All ACA Marketplaces Create New Special Enrollment Periods Due to COVID-19

All 15 of the state-based Marketplaces (SBMs) created pursuant to the Affordable Care Act have established a COVID-19 Special Enrollment Period for 2021 following the Biden Administration鈥檚 decision to reopen the federally-facilitated Marketplace (FFM) from Feb. 15 through May 15.

SBMs can create their own rules and deadlines for the COVID-19 SEP and many decided to do so. For example, deadlines in Minnesota, Massachusetts and New York run through May 17, May 23, and May 31 respectively (while the District of Columbia runs through all of 2021).聽 However, Idaho and Connecticut have shorter deadlines than the FFM (extending only through March 31 and April 15 respectively). In addition, SBMs may not all allow current enrollees to switch plans (as is allowed under the COVID-19 SEP rules for FFMs) and some are open only to those currently uninsured.

Total Marketplace enrollment spiked during the ongoing COVID-19 pandemic, with sign-ups during the 2021 regular open enrollment period breaking 12 million for the first time since 2017. Now, an additional 206,000 Americans have enrolled in ACA coverage just in the first two weeks of the COVID-19 SEPs, tripling the special enrollment rate of previous years.

In addition to reopening the FFM, the federal government also announced that it would provide states with $50 million for marketing and outreach, including $2.3 million earmarked for navigators and other enrollment assisters.聽 The Trump Administration had slashed this funding by 90 percent.

COVID Relief Bill Temporarily Makes Coverage More Accessible for Most Income Groups

The American Rescue Plan (ARP) signed into law on March 11 by President Biden greatly expands the accessibility and affordability of health plans offered in the ACA Marketplaces, at least for the next two years. It also provides a full subsidy for COBRA coverage through September 2021 (or until the end of the enrollee鈥檚 COBRA eligibility, whichever comes first) and creates new incentives for holdout states to participate in the ACA鈥檚 Medicaid expansion.

The ARP addresses the 鈥subsidy cliff鈥 by (temporarily) granting premium subsidies on a sliding scale for those earning above 400 percent of FPL (roughly $106,000/year for a family of four). According to a Kaiser Family Foundation analysis, this move dramatically lower premiums for those eligible for the Marketplace but unable to afford coverage. Per the Congressional Budget Office, the subsidy boost is expected to provide coverage to more than two million uninsured Americans by the end of 2022. For example, for a Wyoming family of four earning $110,000 per year, the new subsidies would reduce their premium cost for a benchmark silver tier plan from about $2,500 per month to less than $780 per month.

The ARP also makes anyone who receives unemployment benefits at any point during 2021 automatically eligible for ACA premium subsidies. This provision effectively closes the 鈥渃overage gap鈥 that trapped low-income people who live in states that have not yet expanded their Medicaid programs. (People living in those states lack access to Medicaid, yet also could find themselves ineligible for ACA subsidies if they earned below 100 percent of FPL.) For 2021, the ARP deems individuals who receive unemployment benefits to earn enough to qualify for the highest level of premium subsidies and cost-sharing reductions, regardless of their actual earnings.

The expanded ARP subsidies are set to expire after two years (even earlier, in the case of the subsidies tied to receipt of unemployment benefits). However, four states currently supplement the premium subsidies available under the ACA and several are considering legislation to do so. California extends subsidies all the way up to 600 percent of the federal poverty level (about $76,000/year for an individual). New Jersey allows for additional subsidies for those eligible for ACA subsidies (100-400 percent of FPL), while only those earning up to 300 percent of FPL are eligible for supplemental subsidies in Massachusetts and Vermont.

The Washington state legislature is expected to pass legislation this session (H.B. 5377) that would provide state-subsidies for those earning up to 500 percent of FPL. Legislation has also advanced in New Mexico (H.B. 122) that would create a health insurance premium surtax to be used for the same purpose (though a subsidy threshold has not been specified).

For 2021, four states (plus DC) also continue to mandate that residents purchase minimum essential coverage they can afford.聽 In California, New Jersey, Rhode Island, and D.C., the penalties are largely the same ($695/adult or 2.5 percent of household income) as the individual mandate under the ACA (whose tax penalty was zeroed out by Congress in 2017).聽 However, the penalty in Massachusetts ranges from $250-$1,150 depending on income.

The Biden Administration indicated that it plans to extend the public health emergency through the end of the year, meaning that the temporary 6.2 percent increase in federal matching funds that states received under COVID relief legislation passed last year by Congress will continue through that time. However, the ARP provides non-expansion states with an extra five percent FMAP bump for two years as an incentive to expand their Medicaid coverage to all low-income adults. This is a significant sweetener: a state would receive more than two times what it would cost the state to participate in the ACA Medicaid expansion.

More Than 20 States Considering Bills to Prohibit Harmful Copay Accumulators

At least 21 states are considering legislation this session that would prohibit health plans from pocketing the cost-sharing assistance provided by manufacturers (or non-profit foundations) and refusing to credit it to the subscriber鈥檚 cost-sharing obligations.

According to a recent study from Avalere Health, about 83 percent of all commercial health plan enrollees are now subject to some form of 鈥渃opay accumulator adjusters鈥, which can disrupt a patient鈥檚 access to life-saving treatment with little or no advance notice. Despite surveys from groups like MME Advisers showing that more than half of health plans acknowledge accumulators negatively impact patient adherence to drug therapies, their use has exploded since initially appearing among a handful of plans in 2017.聽 The AIDS Institute March 2021 report gives a state-by-state breakdown of which plans are currently applying accumulators.

