NAMI Comments on the Planning and Establishment of State-Level Exchanges
October 4, 2010
The Office of Consumer Information and Oversight, Department of Health and Human Services put out a request for comments regarding exchange-related provisions in Title I of the Patient Protection and Affordable Care Act. NAMI's letter to the Office of Consumer Information and Oversight is below. A PDF of the entire document may also be downloaded.
Index of Comments Submitted
A. State Exchange Planning and Establishment Grants
C. State Exchange Operations
D. Qualified Health Plans
G. Enrollment and Eligibility
Mr. Jim Mayhew
Office of Consumer Information and Oversight
Department of Health and Human Services
Attention: OCIIO – 9989 – NC
P.O. Box 8010
Baltimore, MD 21244-8010
RE: 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 Mr. Mayhew:
On behalf of the National Alliance on Mental Illness (NAMI), I am writing to submit comments on implementation of the health insurance Exchange-related provisions of the Patient Protection and Affordable Care Act (ACA). NAMI is nation’s largest organization representing children and adults living with serious mental illness.
As you know, Title 1 of the ACA expands access to health insurance through the establishment of State-level health insurance Exchanges. The Exchanges are central to health insurance reform and, as the key mechanism in the ACA for improving access to affordable, quality coverage, are one of the new law’s most important components. Therefore, the ultimate success of reform depends in a large part on the successful development and implementation of the Exchanges.
In submitting these comments, NAMI would like to endorse separate comment that have been submitted to HHS by the Consortium for Citizens With Disabilities (CCD) and the Coalition for While Health (CWH).
NAMI believes that the Exchange Planning and Establishment Grants, required under section 1311 of the Affordable Care Act, can help ensure that states have the resources they need to successfully implement health insurance exchanges that provide access to affordable, quality health coverage. The grants should be of sufficient size to cover a variety of planning and start-up costs associated with any of the following range of required activities:
- certifying qualified health plans, providing required information and assistance to consumers, and determining eligibility for federal premium credits and cost-sharing reductions;
- 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 insurance market reforms;
- building capacity at the state level to enforce the new requirements;
- abiding by the non-discrimination requirements required under section 1557;
- establishing extensive consumer education campaigns;
- expanding technical capabilities and creating accessible electronic information systems; and
- creating eligibility and enrollment systems that are coordinated seamlessly with existing state-administered health programs and routing premium payments from individuals and small businesses to multiple insurers.
NAMI urges HHS to be clear in all documents and guidance 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 Act. Thus, they must not discriminate against individuals as prohibited under section 1557. Equally important, states should be cognizant of the fact that the exchanges, and especially the plans operating within the exchanges, as entities established under the Act, 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 prohibited by Section 1557.
Question 3: What are some of the major features that states are likely to consider in determining how to structure the exchanges?
NAMI believes 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 exchange. 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 insurance exchanges, while healthier, lower-cost 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 in outside markets and that would drive up costs not only for consumers and small firms purchasing coverage through the exchanges, but also 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 firms 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 how they structure their insurance exchanges to further 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:
- Making the rules for any insurance markets outside the exchanges consistent with the rules that apply inside the exchange. States can simply apply the same standards that HHS sets for qualified health plans offered in an exchange to plans offered in markets outside the exchange. This would eliminate any disparities that might discourage insurers from participating in the exchange or permit insurers operating outside the exchange to design benefit packages and marketing campaigns to attract healthier people away from the exchange.
- Requiring insurers to offer the same products inside and outside the exchange. Some insurers may decide not to offer coverage through an exchange 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 exchange and to offer the same products (priced the same) both inside and out. For those states that may wish to create a more selective or competitive process to determine which plans can be offered in an exchange, states can require insurers outside the exchange to offer products in the same coverage levels (at least the Silver and Gold levels) as is required for health insurers participating in the exchange. States should also bar insurers from offering only the least comprehensive Bronze level plans or catastrophic plans outside of the exchange.
Question 1: What are some of the major considerations for states in planning and establishing exchanges?
States should establish an effective stakeholder process which includes people with disabilities and their representatives. This process should include the state agencies with which the exchanges must work, representatives of the legislative branch, health care providers, persons with relevant expertise and other stakeholders. Stakeholder processes should also provide the opportunity for issue-specific working groups to be created and to give ongoing input into the process.
