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November 27, 2017

Submitted Electronically to

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Room 445-G
Hubert H. Humphrey Building
200 Independence Avenue SW
Washington, D.C. 20201

Attn:   CMS-9930-P

            NPRM Notice of Benefit and Payment Parameters for 2019

Thank you for the opportunity to comment on the proposed HHS Notice of Benefit and Payment Parameters for 2019 proposed rule. The Center for Medicare Advocacy (Center) is pleased to provide comments. The Center, founded in 1986, is a national, non-partisan law organization that works to ensure fair access to Medicare and quality healthcare. At the Center, we provide education and advocacy on behalf of older people and people with disabilities to help secure fair access to necessary health care. We draw upon our direct experience with thousands of individuals to help educate policy makers about how their decisions affect the lives of real people. Additionally, we provide legal representation to ensure that people receive the health care benefits for which they are eligible, and for the quality health care they need.

As we stated in our comments to the draft Strategic Plan for fiscal years 2018 to 2022, the Affordable Care Act (ACA) is the law of the land and must be fully implemented. All efforts to undermine the law must cease. We have expressed concerns about actions such as cutting the enrollment period in half; slashing funding for enrollment assistance, refusing to participate in enrollment events; shutting down during critical times; and not paying cost sharing reductions to assist help lower income people afford coverage.

We believe that the ACA must not be weakened through the regulatory process and have provided comments below.

Essential Health Benefits Package

General Comments

We are opposed to HHS’ proposed changes to the Essential Health Benefits (EHBs) standard which would lower the threshold of covered services and leave many consumers without access to the health care they need. The proposed rule, among other things, could weaken ACA requirements for essential health benefits in 2019. The ACA requires insurers to cover essential health benefits such as ambulatory services, emergency services, hospitalization, maternity care, mental health and substance abuse, prescription drugs, rehabilitative services, laboratory services, preventive and wellness services, and pediatric services. Any attempt to weaken these essential benefits through regulation and deny people care is unacceptable and must be rejected.

The EHB requirement has helped ensure people have access to basic health care services and has closed health care coverage gaps that for decades had left individuals underinsured. Before the ACA, consumers often did not have health coverage for services that are now covered as EHBs. For example, prior to the ACA, one in five people enrolled in the individual market lacked coverage of prescription drugs and mental health coverage was often excluded from health plans.[1] Also, 75% of non-group market plans did not cover maternity care (delivery/inpatient care), and 45% did not cover inpatient/outpatient substance use disorder services.[2] These services can be a small percentage of the relative benefit costs in commercial market plans, yet scaling back on their coverage would significantly raise out-of-pocket costs for individuals who need them.[3]

In the preamble to the proposed rule, HHS anticipates that, given the new benchmark options states are more likely to select, EHB benchmark plans that will reduce premiums.[4] As such, HHS recognizes that consumers with specific health care needs may be offered less comprehensive plans that no longer cover certain services.[5] Under HHS’ proposal, people who rely on services that are no longer considered EHBs will have to pay out-of-pocket for them or forgo the care they need. In addition, the out-of-pocket maximum and annual and lifetime limit consumer protections will no longer apply to services that are not considered EHBs since these protections only apply to EHBs. This will increase health care costs for many, including people with pre-existing conditions.[6] It will also drive up medical debt and health-related bankruptcies, which have ameliorated since the ACA was enacted.[7]

An increase in out-of-pocket costs is not what consumers want. Two-thirds of consumers—67%—believe that the top health care priority should be to lower, not increase, their out-of-pocket costs.[8] Consumers value comprehensive benefits and the ACA’s consumer protections. At least two-thirds of marketplace enrollees—65% or more—reported satisfaction with their qualified health plan in 2014 through 2016 in three separate national surveys.[9] To improve their coverage, most consumers want policymakers to lower the cost of prescription drugs, to ensure that benefits are comprehensive, and to improve network adequacy.[10] That is not what this proposed rule does.

A robust EHB standard is essential to individuals receiving effective care. In the preamble of the proposed rule, HHS recognizes that offering less coverage may result in “spillover” effects, including increased use of emergency services and other services provided by safety-net and government-funded providers.[11] This not only affects the individual patient but also impacts our productivity as a nation, and ultimately increases the cost of health care.