Four states (Arizona, Illinois, Virginia, and West Virginia) responded to this trend by enacting laws in 2019 prohibiting the use of accumulators in state-regulated health plans. Georgia and Puerto Rico followed suit last year and lawmakers in Kentucky (S.B. 45), New Mexico (H.B. 129), and Oklahoma (H.B. 2678/S.B. 92) appear already on the verge of doing so this session.

Accumulator bills have also advanced in states like Arkansas (H.B.1569), Connecticut (S.B. 336), Maryland (H.B.167/S.B. 290), Michigan (H.B. 4353), New York (S.5299), Ohio (H.B.135), Oregon (S.B. 560), and Tennessee (S.B. 1397).聽 However, legislation died in both Nebraska and South Dakota, and may be postponed until next year in California due to the focus on COVID-19. Bleeding disorders organizations including HFA and HFA member orgs are actively advocating for passage of this protective legislation.

The legislation has broad bipartisan support nationwide with opposition largely limited to the insurance industry: insurers insist that cost-sharing assistance distorts the market and incentivizes consumers to purchase higher-cost brand name medications. However, insurer arguments ignore the fact that for most consumers requiring specialty drug treatments (including clotting factor products) there are no lower-cost generic alternatives available.

A recent analysis from The AIDS Institute also shows that newly implemented laws prohibiting accumulators in Arizona and Virginia had no substantive impact on health plan premiums.

Most States Seek to Make Telemedicine Flexibilities Permanent

The use of telemedicine skyrocketed over the past year, enabling patients to consult with their providers on a virtual basis during the COVID-19 pandemic. The federal Centers for Medicare and Medicaid Services (CMS) approved temporary waivers last spring giving states the ability to pay for telemedicine visits under state health programs through methods that were previously disallowed.聽 This included allowances for audio-only conferences and the use of out-of-state providers that states have only a limited ability to regulate.聽 CMS also provided parity in Medicaid payment levels between telemedicine and traditional medical care.

Due to this emerging popularity, most states are currently considering multiple bills to expand the availability of telehealth on a permanent basis following the expiration of the public health emergency.聽 Legislation has advanced or is expected to pass in at least Arizona (H.B. 2454), Arkansas (H.B. 1063), California (A.B. 457), Colorado (S.B. 212), Florida (S.B. 700, S.B. 864), Georgia (H.B. 307), Indiana (S.B. 3), Kentucky (H.B. 140), Maine (S.P. 255), Minnesota (S.F. 1160), Mississippi (H.B. 200,1205), Missouri (H.B. 495), Oregon (H.B. 2508), Pennsylvania (H.B. 642), Rhode Island (S.4), 聽Vermont (S.117), Virginia (H.B. 1987, S.B. 1307), and West Virginia (S.F.3).

However, the expansion of telemedicine has not been without controversy. The limitations on telemedicine were largely put into place to combat fraud, as both Medicare and Medicaid have limited ability to ensure that telemedicine is being provided by legitimate and/or licensed providers.聽 As a result, the Office of the Inspector General (OIG) for the U.S. Department of Health and Human Services criticized the Medicare program for expanding telemedicine without the appropriate regulatory safeguards, noting that it led to “dramatic” and 鈥渧ery predictable鈥 spike in fraudulent claims.聽 For example, the U.S. Department of Justice announced just last fall that it prosecuted a record $4.5 billion in telemedicine fraud for FY2020, attributing much of it to anti-fraud guardrails being removed during the pandemic.

Patient advocates, meanwhile, are focused on key principles for telehealth/telemedicine including expanding coverage to all payers, creating parity in reimbursement/cost-sharing for telemedicine and traditional care, and broadening Internet access to rural/poorer communities to ensure they can consult with treatment centers remotely.

More States Eyeing Medicaid Expansion Through Ballot Measures

Following upon the success of Oklahoma and Missouri last year, consumer advocates in several states are pursing ballot referendums that would let voters decide in 2022 whether their state should expand Medicaid coverage to all low-income adults under the ACA .

A dozen states are still refusing to participate in the ACA expansion. Three of these states (Florida, Mississippi, and South Dakota) can put the matter to voters without legislation. Advocates in Florida and South Dakota already received state approval for their expansion referendums and are nearing the number of signatures needed to have the issue certified for the ballot. However, Mississippi efforts remain in the early stages.

In Texas, Rep. Lyle Larson (R) filed H.B. 1730 and H.J.R. 86 this session in an effort to put a Medicaid expansion referendum on the ballot as early as this November. In doing so, he became the first Texas Republican to sponsor Medicaid expansion legislation since 2013. Texas has the lowest adult Medicaid eligibility level in the nation (at only 17 percent of FPL) and by far the highest rate of uninsured (roughly 35 percent of those under age 65).聽 Medicaid expansion would bring coverage to nearly one million Texans, leading nearly 70 percent of Texas voters (and the state鈥檚 provider associations) to support it.

A recent survey of non-expansion states showed that expansion is only likely to occur through voter referendums, notwithstanding the additional funding provided by the American Rescue Plan (see above). Kansas lawmakers recently rejected an amendment to expand Medicaid despite the support of Governor Laura Kelly (D). Georgia did likewise. In Wyoming, Senate leaders are refusing to allow a floor vote on Medicaid expansion legislation passed in committee (S.F. 154)鈥攄espite projections by the Wyoming Department of Health showing it would bring the state a net gain of $62M in federal funding per year.

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