It is also critical that state laws for transparency, accountability and public participation should be followed. The work, budget, spending and any outside contracting of the exchange should be publicly reported and transparent. Meetings should be open and accessible, with transcripts, agendas and meeting materials publically available.
Both governance and any stakeholder process leading to the creation of the exchange should be accountable to the public. Governing bodies and stakeholder processes must also provide the opportunity for public hearings to solicit input from the general public.
Question 8: What specific planning steps should the exchange undertake to ensure that they are accessible and available to individuals from diverse cultural origins, those with low literacy, disabilities and limited English proficiency?
- Exchanges should use consistent terminology and plain language definitions of health care terms.
- Exchange planners/designers should create and utilize an Advisory Group as a regular and integral resource to provide input to design considerations, get feedback on proposals and share information from all stakeholders. This group should be diverse and include people living with mental illness and other disabilities, family members and caregivers. The Advisory Group must have real ability to influence decisions.
- As federally funded entities, the Exchanges must comply with the Rehabilitation Act and Section 1557 of the Affordable Care Act. Thus, all communications from the Exchange -- web-based information, advertisements, information kiosks, printed material and brochures, information lines, etc, -- must meet the federal government’s Section 508 of the Rehabilitation Act standards for electronic and information technology and the Americans with Disabilities Act (ADA). Information about the Section 508 standards can be located at: http://www.section508.gov/. 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.
- The Exchange’s toll-free telephone hotline number should be clearly displayed on the website and at highly visible places in the community.
- There must be alternative means to enroll in the health plans beyond the web portal. People living with mental illness and other disabilities may require in person assistance, well trained and staffed phone assistance, and other methods.
- Disability service and support providers must be educated about the law and the exchanges and provide a link between individuals with disabilities and their representatives and the exchanges.
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 that will carry out these functions without bias and conflicts of interests and in the best interest of the public. Also, accreditation (provided by CARF, JCAHO, and other appropriate accreditors) is an important mechanism to measure quality and accountability of health care provider and the services and devices they provide.
The ACA prohibits plans from employing benefit designs that have the effect of discouraging people with significant health needs from enrolling. This is a not uncommon practice among insurers, and it will be important that HHS set minimum standards for this requirement, and encourage states to effectively monitor plans to ensure they are complying.
Question 2(a): What issues need to be considered in establishing appropriate standards for ensuring a sufficient choice of providers and providing information on the availability of provider?
It is critical that network adequacy standards ensure that consumers have a choice of the providers they need, within a reasonable geographic proximity to their home or workplace. 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. Plans should also be encouraged to include Medicaid providers to facilitate continuity of care for families who may transition on and off of Medicaid. Insurance providers should 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.
ACA specifies that a group health plan and a health insurance issuer shall not discriminate with respect to participation in the group or individual health insurance plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable state law.
ACA also specifies that health plans to be considered “qualified” by the Secretary must ensure “a sufficient choice of providers (in a manner consistent with applicable network adequacy provisions under section 2702(c) of the Public Health Services Act) and provide information to enrollees and prospective enrollees on the availability of in-network and out-of-network providers” in order to ensure enrollee access to covered benefits, treatments and services under a qualified health benefits plan. [See Section 1311(c)(1)(B) of the ACA]
Ongoing medical management is also required to achieve optimal medical outcomes, mitigate disease progression and optimize health and function. These services are offered in community-based settings such as medical offices but can also be provided in group homes, supported apartments, or similar living arrangements. It is also critical to recognize that recovery for many persons with chronic conditions is not necessarily a linear event. For this reason, individuals with certain chronic conditions may need renewed access at any point along the treatment continuum throughout their lives.
Question 3: What factors are needed to facilitate participation of a sufficient mix of QHPs in the exchange to meet the needs of consumers?
NAMI urges states to design their exchanges first and foremost to benefit consumers, so that they are consumer-friendly marketplaces in which consumers can be assured of adequate, affordable coverage. If they are designed in that manner, 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 fall short of this goal and allow the market outside the exchange to operate under substantively different rules, are likely to have a difficult time attracting a healthy mix of insurance carriers to their exchange. 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 exchange. However, these tools will not be sufficient if states do not apply the same rules to plans inside and outside the exchange. 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.
Question 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 for subsequent years? What factors are important for developing criteria for special enrollment periods?
