a state-by-state basis, consistent with the states’ own
documentation and proposed work plan as well as the timelines that federal law requires. Also, even if a
state submits the required documents and satisfies various requirements for grant renewals, HHS should
have the authority to find that a state is not making sufficient progress if other information becomes
available to HHS that is inconsistent with the information submitted by states with regard to the grant
renewals
Timing and Prerequisites for Second Round of Initial Grant Awards
The ACA requires HHS to provide grants to states no later than March 2011 and HHS has already
awarded nearly $49 million in initial grants. However, some states have indicated that greater amounts
may be needed right away, in order to allow states to take the significant strides that are needed to
implement exchanges in time for the January 1, 2014 deadline required under the ACA. In fact, some
states are already undertaking exchange implementation actions at the legislative and/or administrative
levels. We urge HHS to make a second round of initial awards available as quickly as possible, ideally in
early 2011.
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To the extent it is feasible, HHS should now begin providing states with as much detail as possible about
the requirements for operating a successful exchange that complies with federal standards. Such
preliminary guidance, for example, could include details of required exchange functions and the full range
of standards for QHPs as outlined in the ACA. In addition, HHS should explain in as much detail as is
possible how it believes a federal exchange would be structured and work in practice in case a state
elects to not establish its own exchanges. This information will help states make informed decisions about
whether, at this time, they plan to set up their own exchanges and seek establishment and planning grant
funds, or instead rely on a federal exchange to provide access to coverage for residents.
In order to receive a second round initial grant award, a state should be required to submit to the
Secretary a letter of intent clearly attesting that the state: 1) now plans at this time to establish and
operate its own insurance exchanges, and 2) will design and implement exchanges in a manner fully
consistent with federal requirements and regulations. A state that elects not to establish its own
exchanges should be ineligible for any additional grant funds unless the state is seeking funding for
activities to support a federal exchange, such as ensuring coordination between the federal exchange
and state insurance regulation, and streamlining eligibility procedures and establishing data linkages
between the federal exchange and the state’s Medicaid and Children’s Health Insurance Programs
(Medicaid/CHIP).
In addition to generally committing to establish an exchange that meets the necessary federal standards
and requirements, states should also have to agree to several specific conditions, including (but not
limited to) the following:
•
indicating how they generally plan to use the initial grant awards and reporting how they have
actually spent such awards as required by HHS;
•
ensuring meaningful consumer involvement of diverse constituencies (including women; lowincome individuals; ethnic, cultural and language minorities; seniors; LGBT individuals; and
people with disabilities) in exchange planning decisions as well as ongoing governance of
exchanges once established (for further detail, see Stakeholder Processes in Exchange Planning
in the comments responding to question C1);
•
enforcing the standards established in the ACA related to exchanges, QHPs, and insurance
markets;
•
sharing what is learned during exchange implementation with HHS and other states, including by
providing to HHS (for public dissemination through www.healthcare.gov) any grant-funded reports
or research done internally or by consultants;
•
establishing, in consultation with relevant stakeholders and consumer representatives, eligibility
and enrollment processes that effectively build on and coordinate with other health coverage
programs, including Medicaid/CHIP, as required under the ACA; and
•
operating and funding a culturally and linguistically appropriate and accessible navigator program
to help provide outreach to individuals and small businesses (including the self-employed) who
are potentially eligible for the exchange, as required under the ACA.
Recommendations for Grant Renewal
As a condition of receiving grant renewals, states should be required to submit various reporting and
planning documents to HHS at certain designated times to provide information about their plans and
progress. In general, the conditions that states must meet to receive grant renewals should be clearly
established in advance so that HHS has a clear and transparent basis to deny renewal of all or part of the
grant funding if a state is not fulfilling its obligations (or if the state informs HHS that it has decided it no
longer plans to operate its own exchanges). In 2012 through 2014, deadlines could be set to ensure that
9
states are making the necessary progress toward implementing exchanges and related requirements.
Certain deadlines would be set on a uniform basis and apply to all states; others could be applied on a
state-by-state basis, consistent with the state’s planning documents and the timelines that federal law
requires.
In addition, HHS should provide states with the opportunity to apply for additional grant amounts if they
can demonstrate that their initial grant award levels were inadequate to pay for the state’s actual
implementation costs. They should also be able to receive additional grant amounts (as described further
below) if they demonstrate that they are pursuing certain activities that are optional under federal law but
would greatly improve the functioning of the insurance exchanges and related elements and would
require additional costs and work for the state.
A. Renewal for 2012
To meet the January 1, 2013 deadline to evaluate whether a state has made sufficient progress towards
an operational exchange in 2014, HHS must have a clearer sense by the end of 2011 of how many states
will move forward with exchanges and in how many states HHS will have to establish a federal exchange.
Accordingly, HHS should require as a condition of receiving a grant renewal for 2012 that states, at a
specified point in 2011, submit a preliminary planning document detailing basic elements of states’
exchange implementation plans. Among the elements that could be required to be included are:
•
the state’s goals for the exchange or exchanges;
•
demonstrated success, where feasible, on meeting the specific conditions of the initial grant
award, such as setting up a process to ensure consumer involvement in the design of the
exchanges;
•
a description of which agency and/or entities will oversee the exchanges and related functions
and which public agency or agencies will perform inherently governmental functions;
•
the regulatory and/or legislative actions still needed to conform to the federal requirements;
•
an expected budget for start-up costs and how the state expects to use the grant money;
•
a general explanation of how the exchanges will comply with section 1557 of the Act; and
•
metrics for how the state will measure progress toward its goals.
In the case of “early bird” states that have already passed legislation or made other substantial progress
by 2011, HHS could require more detailed information to be included in the document and consider the
possibility of an expedited process that would provide the states with additional funding in earlier years,
consistent with the work the state is already undertaking and the progress being made.
B. Renewal for 2013
Grant renewals for 2013 should be conditioned on state submission of a detailed plan in 2012. To simplify
this process for states, HHS could provide a plan template form similar to the one used when states first
implemented CHIP. This form would require details such as how the state is implementing the various
requirements and criteria, state decisions in areas where the law leaves flexibility, and the expected
timing of completed regulatory and legislative changes to conform to federal law. Issues that states
should address in their submissions include:
•
Whether the state plans to participate in a regional or interstate exchange, set up separate or
merged individual and small-group exchanges, and/or establish one or more sub-exchanges.
States should also indicate if they are electing to limit exchange participation to small groups of
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no more than 50 employees (rather than including employers with up to 100 employees) prior to
the 2016 plan year.
•
A description of what people, state agencies, or new entities might be responsible for various
exchange functions. This description should include answers to questions such as:
o Will a new board or agency be created to oversee the exchanges or will an existing state
agency perform this function?
o Will the Medicaid agency handle eligibility determinations for the premium credits?
o Does the state plan to contract out any exchange functions, and, if so, what safeguards
will exist to ensure appropriate oversight and protections for consumers and taxpayers?
•
A plan to build capacity to operate the exchanges and provide additional enforcement capability
in newly expanded insurance markets. What additional hiring is the state doing for existing and/or
new agencies?
•
A detailed description of how the exchanges will be compliant with section 1557 of the ACA and
other federal laws prohibiting discrimination. This description should include answers to questions
such as:
o What steps are being taken to conduct consumer testing and focus groups to ensure that
the exchanges are accessible to diverse groups?
o How will the exchanges comply with existing federal requirements for access for LEP
individuals and access for individuals with disabilities? For example, what kind of
caseworker assistance would be available to individuals with difficulty navigating the
system due to problems with language barriers, computer literacy or access etc.?
•
A plan for developing the technological infrastructure necessary to operate a seamless eligibility,
enrollment, and verification system. This description should include answers to questions such
as:
o What is the state’s current capacity?
o What additional technical assistance is needed from the federal government?
o How will the state coordinate planning and development with the Medicaid/CHIP agency?
•
A detailed description of how Medicaid coverage for pregnancy, family planning, and Breast and
Cervical Cancer Screening will continue to be covered after 2014 and integrated into the
exchange system (to the extent that the state provides Medicaid coverage at a higher income
level than what will be required in 2014 (133 percent of the federal poverty level)).
•
Details about the governance of the exchanges, including efforts being taken to ensure broad
consumer representation and transparency. The exchanges’ work should be sufficiently insulated
from insurance industry influence and other conflicts of interest. For example, in Massachusetts,
insurers are not permitted to participate on the board governing its exchange and at least one
seat on the board is dedicated to an individual representing consumer interests.
•
A description of the formal processes states have in place for collecting ongoing input on the
exchanges from a diverse range of consumers (including women; low-income individuals; ethnic,
cultural and language minorities; seniors; LGBT individuals; and people with disabilities), small
businesses, and other stakeholders.
•
Specifics regarding how the state will operationalize the functions of exchanges, as detailed in
Section 1311(d)(4) and in pending federal regulation. This description should include answers to
questions such as:
o When will the screening process for Medicaid eligibility be ready?
o Do the exchanges have the capacity to grant a certification attesting that a person is
exempt from the individual responsibility penalty due to a lack of affordable coverage or
for other reasons?
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o
Is there a process for certifying and decertifying insurance plans as QHPs?
•
Detailed plans to reduce adverse selection that document the policies and structures that will be
put in place to do so.
•
An estimate of administrative costs for operating the exchanges, how they plan to finance such
costs, the cost per policy that will be added on due to any premium assessments on insurers (if
that mechanism is used to finance exchange costs), and whether such assessments will be
applied only within the exchanges or market-wide.
•
The navigator program must be operational concurrent with the exchanges. Given that the
navigator program cannot be funded from exchange planning grants, however, states should
provide details on how and when the state plans to generate funds to pay for the navigators,
when the state plans to solicit proposals from interested entities, and enter into agreements to
provide navigator functions, and when they expect the navigator program to be fully functional.
•
Plans for how the state will take advantage of the flexibility provided under the ACA to better
ensure well-functioning viable exchanges. This description should include answers to questions
such as:
o Will it collect beneficiary and small-business premiums and coordinate payment to
insurers?
o Will the state reform markets outside the exchanges so that rules for new plans there are
consistent with the standards set for QHPs in the exchanges (for example by requiring
consistent quality reporting, adequacy of standards for provider networks, and marketing
oversight)?
•
State decisions about whether they plan to use contractors or vendors and for what purposes.
•
Detailed plans on how it will provide information on plan quality measures to consumers.
C. Renewal for 2014
By 2013, the states that will operate exchanges in 2014 will need to complete their work, including the
work they proposed to do and have funded under the grant program. For example, they will have to
institute the various insurance market reforms (such as the prohibition on health-status rating) so that
they will take effect in 2014. HHS could consider renewing grants during 2013 based on set deadlines, to
ensure that states have:
•
successfully built capacity to operate exchanges and perform other related functions;
•
enacted any legislation and/or adopted any regulations or administrative changes necessary,
including steps required to create an exchange or exchanges, implement the required insurance
market reforms and comply with section 1557 of the ACA;
•
completed certification of QHPs for plans offered through the exchanges in 2014;
•
established a successful open enrollment period for individuals and small businesses to begin
enrolling in plans for plan year 2014;
•
completed a collaborative, public process to consult with and involve stakeholders (as required in
the ACA), including representatives of women; low-income individuals; ethnic, cultural, and
language minorities; seniors; LGBT individuals; and people with disabilities, in implementation
decisions on exchanges;
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•
otherwise fully implemented the detailed plans in a variety of areas outlined in the 2012 state plan
submission.
During 2014, states that are successfully operating an exchange and have met the various federal criteria
are likely to need grant funds for a slightly different purpose: initial operating costs. The exchanges will
not have built up sufficient enrollment to generate cash flow (from assessments on premiums, for
example) and grant funds can help them operate during this period. The law clearly allows grants to be
available through the end of 2014, and we recommend that they be used for this purpose in qualifying
states.
2. What kinds of guidance of information would be helpful to States, plans, employers,
consumers, and other groups or sectors as they begin the planning process? What other terms or
provisions require additional clarification to facilitate implementation and compliance?
We urge HHS to issues regulations implementing section 1303 as soon as practicable. Section 1303
establishes “special rules” for the coverage of non-excepted abortion services in QHPs. Any delays in
section 1303 rulemaking could place additional burdens on insurance plans and will decrease the
likelihood that plans will provide coverage of abortion care, in violation of Congress’ intent to preserve the
coverage individuals currently have.
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C. STATE EXCHANGE OPERATIONS
Comments to Specific Questions
1. What are some of the major considerations for States in planning for and establishing
Exchanges?
2011 State Legislative Action and Initial Planning
All experts that have reviewed the exchange implementation issue have concluded the tasks ahead are
complex and the necessary timetable is tight to meet the ACA deadlines. Therefore, it is critical that state
legislatures enact at least preliminary exchange enabling legislation no later than 2011 and that states
begin undertaking significant planning activities immediately so that there will be sufficient time to ensure
that state exchanges can be readied for operations in 2013 and effectively functioning January 1, 2014.
Additionally, states will need time to establish and modify regulations.
Stakeholder Processes in Exchange Planning
Outlining and demonstrating the existence of an established, widely accepted stakeholder process for
creating an exchange should be an integral requirement of future exchange grant funding. In particular,
this process should include a broad array of consumer groups that represent diverse constituencies,
including women, low-income individuals; ethnic, cultural, and language minorities; seniors; LGBT
individuals; and individuals with disabilities.
Stakeholder processes should provide the opportunity for issue-specific working groups to be created and
to give ongoing input into the process. Health industry stakeholders should have input into decisions
regarding technical and workability issues, but should be in total a minority of stakeholder bodies.
Exchange Governance
The fundamental mission of the exchanges is to create a well-functioning health insurance marketplace
providing an array of affordable, high-quality health insurance plans to individuals and small businesses –
a role very much different from the role of traditional government agencies. States must decide whether
an existing state agency, a new state agency, or a state established non-profit entity will operate the
exchange, or whether the state will participate in a regional exchange or the federal exchange. Whether
established by the states or federal government, the exchanges will have to conduct a number of
activities that are essential to their success and to individuals and small employers gaining affordable,
high-quality health insurance coverage through the exchanges. How well exchanges perform these
functions will affect individuals, families, and small businesses, as well as taxpayers who will be on the
hook if costs rise unnecessarily. Strong public accountability will be essential.
