December 21, 2015
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-9937-P
P.O. Box 8016
Baltimore, MD 21244-8016
Re: HHS Notice of Benefit and Payment Parameters for 2017 (CMS-9937-P)
Dear Administrator Slavitt:
The National Partnership for Women & Families (National Partnership) represents women
across the country who are counting on successful continued implementation of the
Affordable Care Act (ACA). We look forward to continuing to work with you to ensure that
the ACA delivers on its promise to guarantee equitable access to affordable, comprehensive
health coverage for women and their families. The federally-facilitated exchange (FFE) is
already playing a pivotal role in delivering on this promise by offering more affordable,
higher quality health plans that cover essential women’s health services and by providing
consumers with the tools and information they need to assess qualified health plans (QHPs)
on the metrics that matter most including benefits, cost, quality, network adequacy, and
reliability.
We appreciate the opportunity to comment on the proposed Department of Health and
Human Services (HHS) Notice of Benefit and Payment Parameters for 2017. We offer the
following comments and recommendations on specific proposals relating to network
adequacy standards, standardized options in the marketplace, essential community
providers, nondiscrimination protections, patient safety standards, and other topics of
importance to women and their families when choosing a health care plan.
If you have any questions about our comments and recommendations, please contact
Theresa Chalhoub, Health Policy Counsel, at [email protected] or (202)
986-2600.
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
Part 155 – Exchange Establishment Standards and Other Related Standards Under the
Affordable Care Act
Functions of an Exchange (§ 155.200)
The National Partnership was pleased to see the requirements of a state exchange using
the federal platform to comply with the listed requirements, in particular network
adequacy, formularies, and essential community providers (ECPs). We also agree with
incorporating subpart M and O, which, as HHS recognizes in the preamble, include
important consumer protections. Certainly all exchanges should comply with these
standards.
Regarding State-based Exchanges on the Federal platform (SBE-FPs), we support the
requirement that the SBE-FPs must have standards that are at least equivalent to the
requirements that apply to the FFE’s QHPs and issuers for oversight. Again, this is an
important consumer protection to ensure consumers are not worse off merely because their
state undertook some but not all functions of an exchange.
Medicare Notices
It is essential that people in marketplace plans who are nearing Medicare eligibility receive
clear information at the appropriate time in order to make an informed decision about
Medicare enrollment. For marketplace enrollees, honest enrollment mistakes can lead to
lifetime premium penalties, gaps in coverage, disruptions in access to needed care, and/or
tax penalties. As such, we urge the Centers for Medicare & Medicaid Services (CMS) to
develop a comprehensive system to screen, notify, and educate people with marketplace
coverage who are approaching Medicare eligibility about Medicare enrollment rules and
obligations.
Making an informed decision about whether and when to enroll in Medicare remains a
complicated task for many individuals because it requires them to identify and understand
a complex set of rules, along with the implications of these rules for their personal
situations. No federal agency is responsible for notifying people new to Medicare who are
not already collecting Social Security benefits about enrollment rules and obligations. These
individuals receive no prompt about the need to actively enroll in Medicare and what
factors to consider as part of that decision-making.
People enrolled in QHPs must manage several complexities as they near Medicare
eligibility. To successfully navigate the switch from a QHP to Medicare, a person turning 65
who has not yet taken Social Security retirement benefits must:
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Actively enroll in Medicare Part A and Part B;
Cancel their QHP—giving the plan “reasonable notice;”1
Notify the marketplace about their Medicare eligibility to ensure termination of
premium tax credits; and
Choose among Medicare coverage options, including a Part D prescription drug plan.
1
Despite these responsibilities, marketplace enrollees not already collecting Social Security
benefits currently receive no notice about nearing Medicare eligibility. In addition, they
receive no notice that that their premium tax credit eligibility will end when they become
eligible for Medicare. Yet, failure to follow through on these obligations—or mis-timing
them—can result in significant gaps in coverage or gaps in effective coverage, high out-ofpocket premium costs, delayed Medicare effective dates, lifetime Medicare premium
penalties, and tax penalties.
Individuals with QHPs who are auto-enrolled in Medicare Part A and Part B (including
people with disabilities who reach the end of their two-year waiting period and individuals
turning age 65 who are collecting Social Security retirement benefits) face similar
challenges. They too must cancel their marketplace plan and notify the marketplace about
their Medicare eligibility for the purposes of cancelling premium tax credits. Yet, while
these individuals receive notice about Medicare enrollment, they are not informed about the
loss of premium tax credits.