- The first year will be a landmark opportunity to make the vision of this new law into a day-to-day reality for millions of Americans. To do this will require a high level of flexibility for people enrolling in the exchange to allow time for individuals and families to learn what is available to them, to do the research to determine what plan will fit their needs. The longer the open enrollment period can last, the more likely the success of individuals and families at being able to find their way to the exchange, through the enrollment process and onto the plan best equipped to meet their needs and situation. Allowing enrollment after the January 1, 2014, implementation date may be the key to bringing as many people in given the wave of publicity likely to accompany the start date.
- In subsequent years, open enrollment periods will be the most effective if there is a standard time (the same months each year) and at least 90 days to sign up or change policies. It will also be important to follow the guidance of HIPAA and Medicare to establish the qualifying events that would trigger eligibility for special enrollment.
- Other special enrollment/disenrollment periods will need to be established to respond to circumstances in which the chosen coverage becomes unaffordable or subscribers face a change in income that would alter the subsidy level or open eligibility to Medicaid/CHIP.
- Applications submitted outside of enrollment periods should be encouraged as the enrollment process can determine if an individual or family is eligible for Medicaid or CHIP which do not have enrollment periods.
Question 2: What are some of the key considerations associated with conducting online enrollment?
- Online enrollment can be a meaningful and effective tool to allow people entry to the new marketplace, but only if it is accessible to as many people as technologically possible. This will mean providing a range of tools so that high-end users can get what they need as well as those who are low literacy or ESL users. There is also the need to be accessible for people with disabilities and so any online effort should meet the requirements of the federal government’s Section 508 of the Rehabilitation Act standards for electronic and information technology. Access to computers to allow for application may require making the computer itself available through kiosks in central locations and the training of individuals to assist with the process through community-based organizations.
- Online enrollment will not be an option for all those who need to enroll through the exchange so strategies must also include opportunity for face-to-face discussions and applications through, for example, kiosks in central locations, mail, phone and the current Medicaid/CHIP enrollment options. These outreach and enrollment efforts should also involve community-based provider agencies that serve the uninsured, including community-based behavioral health agencies.
Question 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 the Exchange or Medicaid/CHIP application information to determine eligibility for all three programs?
- For those who will be applying through the Exchange, one of the key aspects of the new law is the call for the States to create a “no wrong door” process. The ACA clearly and explicitly states that the enrollment and renewal processes for exchange subsidies and Medicaid/CHIP be fully integrated. This is not just a call for the Exchange enrollment process to include referrals to other programs that might be options for an individual or a family, but is a requirement that Exchanges be capable of accomplishing the enrollment in Medicaid or CHIP. This process needs to be streamlined and seamless to the individual applying. Utilizing the Medicaid agency to process eligibility and enrollment forms may be the best solution to assuring that individuals are made aware of which programs they qualify for and are enrolled accordingly. Utilizing the support and expertise of the private sector, community agencies and the States together to inform and guide individuals and families will provide the collaborative effort necessary to propel applicants to the Exchange to successfully seek coverage.
- This kind of coordination will require a strong information technology infrastructure and an interoperable system for eligibility determinations that allow linkages between the Exchanges, Medicaid and CHIP. There will need to be state resources to provide the support required to verify eligibility, information retained for renewal and be able to track individuals across different programs. There may need to be federal resources as well to assure the seamless process that will allow the ease of application and enrollment across programs and plans.
- The need for seamless navigation will require a high level of coordination between the federal and state entities with the federal government providing guidance and technical assistance.
- Develop simple and efficient procedures for individuals and families to report “change of circumstances” when it is appropriate. With the consent of the applicant, automatic enrollment in an appropriate program should be available without requiring additional information. A one year federal eligibility for Medicaid/CHIP will reduce the “churning” effect of these programs.
- Identify ways to coordinate care as people move between systems. Achieving the best coordination possible between exchange coverage and Medicaid and CHIP may require that some plans in the Exchange also serve Medicaid and CHIP beneficiaries. This will allow for overlapping provider networks and if the plans are required to facilitate transition between plans, this will reduce the difficulty for those in the middle of treatment.
- Develop “safe harbors” of default Medicaid coverage for people that may be between Medicaid/CHIP and the Exchanges. An example would be when someone is deemed ineligible for Medicaid and exchange subsidies because of differences in how the programs calculate and verify eligibility data.