We believe that the best way to ensure accountability is through the use of governmental staff who will
carry out these functions without bias and conflicts of interest and in the best interest of the public.
Moreover, the use of governmental staff to conduct these critical exchange functions is consistent with
the ACA and longstanding federal law, because such regulatory, administrative and appeals functions are
“inherently governmental.”
The governing board of the exchange should represent state agencies with which exchanges must work,
consumer advocates representing diverse constituencies (including women; low-income individuals;
ethnic, cultural, and language minorities; seniors; LGBT individuals; and individuals with disabilities),
small business, and worker representatives, and persons with relevant expertise. Governing bodies
should also provide the opportunity for additional issue-specific working groups to be created and to give
ongoing input into the process. To avoid conflicts of interest, the governing board should not include
insurers that would be subject to regulation and oversight by the exchange. State laws for transparency,
accountability and public participation should be followed.
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If a state elects to establish a non-profit entity to operate its exchange, the non-profit entity should not be
permitted to exclude plans on the basis of the coverage the plan provides if it otherwise satisfies the
benefit requirements of a QHP as defined under sections 1302(b) and 1303 and applicable state law. This
is consistent with section 1313(a)(5) of the ACA, which directs the Secretary to “provide for the efficient
and nondiscriminatory administration of exchange activities…” We urge HHS, for example, to ensure that
such nondiscriminatory administration include an assurance that, absent state law as permitted under
section 1303(a), a non-profit exchange cannot prohibit plans that include coverage of abortion from
participating in the exchange.
Transparency and Accountability in Governance and Stakeholder Processes
Transparency of any stakeholder process and of exchange governance and operations will also be
essential to gain the trust of consumers, employers, and insurers. Transparency is also critical for creating
a well-functioning competitive marketplace of health plans. We therefore recommend that any stakeholder
process leading to the creation of exchanges should be accountable to the public. Governing bodies and
stakeholder processes should provide the opportunity for public hearings to solicit input from the general
public. The Massachusetts Connector has established a good model of the necessary transparency that
is needed to achieve this goal, with not only processes but records that are open, transparent, and readily
available to the public. The work, budget, spending and any outside contracting of the exchange should
be publicly reported and transparent. Meetings should be open, with transcripts, agendas and meeting
materials publically available.
It is also important that transparency and public accountability continue after exchanges are up and
running. Therefore, we believe that the exchanges as independent entities should be subject to an annual
public audit by qualified independent auditors.
Active Purchaser Role
An important implementation choice will be whether exchanges should, on the one hand, maximize plan
participation by allowing in all plans that meet the minimum certification requirements QHPs or, on the
other hand, use their certification authority to limit exchange participation to highest-value plans.
The ultimate goal of making affordable health coverage available to individuals and employers can be
best achieved by exchanges acting as active purchasers, using their authorities to only offer plans that
enhance value, consumer protection, and affordability. As active purchasers, exchanges should:
•
require or encourage plans to incorporate innovative health care delivery and payment system
reforms that align with the ACA’s value-oriented system changes for Medicare and Medicaid;
•
encourage a strong foundation of well-coordinated primary care;
•
provide consumers with customizable information and tools that help them make value-based
decisions about their coverage and selection of providers; and
•
improve the health plan rating system.
For further discussion of exchanges as active purchasers, see response to question D4, below.
Exchange Size and Scope
The ACA grants states significant flexibility around how to structure their exchange(s). States are
permitted to create an individual and a separate small employer (SHOP) exchange or to combine the two.
States also may elect to join forces and enter into regional or interstate exchanges, pending Secretary
approval. A larger exchange will be more effective for several reasons – greater market power,
economies of scale, more stable risk pools, and stronger protection against adverse selection. But
complications will arise when merging exchanges, both by type and, especially, across states.
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A thorough study of the existing insurance market in each state should be considered when weighing
whether to combine individual and SHOP exchanges, including if this would create rate shock for some
currently-insured individuals or employers. An important consideration in smaller states is whether
combining pools is needed to gain the advantages of a single larger pool. Merging exchanges would
substantially increase the potential enrollment volume and make it more likely (but not guarantee) that an
exchange would have a well-balanced risk pool. In addition, states need to consider how combining the
individual and SHOP exchanges may expand the applicability of burdensome citizenship documentation
requirements (for further discussion of how to streamline and minimize the burden of these requirements
as they currently apply to the individual exchanges, see section G).
Combining exchanges across states will also allow for the creation of larger exchanges, but will likely
create significant confusion for both consumers and state regulators, as they attempt to reconcile
conflicting state laws and external market conditions. Under Section 1311(f)(1)(B), the Secretary is
required to approve any regional or interstate exchange before it can operate in more than one State. We
urge the Secretary to establish clear standards for the approval or disapproval of regional or interstate
exchanges. One area of special concern is the provision of comprehensive services that are critical to
women’s health as state laws can vary significantly. Thus, in particular, we urge the Secretary to establish
a clear standard that HHS will not approve a regional or interstate exchange that fails to include at least
one plan that provides coverage of non-excepted abortion services unless each of the states participating
in the exchange have enacted laws to prohibit such coverage under Section 1303(a).
States also have flexibility to reduce the threshold for small employer size (from 100 to 50 employees) for
employers eligible to participate in the SHOP exchange (until January 1, 2016). A detailed review of the
existing small group insurance market in the state is necessary to determine the impacts of this decision.
An important factor states must weigh if considering reducing the threshold for the small group market
from 100 to 50 employees is the loss of critical insurance rating protections that are tied to the state’s
definition of a small group. Limiting the size of small groups would mean that small businesses with 50100 employees could continue to face rates that discriminate based on age, gender, and other factors
prohibited in the individual and small group markets (if they purchase plans not subject to section 1557 of
the ACA). Allowing these bad rating practices to continue could be devastating to small groups of 50-100
employees with certain demographic characteristics – for example, disproportionately older or female –
and may reduce the likelihood of these groups offering coverage at all.
Adverse Selection
The history of insurance pools has taught us that the greatest threat facing exchanges is adverse
selection. A death spiral will ensue if an exchange becomes essentially a high-risk pool – the exchange
will become unattractive to insurers while coverage through the exchange will become unaffordable to
individuals and to employers.
In addition to considering how to maximize the size of exchanges, we recommend that states do the
following to minimize adverse selection:
•
enact chartering legislation that gives strong and clear direction to exchange governing boards
and managers to create an active and ongoing process to guard against adverse selection;
•
regulate the individual and small group market identically inside and outside of the exchange; and
•
require insurers to offer the same plans inside and outside the exchanges, with an exception to
account for the special rules that govern abortion (as discussed in a previous footnote). For those
states instituting a more selective or competitive process to determine which plans can be offered
in exchanges, states can require insurers outside the exchanges to offer products in the same
coverage levels (at least the Silver and Gold levels) as is required for health insurers participating
in the exchanges.
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HHS should design a standard sophisticated but practical risk adjustment system that states can use to
adjust risk among insurers inside and outside of the exchanges to discourage adverse selection both
against and within the exchanges. This would work in tandem with the requirement that insurers have to
use a single risk pool across all their plans inside and outside the exchanges.
Administrative Costs
To attract and keep business, exchanges must be operated efficiently and competitively with the outside
market. Massachusetts sets a reasonable goal of three percent administrative costs, which should be
used as a model for other states.
While exchange operational costs will ultimately be passed onto individuals and employers purchasing
health plans, we recommend against directly assessing fees on plan purchasers. Such fees could create
the perception that consumers and businesses have to pay to use exchanges thereby discouraging
participation. Such fees also should simply not be levied against low-income individuals seeking
subsidized coverage. Instead, because exchanges will be helping regulate insurers in both the exchange
and those outside the market, to ensure equity between premium costs, we recommend that
assessments used to fund exchange operations should be applied to all insurers in the exchanges and in
the outside markets.
Brokers and Distributors
Agents, brokers, and distributors are expected to continue to play a role in the newly reformed health care
system, but the ACA did not, unfortunately, contemplate specific regulation of these actors. Without the
application of clear rules and standards, agents and brokers that play a role in helping small employers
and/or individuals consider different insurance plan options could have the unintended, yet disruptive
effect of undermining many of the important provisions of the ACA. For example, if agents and brokers
steer healthy, young men and/or small employers with workforces comprised of such individuals to certain
plans outside of the exchange – and conversely, steer older women with health issues and/or employers
comprised of such individuals to plans inside the exchange, there could be significant adverse selection
problems that threaten the long-term viability of the exchanges and result in higher costs for certain
populations. This would have a disproportionately negative affect on low-income individuals and racial
and ethnic minorities, who are expected to be overrepresented in the exchanges.
Accordingly, as states adopt complying legislation and regulations to implement the ACA and consider a
role for brokers and agents, the federal government should require that states provide oversight and
regulation of broker and agent activity to ensure that these players do not undermine the exchanges and
other key provisions and protections of the law. Exchanges should also be required to carefully monitor
and regulate the conduct of insurance agents, brokers, and distributors; they should prohibit door-to-door
solicitations and bar activities designed to steer, discourage, or encourage enrollment in particular plans
inside or outside of the exchanges based on age, health status, gender, geography, or other factors.
Finally, HHS and states should prohibit any agreement or arrangement between insurers and agents,
brokers, or distributors that would provide financial incentives or other rewards to steer individuals based
on age, health, gender, geography, or other factors to plans outside the exchanges or particular plans
inside the exchanges.
When reviewing the use of brokers, agents, or distributors, states need to specifically examine the role of
brokers, agents and distributors with the role of navigators contemplated by the law. States should also
consider whether brokers are able to meet the needs of vulnerable and under-served populations which
will be served by the individual exchange. For example, do the brokers have a plan to provide language
services (including written translations and oral communication) for LEP individuals seeking information or
have they made their materials accessible to people with disabilities? Likewise, states should separately
examine the cost, roles, and services for brokers for individuals and small employers. Servicing the needs
of individuals and small employers differ.
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If brokers and distributors are utilized by the exchanges, the costs and services need to be rationalized so
that the goal of affordable insurance for individuals and employers is met and plans in the exchanges
remain competitive with outside plans.
Marketing costs can be reduced by direct sale of plans from the exchanges to small employers. The
experience of other exchanges and pools (COSE, Pac Advantage, CBIA in Connecticut, the
Massachusetts Connector) has been that there is still an important role for brokers and that it is better to
have them marketing the exchange plans as well versus just being on the outside competing against
exchange plans, especially for small employers, though this role should be different considering the
availability of the exchange to perform some functions that brokers now provide. Brokers will continue to
sell other non-health coverage products to employers even if excluded from marketing exchange
products.
2. For which aspects of Exchange operations or Exchange standards would uniformity be
preferable? For which aspects of Exchange operations or Exchange standards is State flexibility
likely to be particularly important?
Uniformity is essential for the following functions:
•
determining eligibility through a single portal for exchange participation, individual tax credits, and
Medicaid/CHIP;
•
determining compliance with section 1557 of the ACA and other federal laws prohibiting
discrimination by federal fund recipients;
•
developing a standardized culturally and linguistically appropriate format for displaying plan
options to consumers;
•
developing a standardized format for displaying plan options that is accessible to people with
disabilities;
•
determining exemptions from the individual responsibility requirement; and
•
providing information to the federal government on individual exemptions, tax credits, etc.
In addition, states should use a standardized risk adjustment mechanism for insurers operating inside and
outside the exchange.
5. What are the considerations for States as they develop web portals for the Exchanges?
The exchanges will have to explain many complex topics. Explaining these choices without debilitating
complexity will be a significant challenge. One way to facilitate this is to utilize focus groups and other
active feedback mechanisms in the web portal design process including a full array of consumers. In
particular, the web portal must be user-friendly and accessible to everyone, including those unfamiliar
with computers and the Internet, those with low health care literacy, and those who are LEP and
individuals with disabiltities.
For further discussion of online enrollment and web portal considerations, see responses to question G2
and J1 respectively.
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6. What factors should Exchanges consider in reviewing justifications for premium increases from
insurers seeking certification as QHPs? How will States leverage/coordinate the work funded by
the rate review grants to inform the decisions about which plans will be certified by QHPs?
In most, if not all states, it makes sense to build on the existing state review and approval of rates. To
create a separate premium rate review function within the exchange would be an unnecessary duplication
of resources and expertise.
When certifying QHPs, exchanges should take the following factors related rate increase justifications
under consideration:
•
Are premium rates adequate for payment of claims?
•
Are rates reasonable for the benefits offered, based on actuarial analysis?
•
Are rates excessive?
•
Are rates discriminatory?
•
What is the insurer’s investment income and surplus?
•
What are the insurer’s cost containment initiatives?
•
What are the insurer’s administrative expenses?
Exchanges should try to leverage and coordinate with the work funded by the rate review grants. States
should use the grants to improve the transparency of rate reviews, including public reporting and more
detailed review of service-specific expenses, administrative costs, and cost containment initiatives. The
rate review process should be used to also help states enforce other requirements including the
requirement that insurers establish a single risk pool across all plans inside and outside the exchanges.
8. What specific planning steps should the Exchanges undertake to ensure that they are
accessible and available to individuals from diverse cultural origins and those with low literacy,
disabilities, and limited English proficiency?
Significant effort must go into reaching out to traditionally under-served populations so that they can use
and benefit from the exchanges. Outreach efforts should consider how to reach people who are
homebound or who lack time or ability to travel to a state office, as well as how to reach people who do
not speak English or have specific disabilities.
Non-main stream communication channels, such as newspapers and radio stations that are popular in
racial/ethnic communities, can serve as useful outreach tools. The exchange’s toll-free telephone hot-line
number with a TTY number should be clearly displayed at highly visible places in the community, such as
on public transportation. Mail campaigns, translated into multiple languages, should also be employed.
