Office of the President Mark S. DeFrancesco, MD, MBA, FACOG December 18, 2015 Andrew Slavitt Acting Administrator Centers for Medicare and Medicaid Services Department of Health and Human Services Hubert H. Humphrey Building 200 Independence Avenue, SW Washington, DC 20201 Re: CMS-9937-P; Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017 Dear Administrator Slavitt: On behalf of the American Congress of Obstetricians and Gynecologists (ACOG), representing over 58,000 physicians and partners in women s health, I am pleased to offer these comments on the Centers for Medicare and Medicaid Services (CMS) Notice of Benefit and Payment Parameters for 2017. ACOG supports the goals of the Affordable Care Act (ACA) to expand women s access to continuous and meaningful health insurance coverage. Implementation of the ACA should ensure that women s unique health needs are being met, and it is with that goal in mind that we make the below recommendations on the benefit and payment parameters. 155.400. Enrollment of Qualified Individuals into QHPs. ACOG supports the proposal to give insurers flexibility to adopt a premium payment threshold policy to prevent enrollees who owe a de minimus amount of a premium from entering into a grace period or having their enrollment terminated. The grace period penalizes ob-gyns and other providers who provide care to patients who are in arrears with their insurance coverage. Reducing the number of patients who may enter into a grace period and be unable to pay their medical bills is advantageous to the women we care for and our Fellows. ACOG Recommendation: Adopt the proposed regulation as written allowing insurers to set premium payment thresholds to keep enrollees from entering a grace period. 155.420. Special Enrollment Periods. ACOG maintains that CMS has the authority to create a special enrollment period for pregnancy in line with the regulatory discretion that the agency exercised when creating a special enrollment period for victims of domestic violence and spousal abandonment. ACOG firmly believes pregnancy should be a qualifying life event (QLE) that triggers a special enrollment period (SEP). Although pregnancy is not in statute, as noted in the preamble to the final rule 77 FR 18309, ACOG believes that CMS is not precluded from adding pregnancy as a QLE through regulation. Pregnancy has long been viewed as critical juncture when timely access to care is essential as evidenced by the original eligibility categories in Medicaid and THE AMERICAN CONGRESS OF OBSTETRICIANS AND GYNECOLOGISTS WOMEN S HEALTH CARE PHYSICIANS 409 12TH STREET SW, WASHINGTON DC 20024-2188 Phone: 202/638-5577 Internet: http://www.acog.org
other federal social service programs that were targeted at improving the health and wellbeing of pregnant women and their babies. It is inconsistent with these hallmark public health and insurance programs that pregnant women are now treated differently in the marketplaces. A pregnancy SEP would ensure that women do not experience gaps in insurance coverage during this major life transition, and that they can choose a coverage level that best suits their health and financial needs. For example, if a woman holds coverage through a catastrophic plan that has a high deductible that applies to maternity services, she should have the option to change her coverage tier. Women in plans with a low actuarial value will need more comprehensive coverage so they can access maternity and prenatal care, but are left with few options for affordable coverage if they become pregnant outside of the open enrollment period. Comprehensive and timely prenatal care helps ensure women have access to essential screening and diagnostic tests; services to manage developing and existing problems; and education, counseling, and referrals to reduce risky behaviors. Such care has been demonstrated to improve the health of both mothers and infants. Adding pregnancy as a QLE that triggers an SEP would also create alignment with Medicaid and the Children s Health Insurance Program (CHIP). Furthermore, we recommend that all qualifying events for SEPs required inside of exchanges apply to the individual and small group markets outside of an exchange. ACOG Recommendation: Designate pregnancy as a qualifying life event that triggers a special enrollment period during which pregnant women can pick or change health plans. 