The proposed EHB benchmark options put consumers in the individual and small group market at risk of increased health care costs, and may also impact an estimated 27 million workers and their dependents who receive coverage through large employers.[12] Annual and lifetime limits on coverage apply to large employer plans as well, and these plans can choose any state’s definition of EHBs for purposes of adhering to this prohibition. But these limits only apply to benefits that are considered EHBs. Thus if any state drops it’s EHB coverage significantly, anyone getting employer-sponsored insurance across the country may once again face annual or lifetime limits as well as higher cost-sharing for benefits that are no longer considered EHBs. 

HHS’ proposed change to the substitution of benefits policy will also negatively impact coverage of critical services. HHS admits that allowing substitution of benefits within the same EHB category and between EHB categories, as it proposes to do, will increase the burden on consumers who will have to spend more time and effort comparing benefits offered by different plans in order to “determine what, if any benefits have been substituted, and what plan would best suit their health care and financial needs.”[13] In addition, HHS notes that by allowing substitution between EHB categories, “states may encounter difficulties in ensuring that all categories are filled in such a way that amounts to EHBs.”[14] This proposed policy change, like the change in benchmark options, serves to negate coverage of the ten EHB categories and will lead to extremely different benefits packages, confused consumers, increased administrative costs to states, and inadequate coverage of critical services. This undermines some of the basic guarantees of the ACA, such as a simple and navigable insurance market for consumers.

Specific Comments

§ 156.100 – § 156.111 State Selection of Benchmark Plans

New EHB Benchmark Options

We strongly oppose HHS’ proposed new EHB benchmark options for plan year 2019 and beyond. We are concerned that the changes that HHS proposes to the EHB benchmark process will reduce the comprehensiveness of coverage for consumers by allowing states to drop or limit the benefits that are currently covered in their state, give insurers more latitude to deviate from a state’s EHB standard, and weaken consumer protections against catastrophic out-of-pocket costs in large employer plans. These changes would disproportionately impact individuals with disabilities and people with pre-existing medical conditions who could face reduced access to the services they need and higher out-of-pocket costs.

Public Comment

If states are allowed to select new EHB benchmarks for the 2019 plan year and beyond, states should be required to provide reasonable opportunity for notice and public comment that includes public hearings, a public comment period, and the publication of plan documents and analysis in usable and understandable formats, along with data (such as actuarial certifications and reports) that must be submitted to HHS.

§ 155.210 – Navigator Program Standards

We are dismayed at the proposed changes to reduce the number of required navigator entities in a state from two to one. The requirement to have two entities ensures that a state can have a general entity and one more tailored to specific needs within a state, whether that includes a focus on young adults, limited English proficient individuals, or other targeted populations. Further, removing the requirement that one entity be a community and consumer-focused non-profit is also troubling. Many of the individuals assisted by navigator entities have complex situations and community and consumer-based entities are best suited to address their needs. They already have the experience working with these populations on a regular basis.

We also oppose the proposal to remove the requirement that a navigator entity maintain a physical presence in the Exchange service area. This is troubling on many different accounts. First, face-to-face assistance is often critical to obtain the trust of applicants and to help walk them through the various components of application, plan selection, resolving data matching inconsistencies, and perhaps assisting with appeals. Further, entities with a physical presence will better know their communities and be better able to serve them because they likely interact with the target populations on an ongoing basis and are able to build relationships that transcend the application process. Physically present entities remain available after open enrollment to provide assistance if questions arise, can assist in finding providers, can help consumers prepare for re-enrollment. Navigators do much, much more than merely enroll eligible individuals and having the community presence and building the ongoing relationships with consumers is critical to ensure all eligible consumers obtain and maintain health insurance. In particular, individuals with low health literacy (in addition to low literacy in general), low internet proficiency and who live in rural areas may face additional challenges in enrolling and rely on assisters to help complete enrollment. As HHS recognizes in the preamble, “we believe entities with a physical presence and strong relationships in their FFE service areas tend to deliver the most effective outreach and enrolment results.” (81 Fed. Reg. 51084). Given this recognition, it is appropriate to maintain the requirements that a navigator have a physical presence in the state in which it receives funding to assist consumers.