Community health, education and outreach workers with existing relationships in culturally-diverse
communities can play a critical role connecting these communities to the exchanges and should be
leveraged. Outreach efforts involving partnerships with community vendors (such as grocery stores) and
which include public facilities (such as libraries and public transportation hubs), hospitals, clinics, and
places of worship should be conducted to reach consumers in places they live and frequent. In addition,
methods used to contact hard-to-reach populations during the 2010 Census should be considered.
It is important to note that states and other entities will need sufficient time and funding to train outreach
workers and counselors to serve as resources to consumers in the exchanges and establish effective
outreach to culturally diverse populations.
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Individuals with Low Literacy
Exchanges should use clear, concise language written at the lowest reasonable education level, and take
steps to make sure information can be understood by individuals with low literacy, numeracy, and health
literacy levels. Exchanges should use consistent terminology and plain language definitions of health care
terms. We also suggest that – where possible – exchanges use standardized language.
Individuals with Limited English Proficiency
The exchanges must ensure that information is culturally and linguistically appropriate for recipients with
limited English proficiency (LEP). As entities created under the ACA, the exchanges must comply with
section 1557; and exchanges receiving federal financial assistance must comply with both Title VI of the
Civil Rights Act and section 1557 of the Act. In addition, as entities created under ACA, the exchanges
must comply with section 1557. Thus, the exchanges must at least follow HHS guidance regarding Title
VI Prohibition against national origin discrimination affecting LEP persons (68 FR 47311). In determining
the types and scope of language services it will provide, an exchange should give weight to the critical
role it will play in mediating consumers’ interactions with the health insurance market.
We also specifically recommend that exchanges consider taking the following steps to ensure they are
accessible and available to LEP individuals:
•
An audio component could be integrated into the website in various languages so that consumers
could click to listen to information and understand where to go for additional assistance. The
website should be translated into multiple languages, depending on the prevalent LEP
populations. At a minimum, it should include taglines in multiple languages informing LEP
individuals how to access information that is not translated on the website.
•
Telephone operators who speak a variety of languages or have access to interpreters should be
available and able to refer consumers to local resources. If an automated voice prompt system is
utilized, it should include voice prompts of all frequently encountered languages to help LEP
individuals navigate the system.
Individuals with Disabilities
The exchanges must ensure that information is accessible to individuals with disabilities. As entities
created under ACA, the exchanges must comply with section 1557; and exchanges receiving federal
financial assistance must comply with both the Rehabilitation Act and section 1557. Thus, all
communications from the exchange – web-based information, advertisements, information kiosks, printed
material and brochures, information lines, etc. – must at least meet the federal government’s Section 508
of the Rehabilitation Act standards for electronic and information technology and comply with the
Americans with Disabilities Act. Information about the Section 508 standards can be located at:
http://www.section508.gov. All forms of telephone communication must include a TTY option.
For both individuals with LEP and individuals with disabilities, the goal must be reaching the highest level
of accessibility – not just in the roll out of the exchanges but as part of the full time practice of these
marketplaces. The insurance plans that are deemed eligible to sell through the exchanges should be
required to meet these standards in any of their communications with customers as a pre-requisite for
eligibility and a requirement for operating in the pool.
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D. QUALIFIED HEALTH PLANS (QHPs)
Comments to Specific Questions
1. What are some of the major considerations involved in certifying QHPs under the Exchanges,
and how do those considerations differ in the context of individual and SHOP Exchanges,
subsidiary Exchanges, regional or interstate Exchanges, or an Exchange operated by the Federal
government on behalf of States that do not elect to establish an Exchange?
Under the ACA, exchanges are responsible for certifying, recertifying, and decertifying health plans,
pursuant to certification requirements addressed in statute and subsequent HHS regulation. At a
minimum, the federal certification criteria should set a floor for states, and states should be encouraged to
hold plans to even higher standards if they determine it to be in the best interest of consumers. For
example, the recently enacted California legislation, AB 1602, allows the state exchange to establish and
use a competitive process to select participating carriers.
Certifying, recertifying and decertifying health plans is an activity that requires the exercise of substantial
discretion in applying government authority and decision making. The best way to ensure accountability
and transparency is through the use of governmental staff who will carry out these functions without bias
and conflicts of interests and in the best interest of the public.
In addition, the ACA does not allow, and nor should HHS permit the relaxation of the certification
requirements for other forms of exchanges, i.e., for the SHOP exchanges, or for regional or subsidiary
exchanges. As noted previously, HHS should clarify that an exchange that operates in more than one
state should be able to hold plans to higher standards if determined by the states to be in consumers’
3
interest, particularly if stronger state laws already exist.
2. What factors should be considered in developing the Section 1311(c) certification criteria? To
what extent do states currently have similar requirements or standards for plans in the individual
and group markets?
The certification criteria should be driven first and foremost by consumers’ and small business employees’
need for affordable, adequate and accessible health care coverage. In developing regulations to govern
the certification criteria in section 1311(c) of the ACA, HHS should look to “best practices” among states
for laws and regulations that have benefited consumers.
Marketing Standards
Plans will likely use marketing tools to the extent they are able to encourage the healthiest people to
enroll while discouraging those with unhealthy risks. Plans’ behavior in the marketplace, as well as the
behavior of their agents and brokers, needs to be continually monitored and the marketing standards may
need to be tightened over time. For further discussion see response to 2b. Plans should be required to
provide marketing materials in a culturally and linguistically appropriate manner and translate the
materials when language groups in the plan’s service area reach certain thresholds.
Network Adequacy
It is critical that network adequacy standards ensure that consumers have reasonable choice of the
providers they need, within a reasonable geographic proximity to their home or workplace. Plans must
have enough providers to meet the specific needs of the consumers they serve. For example, a plan must
have enough reproductive health care providers in its network to meet the needs of the women in the
3
Again, we urge that the Secretary should establish a clear standard that HHS will not approve a regional or
interstate exchange that fails to include at least one plan that provides coverage of non-excepted abortion services
unless each of the states participating in the exchange have enacted laws to prohibit such coverage under Section
1303(a).
21
plan. Similarly, plans should be required to have providers capable of caring for patients whose primary
language is not English in proportion to the number of such individuals in the plan. In addition, if a plan
purports to cover a certain item or service, then it must also have in-network providers and suppliers that
are able to provide that item or service. And plans should be encouraged to the extent possible to include
Medicaid providers to facilitate continuity of care for families who may transition on and off of Medicaid.
The criteria developed by the Secretary to determine whether a QHP has a sufficient range of providers
should take into consideration the fact that many religiously-controlled hospitals and clinics may not
provide all of the covered services. These restrictions may limit access to comprehensive reproductive
health services information including contraception, as well as end of life care and information about
treatment options. An adequate network must include providers that offer all covered services. Moreover,
in the event that an enrollee is not able to access the reproductive health services that she needs within
the network, in particular due to provider religious or moral objections, the QHP must be required to allow
the woman to access services out of network without penalty, including in the case of emergencies.
We applaud the requirement in California legislation AB 1602 that requires carriers to regularly update an
electronic directory of contracting providers so that individuals and small businesses can search by health
care provider name and see which plans include the provider in their network, and ascertain whether the
provider is accepting new patients for a particular health plan. We recommend that similar requirements
be made of plans in all exchanges, and add that the electronic directory should include an accurate listing
of the languages spoken in a providers’ office.
Essential Community Providers (ECPs)
Section 1311(c)(1)(C) requires that health plans participating in state-based exchanges must contract
with essential community providers (ECPs) including women’s health centers, HIV/AIDS clinics,
community health centers, and public hospitals that serve medically under-served and low-income
populations. This provision establishes a critical protection to ensure that newly insured patients can
access the primary and preventive care they need from providers in their communities. It is also vitally
important for racial and ethnic minorities who, compared to Whites, have less access to medical
care. Ensuring that consumers in the exchanges have access to ECPs will help ensure continuity of care
for those recently uninsured who currently receive care from these providers, as well as those who
transition off Medicaid because of income fluctuations. It can also help with outreach and enrollment
efforts among low-income populations and those who face cultural and linguistic challenges in accessing
care.
In addition, these providers can help address expected primary care workforce shortages and help
address disparities in access to care among communities of color. Ensuring access to ECPs not only
helps increase the number of primary care providers, it can also help expand the geographic availability
of providers. ECPs often work in publicly funded clinics that are strategically located to promote easy
access for traditionally under-served populations. Whether clinics are located in low income urban
neighborhoods, rural or remote areas or near public transportation, providers serving in these clinics are
accustomed to meeting the special needs of low-income populations – and that includes making sure that
they have easy access to affordable health services.
In order for the provision to have its intended impact, it is imperative that HHS implement the ECP
protection in a meaningful and robust way so that patient’s are guaranteed access to the providers they
trust in their communities. Congress identified a number of providers – 340B and “340B look-alike”
providers – that exchange-participating health plans must contract with, and the HHS rulemaking should
reiterate and emphasis that requirement. This group of providers represents a strong swath of the
community-based providers in our country, including public hospitals, community health centers, and
family planning clinics. Implementing regulations should ensure that all the ECPs Congress intended are
protected by the provision, including family planning clinics and women’s health centers. Given the unique
health care access needs of women, it is especially important that HHS emphasize the importance of
requiring exchange-participating health plans to contract with family planning clinics or women’s health
centers.
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Furthermore, to achieve the true intent of the provision – which was to ensure strong access points –
HHS should require that health plans contract with ECPs for the full range of services offered by the plan.
In addition to providing more efficient and patient-centered care, such a requirement would also support
better continuity and coordination of health care – top tenets of the ACA.
It is also important that protections are put in place to ensure that ECPs are not discriminated against in
health plans reimbursement negotiations. In order to ensure that the ECP provision supports vigorous
community-based health care delivery networks, the Secretary should put protections in place to ensure
that essential community providers are adequately reimbursed for the health care they provide.
Accreditation
We applaud the ACA’s requirement that the entity accrediting participating health plans must assess
performance based on clinical quality measures such as HEDIS, patient experience ratings such as
CAHPS, as well as plan performance on consumer access, utilization management, quality assurance,
provider credentialing, complaints and appeals, and network adequacy. Measures collected for
accreditation purposes should be supported by evidence and meet National Quality Forum standards for
validity, reliability and feasibility. To the extent possible, all types of health plans, whether based on an
HMO, PPO, or other type of delivery model, should be held to the same rigorous standards.
Quality Improvement
Health plans can play a critical role in improving the quality of care – and should be expected to do so.
They can benchmark providers against each other to stimulate improvements, reward high quality care,
provide data to understand patterns of care and opportunities for improvement, help patients manage
their own conditions, reduce readmissions, reduce health care disparities, and encourage adoption and
use of health IT. HHS should set out clear metrics for the quality improvement strategies outlined in
section 1311(g)(1). Plans should be held accountable for their results – with clear goals and benchmarks
– so that consumers and employers will know whether plans are hitting the quality improvement and cost
containment targets over time. In particular, plans should be required to stratify data to document quality
improvement not just generally but also across various subgroups such as by race, ethnicity, language,
gender, and disability.
As the federal government and states gain greater experience with exchanges, the minimum thresholds
for exchanges and QHPs should not be static; instead, they should evolve to more effectively confront the
quality and cost challenges facing consumers. Standards must be updated on a regular basis to keep
pace with advances in measurement, consumer education, medical science, and payment.
Use of Standard Benefit Format
We applaud the certification requirement that plans use a standard benefit format that consumers and
small business owners can use to make informed purchasing decisions. Plans should also have available
to consumers more detailed information on benefits and coverage upon request and as an easily
accessed linked resource on the exchange website. HHS should also consider requiring a standard,
consumer-friendly “explanation of benefit” (EOB) form (the form typically received by a consumer after a
claim has been filed). These forms are often drafted in ways that cause confusion among consumers. An
effort to create a standard, simplified EOB would help consumers better understand their cost-sharing
responsibilities. In doing so, HHS must consider ways to limit the unintentional abrogation of beneficiary
confidentiality, which can occur when an EOB form is sent to the policyholder, but either it is a spouse or
dependent who received the care, or the mail is opened or obtained by someone other than the patient
who received care. These privacy concerns are heightened when a patient has sought sensitive health
services such as those for mental health, substance abuse, or reproductive health.
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Quality Information for Enrollees
The information provided to consumers on plan quality measures (at a minimum, Healthcare
Effectiveness Data and Information Set (HEDIS) and Consumer Assessment of Healthcare Providers and
Systems (CAHPS) scores) must be relevant, digestible and actionable for them to make informed
purchasing decisions. Providing a laundry list of performance measures is not as valuable for consumers
– most will want some form of composite rating and there should be a clear and simple explanation of
how the measures were determined. However, HHS should require plans to provide “layers” of
information through a web-based interface, so that consumers seeking more detailed information about
performance on specific quality and consumer experience measures can access it.
In addition to information on plan quality, exchanges should supply consumers with information on the
quality of the individual physicians and hospitals operating within each plans network whenever feasible.
Quality reporting on individual providers should include, at a minimum, measures on patient experience,
health outcomes, processes with strong links to outcome, and volume. Measures that resonate with
consumers (e.g., measures of pre- and post-treatment functional status, appropriateness of care, etc.)
should be added as they become available. Exchanges should also consider incorporating information on
whether a physician is participating in a Maintenance of Certification (MOC) program which require
physician participation in lifelong and continuous professional development and include, among other
things, assessment of physician practice performance (including patient experience) and improvement.
Quality information should also be coupled with information about the cost of care so consumers can
make truly value-based decisions. This information will also encourage health plans and providers to
compete on the basis of quality and efficiency.
Protection against Adverse Selection
The ACA also prohibits plans from employing benefit designs that have the effect of discouraging people
with significant health needs from enrolling. Because this is a not uncommon practice among insurers, it
is vital that HHS set minimum standards for this prohibition, and encourage states to effectively monitor
plans to ensure they are complying. For example, in the Medicare Advantage program, some plans have
imposed higher deductibles for hospital stays and increased cost-sharing for certain chemotherapy drugs
with the effect of deterring enrollment by people in poorer health. To control this type of practice, plans’
benefit designs, and year-to-year changes in benefits, should be carefully reviewed for designs similar to
what plans in Medicare Advantage have used in the past. States should also be encouraged to collect
and track data on how plan benefit design may be affecting patient mix over time (using data gleaned
from premium rate review and risk adjustment programs, for example) in order to detect whether changes
in benefit design are provoking adverse selection among plans.