155.605. Eligibility Standards for Exemptions. ACOG supports adopting the hardship exemptions that have previously been put forward in subregulatory guidance in regulation. In particular, ACOG believes that there must be exemptions available to those experiencing domestic violence to ensure that women are not penalized for circumstances that are beyond their control and who were unable to enroll in coverage. ACOG also supports allowing hardship exemptions for women enrolled in pregnancy Medicaid coverage that has been deemed non-minimum essential coverage (MEC) or covered under the Children s Health Insurance Program s (CHIP) unborn option since many women may not realize that their coverage election is not MEC. ACOG also supports the proposal to allow individuals to obtain a hardship exemption if they live in a non-expansion state and have good reason to believe that they would not qualify for coverage, even without having to receive a denial from their Medicaid agency. While the ACA has improved and simplified the application process for applicants, it is still burdensome to require individuals to apply for coverage when such an application is likely futile. ACOG appreciates that CMS is putting forward this commonsense policy in the absence of Medicaid expansion in all states. Adopt the proposed hardship exemption scenarios that have previously been put forward in sub-regulatory guidance. Adopt the proposed regulation as written allowing individuals living in Medicaid nonexpansion states to receive a hardship exemption without first having to apply for and be denied Medicaid coverage. 156.20. Standardized Options 2
ACOG supports CMS proposal to create standardized bronze, silver, and gold plans to improve consumers ability to make informed plan selections. ACOG encourages CMS to prohibit standardized plans from having more than one tier of in-network providers; more than one tier would increase consumers confusion about cost-sharing requirements for in-network ob-gyns and other providers. ACOG also recommends including women's health services, both primary and specialty care, in the deductible-exempt set of services to encourage women to choose a standardized plan. It is imperative that CMS make standardized plans easily distinguishable from other plans offered on the federally-facilitated exchange (FFE) and that consumers are aware that such plans exist. ACOG strongly encourages CMS to create an easy to find and use sort function for standardized versus non-standardized plans available on the window shopping feature and the application portal on FFEs. Create standardized options for bronze, silver, and gold plans. Require standardized plans to only have one level of in-network providers. Include women s health services in the deductible-exempt set of services. Integrate a sort function to make it easier for consumers to compare standardized plans in the window shopping and application portals on FFEs. 156.230. Network Adequacy Standards. State Selection of Minimum Network Adequacy Standards. ACOG appreciates that CMS is putting forward more robust network adequacy standards for qualified health plans (QHPs) offered on the FFE. ACOG agrees that, for states that agree to review network adequacy and adopt standards that meet or exceed those developed by the National Association of Insurance Commissioners, CMS should defer to the States certification of FFE plans. However, ACOG strongly encourages CMS to monitor enforcement on an ongoing basis to ensure that states are providing appropriate oversight and that plans are complying with the states standards. Where states do not review network adequacy of plans in the FFE, CMS should adopt network adequacy standards that include not only time and distance standards, but also appointment wait times. While there might be an ob-gyn in close physical proximity to where a woman lives, that does not mean she can initiate care in a timely manner. ACOG recommends creating appointment wait time standards for prenatal care, abortion (for plans that cover this service), and family planning services and supplies, because of the time-sensitive nature of these services. To promote alignment with other federal programs and simplicity for consumers, we believe that the many of the network adequacy standards ACOG previously put forward in response to the notice of proposed rulemaking for the Medicaid managed care program should also be adopted in QHPs. 1 For prenatal care, time standards should be based on trimester of pregnancy. For women in their first trimester who have not initiated prenatal care, prenatal appointments should be available within 5 business days. For women in the second or third trimester who have not yet initiated prenatal care, prenatal appointments should be available within 1 business day. As with prenatal care, abortion access time standards should also vary by trimester. For women in their first trimester, women should be able to have an appointment within 3 business days. For women in their second trimester or beyond, an appointment should be available within 1 business day. Because of the 1 Medicaid and Children s Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability, 80 Fed. Reg. 31098 (June 1, 2015). (amending 42 CFR Parts 431, 433, 438, et al.) 3