Given this, while we continue to believe that all individuals approaching Medicare
eligibility must receive notice and information about their enrollment rights and
responsibilities, we also support more narrow efforts that reflect the particular needs of
QHP enrollees and the opportunity for targeted communication through the federal and
state marketplaces. We encourage CMS to develop a comprehensive system to notify
individuals in the marketplace about nearing Medicare eligibility. Ideally, this system
would include multiple types of notification and educational content that is appropriately
timed ahead of an individual’s Initial Enrollment Period for Medicare, which may include
both “pop-ups” and notices for QHP enrollees, among other content.
We also strongly encourage CMS to explore developing specific notices and/or educational
content for populations with unique Medicare enrollment considerations. Finally, we
encourage CMS to thoughtfully consider the kind of notice and educational content that
needs to be made available to individuals in marketplace plans who are currently Medicare
eligible, as opposed to those approaching Medicare eligibility. As suggested by the findings
of the March 2015 ASPE report, there may be individuals currently enrolled in QHPs who
missed critical Medicare enrollment deadlines.2 We refer the Department to the comments
submitted by the Medicare Rights Center for further information and recommendations.
Annual Eligibility Redetermination (§ 155.335(j))
The National Partnership commends HHS for continuing to improve the re-enrollment
process to better serve consumers’ interests. We support creating a new re-enrollment
hierarchy for all enrollees in a silver-level QHP that is no longer available for re-enrollment
which prioritizes reenrollment into another silver-level QHP. As the preamble recognizes,
preventing disruptions in cost-sharing reductions is very important and we believe it should
be a primary goal of the re-enrollment process. We agree that the proposed hierarchy is
both an operationally efficient way to maintain continuity for enrollees eligible for costsharing reductions, and likely to provide more protections for consumers. Therefore we
support amending § 155.335(j)(1) as proposed.
2
Certification Standards for QHPs (§ 155.1000)
Denial of Certification
We support HHS’ interpretation of the “interest” standard under this section to allow for
denial of certification to QHPs that are not ultimately in the interest of consumers, even if
they meet other certification standards. Consumers need continued access to high-quality,
affordable plans in the marketplace, and increased monitoring of plans and denial of
certification is an important safeguard.
Part 156 – Health Insurance Issuer Standards Under the Affordable Care Act, Including
Standards Related to Exchanges
Standardized Options (§ 156.20)
While an important feature of marketplaces is to offer consumer choice, the mere existence
of choice is rendered meaningless if it results in complexity and confusion that hinders
consumers’ ability to make effective decisions. Standardized health plans can simplify
consumer choice and make it easier to understand what is being bought, and what the
actual costs of necessary care from a particular plan will be.
The proposed rule would create six standard option plans that have standard deductibles,
four-tier drug formularies, one in-network provider tier, and services that do not require a
deductible. Insurers would not be required to offer standardized plans, however,
standardized plans would be clearly identified in a way that makes it easy for consumers to
find. Below we offer comments in four areas.
The benefits of the standard plan designs are significant, including:
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Consumers seeking coverage through the marketplace can easily compare health
plans knowing that every health plan has the same cost-sharing levels and benefits.
This means that other important factors for differentiation, including premiums, can
be used by consumers in making plan selection.
The standard plan designs are constructed to clarify cost sharing expectations for
consumers, reduce confusion, and have designs that reinforce efforts to promote
higher value care delivery, such as better use of primary care.
Standardization simplifies both the sales and the enrollment process. The
simplification means that consumers are more likely to select perceived higher value
products. In particular, consumers who are eligible for the cost-sharing subsidy are
more apt to understand the relative value of a Silver cost-sharing plan in contrast to
a Bronze alternative.
Proposed Standard Benefits
HHS has done a good job presenting a structure for the elements of the proposed 2017
standardized options. The exemption of routine services from the deductible for
standardized plans reduces barriers to needed care and aligns with efforts to encourage
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effective coordination and integration of care, and fosters a foundation of effective primary
care. We suggest that:
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HHS minimizes the application of co-insurance in situations in which the cost is
unknown to the consumer. In these situations consumers are often subject to
unexpected costs.
Emergency room services should not be subject to the deductible. While we support
application of a copayment, not exempting emergency room services from the
deductible makes a copayment meaningless, since the consumer will almost
invariably need to meet the full deductible.
Display of Standardized Plans and Non-Standardized Plans
The FFE enrollment website should clearly identify the standardized plans so that
consumers can make fully informed choices. We recommend that standardized plans be
displayed preferentially to the non-standardized plans. For example, placing all
standardized plans at the top of the list on the website, regardless of the sorting criteria
would allow consumers to easily identify standardized options. Similarly, by publicly noting
a policy of displaying standardized plans first, QHP issuers would have a strong incentive
to offer standardized plans.
Future Standardization
The proposed HHS model of some standardized options in each tier with clear designation
and preferential display is a good first step. In future years, HHS should limit the number
of QHPs a carrier may offer and should apply a screen as to what benefit designs it allows
based on promoting consumer understanding and access to needed care.
