Comments influence policy (NBPP 2021 edition)

Last night, the Department of Health and Human Services  released the final rule for the Notice for Benefit and Payment Parameters -2021 (NBPP 2021).  The NBPP is the ACA exchange play book for the year.  It deals with risk adjustment, it deals with plan structure, it deals with schedules and administrative details.  It also has language on how automatic renewals will work.  It is a big document that has meaningful, real world impact in the decisions that are made.  Since it is a federal rule, it needs to go through the notice and comment process as laid out by the Administrative Procedure Act (APA).  The APA requires a federal rule to lay out a draft, give enough time for interested entities to comment and then the rulemakers have to respond to the substantive comments.

One of the draft policy proposals in NBPP was to change automatic renewal for individuals who would qualify for zero premium plans.  Current (2015-2020) policy is that if a current year buyer defaults into a zero premium plan they are automatically re-enrolled into a zero premium plan unless there is an active choice on the part of the buyer.  The draft 2021 rule would have changed that procedure.  Instead of allowing the subsidy amount to cover the entire premium of the plan, CMS wanted to crosswalk these folks into plans that are not eligible for subsidies so that the default premium was the gross premium which would be hundreds or thousands of dollars more per month.

Lots of people, scholars and organizations wrote many comments opposing this policy change.  Below is part of the comment that I wrote in conjunction with Dr. Coleman Drake and Ms. Petra Rasmussen (soon to be Dr. Rasmussen). 

We offer our comments on the proposal to change the rules for automatic re-enrollment schemas for individuals whose default plan in the coming year will be a zero premium plan (i.e., a plan that is 100% Essential Health Benefit (EHB) with a premium of zero dollars after applying premium tax credits). We believe that the proposed rule change for automatic re-enrollment of individuals with zero premium plans will lead to roughly 80,000 people losing their coverage….

The proposed rule to map individuals who would otherwise qualify for a zero premium plan into a plan that does not have advanced premium tax credits applied will increase administrative expenses for insurers, reduce convenience for consumers, and move the Exchange out of concordance with broader industry practices.

First, insurers will face higher administrative costs….

This rule will not make the re-enrollment process more convenient for consumers.

We have performed a policy simulation on the basis of publicly available data from the 2019 plan year with the assumption that the proposed rule would have been in place for the 2020 automatic renewal process… Building on our previous work and assuming no other policy changes occur, we would estimate 138,240 individuals would re-enroll in their zero premium plan for the next benefit year. However, if we assume that the proposed rule is implemented as currently written we estimate that only 58,050 individuals would re-enroll. Thus, over 80,000 individuals would lose coverage due to the increased administrative burden that would be imposed by this proposed rule.

This proposed rule is also orthogonal to typical industry practices.  Zero premium plans are quite common in the Medicare Advantage market segment….

This particular element of the proposed rule will lead to 80,000 or more individuals losing coverage due to increased administrative burden. We strongly urge CMS to continue to apply the current automatic re-enrollment rules for all enrollees for the 2021 benefit year.

Evidently CMS listened as they outline the automatic re-enrollment policy changes for 2021 in the final rule:

Automatic Re-enrollment Process
In the proposed rule, we solicited comment on whether we should modify the automatic re-enrollment process such that any enrollee who would be automatically re-enrolled with APTC that would cover the enrollee’s entire premium would instead be automatically re-enrolled without APTC or with some lesser amount of APTC. We are not finalizing changes to the automatic re-enrollment process in this rule…

Comment: All but one commenters on this request for comments opposed modifying the current automatic re-enrollment processes for a variety of reasons. Many believed that adopting the proposed changes could disadvantage the lowest income group of Exchange enrollees by taking away financial assistance for which they are eligible without evidence that they are at greater risk of incurring overpayments of APTC. Others questioned HHS’s legal authority to apply an amount of APTC other than that determined in accordance with section 36B of the Code and sections 1411 and 1412 of the PPACA. Some commenters were specifically opposed to any requirement that State Exchanges modify their automatic re-enrollment processes because it would require costly IT system reconfigurations, consumer noticing changes, and additional investments to support increased Exchange customer service capacity that would be necessary to address consumer confusion caused by the change…

Response: In light of commenters’ overwhelming opposition to changing our automatic re-enrollment process, we will not change the current process at this time…

It is good citizenship to comment on rules when you have particular expertise and interest on the subject matter. Sometimes the government will listen, sometimes they won’t and sometimes the entire point of the comment is to create a record for future litigation. In this instance, the government listened to the point that my co-authors and I as well as dozens of other interested parties made on automatic re-enrollment policies.