2a. What issues need to be considered in establishing appropriate standards for ensuring a
sufficient choice of providers and providing information on the availability of providers?
Selecting and sustaining a sufficient mix of QHPs should – absent a state law prohibiting such coverage –
require inclusion of at least one QHP that offers coverage for abortion services described in section
1303(b)(1)(B)(i). This is necessary to guarantee that women participating in exchanges are provided with
comprehensive coverage options that meet their medical needs, and to ensure that women are able to
receive the full benefit of the new law as passed, which specifically allows for coverage of abortion care in
the new health care system. Absent state law prohibiting coverage of such abortion care in that state’s
exchange, and consistent with federal law as described in section 1303(c)(2)(A), we urge HHS in its
implementing regulations to define a sufficient mix of QHPs as including at least one plan that offers
coverage of such abortion care.
For further discussion, see Network Adequacy, above.
24
2b. What issues need to be considered in establishing appropriate minimum standards for
marketing of QHPs and enforcement of those standards? What are appropriate Federal and State
roles in marketing oversight?
As you consider minimum marketing standards, states should be encouraged to set the same standards
for plans operating inside and outside the exchange. Allowing plans operating solely outside the
exchanges to follow less stringent marketing and benefit design standards could set up an unlevel playing
field, allowing these plans to use marketing tactics to cherry pick the healthiest individuals and discourage
sicker individuals. And all plans, whether or not they participate in the exchange, should be subject to the
same market conduct reviews.
In addition, we encourage you to include the following requirements in the marketing standards for plans:
4
•
Health plans should be required to provide standardized information to prospective and new
enrollees, including:
o information on benefits, limitations, exclusions, restrictions on use of services, and plan
ownership;
o a summary of physicians’ financial incentives, written in terms that the average consumer
will understand;
o information regarding the stability and composition of the provider and practitioner
network, including a list of participating physicians and hospitals and their credentials, as
well as participating pharmacies (such list should indicate whether the provider or
practitioner is accepting new patients covered by the plan);
o comparative information that is standardized on patients’ experience with care in the plan
and, to the extent possible, the plan’s clinical performance, and comprehensive
information reflecting standardized metrics to compare the performance of participating
physicians and other health professionals, hospitals, post-acute care facilities, and home
health agencies;
o accreditation information;
o disenrollment experience;
o data on grievances and appeals filed by enrollees; and
o the plan’s current status with respect to compliance with statutory and regulatory
requirements.
•
All marketing materials should be approved by the exchanges and/or the state before their use,
written at a fifth-grade reading level or lower, and available in languages other than English when
the plan serves or the plan’s service area includes enrollees whose native language is not
English. Plans must also have in place mechanisms to provide information to LEP individuals for
whom translated materials are unavailable or who have questions about translated materials
received. This may include having bilingual staff or interpreters to assist in communication with
4
LEP individuals. All marketing materials must also be accessible to people with disabilities.
•
To avoid the possibility of discrimination against population groups based on place of residence,
participating plans should be required to serve a complete market area (i.e., they should not be
allowed to “gerrymander” their market area).
•
Exchanges should also monitor and regulate the conduct of insurance agents and brokers, and
the following activities should be prohibited:
As noted previously, the exchanges and any plans receiving federal funds must comply with section 1557 as well as
other laws prohibiting nondiscrimination by federal fund recipients such as Title VI of the Civil Rights Act of 1964 and
the Rehabilitation Act. These Acts, in turn, have been interpreted to require that services provided by federal grantees
and the federal government meet certain standards in order to be Title VI and Rehabilitation Act compliant.
Exchanges and plans receiving federal funds should follow HHS guidance regarding Title VI Prohibition against
national origin discrimination affecting LEP persons (68 FR 47311) and the accessibility requirements outline for
compliance with Section 508 of the Rehabilitation Act.
25
o
o
o
door-to-door solicitation;
offering potential consumers financial or other inducements to enroll; and
discriminatory activities designed to discourage sicker-than-average enrollees or people
with disabilities and encourage healthier-than-average enrollees.
3. What factors are needed to facilitate participation of a sufficient mix of QHPs in the Exchange to
meet the needs of consumers?
We recognize that many states have little or no competition in their individual and small group markets
among health plans, and each state will face unique challenges in trying to attract and retain a sufficient
mix of QHPs within the exchange. However, we believe that, over the long term, if states design their
exchanges first and foremost to benefit consumers, so that they are attractive, consumer-friendly
marketplaces in which consumers can be assured of adequate, affordable coverage, a sufficient mix of
health insurance carriers will follow.
To achieve this, however, it will be critical for states to make the market rules inside and outside the
exchanges the same, so there is a “level playing field” and all plans in the state are required to meet the
same certification standards. States that do not do this, and that allow the market outside the exchanges
to operate under substantively different rules, will have a difficult time attracting a healthy mix of
insurance carriers to their exchanges. This also raises the risk of adverse selection and could drive up
premium costs for exchange enrollees.
The requirements for risk adjustment, and the temporary reinsurance and risk corridor programs, as well
as the requirement that plans pool risk inside and outside the exchanges, are critical tools to limit adverse
selection and encourage plans to participate in the exchanges. However, these tools will not be sufficient
if states do not apply the same rules to plans inside and outside the exchanges. HHS should use grant
support and technical assistance to help states enact the laws and rules necessary to mitigate adverse
selection between the exchange and non-exchange markets.
HHS may also need to consider a process by which new plans, which face considerable barriers to
market entry, could effectively participate and compete in state exchanges. While consumer protection
and quality standards should not be relaxed for these plans, exchanges should be empowered to
implement innovative ways to foster the development and growth of new plans, particularly in states that
have little meaningful competition among carriers.
Further, to the extent feasible, HHS should promote allowing Medicaid managed care plans to participate
in the state exchanges. These plans serve a population of low-income beneficiaries, many of whom have
income fluctuations that will cause them to lose eligibility for Medicaid, while gaining eligibility for premium
subsidies through the exchanges. In order to ensure a seamless transition for these individuals and
continuity of care for those receiving health care treatment, states should be encouraged, where it is
feasible, to allow Medicaid managed care plans to offer commercial coverage through the exchanges.
3a. What timeframes and key milestones will be most important in assessing plans’ participation
in Exchanges?
See responses to Sections A and B, above.
3b. What kinds of factors are likely to encourage or discourage competition among plans in the
Exchanges based on price, quality, value, and other factors?
Exchanges as envisioned under the ACA provide a critical opportunity to encourage plans to compete for
consumers based on the value of their product and not on risk selection. The ACA provides important
tools to achieve that goal, and it will be critical that these are well-integrated into the design and operation
of the exchanges.
26
First, consumers and small business owners need greater transparency on the price and quality of the
product they are buying. In implementing the ACA’s requirements for greater data collection from plans
and standardized benefit forms, HHS should ensure that exchanges are committed to conveying plan
price, coverage, quality, and consumer experience data, along with provider level quality data, in
consumer-friendly language, in easily-accessible formats, and so that consumers can effectively use the
data to make informed purchasing decisions.
Second, exchanges should be required to encourage plans (possibly through bidding or other negotiation
processes or through the rating system) to develop and implement effective cost containment, care
management, health information technology and quality improvement activities. Exchanges should be
authorized to develop “reward” systems for plans that effectively use payment reforms and quality
improvement tools to deliver better health care to more people at a more affordable price, including
making necessary investments to build a strong foundation of comprehensive, well-coordinated primary
care, as well as to reduce disparities. This could be done through the rating system that will be developed
for plans, or, if the exchange requires plans to bid to participate, could be taken into account in the
bidding process.
Third, states should be encouraged to set up effective processes for close coordination between their
exchanges and their insurance department, so that state regulators’ efforts to review rate increases and
enforce the ACA’s medical loss ratio requirements reinforce and support efforts by the exchanges to keep
premium costs affordable for families and small businesses.
Fourth, having a strong, culturally and linguistically appropriate, accessible Navigator program to educate
the public and raise awareness of the availability of QHPs will also encourage consumer interest and
participation in the exchange. To support true consumer choice, it will also be important that Navigators
meet the requirement in the ACA for distributing fair and impartial information.
4. What health plan standards and bidding processes would help to facilitate getting the best
value for consumers and taxpayers?
Allowing exchanges to negotiate with plans on price is a critical cost containment tool. The ACA explicitly
contemplates – and encourages – exchanges to act like “active purchasers” in the marketplace to deliver
premium discounts and better quality products to consumers and employers.
States could go even further and authorize exchanges to establish and use a competitive process to
select participating carriers, as in California’s bill AB 1602.
At a minimum, HHS should prohibit states from requiring exchanges to accept all eligible carriers without
any negotiation or competitive process. Even in states where an “exchange as active purchaser” model
may be challenging because of a lack of carrier competition, the exchanges should not be precluded from
implementing such a model when and if it becomes in the best interests of policyholders and taxpayers to
do so.
We note that section 1311(e) discusses factors an exchange can and cannot take into account in
determining whether to exclude a plan from the exchange. However, the subsections of (e) may leave
states with some questions about the scope of their flexibility to negotiate with plans. This should be
clarified in rulemaking. Specifically, section 1311(e)(2) clearly says that states can exclude from
exchanges plans with excessive or unjustified premium increases, although (e)(1)(B)(ii) says that
exchanges cannot exclude a plan “through the imposition of premium price controls.” Taken together, we
understand these sections to prohibit states only from establishing an arbitrary premium price cap for
health plans, unrelated to actuarial factors or the health plans’ actual costs. We recommend that HHS
clarify that states can always use a competitive bidding process to select exchange plans that could take
into account both quality and price. For example, exchanges can negotiate with plans about the premium
price they will charge to exchange enrollees and can still consider whether plans meet medical loss ratio
requirement.
27
The ability to actively purchase the plans that participate in the exchanges will greatly assist states in
providing high-quality, affordable plans to their residents (as well as keep federal costs lower, as the
premium tax credit amounts are tied to the cost of Silver plans offered through the exchanges). As stated
by the sponsor of the “active purchaser” language during the Senate debate on the ACA, Senator John
Kerry of Massachusetts: “One of the key ingredients to the success of health reform in Massachusetts is
the ability of the Connector to negotiate with health plans. This negotiation process saves six percent off
the cost of premiums and places pressure on carriers to keep rates increases low overall. Empowering
exchanges to engage in active purchasing would lower premiums for all enrollees in the exchange, as
5
well as, lower the amount of subsidy paid by the federal government.”
5. What factors are important in establishing minimum requirements for the actuarial value/level of
coverage?
The ACA rightly requires greater standardization of health insurance products by establishing four tiers of
coverage – bronze, silver, gold and platinum, based on various actuarial values. First, it is critical that
HHS establish a uniform methodology to calculate actuarial values for purposes of demonstrating plan
compliance within these four tiers that will be used by all states and plans. HHS must also set the
standard population that will be used in applying this methodology to allow accurate comparisons of the
relative comprehensiveness of plans’ benefit designs. Furthermore, HHS should set relatively strict
guidelines in allowing de minimus variation; otherwise, allowing even modest differences in the actuarial
value of plans within the same tier could lead to greater risk of adverse selection.
Second, states and the governing body of the exchanges may conclude that even greater standardization
of products is needed to combat adverse selection among participating plans, or between plans inside
and outside the exchanges.
Third, exchanges, states, and the federal government will need resources to closely monitor and enforce
plan compliance with the requirements for standardization of benefits, particularly since federal tax dollars
are at stake.
6. What factors, bidding requirements, and review/selection practices are likely to facilitate the
participation of multiple plans in Exchanges? To what extent should the Exchanges accept all
plans that meet minimum standards or select and negotiate with plans?
State insurance markets vary dramatically. Some have robust competition among plans in their individual
and small group markets, and others are dominated by one or two carriers. States will need flexibility to
design bidding requirements and review/selection practices to encourage plans to participate in their
exchanges.
However, states should also be encouraged to develop and enforce market rules that are the same inside
and outside the exchange, so that carriers have little incentive to decline to participate. Limiting the risk of
adverse selection by applying the same rules inside and outside the exchange, along with the application
of risk adjustment, reinsurance and other tools, should reduce concerns of carriers worried about a
patient mix that will be sicker-than-average. Where appropriate, exchanges should be encouraged to act
as “active purchasers,” negotiating with plans over premiums, quality improvement efforts, and cost
containment. At a minimum, no exchange should be required to accept all eligible plans. Exchanges
should be given the authority to establish a bidding or other process to regulate the amount and quality of
participating plans, if it is in the best interest of policyholders and taxpayers to do so.
5
Letter from Senator John Kerry to Majority Leader Reid, Nov. 12, 2009.
28
8. Are there any special factors that are important for consideration in establishing standards for
the participation of multi-State plans in Exchanges?
Abortion services should be exempted from the requirement that multi-state plans have a uniform benefits
package. The law’s lack of clarity regarding abortion coverage in multi-state plans may cause confusion
for plan issuers, at a minimum, and at worst could result in abortion being excluded from multi-state plans
altogether. Such an exclusion would be contrary to clear congressional intent that health-care plans
choose whether or not to cover abortion, and that only one restriction – that there must be at least one
multi-state plan that does not cover most abortion services – be included as part of the law. Exempting
abortion services from a uniformity requirement will allow issuers of multi-state plans, just like other
health-care issuers participating in the exchanges, to determine whether or not to cover abortion.
The ACA explicitly reiterates states’ ability to pass laws prohibiting abortion coverage in their exchanges
and provides generally that it (the Act) does not preempt state laws prohibiting or requiring abortion
6
coverage. Problematically, however, section 1334(c)(1)(A) requires that multi-state plans offer “a benefits
package that is uniform in each State.” Reading these provisions together, the ACA could be wrongly
interpreted to mean that if a multi-state plan is offered in a state with a law prohibiting coverage of
abortion, that multi-state plan could not offer abortion in any participating state, because then benefits
would not be “uniform in each state.” Such a result would conflict with section 1303(b)(1)(A)(ii), which
allows the issuer of a QHP to determine whether or not that plan provides coverage of abortion services.