Need for Ongoing Analysis
The continuing improvement of benefit designs should be based on evidence that considers
consumer understanding, access to services, cost and other factors. HHS should describe its
plans in ways that enable evaluation of the impact of different benefit designs and design
features and how those impacts may differ by the characteristics of the consumers using
them (e.g., income level, subsidy level, education, language, and race/ethnicity).
Network Adequacy Standards (§156.230)
In general, we were pleased to see HHS’s recognition of the need to strengthen network
adequacy standards, and for proposing a number of new protections that would apply for
the 2017 plan year. While millions of Americans have gained health insurance over the last
two years, that coverage is unfortunately hollow if they cannot access the covered benefits
promised to them. Even though the National Association of Insurance Commissioners
(NAIC) has now completed its work on its updated Health Benefit Plan Network Access and
Adequacy Model Act (Model Act), it is not yet clear how many states will adopt it in whole
or in part. Therefore, we strongly encourage HHS to move forward with its own strong
network adequacy standards that can serve as a floor of protection for consumers enrolled
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in QHPs beginning in 2017. We offer the following specific comments and recommendations
with respect to HHS’s proposed network adequacy requirements.
Minimum Threshold
HHS is proposing to rely on FFE states to review QHPs for network adequacy, using
quantitative time and distance and provider-enrollee standards determined by the states.
In those FFE states that either do not review for network adequacy or set minimum
quantitative standards, HHS would conduct the review using a federal default time and
distance standard. HHS indicates that it will provide more details on the specific criteria
and process for meeting the standard in the annual Letter to Issuers. We look forward to
reviewing the default standards in the 2017 draft Letter to Issuers.
We strongly support requiring an affirmative review of QHPs, using a set of minimum
quantitative standards. In fact, we note that the statute as well as section 156.230(a)(2) of
the federal regulations requires all issuers offering QHPs to maintain a network that is
sufficient in number and types of providers to assure that all covered services are accessible
without unreasonable delay. We therefore believe that the final rule should be revised to
require all states, including those with state-based exchanges (SBEs), to conduct network
adequacy reviews of QHPs using a minimum set of quantitative standards. A number of
states with SBEs do not currently use quantitative standards for evaluating network
sufficiency.
It is critical, especially in this changing health care environment with rapidly evolving
network designs, that regulators actively seek to identify and address network adequacy
problems within a plan’s network before the product is ever sold to and relied upon by
consumers. In addition, without measurable criteria, insurers and regulators within a state
may have very different interpretations of what is sufficient. Such subjectivity would make
it difficult for both regulators and consumers to assess whether a given network is
adequate.
HHS seeks comments about using county-level time and distance standards, similar to
those used in Medicare Advantage (MA). We point out that MA requires the use of
minimum provider and facility ratios, in addition to minimum time and distance standards.
Therefore, we recommend that HHS also incorporate minimum provider/facility ratios in its
standards for QHPs. In general, we believe that the MA standards, with their five
geographic categories (large metro, metropolitan, micro-metropolitan, rural and Counties
with Extreme Access Considerations) that account for geographic variations in provider
accessibility and population distribution, would serve as an appropriate basis for QHP
federal default standards.
However, it would be very important to supplement the MA standards to account for
differences between Medicare plans and QHPs in the covered population and covered
services. For example, MA plans have a very small number of women of reproductive age,
so standards should be adjusted to reflect the health care needs of this population, and
provide for appropriate and timely access to women’s reproductive health providers. Such
plans also typically do not include children and are not required to cover dental services.
Therefore, the quantitative standards used for QHPs would need to be supplemented to
reflect these differences and needs of the appropriate populations.
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In addition, regardless of what quantitative standards are used, we strongly urge that there
be a robust and comprehensive review process to ensure inclusion of specific types of
providers, including specialists. While we understand that CMS has focused previous
reviews on five provider types (hospital systems, mental health providers, oncology
providers, primary care providers, and dental providers, if applicable), other categories of
providers warrant greater scrutiny. As evidence of this, a recent study published in the
Journal of the American Medical Association found that 13 percent of QHPs sampled
completely lacked an in-network specialist within a 100-mile radius for at least one medical
specialty. While rheumatologists, psychiatrists, and endocrinologists were most likely to be
excluded from networks, the researchers found at least one plan where not a single
cardiologist or neurologist was available in-network within 100 miles.
We particularly recommend that CMS look closely at hospital-based physicians at innetwork hospitals to ensure that the network includes a sufficient number of such
physicians, especially emergency department doctors, anesthesiologists, and radiologists.
