Earlier this week, NAHU submitted a letter in response to Centers for Medicare and Medicaid Services’ (CMS) Request for Information (RFI) seeking recommendations and input from the public to help stabilize and strengthen the individual and small group health insurance markets by creating a more flexible and streamlined approach to the regulatory structure. They are seeking to identify, eliminate, or change regulations related to the ACA that are outdated, unnecessary, ineffective, impose costs that exceed benefits, or create inconsistencies that otherwise interfere with regulatory reform initiatives and policies. This request for comments follows the executive order President Trump issued on his first day in office urging the administration to reduce the ACA’s regulatory burden as well as the administration’s issuance of the market stability rule. The RFI was organized in four sections listed below along with NAHU’s corresponding comments:

Recommendations to Empower Patients and Promote Consumer Choice

• We suggest that CMS thoroughly review all of its policies about consumer assistance for individual market health insurance exchange consumers provided by agents, navigators, assisters, application counselors, call center personnel and any other outward-facing support groups. We suggest much more uniform treatment of such groups by CMS and that CMS embrace collaboration amongst the various support roles, rather than shunning it. We urge CMS to evaluate all of its existing programs with an eye towards cost, effectiveness and potential duplication of services.
• NAHU strongly recommends that HHS exempt health insurance agent and broker commissions from an issuer’s MLR calculation. Alternatively, we propose that CMS revise existing rules so that issuers may consider agent and broker commissions as quality-improvement expenses and not administrative costs.
• In addition to our recommendations regarding the MLR regulation, NAHU believes that CMS should require that health insurance issuers who offer to pay independent agents a commission for their work at the beginning of a plan year may not eliminate or reduce that commission mid-year.
• Issuers and the marketplace should provide plan designs to certified and licensed professionals, such as agents and brokers, at least two weeks in advance of the beginning of open enrollment.
• NAHU urges CMS to reconsider its policies on marketplace redeterminations and reenrollments and strongly suggests that auto-reenrollments be prohibited.
• NAHU requests that the broker of record associated with that marketplace account be notified of the reenrollment and/or redetermination at the same time as the consumer, so that the agent can proactively address any issues.
• Before finalizing the open enrollment window for 2019 and beyond, NAHU encourages HHS to spend time reviewing data from the preceding five open enrollment cycles to determine what works and what does not. To give all health insurance consumers in each of the three distinct market segments (Medicare, marketplace, and employer renewals) the customer service support they all need and deserve, we encourage HHS to maintain at least some separation between the three open enrollment periods, as is achieved with the current proposed dates of November 1-January 31.
• NAHU suggests a complete review of the use and application of the terms eligibility, loss of coverage and enrollment by HHS, as well as an internal review of call center procedures and how to improve upfront attempts by HHS of employer coverage eligibility verification.
• To maintain consistency with existing state policies for other coverage and prevent the risk-pool instability that results when individuals sign up for coverage, receive care and incur claims but do not ultimately make premium payments, NAHU urges CMS to change the grace period length for APTC recipients from 90 to 30 days.
• Since there are such significant potential financial consequences for Medicare-eligible individuals who do not enroll in Medicare on a timely basis, we suggest much stronger coordination between CMS’s marketplace operations and the Medicare program. NAHU strongly suggests disallowing passive reenrollment for individuals whose birthdate indicates that they are likely Medicare-eligible.

Stabilizing the Individual, Small Group and Non-traditional Health Insurance Markets

• NAHU recommends that CMS build on its recent extension of “grandmothered plan” relief and formally state that the federal transition policy will remain in effect until further notice and the Trump Administration will not rescind it until comprehensive PPACA statutory improvements are both law and fully implemented.
• NAHU urges HHS to attempt for actuarial value calculator consistency in the coming years. We also propose that HHS allow issuers to use either the preceding year’s calculator or the upcoming year’s calculator when submitting their QHP plan designs for approval.
• NAHU suggests that CMS issue regulatory guidance to require all issuers to utilize the IRC §4980H applicability standard for the purposes of determining which employer group market a group may enter and which participation standards to apply.
• HHS should exempt any employer that can document that it is subject to IRC §4980H regardless of employee count from having to meet small-group participation requirements at any time during that plan year.
• NAHU would appreciate clarification from CMS that issuers may only impose renewal-participation requirements on business groups subject to IRC §4980H if state law requires a minimum participation standard for such employers.
• Guidance is needed to ensure that carriers accommodate individual enrollments of newly eligible employees based on satisfaction of either the monthly measurement or look-back measurement method. Many insurer systems cannot accommodate these new rules, resulting in individuals being classified as late enrollees and denied coverage until the next open enrollment. Employers have no means of preventing these issues and have no recourse against IRC §4980H excise penalties in all of these cases.