It also conflicts with section 1334(a)(6), which, in requiring that there be at least one multi-state plan that
does not provide coverage of abortion services, implies that other multi-state plans may provide abortion
coverage.
The provision guaranteeing that one multi-state plan will not cover abortion was part of a legislative
compromise on abortion and was intended to guarantee that individuals participating in state exchanges
would be able to choose a plan that does not cover abortion services. There is no evidence that
legislators intended to prohibit coverage of abortion in all multi-state plans. Had that been the case, a
prohibition would have been explicitly stated in the law.
For this reason, we urge HHS to clarify that multi-state plans are allowed to cover abortion, even if that
would result in a lack of uniformity across states. Exempting abortion services from the uniformity
requirement is consistent with the ACA, which provides unique rules regarding abortion coverage. This
clarification will allow state laws prohibiting abortion coverage to stand while, consistent with the intent of
the law, allowing issuers of multi-state plans to decide for themselves whether or not to cover abortion.
6
§1303(a); §1303(c)
29
E. QUALITY
Comments to Specific Questions
1. What factors are most important for consideration in establishing standards for a plan rating
system?
1a. How best can Exchanges help consumers understand the quality and complications of their
plan choices?
As stated previously, consumers need comparative information on both the quality and cost of each
coverage option and its affiliated providers to make value-based decisions. This information must be
founded on metrics that are meaningful to consumers and presented in a way that is understandable and
actionable. See further discussion of what information should be presented and how it should be
presented in response to question D2 (re: Quality Information for Enrollees) and the questions in Section
J.
To motivate consumers to seek out high quality plans and providers, exchanges must clearly explain what
quality care means and the role that consumers, providers, and plans can play in improving care quality.
Many consumers do not have a clear understanding of what the term “quality care” means. For example,
although consumers understand the importance of some of the individual elements that quality care
encompasses (e.g., care that is coordinated, good communication among providers), they often do not
associate them with the term “quality care.” In addition, many consumers are unaware of the variability of
quality among providers, and assume higher costs mean higher quality and that more care means better
care. Exchanges have the unique opportunity to advance wide-spread consumer understanding of quality
care, and must take advantage of it.
1c. How much flexibility is desirable with respect to establishing State-specific thresholds or
quality requirements above the minimum Federal thresholds or quality improvements.
Standardization is necessary for comparability and is a vehicle for ensuring that consumers get useful
and meaningful information. However, it is important to also leave room for local innovation and, in
particular, the addition of information useful to particular populations of consumers, due to both the
demographic and geographic differences in consumer needs and the nature of local delivery systems.
2. What are some minimum standards or other factors that could be considered with respect to
establishing quality measurement and improvement thresholds or quality requirements that
should be met by QHPs? What other strategies, including payment structures, could be used by
plans to improve the practices of plan providers?
The ACA included numerous provisions to spur innovation in our health care delivery system to curb
costs and improve quality in Medicare and Medicaid. For example, the ACA includes policies that will link
payment to quality and provider performance, creating much-needed incentives for quality improvement
by hospitals, physicians, nursing homes, home health providers and others. Hospitals will have their
payments reduced and have to publicly report “excess” readmissions that often result from poor
coordination and failure to communicate effectively with patients and caregivers.
Exchanges are the critical hook to ensuring that these new models of care, along with investments in
quality measure development and shared decision-making tools, are utilized by the private insurance
market. Exchanges should encourage QHPs to align with these efforts and adopt similar programs. They
can also facilitate collaboration between QHPS and employers and plans in the outside market on
payment pilots and other innovations. Through alignment, payers can send consistent signals to providers
to supply safe, high-quality, and efficient care.
Additionally, a critical component of successful delivery system reform and quality improvement initiatives
is a strong foundation for well-coordinated primary care. Exchanges should require QHPs to place an
30
emphasis on strategies that improve the internal infrastructure of primary care practices, pay more for
primary care, increase access to primary care services, and pay for value rather than volume.
Some specific strategies that exchanges should encourage QHPs to adopt include:
•
providing financial rewards to providers, including ECPs, for integrating health IT into every day
patient care in a way that aligns with or complements the meaningful use program in the
American Recovery and Reinvestment Act;
•
increasing payment for primary care and geriatric practitioners;
•
testing innovative care models (e.g., patient-centered medical or health homes, accountable care
organizations, etc.);
•
supporting primary care practices, including public health clinics, in redesigning their clinic
processes; and
•
providing technical assistance to public health clinics and primary care practices.
Undergirding these efforts, HHS must set out clear metrics for quality improvement strategies so plans
can be held accountable for their results.
31
F. AN EXCHANGE FOR NON-ELECTING STATES
Comments to Specific Questions
1. How can the Federal government best work to implement an Exchange in States that do not
elect to establish or are unable to establish their own Exchanges?
Set an Early Example of Best Practices.
In order for states to make a decision on whether they have the capacity or desire to run an exchange, it
would be helpful if they have at least an outline of the federal model alternative to consider. Therefore, we
recommend that:
•
the federal alternative exchange should be outlined early enough in the process for states to
make informed decisions; and
•
the federal design should provide examples of best practices. These best practices should
include risk adjustment methods, IT, infrastructure, recruiting patient Navigators, plans for
consumer education, and transparency.
The challenges facing states contemplating exchange designs are enormous. No state or entity has
created an exchange the size and complexity of the exchange called for in the ACA and the timeline is
sobering. Massachusetts provides a good model for an individual exchange, but the models for
successful large scale small employer exchanges as proscribed by the ACA only exist in smaller scale
(CBIA-CT), failed pools (like Pacific Health Advantage-CA) and startup status (Utah). Thus, outlining the
federal exchange early provides an opportunity to guide the exchange design in those states that are
considering running their own exchanges.
Flexibility
The federal alternative will need to design an exchange that is friendly to consumers and small employers
and minimizes adverse selection, yet it will not direct authority to regulate insurance in the outside market.
Consequently, the federal government will have to tailor the design of the exchanges – and its
management of them – to reflect these outside market rules and the particular needs of the state. The
federal exchange management will have to study local market conditions, and tailor their design to reflect:
•
the number of insurers operating in the individual and small group markets (2-100 for most
markets), and the market power of each;
•
hospital and other provider market power;
•
state rules governing insurer behavior such as rate review, restrictions on marketing, benefit
mandates beyond the essential benefits package, rules governing outside-the- exchange sales,
and other rules differing from those governing plans offered through the exchange, etc.; and
•
the nature of small group market: use of brokers, distribution of small employers by size, etc.
•
the competitiveness of the market and state regulation of the market outside the exchange;
•
barriers to entry of new plans and insurers into the exchanges; and
Governance
HHS needs to carefully consider how the exchanges are to be managed. First and foremost, the
department needs to delineate the roles and responsibilities of the national office versus those of officials
32
at the state or regional level. Second, it must be clear that policy and significant decision-making authority
must reside with federal officials, not contractors. Policy-making, regulatory functions and eligibility
determinations for subsidies are inherently governmental activities that should be performed by
government personnel who are accountable to the public and whose activities are transparent.
Milestones
The federal government must define clear, early state deadlines and benchmarks; failure to meet these
would trigger the federal planning and implementation process
Setting up a federal exchange will require a thorough study of the local insurance markets and significant
coordination with state Medicaid agencies. To be successful, the planning for a federally-operated
exchange must begin well in advance of January 1, 2014.
The ACA calls for HHS to create a federally-operated exchange if (1) a state chooses not to establish an
exchange or (2) if HHS determines on or before January 1, 2013 that the state has failed to take the
actions necessary to implement an exchange. However, January 1, 2013 may be too late to
accommodate the local market study and implementation tasks that would need to take place before
January 1, 2014.Therefore, HHS should press the states to begin this work as part of their first year
exchange planning grants and provide benchmarks or milestones for states. In addition, the ACA
provides an earlier and useful trigger that should be used: Section 1311(c)(6)(A) requires the exchange to
work out with HHS a plan for an initial open enrollment period by July 1, 2012.
Other milestones the federal government may way to consider are whether the state has passed
authorizing legislation during 2011, if the state has developed a plan for upgrading their IT system, and if
a state has identified the rules governing the outside market that need to be changed to prevent adverse
selection.
Cooperation
It may be particularly challenging for the federal government to gain cooperation from states, as there is
no requirement in the law that states must help the federal government implement the federal exchange.
There are a number of activities that will require state cooperation if the federal exchange is to run
smoothly. These activities include coordination with the state Medicaid program to ensure smooth
eligibility and subsidy determinations, upgrades to obsolete IT systems used by Medicaid departments,
etc. States opting not to run exchanges will still need to do significant preparatory work (upgrades to IT
systems, etc.) for the federal exchange to be run efficiently.
In those states that have limited capacity or inclination to run their own exchange, the federal government
may need to consider alternative uses of exchange planning grants or other policies to accomplish
necessary exchange-related activities. The federal government should consider incentives or other levers
to encourage cooperation with the states, such as re-purposing the exchange planning and
implementation grants for these states to provide them with monetary incentives and capability to
coordinate with the functional exchanges.
2. Are there considerations for an Exchange operated by the Federal government on behalf of
States that do not elect to establish an Exchange that would be different from the State-run
Exchanges?
Adverse Selection
While there are a number of constraints in ACA that begin to limit adverse selection – including the
requirement to pool across markets, availability of subsidies only in the exchanges, coverage of the
essential benefits package, elimination of pre-existing condition exclusions in all new plans, and risk
adjustment across markets – states will continue to set rules for the outside market that could encourage
or discourage adverse selection, including marketing of plans. The viability of a federal exchange will to
33
some degree rely on the cooperation of the state to control adverse selection.
Enforcement
Enforcement of the insurance market reforms in the ACA will depend upon the state. While the federal
government may act as a purchaser and negotiator for the exchanges, the states will be largely
responsible for ensuring that plans comply with ACA provisions. The ability of patients to fully benefit from
the law will depend on rigorous oversight and enforcement from the states. Experience shows us that
states are very uneven in their enforcement of consumer protections already on the books. Even though
the federal government may negotiate for strong, high quality plans to participate in the federal exchange,
it will ultimately be left to the state governments to ensure that these products are actually delivered.
However, it may be argued that if Congress gave HHS the authority to set up a federal exchange, then it
also gave HHS the authority to enforce provisions related to the success of the exchange. In order to
ensure appropriate enforcement of ACA requirements in the federal exchange, HHS will have to consider
two important questions:
•
Should HHS have the authority to develop and enforce market conduct review?
•
How will HHS deal with states that are unable or unwilling to enforce the law to protect plan
enrollees in the federal exchanges?
The role of the federal exchanges in enforcement could be a very important consideration to states in
deciding whether to establish exchanges or default to the federal government, and therefore, HHS should
at least outline its options in a federal exchange as early as possible to assist state decision-making
regarding exchanges.
Governance
HHS has to define the role of stakeholders in the governance of the federal exchanges. For the
exchanges to succeed, various stakeholders need to have a meaningful role in their development and
oversight, and this role should occur at the state level. Whether state or federal, the exchanges will have
steep learning curves, and the experiences may vary considerably among the states for a wide variety of
reasons. It is imperative that the leadership of the federal exchanges have the authority and responsibility
to involve stakeholders at the state level if they are to succeed.
34
G. ENROLLMENT AND ELIGIBILITY
General Comments on Enrollment and Eligibility
Burdensome citizen documentation requirements create barriers to care. We are very concerned about
how the exchanges will verify an individual’s citizenship or immigration status, and urge HHS to require
exchanges to utilize data matching between the exchanges and federal agencies rather than require
individuals to submit documentation.
There is significant research documenting the challenges faced by many individuals, including many U.S.
citizens, in meeting citizenship documentation requirements. Initially imposed by the Deficit Reduction Act
(DRA) for Medicaid, citizenship documentation requirements have resulted in eligible individuals being
denied enrollment merely because of paperwork requirements. With specific regard to children, it has
been estimated that between 1.4 and 2.9 million children do not have ready access to a birth certificate or
passport.
As noted by the Center on Budget and Policy Priorities in analyzing the results of citizenship
documentation requirements eight months after DRA implementation, an increasing number of states
reported marked declines in Medicaid enrollment, particularly among low-income children. And the
available evidence strongly suggested that those being adversely affected are primarily U.S. citizens
otherwise eligible for Medicaid who are encountering difficulty in promptly securing documents such as
7
birth certificates and who are remaining uninsured for longer periods of time as a result.
Further, all states already have agreements in place with the Social Security Administration (SSA) for
data matching in Medicaid and CHIP. States also have agreements in place with the Department of
Homeland Security to verify immigrant status through the SAVE system. Again, states should be able to
amend these existing agreements to cover their exchanges and not have to require documentation
directly from applicants unless the data matching does not verify an appropriate eligible status.
Given the difficulties many individuals may have in meeting this requirement, and the goal of the
exchanges to cover individuals when other insurance is unattainable, it is essential that HHS adopt
policies that streamline the documentation process as much as possible and relieve applicants from the
burden of providing documentation.
Further, we believe HHS should prescribe the procedures related to eligibility during verification of an
individual’s citizenship or immigration status. We recommend that HHS model its policies on those from
Medicaid and the CHIP. In those programs, the state submits an individual’s name and social security
number (SSN) to SSA. If the state receives a positive response from SSA as to documentation match, the
person has met the citizenship documentation requirement. If and for so long as the state agency does
not hear anything from SSA (i.e., it is not notified that the person’s name and SSN do not match), the
person receives Medicaid/CHIP benefits, if otherwise eligible, and the state will be reimbursed for
applicable expenses (see Children’s Health Insurance Program Reauthorization Act, Section 211(b)(2)).
If the SSA notifies the state agency that a person’s name and SSN do not match, then the agency must
make a “reasonable effort to identify and address” the inconsistency by contacting the individual and by
following such other procedures as the Secretary or the state have created (see 42 U.S.C. Section
1396a(ee)(1)(B)(i)).