Many consumers assume that the hospital-based physicians who care for them at an innetwork hospital are also in their plan’s network. However, analysis of data from Texas
PPO plans by the Center for Public Policy Priorities found that for two of the largest
insurers in the state, 48 percent and 56 percent of their in-network hospitals, respectively,
didn’t have a single in-network Emergency Department physician. One plan in particular
also reported that 38 percent of their in-network hospitals had no in-network
anesthesiologists and 31 percent had no in-network radiologists. Under the proposed
scheme, this leaves consumers vulnerable to significant balance billing issues, as they have
no choice to avoid surprise bills, and fails to meet the promise of network adequacy. The
magnitude of the problem of balance billing is further described below.
HHS is also seeking comment on the addition of an appointment wait time standard. Such
a standard can be a helpful indication of whether a plan’s network includes providers with
sufficient capacity to provide needed care without unreasonable delay, including sufficient
providers that are accepting new patients. We note that 11 states currently have wait time
standards that apply to at least certain types of QHPs. In addition, the NAIC Model Act
includes wait time among the set of criteria that state insurance commissioners can use to
determine sufficiency. Therefore, we think it is reasonable to at least give states the option
of using wait time among the set of quantitative standards that they are required to use.
When determining network adequacy for QHPs that use a tiered network, we also urge
HHS to clarify that only providers in the lowest cost-sharing tier will be counted for
purposes of determining network adequacy. Using providers who are assigned to a higher
cost-sharing tier can result in significantly more out-of-pocket costs. For example, a study
examining hospital choices of consumers enrolled in tiered-network plans in Massachusetts
found significant variation in the cost-sharing owed: For each hospital admission, average
cost-sharing was $1,070 for non-preferred hospitals, $360 for hospitals in the middle tier,
and $170 for preferred hospitals. Given the significant cost impact, consumers should be
able to access all covered benefits through providers in the lowest cost-sharing tier without
unreasonable travel or delay.
In summary, we generally support requiring a review of QHPs using a set of minimum
quantitative standards and make the following specific recommendations:
6
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Require all states to conduct network adequacy reviews of QHPs using a minimum
set of quantitative standards;
Incorporate minimum provider/facility ratios in the federal default standard;
Supplement the default standards, as needed, to account for differences in QHP
covered populations and covered services. In particular, ensure that standards
provide for appropriate and timely access to women’s reproductive health providers,
as well as providers that meet the needs of children;
Provide greater scrutiny on the inclusion of specific provider types, particularly
hospital-based physicians at participating hospitals;
Allow for the use of an appointment wait time standard; and
Clarify that only providers in the lowest cost-sharing tier will be counted for
purposes of determining sufficiency for QHPs that use a tiered network.
Provider Transitions
We commend HHS for recognizing the need for consumer notification and a transition
period when one of their providers is being discontinued from their plan’s network.
Specifically, HHS proposes requiring QHP issuers in all FFEs to notify enrollees about a
discontinuation of an in-network provider and ensure that enrollees have continuity of care
protections when a provider is terminated without cause. In general, we support these
important consumer protections but again believe they are important enough to warrant
applying them to all QHPs, not just those in FFE states.
With respect to the new notification requirements, HHS requested comments on this
proposed provision, including the timeframe for notification, whether separate
requirements are needed for primary care providers, and on the appropriate definition of
“regular basis.” We strongly agree with HHS that it is important for consumers to be
notified of changes to their network in a timely manner and support the requirement that
issuers make a good faith effort to provide written notice to consumers, regardless of the
reason why a provider is leaving the network. However, we would urge HHS to take into
account concerns around confidentiality when providing consumers with a notice about
discontinuation of a specific provider. In some sensitive health care situations, it may not
be appropriate for an individual to be sent a notice that lists them as a patient of a specific
provider or practice. Lastly, we recommend that “regular basis” be defined as being seen by
the provider at least once within the preceding year, rather than leaving this up to varying
insurers’ discretion.
We also recommend that all patients being seen by a primary care professional be notified
when that provider is not continuing in the network, as is required under the NAIC’s Model
Act and for MA plans. Consumers who are generally healthy may not need to see their
primary care provider once a year, but they still need to know when their primary care
professional is leaving their network. Finally, HHS should require that these notices to
patients include information about enrollees’ right to receive transitional care from their
provider if they are in the midst of an active course of treatment.
We also were pleased to see provisions for continuity of care protections when patients lose
access to a participating provider. We generally support the proposal to require QHP
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issuers in all FFEs to allow patients in the midst of active treatment to continue treatment
until the treatment is complete or for 90 days, that all patients being seen by a primary
care professional be notified when that provider is not continuing in the network at innetwork cost-sharing rates, although we offer some specific comments and
recommendations for improving this provision and ensuring that it provides the intended
protection.