wait time restrictions imposed by many states, it is essential that women be able to make an initial appointment for termination as early as possible to avoid more complicated procedures. Women seeking family planning care should be able to make an appointment within 5 business days. While ACOG supports alignment across federal programs, the network adequacy standards that govern Medicare Advantage plans are not sufficient to meet reproductive-aged women s needs and would require modification to meet a younger population s needs. CMS should clarify that the network adequacy for direct access to obstetrical and gynecological care codified under 45 CRF 147.138(a)(3) is the standard that plans must abide by when monitoring and assessing access, not the lesser protection found in the Medicare Advantage regulations under 42 CFR 422.112(a)(3) that only allows for direct access to routine and preventive care obstetric and gynecological care. In the Letter to Issuers, ACOG requests that plans be required to annually monitor access to obstetriciangynecologists (ob-gyns). There is a need to monitor access to obstetric and gynecological care as evidenced by a review of plans conducted by researchers at Harvard University that found out of the 135 silver-level qualified health plans offered on the federally-facilitated marketplace in 2015, two had no obgyns in-network within a 100 mile radius. 2 Any plans lacking ob-gyns are discriminatory in nature and will deter women from purchasing coverage of such plans and unfairly limit women s access to meaningful coverage. Allow states to review and monitor network adequacy using NAIC standards as the minimum measures of adequacy. Adopt a network adequacy framework based on time, distance, and appointment wait times standards for health plans offered in states that do not review plans access. Reaffirm in regulation that women have direct access to obstetric and gynecologic care, not just routine and preventive services. Require plans to evaluate access to ob-gyns. Additional Network Adequacy Standards. ACOG supports the requirement that QHP enrollees must be notified when a contracted provider is no longer in their plan s network regardless of cause. ACOG concurs that a good faith effort 30 days prior to the termination or as soon as practicable is an appropriate standard for notifying enrollees who see the terminated provider on a regular basis. ACOG encourages CMS to define regular basis, at least as it pertains to ob-gyns, as a claim with a date of service occurring within the previous twelve months to align with ACOG guidelines on annual well-woman exams. 3 ACOG requests that ob-gyns be one of the specialty types that plans must notify enrollees about if an ob-gyn is terminated from a plan s network regardless of whether the female enrollee has a separate primary care provider. ACOG is extremely pleased that CMS is requiring QHPs to provide transitional periods in plans when a provider is terminated without cause, particularly the transition period for women in the second or third trimester of pregnancy. ACOG requests CMS clarify in regulation that pregnant women are allowed to stay with their primary ob-gyn as well as their Maternal-Fetal Medicine (MFM) specialist if they have a 2 Dorner, S. C., Jacobs, D. B., and Sommers, B. D. (2015). Adequacy of outpatient specialty care access in marketplace plans under the Affordable Care Act. JAMA. 314: 1749-1750. 3 Guidelines for women s health care: a resource manual. American College of Obstetricians and Gynecologists. 4 th ed. 4
high-risk pregnancy. Only permitting a woman to stay with her primary ob-gyn would be of limited utility if she is being co-managed by an MFM. Additionally, in response to CMS request for comment, ACOG believes that a transition period for pregnancy should extend 60 days postpartum and end on the last day of the month of the 60-day period for ob-gyns and MFMs, if applicable. This would align with the standard postpartum eligibility period available under Medicaid and would give women flexibility when scheduling or rescheduling a postpartum appointment four to six weeks after delivery, which is the ACOG-recommended interval. 