190219 comments benefitpaymentparameters hhs


February 19, 2019


To Whom It May Concern:

The U.S. Chamber of Commerce (the “Chamber”) submits these comments to the Department of
Health and Human Services (the “Department”) in response to the Department’s Notice of Benefit
and Payment Parameters for 20 20 Proposed Rule (“Proposed Rule”). This Pr oposed Rule sets forth
payment parameters provisions related to the risk adjustment and risk adjustment data validation
programs; cost -sharing parameters; and user fees for Federally -facilitated Exchanges (“FFE”) and
State -based Exchanges on the Federal P latform (“SBE -FP” ). It also pro poses changes that would
allow for greater flexibility related to the duties and training requirements for the Navigator
program and proposes changes that would provide greater flexibility for direct enrollment entities ,
while strengthening program integrity oversight over those entities . It proposes policies that are
intended to reduce the costs of prescription drugs . It includes proposed changes to Exchange
standards related to eligibility and enrollment; exemptions; and othe r related topics.

The Proposed Rule was published in the Federal Register on January 24, 201 9, by the Department
of Health and Human Services (“HHS” and “the Department” ).1 This Proposed Rule suggests
amend ing the provisions and parameters previously offered to implement many provisions of the
Patient Protection and Affordable Care Act, as amended and revised by the Health Care Education
Reconciliation Act of 2010 (collectively referred to in the proposed rule as the “Patient Protection
and Affordable Care Act” or “PPACA”). 2


We appreciate the Department’s stated intent and rationale for several proposal changes but remain
concerned that as drafted, these proposals will have the o pposite effect in t hree particular instances .
Our comments will address our concerns on the :
1 Proposed Rule, 84 Fed. Reg. 227 -321 . (January 24 , 201 9) (to be codified at 45 C.F.R. pts. 14 6, 147, 148, 153, 155, and
156 ) [hereinafter referred to as the “Proposed Rule”] https://www.govinfo.gov/content/pkg/FR -2019 -01 -24/pdf/2019 -
00077.pdf 2 The Patient Protection and Affo rdable Care Act, Pub. L. No. 111 -148, amended by Health Care and Education
Reconciliation Act of 2010, Pub. L. No. 111 -152 (2010).

1. Discussion in the preamble to end the practice of auto matic re -enrollment which will
undercut prior investment and smoothly functioning operations;

2. Proposed questions in the preamble on ways to address silver loading which may instead
inject additional uncertainty and volatility in the markets if current guidance is changed ;

3. Proposed regulatory changes to permit, which if finalized as drafted will instead limit, the
ab ility of issuers and employers to make mid -year formulary changes .

Given the stated intent and goals of the proposals, we believe that the Department will refine the
proposed changes to ensure the desired outcomes are achieved rather than furthering the h arm we
believe would result if the proposal on mid -year formulary changes is finalized as drafted and if
changes are made to automatic re -enrollment or silver loading .

Automatic Re-enrollment

The preamble includes discussion about the automatic re-enrollment process maintained by
exchanges since the program’s inception. We support and appreciate the recognition that
“automatic re -enrollment significantly reduces issuer administrative expenses and makes
enrollment in health insurance more convenie nt for the consumer.” 3 This process however did not
simply occur but was one that required significant investment on the part of issuers and the
Department. Additionally, as the Department mentions, automatic re -enrollment is a standard and
common practice in Medicare and the commercial market.

The Department suggested that “there is a concern that automatic re -enrollment eliminates an
opportunity for consumers to update their coverage and premium tax credit eligibility.” 4 However,
this opportunity is har dly eliminated and still exists for all current enrollees. As the Department
explains: “ Currently, enrollees in plans offered through a Federally -facilitated Exchange or a State -
based Exchange using the Federal platform can take action to re - enroll in the ir current plan, can
take action to select a new plan , or can take no action and be re -enrolled in their current plan. ”

Instead, concerns about consumer confusion could be allayed through other methods. CMS should
study the effectiveness of its current c ommunications strategy and develop more effective means of
targeting and informing impacted enrollees, in order to address the concerns of confusion while
also ensuring coverage is maintained . Perhaps as open -enrollment enters its final week, a
notificatio n could be sent to currently enrolled individuals reminding them that if they have had a
change in circumstances, they may want to take action and that if they don’t they will be
automatically re -enrolled in their current plan. This is what many employers provide and addresses
the concerns of confusion while also ensuring coverage is maintained.