First, we recommend that §156.230(e)(2) be revised to make it clear that consumer costsharing paid to a provider under this provision also counts toward the maximum out-ofpocket (MOOP) limit and that consumers not be subject to balance billing. This is necessary
to ensure that consumers are truly held harmless when they lose access to a provider
partway through their plan year, when they have no ability to switch to a different plan.
We urge HHS to consider a longer transition period for patients being treated for a lifethreatening condition, a serious acute condition, pregnancy, or another health condition
(such as severe depression or a mental health condition) that would be worsened by
discontinuing care by the treating health care provider. We support allowing care for
women in their second or third trimester of pregnancy to be extended through the postpartum period. Once pregnancy is complete, we encourage having a period of no less than
90 days for post-partum care, and the timing should be consistent with transition care for
other conditions. We also recommend that patients who have been diagnosed with a
terminal illness, defined as a disease or condition that cannot be cured or adequately
treated and that is reasonably expected to result in the death of the patient within six
months, be allowed to continue with their provider until the end-of-life, even though this
may extend beyond 90 days. A number of states have included this provision in their
continuity of care protections.
We also support providing a continuity of care transition period for new QHP enrollees, as
CMS has previously encouraged QHP issuers to permit. Specifically, new enrollees in the
midst of an active course of treatment should be able to continue that treatment with their
current providers for up to 90 days, even if those providers are not in their new plan’s
network. Certainly, patients in the midst of treatment for a serious or life-threatening
condition have a very strong incentive to seek to enroll in a plan that includes all of their
current health care providers. Particularly given the proliferation of narrow networks,
however, patients – particularly those with complex conditions – may not be able to find a
plan that includes all of the specialists and other providers who treat them. These patients
need a sufficient transition period to allow them to find and make appointments with new
health care professionals who participate in their new network. We encourage HHS to
consider that patients switching plans may not be voluntarily doing so – that is, they may
be switching due to the discontinuation of their current plan.
Finally, we support requiring that requests for continuity of care be subject to the plan’s
internal and external grievance and appeal processes, as provided for in the NAIC Model
Act. We also recommend that non-renewal of a provider’s contract be considered a
termination without cause for purposes of §156.230(e)(1) and (2). And we support allowing
for the use of state standards for continuity of care, when those standards are stronger than
the federal standards.
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In summary, we make the following recommendations for changes with respect to the
provider transition proposals:
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Apply these requirements to issuers in all states, except when states have continuity
of care standards stronger than the federal ones;
Define “regular basis” as being seen by the provider at least once within the
preceding year;
Require notification of all patients being seen by a primary care professional when
that provider is not continuing in the network;
Clarify that consumer cost-sharing paid to a provider under this provision counts
toward the MOOP limit and that consumers should not be subject to balance billing;
Consider a longer transition period, particularly for pregnant women through the
post-partum period and for patients with a terminal illness; and
Provide a continuity of care transition period for new QHP enrollees.
Out-of-Network Cost Sharing
We appreciate that HHS acknowledges the problems faced by consumers when they receive
covered services by an out-of-network provider at an in-network facility, often without their
knowledge or control. Consumers reasonably expect that by seeking care at an in-network
facility, the physicians and other health care professionals providing their care are also innetwork. And even when consumers are made aware that this is often not the case, they
have very little ability to control which providers care for them. Not unexpectedly,
therefore, the “surprise” medical bills that result from out-of-network providers at innetwork facilities are a significant cause for consumer complaints and financial hardship. A
recent survey by Consumer Reports found that 30 percent of privately insured Americans
have received a bill where their plan paid much less than they had anticipated.
Unfortunately, however, the remedy being proposed by HHS in §156.230(f) does very little
to address the financial harm that consumers experience in these situations and is
significantly weaker than the provisions included in the NAIC’s Model Act. The most
staggering bills that patients face in these situations often are the “balance bills” they
receive when out-of-network providers bill consumers for the portion of their charges not
paid by the insurer. However, by specifically referring to “cost sharing,” our reading of the
proposed regulation is that balance billing amounts would not be required to count toward
the MOOP limit. The definition of cost sharing at 45 CFR §155.20 specifically excludes
balance billing amounts for non-network providers. Moreover, given that the regulatory
definition of cost sharing also specifically excludes spending for non-covered services, it
appears that this provision would not benefit consumers enrolled in plans with no out-ofnetwork coverage. According to a recent Avalere Health analysis, 62 percent of QHPs
available for 2016 are either health maintenance organizations (HMOs) or exclusive
provider organizations (EPOs), which typically do not cover out-of-network care. In order to
ensure that this provision provides meaningful protection to all consumers enrolled in
QHPs, it is critical that HHS revise the final rule to make it clear that balance billed
amounts and cost-sharing amounts paid for essential health benefits (EHB) must be
counted toward the MOOP even if the QHP does not otherwise cover out-of-network care.