§ 155.430 – Effective Dates for Termination

We support the proposed changes to make it easier for consumers to request a specific termination date. As HHS notes, “allowing enrollees to terminate their coverage immediately or on a future date of their choosing also would provide consumers with greater control over ending their QHP coverage and would help minimize or eliminate overlaps in coverage”. (81 Fed. Reg. 51091). This issue has been particularly vexing for individuals enrolled in marketplace coverage who are transitioning to Medicare. Sometimes Call Center Representatives let these individuals cancel prospectively, other times they tell individuals to cancel on the day before Medicare becomes effective. Individuals should be able to prospectively cancel their coverage without having to call back multiple times or worry about penalties for having dual coverage if they forget to call back if they originally called in a timely manner.

§ 156.235 – Essential Community Providers

The requirement that QHP networks must contract with Essential Community Providers (ECPs) who provide care to predominately low-income and medically-underserved populations is key to improving health outcomes and reducing health and health care disparities[15]. Since QHPs serve large numbers of women of childbearing age, it is also crucially important that HHS ensure that their networks include ECPs that can serve the unique health needs of women.[16] Overall, we have been pleased by the strides HHS has taken toward ensuring participation by the full range of ECPs that currently comprise the safety-net of providers who provide health care to low income communities. We oppose HHS’s proposals that will reduce ECP participation.


Thank you for your attention to these comments. For additional information, please contact David Lipschutz, Senior Policy Attorney, at or 202-293-5760.


[1] Dania Palanker et al., Eliminating Health Benefits Will Shift Financial Risk Back to Consumers, The Commonwealth Fund, Mar. 24, 2017,
[2] Gary Claxton et al., Would States Eliminate Key Benefits if AHCA Waivers are Enacted?, Kaiser Family Foundation, June 14, 2017,
[3] Rebekah Bayram & Barbara Dewey, Are Essential Health Benefits Here to Stay?, Milliman, March 2017,
[4] 82 Fed. Reg. 51131.
[5] Id.
[6] Sarah Lueck, Administration’s Proposed Changes to Essential Health Benefits Seriously Threaten Comprehensive Coverage, Center on Budget and Policy Priorities, November 7, 2017,
[7] Allen St. John, How the Affordable Care Act Drove Down Personal Bankruptcy, Consumer Reports, May 2, 2017,
[8] Ashley Kirzinger et al., Kaiser Health Tracking Poll: Health Care Priorities for 2017, Kaiser Family Foundation, Jan. 6, 2017,
[9] U.S. Government Accountability Office, Most Enrollees Reported Satisfaction with their Health Plans, Although Some Concerns Exist, GAO-16-761, Sept. 2016,
[10] Drew Altman, “The Health Care Plan Trump Voters Really Want,” New York Times (Jan. 5, 2017),; Ashley Kirzinger et al., supra, note 8; Jennifer Tolbert & Larisa Antonisse, Listening to Trump Voters with ACA Coverage: What They Want in a Health Care Plan, Kaiser Family Foundation, Feb. 2017,
[11] 82 Fed. Reg. 51131.
[12] Topher Spiro & Emily Gee, The Emerging Senate Repeal Bill Eviscerates Protections for Millions in Employer Plans Nationwide, Center for American Progress, June 15, 2017,; See also Matthew Fiedler, Like the AHCA, the Senate’s health care bill could weaken ACA protections against catastrophic costs, Brookings Institute, June 23, 2017,
[13] 82 Fed. Reg. 51131.
[14] Id.
[15] Cristina Jade Peña Et. Al., Kaiser Family Found., Federal and State Standards for “Essential Community Providers” under the ACA and Implications for Women’s Health, Kaiser Family Foundation (2015),
[16] During open enrollment for 2016, QHPs enrolled over 3 million women between the ages of 18 and 54. Dept. Health & Human Servs., Office of the Asst. Sect’y for Planning and Evaluation, Health Insurance Marketplaces 2016 Open Enrollment Period: March Enrollment Report 31 (2016),

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