Question 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?
Experience is often the best teacher, or at least one of the best tools, and states have had a great deal of experience in creating, implementing and managing enrollment programs, outreach activities and educational efforts through Medicaid and CHIP. While there is no one route to what is most effective and data is not as prevalent as we may wish on what works and what does not, experience should provide states with some sense of what a successful model may look like. There is support to show that a successful model will include one-to-one contact and accessible assistance for individuals and families. There is also experiential evidence to suggest that the use of community based organizations and application “assistors” are integral to getting to some of the harder-to-reach families who struggle with low literacy or may have limited English proficiency.
- Finding opportunities for States to share successful campaigns and efforts would allow for the dissemination of good and workable ideas.
- The informational efforts of the States should go beyond just exchange coverage to include insurance market reforms, premium tax credits and cost-sharing reductions but should also provide information on Medicaid/CHIP.
Question 2: What resources are needed for the Navigator program? To what extent do States currently have programs in place that can be adapted to serve as patients Navigators.
Financial resources are needed in order to have an effective Navigator system in the states. Additionally, training must be provided for patient Navigators on the new provisions that impact consumers. Some programs exist within the disability community to help individuals navigate the systems such as the Disability Program Navigator currently funded by the U.S. Department of Labor to help individuals with disabilities who are seeking employment. For example, the Social Security Administration funds planning specialists to help individuals navigate the complex Social Security system and become employed. In addition, specific training on cultural competency and working with individuals with disabilities should be required.
Question 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?
- A robust campaign based in Federal and state resources can be focused on community-based groups and assistance with the application process. This could be accomplished by working through advocacy groups, community based disability service providers, schools, churches, and labor unions. An important tool is creating trusted messengers such as teachers or health care providers to impart the messages in their communications and supplying employers with comprehensive information to be shared through the workplace. This also may include paid media to provide easily understandable and accessible information on enrollment and application.
- Other public programs can also be good sources of information and connection to application and enrollment. For example, many states have eligibility criteria for publicly funded mental health service programs that are at (or below) the standards for subsidized coverage offered through the exchanges. Likewise, an application for unemployment benefits, for example, should trigger a review for other programs that maybe helpful such as Medicaid/CHIP.
1. The need for explicit recognition and enforcement of the essential health benefits requirements of the Exchanges. This includes the requirement that comprehensive mental health and substance use disorder benefits, at parity with medical/surgical benefits, be covered by all plans participating in the Exchanges.
NAMI is extremely pleased that the ACA requires an essential benefits package for all health plans in the individual and small group markets, and that all such plans will be required to cover mental health and substance use disorder services, at parity with medical/surgical services, as essential benefits. These important reforms will both improve the health of millions of Americans and their families and save the health care system many millions of dollars.
As implementation moves forward, NAMI recommends clarity with respect to the essential benefits package as a central component of the Exchanges, enforcement of the benefits requirement as a priority. At this early stage of development, the Department needs to make clear to states and health insurance plans that the ACA requires a robust benefits package for mental health and substance use disorders that includes the full range of mental health treatment, including early intervention, rehabilitative and recovery support services, and that limits on benefits be no more restrictive than those allowed under the Wellstone/Domenici Mental Health Parity and Addiction Equity Act of 2008 and that law’s corresponding regulations.
In addition, the Department should develop strong enforcement mechanisms to ensure that all qualified health plans meet the essential health benefits and MH/SUD parity requirements.
2. Enforce strong consumer protections for qualified health plan enrollees to ensure that individuals can easily obtain access to the type, level, and duration of care they need.
NAMI is pleased that the ACA requires health insurance Exchanges to ensure that participating health plans meet a number of critically important consumer protection requirements. It is important to integrate enforcement of the strongest possible consumer protections. Specifically, determinations about who needs what services, levels of care, and lengths of stay should be made by treatment professionals that have met with the patient, and medical management tools such as utilization review, criteria for review and approval of evidence-based treatment services, preferred provider networks, and preauthorization be used appropriately and not be used to deny needed care. The medical management criteria and utilization review tools should also be made available in a transparent manner to service providers to ensure patient access to appropriate care.
Exchanges should also enforce strong transparency requirements to ensure that criteria and reasons for denial of care are disclosed and subject to a meaningful, independent review process that includes examination of plan benefit utilization patterns and enables individuals to effectively challenge a denial.