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Currently, insurers are able to avoid counting any costs resulting from care provided by
out-of-network providers in in-network facilities toward the MOOP if they simply provide a
written notice to the enrollee 10 business days before the provision of care. Notice alone is
not sufficient to protect consumers from unfair charges that often result given that, again,
consumers have very little ability to control which providers care for them once they have
been admitted – all it ensures is that the bill will not be a surprise. The NAIC’s Model Act
recognizes that notice alone does not address this significant problem that consumers face,
which is why it requires consumers to pay only their in-network cost-sharing and holds
them financially harmless for charges greater than $500.
In addition, while we do not object to a written notice as long as it is not used as an
alternative to providing real financial protection to consumers, the required notice should
give consumers meaningful information about the ramifications of being seen by out-ofnetwork providers. Insurers should not be able to meet this requirement with a “form”
notice. Rather, the notice should provide consumers with a reasonable estimate of the
projected amounts for which the enrollee may be responsible for the specific procedure or
condition for which they are being admitted, as well as a list of in-network professionals at
the facility. In addition, while HHS does recognize that notice is not appropriate protection
unless provided in advance, 10 business days’ notice is not sufficient in all cases. For
example, if a pregnant woman learns 10 business days ahead of a scheduled delivery that a
provider at her facility is out-of-network, it is likely too late for her to plan for another
delivery scenario.
Finally, we note that this new provision does nothing to protect consumers from balance
billed amounts that are provided at out-of-network facilities. While insurers are required to
charge in-network cost-sharing rates for emergency services provided at out-of-network
facilities, consumers can still be subject to balance bills. Again, given that consumers in an
emergency often do not have any control over the facility they are taken to or the providers
who treat them, it is particularly unfair that consumers are not protected from these
sometimes exorbitant charges. We urge HHS to also provide protection for consumers in
this circumstance.
Relative Network Coverage
We are encouraged to see HHS’s proposal to provide a rating of each QHP’s relative
network breadth on HealthCare.gov, and we urge HHS to move forward with implementing
this system. Currently, consumers have no way of knowing the relative breadth of their
plan’s network. Particularly with the growth of plans with narrow networks and no out-ofnetwork coverage, it is critically important that consumers understand the network that
comes with the plan they are choosing and the trade-offs that come with that choice. Plans
with narrow networks may be an appropriate choice for some consumers, but they should
know that is what they are buying and that the choice may result in higher out-of-pocket
costs later if they need to go out-of-network.
We strongly support HHS developing standard definitions for measuring the breadth of
provider networks, along with a clear, concise rating system for communicating the breadth
of the networks to consumers. Such a system will enable consumers to make better, more
accurate comparisons of the QHPs available to them. We encourage HHS to factor in both
physicians (primary care and specialty physicians) and hospitals when evaluating and
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rating health plan networks. The provider network rating system adopted by HHS should
allow consumers to drill down to categories of providers: primary care professionals,
specialty physicians, hospitals, pharmacies, and other facilities. (These ratings could then
be rolled up into a single overall rating of network breadth.) A ratings system that allows
consumers to drill down to different categories of providers would enable consumers to more
accurately analyze a plan’s network. For example, consumers would be able to identify and
compare networks with a large number of physicians but few hospitals, with networks that
offer a large number of primary care professionals but few specialty physicians. Such a
system would also allow consumers to obtain rating information on different aspects of care.
In summary, we strongly support HHS going forward with a rating system for provider
network breadth and encourage stakeholder input as to how such a rating would be
formulated.
Other Issues
HHS solicits comments on whether issuers should be required to survey providers on a
regular basis to determine if they are accepting new patients. We are pleased that HHS is
acknowledging that this is an important concern that needs to be addressed. Studies in
numerous states have documented the high rate of errors found in many provider
directories, including with respect to whether listed providers are seeing new patients. For
example, a Maryland study found that less than 18 percent of psychiatrists listed were
psychiatrists accepting the designated insurance and new patients. A survey in Colorado
found that the average accuracy of provider directories sampled was 36.6 percent when it
came to providers who were actually available to new patients.
Not only can inaccurate provider directory information result in harmful financial
consequences for patients but it can also give regulators an inaccurate picture of a
network’s capacity to serve the covered population. We therefore support HHS’s proposal to
require issuers to survey providers on a regular basis. In addition to asking whether
providers are accepting new patients, issuers should also use this survey to assess whether
providers still intend to be in-network and to verify other directory information, such as
office location, contact information, and medical group and facility affiliations. Issuers
should also be required to contact providers that have not submitted claims within 6 or 12
months, to verify if they still intend to be in-network. Providers that don’t respond within a
set time period should be removed from directories. New Jersey has a requirement like this.