Enhancing Affordability

• NAHU urges CMS to use whatever discretion it has to expand the current age rating bands of 3:1 in the individual and small group markets.
• In regards to the final rule implementing prohibition of discrimination under §1557 of the ACA, NAHU recommends that HHS revise the final rule so that only entities directly under the control of HHS must comply with these new requirements.  NAHU also recommends that HHS develop a clear communication strategy for affected employer groups.
• As a means of encouraging plan design innovation and reducing premium costs, NAHU recommends that HHS explore means of providing individual states with greater authority relative to EHB subcategories and plan design approval.
• NAHU calls on HHS to encourage the principles of transparency, consumerism, health and wellbeing wherever possible by exposing more quality and price information in all programs under its jurisdiction, including Medicare, Medicaid, the Children’s Health Insurance Program and health insurance exchanges. HHS can do this by prioritizing providing Americans with more informative, consumer-friendly healthcare cost, and quality data and tools.
• NAHU recommends that HHS reopen its wellness program rules to integrate them with the EEOC requirements. In doing so, NAHU suggests that HHS allow consistency in the application of wellness program discounts by basing all discount values on the cost of the premium of the policy elected by a participating employee. Furthermore, NAHU recommends that HHS consider expanding upon its existing PPACA wellness rules and allowing premium variation discounts of up to 50 percent simply for wellness program participation, as is permitted by statute.
• In regards to the Obama Administration’s proposed 5500 rule, NAHU suggests that HHS urge the Departments of Labor and Treasury to finalize this proposed rule with vast modifications.  With regard to health benefit plans, NAHU urges the Trump Administration, in the strongest of terms, to eliminate the new proposed “Schedule J” reporting in a final rule and also restore the reporting exemption for small welfare plans (i.e., fewer than 100 participants) that provide group health benefits. Additionally, we encourage you to allow a reporting exemption for health plans that qualify for the small plan exception (e.g. retiree medical plans) and those that are excepted benefits under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (e.g. dental, vision, and health flexible spending accounts). Such exemption should apply even when such a health or welfare plan is part of a wrap plan with a group health plan.
• NAHU believes that the IRC §§6055-56 reporting process could be substantially improved to the benefit of both employers and issuers, the administration and affected health insurance consumers. Additionally, NAHU asks HHS to urge the Department of Treasury to extend the IRC §§6055-56 regulatory deadline permanently for issuers and employers to distribute Forms 1095 B and C to individuals to March 1 of each year and to submit them to the IRS to March 31 annually.
• NAHU suggests that HHS communicate with the Department of Treasury to urge them to discontinue the practice of requiring HRAs to calculate and pay PCORI fees separately as this policy is increasing the cost and compliance burden.
• NAHU strongly urges the Trump Administration to continue the Obama Administration’s policy of not issuing regulations for §105(h) Non-discrimination Provisions.
• While the Department of Treasury is the lead agency responsible for this proposed rule, clearly the effect of IRC §125 on group benefit plans impacts both HHS and the Department of Labor, and now we can also see the impact of the ACA on §125 plans. NAHU recommends that HHS urge the Department of Treasury to consider reviewing, potentially revising and then reissuing the proposed §125 rule in the near-term future, with the goal of finalizing the rule under the Trump Administration. Not only would finalizing these rules provide compliance certainty to employee benefit plans, but also a careful review of the rule might yield opportunities for the Trump Administration to provide employees and group benefit plans with new forms of cost and tax relief.
• NAHU strongly urges the Trump Administration to continue the Obama Administration’s policy of not issuing regulations to require expanded compliance with W-2 reporting for smaller employers for at least the next four years and to make that policy publicly known as soon as possible.

Affirming the Traditional Regulatory Authority of the States in Regulating the Business of Health Insurance

• One area where we believe the Obama Administration overstepped its authority and diminished the role of the states involved the proposal of new requirements that supplemental policies, travel insurance and hospital indemnity and other fixed indemnity insurance coverage must meet to maintain their status as excepted benefits.
• Under the Obama Administration in 2016, HHS and the Departments of Labor and Treasury also created significant new requirements for short-term, limited duration health insurance policies, partly to preserve the health of the individual market risk pool. However, our members have concerns that this regulation made attempts at SEP fraud worse by limiting coverage choices for consumers who used to buy short-term coverage to meet a gap in their group coverage options and never intended to seek individual market coverage. Furthermore, since the primary responsibility to regulate short-term policies rests within the states, NAHU feels that the Obama Administration exceeded the bounds of its regulatory authority in this area.
• While short-term medical policies only represent a small fraction of health insurance policies sold, they always had a clear purpose—to serve as a bridge to other more comprehensive coverage options. NAHU believes states did an excellent job regulating short-term policies for decades, including by imposing appropriate durational limits. The current federal regulation is inappropriate, unnecessary and is having a very detrimental impact on consumers.
•  NAHU urges HHS to work with the Departments of Labor and Treasury to rescind its joint 2016 efforts to regulate short-term health plans and instead encourage the NAIC to continue its work.