The Chamber supports the automatic -enrollment process and urges the Department to protect the
current automatic re -enrollment process as it exists.

3 Proposed Rule, at 229. 4 Ibid, at 229.

Silver Loading
Despite the cessat ion of federal funding for the c ost sharing r eduction (“CSR ”) benefit in October
of 2017 , eligible consumers with incomes up to 250 percent o f the federal poverty level ( “FPL ”)
continue to be legally entitled and eligible for reduced cost -sharing benefits. As the Chamber
articulated in the spring, summer and fall of 2017 leading up to and following the President’s
announcement and decision to stop making CSR payments , there needs to be a solution to help
offset the cost that health insurance providers must absorb as they continue providing this
mandated benefit in a way that minimizes the burden of the federal government’s decision upon
consumers .

Silver loading is the most consumer -friendly way to do this, as pre mium tax credits offset
additional premium impact that results from the government’s decision not to make the required
payments . Broadly distributing premium increases, however , would impose additional burdens
upon those who do not qualify for reduced cost sharing or premium tax credits and would likely
result in loss of coverage and degradation of the individual market risk pool . Absent a legislative
solution, the Department must permit relief and not penalize private businesses that are still
mandated to waive out -of-pocket costs for eligible consumers . There are two positions that the
Chamber would support on this issue , either a clarification that :
1. Silver loading is permitted to offset unreimbursed cost sharing that issuers are required to
waive for low -income and working families; or

2. The Department will defer to states and afford states t he flexibility to permit silver loading.

Several r ecent court decisions suggest that the government breached an implied cont racts and may
ultimately be held responsible for reimbursing plans for unpaid CSRs in 2017 and 2018. 5 While
these cases will ultimately end up in the Supreme Court, businesses must continue to fulfill their
mandate to waive these cost sharing amounts and solutions that at least tem porarily relieve the
financial exposure of doing so in a way that minimizes negative impacts upon consumers should be
permitted .
Mid -Year Formulary Changes

We support the current ability of plans, whether offered by insurers or employers, to make mid -
year formulary changes and adjustments . While we appreciate the stated intent of the proposal to
allow mid -year formulary changes when a generic becomes available, we are concerned that as
worded the proposed changes would instead preclude several othe r standard practices that currently
reduce spending and promote effective high -value care. Our concern arises not simply because of
the language in §146.152 (f)(5) but because of the repeated discussion of guaranteed renewability
of coverage for employers and individuals as it relates to this new proposed section.

https://ecf.cofc.uscourts.gov/cgi -bin/show_public_doc?2017cv2057 -20 -0
https://ecf.cof c.uscourts.gov/cgi -bin/show_public_doc?2017cv0877 -48 -0
https://ecf.cofc.uscourts.gov/cgi -bin/show_public_doc?2018cv0005 -28 -0
https://ecf.cofc.uscourts.gov/cgi -bin/show_public_doc?2017cv1542 -32 -0 6 Proposed Rule, page 313

The Chamber urges the Department to clarify that it does not intend to adopt any proposals that
would preclude the presently available formulary practices that currently allow mid -year
modifica tions and flexibility.

There are already many instances when plans are able to make mid -year formulary changes . We
recommend that HHS broaden the description of instances in which issuers and employers can
modify formularies mid -year to include currently permitted instances such as when:
 A biosimilar drug is available; or

 A lower -priced brand -name therapeutic equivalent or authorized generic is available; or

 A brand -name drug changes its price; or

 An over -the -counter ( “OTC ”) version of the dru g is available; or

 The issuer becomes aware of a patient safety issue with a drug; or

 There is a shortage of a preferred generic drug; or

 New research or evidence becomes available about the efficacy of a drug or that expands
the indications of a drug; or

 A new drug (whether a brand or biosimilar or reference biologic) that is clinically effective
becomes available.

If finalized as proposed, the changes would likely increase spending by inadvertently restricting
issuers to controlling costs only when a generic equivalent is available for a brand name drug.

We urge the Department to continue to work carefully, pragmatically and cooperatively with the
numerous stakeholders to minimize unnecessary costs for, and burdens on, employers and to
provide flexibility as employers work to comply with the law. We appreciate the re -evaluation of
prior standards for benefit and payment parameters given the current status of the exchanges and
the experience the Department has glea ned during the past f ive years of implementation. We loo k
forward to continuing to work together in the future.


Katie Mahoney
Vice President, Health Policy
U.S. Chamber of Commerce

190219 comments benefitpaymentparameters hhs