In addition, HHS requests comments on transparency of issuers’ criteria for selecting and
tiering providers and whether issuers should be required to make their selecting and
tiering criteria available for review and approval by HHS and the state. Although some
insurers are using terms like “high value,” or “high performing” to describe their networks,
there is very little information publicly available about the criteria they use to select or tier
providers. However, it often appears that inclusion of providers is being based largely on
price, not on the quality of care provided. Moreover, insurers do not use uniform or
standardized cost or quality criteria to select or tier providers, and this lack of consistency
is confusing both to patients and to providers. It is particularly important that we not
undermine efforts to inform and educate consumers about the importance of making “highvalue” healthcare decisions. The term “value” should imply consideration of both quality
and cost factors. It is counter-productive to use this terminology in situations where only
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cost criteria are considered, or where there is no transparency of the cost and quality
criteria on which tiering designations are based.
Essential Community Providers (§ 156.235)
ECP Definition
We thank the Department for responding to stakeholder comments last year and
incorporating into regulation at 45 CFR 156.235(c) that ECPs include non-profit family
planning providers that do not receive Title X funds. This is an important step in
implementing the clear intent of ACA section 1311(c)(1)(C), which Congress designed to
protect access to women’s health providers in addition to other ECPs. However, the ECP
definition text at 45 CFR 156.235(c) does not clarify what we believe the Department
intended to specify, and we are concerned that the regulatory text may have unintended
implications for family planning ECPs. Therefore, we ask that HHS make a technical
correction to the definition of ECP at 156.235(c) to align with HHS’s intended clarification
and specify that providers described in section 1927(c)(1)(D)(i)(IV) of the Social Security Act
include state-owned family planning providers and non-profit family planning providers.
Specifically, we recommend the following language:
(c) Definition. An essential community provider is a provider that serves
predominantly low-income, medically underserved individuals, including a
health care provider defined in section 340B(a)(4) of the PHS Act; or described
in section 1927(c)(1)(D)(i)(IV) of the Act as set forth by section 221 of Pub. L.
111-8; or
including a State-owned family planning service site, or
governmental family planning service site, or not-for-profit family planning
service site that does not receive 340B-qualifying funding Federal funding
under special programs, including under Title X of the PHS Act, or an Indian
health care provider.
Counting Full-Time Equivalent Practitioners
While we recognize HHS’s goal to improve access to care by looking at the number of
clinicians that furnish care at ECP locations, there are several reasons why the proposal to
count the number of full-time equivalent (FTE) practitioners for purposes of determining
ECP participation and the issuer’s satisfaction of the ECP standard would not meet this
goal, and instead, would undermine access to ECPs and the intent of the ACA's ECP
provision. Among other important drawbacks, such a policy would not ensure a geographic
distribution of providers in local communities or a broad range of provider types that meet
the needs of women, men, and families, and would not take into account fluctuations in
FTEs throughout the year. Therefore, the Department should not allow issuers to count the
number of FTE practitioners at a single location for purposes of determining ECP
participation and the issuer’s satisfaction of the ECP standard.
ECP Standard/Compliance
Looking ahead to plan year 2017, it is critical that QHP networks ensure that women have
timely access to the providers they trust for women’s health services, especially services
guaranteed under §2713 of the Public Health Service Act, including well-woman exams,
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birth control, and cervical cancer screenings. To this end, we offer the following comments
on the ECP standard and monitoring QHP compliance with the standard:

The Department should establish a strong federal floor in regulation that (1) increases
the 30 percent ECP threshold for all marketplaces, including state-based and
partnership marketplaces, and (2) encourages plans to include a greater number of
ECPs in their networks. We appreciate that the Department provides guidance to plans
annually on the minimum percent of available ECPs that QHPs must include innetwork, however, it is important that a floor is established in regulation. Creating a
federal floor for all marketplaces, as well as strengthening the ECP threshold, would
establish a solid foundation for patient access and ensure a baseline protection for
people across the country.
Relatedly, we urge the Department to reinforce that the threshold currently articulated
is a federal minimum and that plans are encouraged to include a greater number of
ECPs in their networks. A strong ECP in-network threshold is critical to improving
women’s access to care, especially since women’s health providers serve as an ongoing
source of care for millions of women and often serve as an entry point into the broader
health care system.

The Department should clarify that QHP issuers must include at least one ECP in each
category per county in the service area. We strongly urge the Department to clarify that
issuers must include in their QHP networks (not simply offer a contract to) at least one
ECP in each category in each county in the service area. This would be more consistent
with the ACA statute, which requires that plans include ECPs “within health insurance
plan networks.”

The Department should continue to recognize family planning providers as a unique
and separate ECP category that issuers must contract with to meet the requirements
under the ACA. We strongly support the Department’s continued recognition of the
importance of ensuring access to family planning providers by specifically identifying
family planning providers as a unique and separate ECP category.