If the state is unable to resolve the inconsistency, it must notify the person of this fact and give the person
90 days from receipt of the notice either to work with the SSA to resolve the problem, or to then submit
the documentation of citizenship (see 42 U.S.C. Section1396a (ee)(1)(B)(ii)). If at the end of this 90-day
period, the person has neither resolved the problem with the SSA nor provided the documentation
7
Donna Cohen Ross, New Medicaid Citizenship Documentation Requirement is Taking a Toll: States Report
Enrollment Is Down and Administrative Costs Are Up, available at http://www.cbpp.org/cms/?fa=view&id=1090
(March 2007).
35
required, then the state agency could send the person a termination notice within 30 days. This notice
and review procedure should be subject to the same appeal procedures as is any other termination
notice. States utilize a similar process to verify immigration status with the Department of Homeland
Security.
We believe these same procedures should apply to the exchanges, and that exchanges that abide by
these procedures. During the verification period, an individual should be enrolled in health insurance
(assuming all other eligibility criteria are met). If the individual is eligible for a tax credit or cost-sharing
reductions, these should also be paid during the verification period. If an individual is later found ineligible
because of inability to complete verification of citizenship or immigration status, the federal government
and the exchanges should not be permitted to recoup the costs of a tax credit, cost-sharing reductions, or
any other expenses. Further, the plan should not be allowed to charge the individual any additional costs
since the individual, like any other enrolled individual, had been paying premiums which are designed to
pay for all covered benefits. This is similar to the Medicaid and CHIP programs which offer states their
FMAP for expenditures made during the period required to verify documentation and status.
Comments to Specific Questions
1. What are the advantages and issues associated with various options for setting the duration of
the open enrollment period for Exchanges for the first year and subsequent years? What factors
are important for developing criteria for special enrollment periods?
In the first year, federal guidance should allow for greater flexibility for individuals enrolling in exchanges
so that families have time to learn about the options available to them under the new law and enroll in the
plan that best meets their needs. Specifically, guidance should allow for a longer duration open
enrollment period prior to January 1, 2014 and ensure that families can enroll past the January 1, 2014
implementation date for a limited period of time (to take advantage of the publicity and greater public
awareness of the availability of exchange coverage).
In subsequent years, guidance should ensure that open enrollment periods are available to families at
least once a year during a standardized time period (such as September through early December, which
would allow exchanges to make necessary eligibility determinations and health plans to enroll families for
the plan year starting on January 1, 2014 and generally corresponds with the open enrollment periods for
employer-sponsored insurance), that the period(s) last at least for 90 days, and that insurers fully
advertise the availability of coverage during these open enrollment periods. In addition, the law should
follow HIPAA and Medicare guidelines in establishing qualifying events that will trigger special enrollment
periods for subscribers and dependents into both subsidized and unsubsidized coverage in the
exchanges including:
•
changes in family circumstances, such as marital status and change in number of dependents;
•
pregnancy;
•
loss of coverage;
•
employment status change, including termination of employment, change from part-time to fulltime status, or vise versa; and
•
change of residence.
Legislation should also be considered to establish special enrollment periods for employer-sponsored
insurance when a family becomes ineligible for premium tax credits and cost-sharing reductions.
States should be required to encourage individuals seeking coverage through the exchange to apply,
even if open enrollment is closed, if they are likely to be eligible for a special enrollment period or
Medicaid/CHIP (which can conduct eligibility determinations and enroll people into coverage at any time).
36
Additionally, those not eligible for special enrollment or Medicaid/CHIP should not be prevented from
applying but be clearly notified that they would likely have to update their application information when
they can enroll. Exchanges should securely maintain these applications and process them once the
person becomes eligible. Families would then be contacted for change of circumstances, and, depending
on the timeliness of income information provided, for updated income data. These protections will ensure
maximum health coverage take-up among populations that have typically moved on and off insurance
and run the risk of falling through the cracks even in a more streamlined system. Managing this sort of
enrollment process will require ongoing coordination among agencies, access to information, and
activities that point to the inherently governmental nature of the process.
Small businesses should be allowed to purchase coverage through the exchanges generally at any time
(which for currently insured employers would be the end of their current plan year, and for those newly
offering coverage, whenever they arrange for such coverage). Employees of the small business would
still have open enrollment periods but those periods would depend on when the plan was initially
purchased – as it works today in the small group market.
2. What are some of the key considerations associated with conducting online enrollment?
It is important to consider that enrollment in health plans offered through the exchanges is only one
component of a larger process. Before an individual can enroll in a plan, he or she must be determined
eligible for it, and, in the case of individuals who seek to enroll in plans that will be subsidized via tax
credits or cost-sharing, the eligibility determination process will provide key information an applicant may
use to compare coverage options during the process of actual enrollment. In the latter cases, online
enrollment can only be successful if it is preceded by a robust eligibility determination process that builds
on, and is coordinated with, existing public processes (e.g., Medicaid eligibility determinations).
Online enrollment can be an effective enrollment tool, but it is critical that any system be built with a
minimum set of user-friendly components. This includes ensuring that it is robust enough for high-end
users but simple enough for low literacy or LEP users; that it is available in multiple languages; that it is
accessible to individuals with disabilities; and that enrollment is achieved through a one-step process (i.e.,
limiting the need to provide follow up documentation or information).
The website should only require consumers to enter the minimum amount of personal data and
supporting documentation needed to determine eligibility and enroll in coverage. Online enrollment should
rely on solutions that are designed to tailor screening questions based on how individuals answer earlier
questions. This “hierarchical” approach would simplify the online enrollment process and help to ensure
that people are directed to the most appropriate program (i.e. Medicaid or premium tax credits) for which
they are most likely eligible, and ask only for information needed for such program (rather than for all of
the information needed to determine eligibility for all programs). This should also minimize the need to
report on immigration status, helping ensure that a citizen family member of an undocumented immigrant
will still be directed to the appropriate program even though the undocumented family member is not
eligible for that program.
Consumers should be allowed to use the website from multiple locations and over time, without having to
re-enter data and restart the process. This capability will be especially important for individuals or families
who may not have all the necessary documentation handy when they first begin the eligibility and
enrollment process. Additionally, if consumers begin the application process online but cannot complete
the application, they should be able to complete the application process through other channels, such as
by mail, over the phone, or in person.
Online enrollment is only as effective as the extent to which users have Internet/computer access. Lowincome and other under-served communities disproportionately lack computer or Internet access, or have
access through alterative means. Enrollment should be accessible through mobile phone technology, as
low-income people are increasingly accessing the Internet through these tools. Strategies should also be
implemented to broaden the availability of secure access through the availability of kiosks in central
locations, mobile units available in rural communities, training of assistors in community-based
37
organizations, etc.
Because exchange websites will require individuals to enter personal information, privacy and security
protections are crucial. Consumers must be informed of how their information will be used and when and
to whom it may be disclosed. This is particularly important for families with mixed-immigration status, who
might be afraid that disclosing the immigration status of an undocumented family member, which will be
necessary for determining tax-subsidies, could result in an immigration action against the undocumented
family member. Consistent with federal and state law, steps should be taken to ensure the privacy and
security of consumer data. Privacy and security policies should be made available to the consumer before
and at the time of enrollment.
When submitting personal information online, consumers should be informed of the security implications
in a clear and simple manner that is not unnecessarily alarming or laden with legalese. But, this warning
should also indicate the greater risk that comes when using public computers and direct users to
alternative, non-electronic enrollment options available in their area. It is crucial that the exchanges rely
not only on online enrollment, but that they create additional avenues for people to apply in person, by
mail and phone, and through existing Medicaid/CHIP enrollment structures. States should also be
required to track data measuring consumer satisfaction with on-line enrollment processes and the
success of such systems in enrolling applicants.
3. How can eligibility and enrollment be effectively coordinated between Medicaid, CHIP and
Exchanges? How could eligibility systems be designed or adapted to accomplish this? What
steps can be taken to ease consumer navigation between the programs and ease administrative
burden? What are the key considerations related to States using Exchange or Medicaid/CHIP
application information to determine eligibility for all three programs?
One of the most important aspects of the health reform law is the requirement that states create a “no
wrong door” eligibility process for individuals and families seeking coverage. The law explicitly requires
that the enrollment and renewal processes for exchange subsidies and Medicaid/CHIP be fully integrated.
A critical aspect is ensuring that exchanges have the ability to conduct Medicaid/CHIP enrollment (as is
required under section 1311(d)(4)(F)), rather than simply referring people to Medicaid/CHIP, which would
otherwise result in eligible individuals and families falling through the cracks. Extensive collaboration
between the exchanges and Medicaid/CHIP will be required to allow eligible individuals to enroll in
exchange coverage when applying through Medicaid and CHIP and vice versa. States should be
encouraged to consider utilizing the Medicaid agency to conduct eligibility and enrollment processes for
the exchanges (as the Massachusetts Connector has successfully done), as is expressly contemplated in
section 1413(d)(2) and which would make it administratively easy to conduct “no wrong door” eligibility
determinations. Alternatively, guidance is required to ensure states implement strategies that will facilitate
a seamless system. These strategies would include co-location of Medicaid/CHIP staff at exchanges and
placing Medicaid/CHIP consumers/advocates on the exchange governance board.
Implicit in this vision of an integrated eligibility process is an understanding that the eligibility
determination process for exchange plans is inherently public. Federal requirements that Medicaid
eligibility determinations be done by a public agency should apply to exchange eligibility process, both in
order to protect the public’s interest and to ensure the creation of a seamless system that works for
consumers.
Effective coordination requires a strong IT infrastructure and an interoperable system for eligibility
determinations that allows linkages between the exchanges, Medicaid, and CHIP. The system must
provide real-time eligibility or presumptive determinations, databases that can be used to verify eligibility,
the ability to retain information for renewal, and single client identifiers for tracking individuals across
programs. States need extensive resources and technical assistance to build these systems. This will
include establishment of a federal uniform platform or open source technology that states can adapt,
funding through the exchange grants, and enhanced federal matching rate for Medicaid/CHIP system
changes.
38
To ensure seamless navigation between the programs, federal guidance and technical assistance should:
•
Develop simple and efficient procedures for families to report “change of circumstances” at the
time of enrollment and during the enrollment year (if differences in income would affect eligibility
and/or subsidy levels). When a person’s eligibility changes, individuals should be automatically
enrolled (with consent) in the appropriate program/subsidy level without requiring additional
information from the consumer, though families should be clearly notified about how this change
will affect them (i.e. differences in premiums, cost-sharing, provider networks, covered benefits,
etc). To eliminate “churning” in Medicaid/CHIP, federal guidance should create a federal one-year
continuous eligibility policy.
•
Help states align program requirements, such as whether Medicaid will use current income or
income from a prior year’s tax return, and applying old rules to carved out populations.
•
Build coordination between the delivery systems used by the exchanges and Medicaid/CHIP
plans. With people’s income often fluid, resulting in them moving back and forth between
subsidized exchange coverage and Medicaid/CHIP, it will be important to identify ways for
promoting continuity of care. This could include ensuring that some plans offered in the
exchanges also serve Medicaid/CHIP beneficiaries, creating overlapping provider networks, and
requiring plans to help facilitate transitions for those in the middle of treatment.
•
Consider ECPs as key stakeholders to consult about exchange operations and refer to them for
best practices regarding reaching out to and enrolling hard to reach populations.
•
Develop “safe harbors” of default Medicaid coverage for people lost between Medicaid/CHIP and
the exchanges, such as when someone is deemed ineligible for Medicaid and exchange
subsidies because of differences in how the programs calculate and verify income and other
eligibility data.
•
Develop strategies to ensure that families with mixed immigration status apply for and obtain the
coverage for which they are eligible and limit requests for information to that which is necessary
to determine eligibility and complies with other existing requirements (such as the Tri-Agency
Guidance). This includes ensuring that the eligibility questions are designed so that a citizen child
or spouse of an undocumented immigrant is not mistakenly denied benefits based on the
immigration status of the undocumented family member. The questions should also be minimized
and clear information should be provided so that mixed status families are not afraid to apply to
the programs for fear that information they provide will be used by immigration officials.
7. What considerations should be taken into account in establishing procedures for payment of
the cost-sharing reductions to health plans?
Federal officials should, as much as possible, standardize the cost-sharing schedule for individuals
eligible for cost-sharing reductions for each of the actuarial value tiers across plans. Without such
standardization families will face a baffling array of different cost-sharing levels and rules, making it
literally impossible for them to understand their choices, the out-of-pocket costs they will likely pay, and
otherwise navigate the system. Additionally, federal guidance must ensure that a system is developed to
provide clear, understandable information for families to know what the reductions mean for them.
To implement the cost-sharing reductions, HHS and the Treasury Department should provide capitated
payments to health plans offering Silver plans to cost-sharing reduction eligible individuals, as suggested
by section 1402(c)(3)(B). The plans, in turn, would reduce the cost sharing required to the standardized
schedules set by the federal government. This is similar to how the Low Income Subsidy works under
Medicare Part D.
39
H. OUTREACH
Comments to Specific Questions
1. What kinds of consumer enrollment, outreach, and educational activities are States and other
entities likely to conduct relating to Exchanges, insurance market reforms, premium tax credits
and cost-sharing reductions, available plan choices, etc., and what Federal resources or technical
assistance are likely to be beneficial?
Enrollment activity should be preceded by a highly visible and sustained media campaign – including
television, radio, print, and social media – to raise public awareness of the exchanges. Too many people
still do not even know that health reform legislation was passed and signed into law, let alone the myriad
changes coming to the health care system in the next few years.
To be relevant, the campaign should discuss the changes of particular significance to low-income and
vulnerable populations, including information about subsidies in the exchanges and the new tax
8
implications along with information about the changes to Medicaid eligibility. By 2014, consumers will
need to clearly understand that they must make a choice regarding health insurance coverage in order to
meet the individual requirement or face a tax penalty (unless they are exempt) as well understand the
enrollment process.
