Comment on a proposed rule

The Center for Medicare and Medicaid Services (CMS) has a proposed rule that seeks to alter the playbook for the 2022 ACA plan year.  They are taking comments on the rule through this afternoon.

I’m commenting on the rule on two fairly narrow aspects as I have significant expertise and knowledge on those two aspects.

Commenting on federal (and state) rule-making is important.  It is an act of citizenship and engagement when you have the knowledge and perspective to add something to the conversation.

Comments on rules are important for several reasons beyond active and engaged exercises of citizenship.

First, it is a way to have some democratic accountability of the executive branch.  Interested stakeholders can petition for redress of their grievances and bring about their particular and peculiar expertise to a subject that the government may or may not have as much in-depth knowledge. Sometimes comments can point out “DOH” moments to the agencies and allow for course correction.

Secondly, notice and comment is a core component of the Administrative Procedure Act (APA).  The APA governs most of the rule-making regulatory state.  A core APA tenet is rule-making entities can only implement final rules when the rules are neither capricious nor arbitrary.  If comments identify a significant consequence or assumption of the rule that is not addressed in the final rule response to comments, that is good evidence that the rule may be flawed….

If you have specific expertise or interest in anything that the Federal government touches, be ready and willing to comment.

Regulations.Gov is the nation’s one stop shop for commenting on proposed rules.

The best comments have a few common themes.  First, they identify a specific set of issues within a proposed rule.  Then the authors establish their expertise and illustrate why they have some capacity to offer valuable insight into the problem.  And then evidence is brought to bear on the relevant points.

There are thousands of Jackals with unique expertise in some field that is relevant to federal rule making at some point in time, so when you see something that is in your wheelhouse, comment on that rule.

My comment letter is below the fold:

July 28, 2021

To whom it may concern;

I would like to comment on matter CMS-9906-P, Patient Protection and Affordable Care Act: Updating Payment Parameters, Section 1332 Waiver, Implementing Regulations and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule. I am a research associate at the Duke University Robert J. Margolis Center for Health Policy with a research focus on the Affordable Care Act. I would like to comment on several matters.

1. We also propose to repeal the separate billing regulation at § 156.280(e)(2),

I am supportive of reducing administrative burden for enrollment and maintenance of enrollment in the FBM and SBMs. Some of my current, ongoing research has found that the requirement to set up a single payment account for positive, non-zero premium plans can lead to significant enrollment loss due to a significant non-financial transaction and hassle cost.1 Prior research has found, on Healthcare.gov, the presence of a zero premium plan led to a 14% increase in enrollment for individuals earning between 151-200% Federal Poverty Level within a county.2 While these studies do not speak directly on the matter of $1 separate payment for non-Hyde voluntary abortion coverage, they do speak on the importance of minimizing transaction costs for individuals who have expressed a concrete preference to initially enroll and then maintain enrollment in health insurance coverage.

2. We propose extending FFE open enrollment to end on January 15 of the applicable year, rather than December 15 of the previous year beginning with the 2022 coverage year and beyond.

While I have advocated for extending open enrollment periods (OEP) to span the New Year in order to give households an opportunity to correct good faith errors as well as change choices after automatic re-enrollment is effectuated, I believe that the department would be wise to delay implementation of this proposed change until the 2023 coverage year.3 Insurers have already filed initial rates and QHP applications. There is a very short window to update modest errors and make minor strategic changes. An extended open enrollment period that spans the New Year will lead to a significantly different composition of the risk pool, while also changing marketing requirements and customer support needs. An unanticipated policy shock could lead to significant administrative costs for insurers. I recommend the inclusion the extended OEP in the upcoming proposed 2023 NBPP.

I also recommend that a new Special Enrollment Period (SEP) be created for a restricted class of individuals who were automatically re-enrolled into plans that have a net premium increase of at least $10 per member per month in 2022 compared to 2021 as well as a SEP for individuals who had chosen a plan with a positive premium before the end of the current OEP but were unable to effectuate the chosen plan by January 1, 2023. Both SEPs would run to January 15, 2023 with policies becoming active on February 1, 2023. The intent would be to give a second chance for error correction to individuals and households that have expressed a willingness and a preference to purchase insurance but who had been tripped up during the process.1

Sincerely,

David Anderson

References

1. Drake C, Cai S-T, Anderson D, Sacks DW. Financial Transaction Costs Reduce Benefit Take-Up: Evidence from Zero-Premium Health Plans in Colorado. Social Science Research Network; 2021. doi:10.2139/ssrn.3743009
2. Drake C, Anderson DM. Terminating Cost-Sharing Reduction Subsidy Payments: The Impact Of Marketplace Zero-Dollar Premium Plans On Enrollment. Health Aff (Millwood). 2020;39(1):41-49. doi:10.1377/hlthaff.2019.00345
3. Drake C, Anderson D. Next Year, Extend Open Enrollment Of The ACA Marketplaces Into January. Published February 18, 2021. Accessed July 28, 2021. https://www.healthaffairs.org/do/10.1377/hblog20210211.159357/full/