The Department must clarify that existing regulations on non-discrimination prevent
states from excluding, or otherwise limiting the participation of women’s health ECPs
from the marketplace. Regulations include an important non-discrimination provision to
prevent any attempts to unfairly exclude or restrict specific ECPs from the marketplace.
Under 45 CFR § 155.1050(c), a QHP “may not be prohibited from contracting with any
essential community provider…”. We urge the Department to clarify that this nondiscrimination provision was designed to prevent states and other entities from blocking
or limiting access to women’s health ECPs.
Other Considerations (Nondiscrimination)
We were pleased that the preamble of the proposed regulation reminds issuers of their
nondiscrimination obligations under federal civil rights law, particularly Section 1557, and
continue to advocate for strong enforcement of such laws. However, the rule does not
mention protections against discriminatory benefit designs, and should explicitly state that
13
plans offering the EHB must comply with all of the ACA’s nondiscrimination requirements,
including Section 1557 of the law.
There are four provisions of the ACA that must be considered as the Secretary uses her
authority to ensure that plans offering the EHB do not discriminate:




§1557 prohibits discrimination on the basis of race, color, national origin, sex, age,
sexual orientation, sex stereotyping and gender identity, and disability in health
programs or activities that receive federal financial assistance, are administered by
an Executive agency, or were established by Title I of the ACA.3
§1302(b)(4)(B) requires that the Secretary “not make coverage decisions, determine
reimbursement rates, establish incentive programs, or design benefits in ways that
discriminate against individuals because of their age, disability, or expected length
of life.”4
§1302(b)(4)(C) requires the Secretary to “take into account the health care needs of
diverse segments of the population, including women, children, persons with
disabilities, and other groups.”5
§1302(b)(4)(D) requires the Secretary to ensure “that health benefits established as
essential not be subject to denial to individuals against their wishes on the basis of
the individuals’ age or expected length of life or the individuals’ present or predicted
disability, degree of medical dependency, or quality of life.”6
Thus, when considering whether a plan design is discriminatory, the Secretary must take
into account whether the plan meets the heath care needs of diverse segments of the
population, including women, as well as whether specific denials or exclusions violate the
requirements of Section 1557 and/or §1302(b)(4)(B) of the ACA.
Patient Safety Standards for QHP Issuers (§ 156.1110)
The National Partnership was pleased to see the strengthened standards for patient safety
for QHP issuers included in the proposed rule. Increasing patient safety is an important
and necessary component of a high-quality health care system, and increased standards are
vital to moving us towards this goal. Regarding the exceptions permitted to the patient
safety requirements, the proposed regulation states that a QHP issuer can comply with the
standards if they participate in the Partnership for Patients initiative. Assuming that the
Partnership for Patients program continues, we support such an exception, although note
that we hope the Department will take steps to ensure that hospitals maintain the
commitments they made under the Partnership for Patients program should the program
come to an end. We look forward to assessing implementation of these patient safety
requirements.
In conclusion, the National Partnership commends the Department for its continued work
to implement the many important protections of the ACA, and achieve continued progress
with regard to coverage and affordability. We look forward to continuing to work with the
Department on many related issues, including striking the right balance in ensuring
appropriate standards for health plans while also maintaining affordability and the
integrity of the risk pool. Thank you for the opportunity to comment on the proposed
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regulation. If you have any questions about our comments and recommendations, please
contact Theresa Chalhoub, Health Policy Counsel, at [email protected] or
(202) 986-2600.
1
“Reasonable notice” is understood to be two weeks. 45 CFR 155.430 (d).
2
Department of Health and Human Services (HHS) Office of the Assistant Secretary of Planning and Evaluation (ASPE), “Health Insurance Marketplaces 2015 Open Enrollment
Period,” (March 2015), available at: https://aspe.hhs.gov/sites/default/files/pdf/83656/ib_2015mar_enrollment.pdf
3
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1557 (2010), amended by Health Care and Education Affordability and Reconciliation Act, Pub. L. No. 111-152
(2010) (to be codified at 42 U.S.C. § 18116).
4
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b)(2)(B) (2010), amended by Health Care and Education Affordability and Reconciliation Act, Pub. L. No.
111-152 (2010) (to be codified at 42 U.S.C. § 18022).
5
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b)(4)(C) (2010), amended by Health Care and Education Affordability and Reconciliation Act, Pub. L. No.
111-152 (2010) (to be codified at 42 U.S.C. § 18022).
6
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302(b)(4)(D) (2010), amended by Health Care and Education Affordability and Reconciliation Act, Pub. L. No.
111-152 (2010) (to be codified at 42 U.S.C. § 18022).
15