As noted previously, to reach traditionally under-served populations, the campaign must go beyond
mainstream communication channels, for example by utilizing newspapers and radio stations that are
popular in racial/ethnic communities. This should also include ethnic media to reach culturally and
linguistically diverse populations. In addition, beyond building on current systems in place for outreaching
to recipients of Medicaid, CHIP and other public health programs, states should ensure that they develop
systems that rely heavily on current and reliable locations where similar information is gathered including:
8
•
Community-based organizations: Many in minority populations connect to community-based
organizations to gain access to a variety of human needs including adequate housing, social
services, and health care. These organizations can be an important conduit to health information
and enrollment services.
•
Libraries, post offices, DMV: Including providing multi-lingual fliers about websites and hotlines to
get information. In addition, during busy tax times and other high traffic times (like Christmas
season in the post office) an expert should be on hand to answer questions and refer people to
information.
•
Supermarkets and chain stores: Information tables outside of high traffic supermarkets or
partnering with large chains in the area to put in educational fliers are possibilities. The pharmacy
sections in large chain stores can also have computers or kiosks available that allow people to
easily access the websites with all the information they might need.
•
Doctor’s offices, ECPs, and clinics: Doctor’s offices, ECPs, and community health clinics, such as
women’s health centers and family planning clinics have an enormous role to play in educating
communities about the coverage and care that is available to them. Ensuring that they have an
array of information is important. Staff should be trained to answer minimal questions, and when
possible, direct people to hotlines and websites where more information will be available.
•
Schools: States should partner up with schools to provide information at school open houses and
at sports events, where parents will be in attendance, to provide information.
This information could be conveyed through commercial and volunteer tax preparers and software, the Internal
Revenue Service, employers and others with tax knowledge, and federal and state websites, and should be provided
beginning in the tax year 2012 filing season. The IRS should develop a sample 1040 schedule for calculating the
premium tax credit and scenarios that help people understand their new tax reporting obligations and benefits.
40
•
Health-related events: Health fairs, fundraising walks/runs, and other related events can provide
opportunities to outreach to the community.
•
Places of worship: Churches, synagogues, temples, and other places of worship can provide
outreach opportunities.
Once the exchanges are up and running, a toll-free telephone hot-line number should be clearly displayed
at highly visible places in communities, such as on public transportation. Telephone operators who speak
a variety of languages or have access to interpreters and TTY lines should be available and able to refer
consumers to local resources. Exchanges should also conduct culturally and linguistically appropriate
public-private marketing campaigns that involve community listservs and blogs, places of worship,
community groups, etc, to get the word out about where, when, and how consumers can enroll
themselves or find assistance with enrolling.
2. What resources are needed for Navigator programs? To what extent do States currently have
programs in place that can be adapted to serve as patient Navigators?
Federal guidance is required to set the parameters on the scope within which states must fund and
implement the Navigator program so that there is a minimal level of consumer assistance provided across
states. Additionally, the guidance should stress the importance of utilizing a broad range of organizations
that have a proven track record working in communities and with families at different income levels,
including those now working on Medicaid, CHIP and Medicare enrollment. The Navigators should be
culturally and linguistically appropriate and accessible to individuals with disabilities.
Federal guidance should ensure that states undertake enrollment and outreach assistance, as envisioned
under the Navigator program, prior to 2014. Under the current language of the ACA, the Navigator
programs are to be funded once the exchanges are up and running, and federal funds (such as planning
grants) may not be used to support them. However, in order to effectively start enrolling individuals in
exchange coverage in 2014, the outreach and enrollment must begin earlier. Federal authorities should
ensure that grant funding (or loans/advances) is available to states for this purpose.
Special consideration should be provided for navigators for small businesses. These navigators should be
knowledgeable, trusted and timely educators who know the full spectrum of small businesses. Large
employers will also be vital to educating small business owners (and ultimately their employees) on their
choices.
3. What kinds of outreach strategies are likely to be most successful in enrolling individuals who
are eligible for tax credits and cost-sharing reductions to purchase coverage through an
Exchange, and retaining these individuals? How can these outreach efforts be coordinated with
efforts for other public programs?
The most successful strategies for outreach will be using the above outlets, and the trusted messengers
(doctors, nurses, teachers, etc) to increase education and enrollment. In addition, outreach should
include:
•
The use of popular culture to help spread the word (i.e. public service announcements from
culturally-relevant figures for mainstream and ethnic media or a well-placed line in a popular
television show);
•
Pamphlets and posters that tell a simple story with pictures and reader friendly text and that are
available at the locations above and in popular venues like public transport areas and billboards;
and
41
•
Cross-pollination with other services that women and families in this income access (for example,
a website with information about daycare tax credits should have a callout box that points back to
the informational website with enrollment information).
Outreach strategies should also be data-driven. Data can help to identify groups to best target for
outreach. Segmenting target audiences allows messages to be tailored to better resonate with those
audiences. Messages should be tailored for different cultures. In the Latino culture, for example, talking
about taking care of the extended family and asking them to share in this manner might be more effective
than for the greater community. In addition, the messages should be written in clear language and readerfriendly. Messages should also be produced in easy to read language that includes picture to illustrate the
message. Like other materials, this should be produced in multiple languages and pictures should be
culturally relevant to many different communities.
Other public programs will be critical “connectors” to exchanges and Medicaid/CHIP coverage. As much
as possible, linkages with other public programs should be automatic. For example, when someone
applies for unemployment insurance, the system should trigger a review of their eligibility for subsidies or
public programs. When a child or adult is enrolled in Free School Lunch or SNAP, there should be
automatic or expedited routes to coverage. For example, millions of childless adults who will be newly
eligible for Medicaid in 2014 are already enrolled in SNAP. Eligibility information for SNAP could thus be
used to enroll them in Medicaid once the Medicaid expansion takes effect.
A strong network of community-based organizations, working in partnership with the IRS, has developed
extensive experience in conducting outreach campaigns to connect with lower-income filers that can
benefit from subsidies like the Earned Income Tax Credit (EITC). Many of these organizations also
provide broader financial advice to lower-income families and would be well equipped to expand their
capacity to assist with outreach and enrollment efforts related to the health care tax credits. The IRS
could also play a role by, for example, distributing notices to taxpayers of upcoming enrollment periods
and tax-related requirements.
42
I. RATING AREAS
General Comments on Rating Areas
HHS should establish clear rules and procedures for how states can set their premium rating areas both
for the exchanges and for the outside individual and small group markets. For example, in setting rating
areas, states should demonstrate significant geographic differences in health care spending and
utilization and the level of insurer and provider competition to justify separate rating areas. The rules HHS
establishes should have the goal of ensuring competitive markets, limiting opportunities for plans to
promote enrollment of healthier-than-average enrollees and deter enrollment by higher-cost people in
poorer health, and avoiding confusion by individuals and small employers. Such rules should also include:
•
Requiring the same premium rating areas inside and outside the exchanges. We have previously
commented on the need for uniform rules governing insurance plans inside and outside the
exchanges to limit the risk of adverse selection against the exchanges. Establishment of rating
areas is another case where uniformity is needed. Lack of uniformity in rating areas between the
exchanges and the external individual and small group markets could lead to selection against
plans in the exchanges and drive up premiums and subsidy costs.
•
Ensuring that rating areas are as large as possible. Multiple, small rating areas are unnecessary
even in larger states. For example, the Commonwealth Connector in Massachusetts – with 6.6
million residents – has three rating areas. The California public employee system (California
Public Employees’ Retirement System) has only five rating areas in a state of 37 million people.
Small rating areas would make the premium rate review and risk adjustment processes less
accurate and effective, because plans could have few enrollees in certain areas. Risk adjustment
is imperfect at best, and it would be impossible to assure that differences in premiums across
small rating areas did not reflect differences in the health status of enrollees. With small rating
areas, plans could also more easily manipulate premium rates to attract certain enrollees and
deter others and lead to adverse selection.
43
J. CONSUMER EXPERIENCE
Comments to Specific Questions
1a. What kinds of design features can help consumers obtain coverage through the Exchange?
Consumers need clear, accurate, and easily understood information about their health insurance options.
They need to be able to make apples-to-apples comparisons to find the coverage that best suits their
health care needs. And they also need an enrollment process that is simple and easy to follow. The
exchanges hold great promise, but only if implemented with the needs of the consumer in mind.
Easy-to-Understand Information
At the most basic level, consumer information produced or shared by exchanges must be comprehensible
to the diverse population seeking coverage in the exchange. Special care should be given to ensure
information is understandable to low-income populations that may have little experience purchasing
traditional insurance products and to low literacy populations.
If consumers cannot understand the information presented to them by exchanges, they will either end up
choosing an option that doesn’t meet their needs or they may get frustrated enough to give up on the
process. But if exchanges can bring clarity and transparency to what is often a confusing, opaque
process, they will become the consumer’s most trusted tool.
Exchanges should use clear, concise language written at the lowest reasonable education level, and take
steps to make sure information can be understood by individuals with low literacy, numeracy, and health
literacy levels, LEP, and disabilties. Exchanges should use consistent terminology and plain language
definitions of health care terms. We also suggest that, where possible, exchanges use standardized
language. Standardization has been helpful in the past, as evidenced by the National Association of
Insurance Commissioner’s successful standardization of Medigap policies.
To guarantee that all individuals are able to access the health information provided through the
exchanges, the regulations for exchanges should make clear that the law requires federal or state
exchanges to ensure that the information is presented in a culturally and linguistically appropriate manner
for individuals with LEP and in a manner accessible to individuals with disabilities, as discussed in
response to question C8, above.
An Accessible, Consumer-Friendly Website
Exchanges should have an accessible, consumer-friendly website where consumers can make informed,
apples-to-apples comparisons of their health coverage options, determine their eligibility, and enroll in the
plan of their choice. The federal Web portal, Healthcare.gov, is a good start, but improvements are still
needed.
As discussed previously, exchange websites should be accessible to individuals with LEP, low health
literacy, and disabilities. Assistance, such as telephone support lines, should be made available to
individuals with low computer literacy to help them navigate the website and to individuals with LEP if the
website is not translated. The website should also include taglines in multiple languages to ensure that
LEP individuals know how to access information that is not translated.
To facilitate consumer choice, exchange websites must present information in a manner that allows
consumers to make meaningful comparisons of their health coverage options. Consumers should be able
to narrow the list of options to a few select plans to make more detailed, head-to-head comparisons of
health plan features, including premiums, cost sharing, benefits and benefit limits, provider networks,
formularies and pharmacy benefits, and quality metrics and accreditation status. They should also have
the ability to search for a particular doctor or hospital.
44
There are also a number of website design features that can improve consumers’ experience applying for
and enrolling in health coverage. In particular, we offer the following recommendations, which are
informed by the work of the Health IT Policy and Standards Committees’ Enrollment Workgroup (in its
compliance with Section 1561 of the ACA):
•
The website should require consumers to submit the minimum amount of personal data and
supporting documentation needed to find plans that are offered in a particular geographic area
and meet certain levels of coverage and to calculate the premium tax credits available.
•
Consumers should be allowed to use the website from multiple locations and over time without
having to re-enter data and restart the process. The website should securely store consumer data
and provide consumers with timely, electronic access to their eligibility and enrollment data in a
format they can use and reuse, including for benefit renewals. Consumers should have the ability
to request or make corrections and/or updates to their data. They should also have the ability to
view, print, save, and export their data.
•
The website should provide status updates to inform the consumer of where they are in the
enrollment process, and what, if any, action may be required to complete the process.
Consumers should be able to choose their preferred form of communication for such updates,
such as text message, email, telephone, or mail.
•
If consumers begin the application process online but cannot complete the application (for
example, because of technical difficulties or a lack of information), they should be able to
complete the application process through other avenues, such as by mail, over the phone, or in
person.
•
Consumers must be informed of how their information will be used and when and to whom it may
be disclosed. This is particularly important for families with mixed-immigration status, who might
be afraid that disclosing the immigration status of an undocumented family member, which will be
necessary for determining tax-subsidies, could result in an immigration action against the
undocumented family member. Consistent with federal and state law, steps should be taken to
ensure the privacy and security of consumer data. Privacy and security policies should be made
available to the consumer before and at the time of enrollment.
•
The integration of private and public insurance options should be seamless to users and the
website should connect consumers with other human services, e.g. the Supplemental Nutrition
Assistance Program (SNAP) and the Temporary Assistance for Needy Families (TANF) program
and other State and local services.
Additionally, we encourage HHS and states to conduct extensive consumer testing, iteratively test
websites with focus groups, and create consumer feedback mechanisms so the websites can continue to
be improved over time.
On a related note, HHS should clarify the relationship between Healthcare.gov and exchange websites
beginning with the 2013 open enrollment period. Will exchange websites be built off the Healthcare.gov
platform? Or will they be separate with overlapping information? Will Healthcare.gov solely host
information for plans in states that opt to have a federally-run exchange? Answers to these questions are
important both to states and consumers.
Resources for People Without Internet Access or Proficiency
Individuals and families without Internet access or proficiency or who prefer not to submit their personal
information online due to privacy and security concerns must be provided alternative ways to access
information, determine eligibility, and enroll in coverage offered in the exchanges. Online and telephonic
enrollment options are insufficient. There must be in-person enrollment options available.
45
Information posted on the exchange websites should be downloadable so the most current and accurate
information can be printed and shared with consumers at an enrollment venue. In addition, the exchanges
should prepare and make available standardized written materials at low literacy levels with detailed
information about coverage options, a list of consumer protections available inside versus outside the
exchanges, and directions to in-person, telephone, and online assistance with enrollment. These
materials should have the depth necessary for Navigators and other exchange representatives to help
consumers choose a plan.
1b. What information are consumers likely to find useful from Exchanges in making plan
selections?
Consumers should consider a number of factors when determining what health coverage option is best
for them and their families. In our current health care system, consumers are often unable to make
informed decisions because they do not have access to important information.
Much information is made available to consumers through the ACA. Working with consumers to avoid
overwhelming consumers with information, HHS should determine what plan information is most helpful in
making initial comparisons between plans and what information, while important, is appropriate in a
second tier of scrutiny. The following information should be prominently presented in a clear and concise
format, using standardized terminology and descriptions, on any exchange website and in written
materials for consumers without internet access. This information must be timely, reliable, and
9
comprehensible.
•
Provider networks, including information on provider quality.