4 Additionally, ACOG strongly encourages CMS to allow women to stay with their ob-gyn if they are in their second or third trimester or in active treatment and they change QHPs or move from another source of coverage, such as Medicaid, into a QHP. Whether an ob-gyn is in-network is only one factor that women consider when selecting a plan. Cost-sharing structures or other factors, like whether another provider is in-network, may have a greater influence on plan selection. For example, a pregnant woman with diabetes may be unable to find a plan that includes both her ob-gyn and endocrinologist, and will be forced to choose which one she wants to stay with when she would ideally like to keep seeing both for the duration on her pregnancy. Women in these situations need the added protection of being able to stay with their ob-gyn if they change plans or coverage sources during pregnancy or in active treatment for a transitional period in the same way that CMS is allowing women to keep seeing their ob-gyn if the physician is dropped from the network. ACOG supports the proposal to require QHPs to count cost-sharing for an out-of-network essential health benefit service delivered in an in-network setting toward the enrollee s annual limit. This protection will help ensure that care is affordable, particularly for pregnant women who deliver at an in-network hospital by in in-network ob-gyn but receive an epidural from an out-of-network anesthesiologist. ACOG believes it would be extremely difficult to operationalize the alternative proposal of notifying an enrollee beforehand of a service that might be delivered by an out-of-network provider in an in-network setting, and of little utility in emergency situations. ACOG appreciates the proposal to survey contracted providers on an intermittent basis to see whether they are taking new patients. ACOG does not oppose this method of determining access, but urges caution when developing this policy to ensure that the implementation of this process is not administratively burdensome for ob-gyns and other providers. Additionally, ACOG believes that QHP issuers should make tiering criteria available to CMS and states upon request regardless of the type of exchanges that the plans are operating on. Furthermore, ACOG strongly encourages CMS and states to review tiering information to ensure that plans do not have discriminatory network designs. ACOG urges CMS to include ob-gyns in any network breadth calculations and distinguish them as their own specialty category, since ob-gyns provide both primary and specialty care. ACOG also recommends distinguishing whether an ob-gyn provides obstetric, gynecologic, or both types of care in the network breadth analysis. ACOG also strongly encourages CMS to make these calculations and supporting data publically available. Adopt in regulation the requirement that plan issuers must notify enrollees when an ob-gyn is dropped from the network if the ob-gyn is seen on a regular basis. 4 Guidelines for perinatal care. American Academy of Pediatrics and American College of Obstetricians and Gynecologists. 7 th ed. 5
Define in regulation that regular basis constitutes a claim with a date of service in the previous twelve months for ob-gyns. Adopt in regulation a transition period for women in active treatment or their second or third trimester of pregnancy if their ob-gyn or Maternal-Fetal Medicine specialist is dropped from the plan s network without cause. Define the transitional period for pregnancy as extending 60-days postpartum and ending the last day of the month of the 60-day period. Require plans to provide a transitional period for enrollees switching plans or sources of coverage if they are undergoing active treatment or in their second or third trimester of pregnancy. Adopt in regulation the requirement that plans must count cost-sharing for essential health benefits provided by an out-of-network provider in an in-network setting toward the plan s out-of-pocket maximum. Require plans to make network tiering criteria available to CMS and states. Require plans to include ob-gyns as a separate specialty category in network breadth calculations. Make network breadth calculations and supporting data publically available. 156.235. Essential Community Providers. ACOG supports the calculation of essential community providers (ECPs) that CMS puts forward for the 2017 plan year. Counting the number of facilities that are deemed ECPs, rather than the number of fulltime equivalent (FTE) providers employed therein, is an appropriate measure of access. ACOG disagrees with the proposed change to count the number of FTE providers irrespective of the practice location toward the number of ECPs in the practice area and whether the plan has met its ECP network requirements. ACOG strongly encourages CMS to maintain the formula for calculating the number of ECPs in a service area and plan s network the same in plan year 2018 and beyond. ACOG Recommendation: Maintain the same process for determining the number of essential community providers in a service area and a plan s network in regulation for 2017 and beyond. Again, thank you for the opportunity to comment on the proposed rule on Notice of Benefit and Payment Parameters for 2017. We hope you have found our comments helpful. Should you have any questions, please contact Elizabeth Wieand, ACOG Health Policy Analyst, at ewieand@acog.org or 202.863.2544. Sincerely, Mark S. DeFrancesco, MD, MBA, FACOG President 6