3. Ensure that coverage is easily accessible for those eligible to receive coverage through the Exchange, and that the Navigator programs are sufficiently funded and staffed to facilitate the enrollment process for those individuals for whom the process may be more burdensome and those transferring between Medicaid eligibility and the Exchanges.
The ACA requires the Exchanges to establish and maintain certain procedures for enrolling eligible individuals into a qualified health plan. The Exchanges should develop strong enrollment facilitation tools and procedures to ensure that all who are eligible to participate in the Exchanges are able to easily access coverage. This is especially important for individuals with mental health and/or substance use disorders, since they are more likely to have difficulties navigating a complicated system.
In developing the Exchanges, the Department should work to ensure that coverage is easily accessible and that all necessary tools are in place to facilitate enrollment. The Navigator programs should include training on working with diverse populations with diverse health needs, including people living with mental illness. Navigators should receive specific training and work closely with consumer groups to ensure that individuals with chronic health conditions, including mental illness and substance abuse conditions, are connected to health insurance coverage that is appropriate for their needs.
In addition, individuals with living with untreated mental illness are less likely to have stable, long-term employment and are more likely to be involved in the criminal justice system. Therefore, the Department needs to ensure that the Exchanges are designed with attention paid to those who may be uninsured, transferring between private and public health insurance, or transitioning out of the criminal justice system. In particular, the Department should encourage State Medicaid programs to utilize the presumptive eligibility option to allow certain qualified providers to grant short-term eligibility and receive federally matched Medicaid reimbursement for care provided to individuals who appear Medicaid eligible.
4. Ensure a strong outreach and education component to implementation and ongoing administration of the Exchanges, targeted to the public, eligible employers, and service providers to ensure sufficient access to coverage and benefits.
Successful implementation of the Exchanges will require a strong outreach and education component to ensure that eligible individuals and employers understand how to access coverage and services. Successful implementation will also require strong outreach and education directed towards health providers, including mental health and substance abuse providers, to ensure that they understand how to help patients access coverage and care and identify violations of their rights as consumers.
In addition, it is important for Exchanges to partner closely with healthcare providers and other community-based organizations and service providers to identify the uninsured and facilitate their enrollment into appropriate health coverage.
5. Ensure that governing boards and others tasked with developing and administering the Exchanges include individuals with expertise regarding the unique needs of individuals with mental health and/or substance use disorders. In particular, administrators of State and federal substance use disorder and mental health programs should be included in the development and management of the Exchanges.
As states and the Department consider the governance structures, requirements, and composition of bodies governing and advising the Exchanges, NAMI would urge the inclusion of State, federal, and nongovernmental experts, including those with experience in mental health services.
The governing boards of each State-based health insurance Exchange, regardless of whether the Exchange is governed by a State agency or non-profit organization, should include individuals with expertise regarding the unique needs of individuals with mental health and/or substance use disorders. Specifically, the governing membership of each State-based Exchange should include administrators of State substance use disorder and mental health agencies. Administrators of publicly funded mental health and substance abuse disorder services should also be consulted in the development and design of the Exchanges in their State.
Appropriate federal administrators and other experts should be included in the development and governance of the Exchanges administered federally, including those with expertise regarding the unique needs of individuals with mental health and substance use disorders. Specifically, NAMI would urge the inclusion of (and consultation with) the Director of the National Institute of Mental Health (NAMI) and the Administrator of the Substance Abuse and Mental Health Services Administration (SAMHSA) as experts on the governing membership of the federally administered Exchanges.
6. Develop the Exchanges in a way that easily facilitates and encourages the participation of large employer plans, if States elect to include issuers of health insurance coverage in the large group market beginning in 2017.
The ACA allows states to open the Exchanges to the large group insurance market beginning in 2017. The goals of the ACA to foster competition, lower costs, and ensure strong patient and consumer protections will be best met by large, effectively managed Exchanges that successfully pool risk and work for the benefit of enrollees. The Department needs to ensure that the Exchanges develop in a way that encourages large group health plans to participate when they become eligible to do so, with the ultimate goal of ensuring the strong consumer protections and health benefit requirements apply to all plans in the individual, small, and large group markets.
NAMI appreciates the opportunity to provide comments on the planning and establishment of health insurance Exchanges under the ACA.
Submitted electronically at www.regulations.gov