•
Descriptions of benefits and formularies, including any limits on health care services, supplies,
equipment, drugs, etc.
•
Premium costs (accounting for premium variation based on age, smoking status, and family size
when allowed) and cost-sharing to allow consumers to estimate the total expected cost of
coverage, including the premium and cost-sharing levels by income, for those eligible for
premium tax credits and cost-sharing reductions (for example, through the use of an online
calculator). Cost-sharing levels should also be clearly differentiated between in-network and outof-network care.
•
Coverage level (bronze, silver, gold, platinum), with a description of what these classifications
signify.
•
Plan accreditation status (including score) and HEDIS and CAHPS scores. This information
should be coupled with consumer-friendly educational information about accreditation and quality
measurement and should be presented in an easy to understand format that conveys overall plan
value, such as star ratings (e.g. the NCQA Health Plan Report Card). Plans that consistently
receive low-quality scores should have a warning to beneficiaries placed next to the plan name,
as CMS has indicated it will be doing on Medicare.gov for Medicare Advantage and prescription
drug plans as of January 2011. Consumers should also be informed of how and where they can
access patient experience survey results.
Additionally, the following should be easily accessible to consumers who are looking for more information:
9
•
information on chronic disease management programs or services offered;
•
sample cost and health benefit examples for common medical conditions, such as diabetes;
HHS should clarify that transparency requirements applied to exchange-participating plans, also apply to Medicaid/
CHIP. Although the ACA directs exchanges to facilitate enrollment for Medicaid/CHIP beneficiaries, no parallel
transparency requirements exist to support their decision making.
46
•
medical loss ratio and a description of what the ratio signifies;
•
actuarial value of health plans coupled with relevant educational information about what actuarial
values represent (they are the percentage of medical costs the plans cover for a standard
population) and what they do not represent (they are not the percentage of an individual or
family’s actual costs that are covered under the plans) and how they are calculated; and
•
plan financial information, including annual profit.
Also, the exchanges should provide consumers with information about how the health insurance system
operates in their state. Consumers need information about when, how, and under what circumstances
they can switch between plans, along with information on shifting eligibility between Medicaid, CHIP, and
private coverage. They should also be informed of relevant state laws, including laws mandating benefit
coverage beyond the essential benefits package and laws restricting or banning coverage (e.g. abortion
coverage), and consumer protections (e.g. bans on pre-existing condition exclusions, appeals rights,
rights and protections regarding out-of-network billing and debt collection practices, etc.). In addition,
exchanges should alert consumers to the existence of and provide contact information for Navigators,
consumer assistance grant recipients, hospital financial assistance programs, and other similar
informational programs.
1c. Which kinds of enrollment venues are likely to be most helpful in facilitating individual
enrollment in Exchanges and QHPs?
There should be no wrong door for consumers enrolling in the exchanges. Consumers wanting to enroll in
exchanges should have a variety of options available to them, including online through the exchange
website, by mail, and by telephone, and in person at exchange offices, and the offices of consumer
assistance programs and Navigators.
Some consumers – particularly those with limited access to traditional venues – will need exchanges to
come to them where they live or work. Below we offer a number of suggestions for venues. We also
encourage HHS to look at how other entities that have undertaken large public outreach campaigns – like
the U.S. Census Bureau – have employed innovative strategies.
•
All employers, with a special focus on those that do not offer insurance coverage or that have
significant part-time workforces.
•
Medical facilities, in particular community health clinics, family planning clinics, and hospitals
disproportionately serving low-income populations.
•
Social Security, Medicaid, and state human service agency offices.
•
Community sites that may partner with exchanges for enrollment fairs, including grocery and
other stores, banks, community centers, libraries, schools, Congressional town hall events,
places of worship, and sporting venues.
The exchanges should support mobile units that can travel to these venues and also target
neighborhoods with low rates of insurance coverage. Exchanges should also conduct public-private
marketing campaigns that involve community listservs and blogs, places of worship, community groups,
etc, to get the word out about where, when, and how consumers can find such assistance.
While insurance brokers can ease the enrollment process for some, they should not be solely or heavily
relied upon for outreach and enrollment efforts. Brokers are typically not experienced working with lowincome consumers and other vulnerable populations. Instead, exchanges should look to non-profit
organizations, including State Health Insurance Program (SHIP) counseling programs and state, county
47
and local public service representatives to provide counseling, navigation, and enrollment assistance to
consumers. These groups are a trusted source of information and linguistically and culturally competent
assistance that can help ensure low-income and vulnerable populations gain access to health coverage.
2. What kinds of information are likely to be most useful to consumers as they determine whether
to enroll in an Exchange and which plans to select (within or outside of an Exchange)?
When considering health insurance options, consumers need readily accessible and clearly presented
information on plans available to them, including premiums, cost sharing, and benefits (including nondollar benefit limits) as well as enrollment windows and whether they qualify for subsidies (both premium
tax credits and cost-sharing reductions) or public insurance. Information on which consumer protections
apply to plans both inside and outside the exchanges and the requirements QHPs must meet will also be
important for consumers as they decide whether to seek coverage inside or outside of the exchanges and
should be presented in simple language and format, such as in a chart format. Materials for consumers
should undergo focus group testing prior to distribution to ensure they are appropriate and useful for
consumers. In addition, employers should clarify whether the health insurance offered to employees will
satisfy the individual coverage requirement, whether employers will automatically enroll employees into
plans offered by the employer, and whether employers will be providing a free choice voucher. By 2014,
consumers will need to clearly understand that they must make a choice regarding health insurance
coverage in order to meet the individual requirement or face a tax penalty (unless they are exempt).
Before the exchanges are operational, it is critical that consumers have information about subsidies in the
exchanges and the new tax implications. This information could be conveyed through commercial and
volunteer tax preparers and software, the Internal Revenue Service (IRS), employers and others with tax
knowledge, and federal and state websites, and should be provided beginning in the tax year 2012 filing
season. The IRS should develop a sample 1040 schedule for calculating the premium tax credit and
scenarios that help people understand their new tax reporting obligations and benefits.
2a. What are some best practices in conveying information to consumers relating to health
insurance, plan comparisons, and eligibility for premium tax credits, or eligibility for other public
health insurance programs (e.g., Medicaid)?
To be most effective, efforts to convey accurate and individualized information to consumers should take
many different forms. Enrollment activity should be preceded by a highly visible and sustained media
campaign - including television, radio, print, and social media – to raise the public’s awareness of the
Exchanges.
In-person opportunities for consumers to receive individualized assistance and have their questions
answered is the method most useful with hard-to-reach consumers. There are several models for this
approach including the SHIP, which offers free one-on-one counseling to individuals with Medicare and
their families through in-person and telephone counseling as well as public education presentations,
interactions with public service agencies, and counseling services offered by non-profit organizations.
Some of the more successful outreach efforts utilized during the launch of the Part D prescription drug
benefit were the web-based enrollment, the toll-free hotline, and the enrollment information fairs at
houses of worship, congressional town hall meetings, grocery stores and other places consumer
congregate. Some states also utilized mobile units that travelled between cities and neighborhoods to
reach people where they lived. Additionally, coalitions have supported community partners and respected
local organizations have provided support to individuals in diverse populations regarding the Medicare
10
Part D program. Coalitions that include organizations and state agencies, such as Nebraska’s Medicare
10
Summer L, O’Brien E, Nemore P and Hsiao K. Medicare Part D: State and Local Efforts to Assist Vulnerable
Beneficiaries. The Commonwealth Fund. April 2008. Available at:
http://www.hapnetwork.org/assets/pdfs/commonwealth-lis-outreach.pdf
48
Prescription Drug Coalition, have offered guidance and technical support to local teams assisting
11
Medicare beneficiaries.
To prepare consumers for the tax implications of the individual coverage requirement and subsidies, an
explanation sheet and sample credit schedule should be provided to every tax filer in advance of the filing
season, as the IRS has done for the small business tax credit. Over several years, this could include
progressively detailed information about the tax benefits and penalties of health insurance and sample
filing scenarios (e.g., if an individual does not have coverage, if a family qualifies for a premium credit or
cost-sharing assistance, if a taxpayer faces exclusions like married filing separately status.)
2b. What types of efforts could be taken to reach individuals from diverse cultural origins and
those with low literacy, disabilities, and limited English proficiency?
Please see response to question C8.
3. What are best practices in implementing consumer protections and standards?
Consumers are already experiencing increased protections from the ACA, but in 2014 with the full
operation of the exchanges, the final major reforms will be in effect. From that point on, consumers
cannot be denied coverage due to pre-existing conditions, premium rating rules will be applied, out of
pocket expenses will be capped, and insurers will have to offer at least a minimum set of essential
benefits in each policy.
Guaranteeing full and adequate implementation of these and other consumer protections requires
comprehensive public education and information. The more people understand their new rights under the
ACA, the more people become deputized to help their family, friends and neighbors interact with the new
health care system. Plain language educational materials should answer common questions, supply
timely information on enrollment problems that arise, provide clear guidance (supplemented by telephone
and in-person assistance) for people who believe they qualify for an exception to the coverage
requirement, and provide information on the appeal process for tax credit eligibility and amount.
The start-up of the Massachusetts exchange may serve as a useful model for public education efforts
conducted beyond traditional health care settings (such as sports venues) and for how quickly the rampup occurred before implementation of major elements of the law. In addition, the implementation of the
Medicare Part D benefit may serve as a model. CMS staff and Medicare advocates should be consulted
on best practices and lessons learned from the introduction and ongoing implementation of the drug
benefit, particularly in avoiding some of the implementation problems that occurred in its first year.
4. Given that consumer complaints can be an important source of information in identifying
compliance issues, what are the pros and cons of various options for collecting and reporting
Exchange-related complaints (e.g., collecting complaints at the Federal level versus at the State or
Exchange level)?
Both state and federal regulators have a stake in the smooth and equitable operation of exchanges and
the plans operating within them, and regulators have different remedies at their disposal for any problems
that arise. As such, consumer complaints may be useful and relevant to the work at multiple levels.
Regardless of whether principal responsibility for collecting complaint information rests with the state or
federal government, information should be aggregated in a way that allows consumers and regulators to
understand complaint trends and to track the resolution of complaints to ensure consistent application of
the law across the country.
Consumer information also must be managed in a way that ensures consumer privacy, as complaints
may contain personal, sensitive and identifiable information. To the greatest extent possible, consumer
11
Summer, O’Brien, Nemore and Hsiao, op cit.
49
complaints should be de-identified, and regulators should develop comprehensive privacy policies
governing the collection and treatment of complaints.
At a minimum, consumer complaints will need to be collected and aggregated at the state level. If multiple
exchanges exist in a state, the complaints from those exchanges should be consolidated. State-level
assistance may provide expedited resolution of claims, and all states should determine an explicit
timeframe for addressing complaints. State resolution of complaints can help regulators determine quickly
whether a problem is specific to the enrollee, the health plan or the exchange or whether it points to a
general weakness in state or federal law. Furthermore, information about complaints with one insurer, for
example, may allow state regulators to issue corrective policy guidance that not only solves the problem
in the exchanges, but in the state’s outside market as well. However, state collection of complaints also
has the potential of creating information silos. Since many health plans will be operating in multiple state
or even nationwide and because there will be greater uniformity in insurance laws than ever before, other
states could benefit from the problems identified in one exchange or with one insurer. Why should the
same problem need to be identified and solved 50 different times?
Federal oversight activities also would benefit from the sharing of complaint information. The federal
government has an obligation to ensure the fair operation of the exchanges, to enforce consumer
protection and transparency rules, and to guarantee that taxpayer dollars used to subsidize the purchase
of insurance are being accurately dispersed. Having information about complaints will let the federal
government know whether the exchanges are performing adequate plan oversight and will contribute to
sharing best practices in the early years of the exchanges. It will also allow for broad appreciation of
problems occurring nationwide and provide the opportunity for federal solutions, particularly when carriers
are operating in multiple states. However, a purely federal approach may cut states out of the equation
when, in fact, state action is the most expeditious way to solve a local plan problem.
Ultimately, both federal and state regulators will need access to aggregate information, while allowing
enrollee complaints to be resolved in the quickest and most consistent way possible. Regulators should
investigate whether there is a way to triage individual complaints that are enrollee-specific and not likely
replicated versus those with broader implications, while still sharing complete aggregate complaint data
on a routine basis.
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N. COMMENTS REGARDING EXCHANGE OPERATIONS
1. What other considerations related to the operations of the Exchanges should be addressed? If
your questions related to the operations of the Exchanges have not been asked, or you would like
to add additional comments, you may do so here.
The collection of demographic data is a critical component of addressing health and health care
disparities. Data on race, ethnicity, sex, primary language (preferably collecting both primary spoken and
primary written language), and disability status are pivotal to identifying and addressing disparities in
health care access and quality and designing programs that serve the most vulnerable populations. This
data collection is also essential to ensuring enforcement of existing applicable civil rights laws as well as
section 1557 of the ACA. Congress has duly recognized this, inserting data collection provisions into both
the ACA and the Health Information Technology for Economic and Clinical Health Act, which was
included as part of the 2009 American Recovery and Reinvestment Act.
Recognizing their role in combating health disparities, many plans have already begun to collect
participant demographic data, both directly and indirectly. To spur continued movement in this direction,
we recommend that exchanges should require any participating plans to collect data on race, granular
ethnicity, sex, primary language, and disability status, using the standards put forth by the Institute of
Medicine in its 2009 report, Race, Ethnicity, and Language Data: Standardization for Health Care Quality
Improvement. Plans should be encouraged to use this data to stratify data on access and quality.
Stratified data can then be used to indicate on which areas market-based strategies to reduce health and
health care disparities should focus.
We also encourage you to consider the benefits of and barriers to exchanges collecting demographic
data themselves – perhaps through a study by the Government Accountability Office. Data on a macro
level would indicate how well exchanges are reaching vulnerable populations and provide useful
information on the demographics of individuals and families who receive premium tax credits and costsharing subsidies, among other things.
Further research looking at best practices for collecting demographic data is also needed – in particular,
research into how and in what context data questions are asked. This research should incorporate
extensive consumer testing and focus groups.