Washington Wire: January 2022

Readers of the Washington Wire will have noticed that HFA publishes a lot of posts about “copay accumulator adjuster programs” (CAAPs). This is a weedy but important topic! CAAPs are a strategy used by insurers to redirect the value of manufacturer copay assistance – which is supposed to help patients afford their share of their drug costs – away from patients and toward the insurer’s own bottom line. The insurer achieves this by accepting the manufacturer copay assistance but then refusing to credit those dollars toward the patient’s deductibles and out-of-pocket maximum. When the available copay assistance dollars are fully used up, the patient ends up facing a potentially unaffordable and unexpected bill for their next prescription refill. This leaves many in an untenable position: skip their refill, abandon their treatment plan, and/or turn to the ER for treatment of acute bleeding.
CAAPs are unfair, bad for patient health, and harmful to families’ financial security. Combating CAAPs is therefore a top priority for HFA and for many other patient organizations.
That battle is being waged on multiple fronts. HFA and allied patient groups are working to pass state-level laws that protect patients enrolled in ACA and small group coverage. We are advocating for the passage of H.R. 5801: federal legislation that would apply across all 50 states, requiring insurers (including self-funded plans) to count all copay amounts paid by or on behalf of an enrollee toward that individual’s OOP costs. And, in January 2022, HFA asked federal regulators to rein in CAAPs as part of our comments on the 2023 Notice of Benefit and Payment Parameters (NBPP), a set of proposed federal rules laying out ACA-related requirements for Marketplace and other health plans.
The 145-page NBPP covers a host of important topics – plan network adequacy, essential health benefits requirements, LGBTQ nondiscrimination, risk adjustment, and much more – but does not expressly address copay accumulator adjusters. HFA, in coalition comments, weighed in on many of the broad issues raised by the NBPP. In two separate comments (with the All Copays Counts Coalition, and in a joint HFA-NHF submission), HFA focused specifically on CAAPs, calling on regulators to prohibit this harmful and discriminatory practice.

Quick hits:

• The Open Enrollment period for 2022 ACA coverage has ended in most states, including in the 33 states that use the federal healthcare.gov Marketplace. The U.S. Centers for Medicare & Medicaid Services (CMS) announced that a record-breaking 14.5 million Americans signed up for 2022 ACA coverage between Nov. 1, 2021 and January 15, 2022, representing a 21 percent increase in enrollment over last year’s OEP. The rise in enrollments is attributed to restored funding for marketing and outreach, as well as the temporary expansion of premium subsidies under the American Rescue Plan Act.Open enrollment opportunities continue past January 31st in three states that operate their own Marketplaces (MD, CO, and NY). And, as always, eligible individuals can enroll in Medicaid, or in ACA insurance via a special enrollment period, year-round in all states.
• Federal patient protections against the practice of surprise medical billing went into effect on January 1, 2022. Hospitals and other health care providers can no longer bill patients for amounts larger than their in-network cost-sharing for most emergency care, or for care from an out-of-network provider delivered at an in-network facility. Patients who believe that they were incorrectly billed, in violation of these protections, can appeal using the ACA’s external appeals processes.The Texas Medical Association and other provider groups have sued the U.S. Department of Health and Human Services, claiming that the agency’s implementing rules go beyond the statutory language of the No Surprises Act. HFA has joined with a dozen other patient advocacy groups to file “friend of the court” briefs defending the rules.
• On January 14, HHS Secretary Xavier Becerra again renewed the official determination that COVID-19 constitutes a national public health emergency. The renewal of this declaration means that HHS-granted waivers and other COVID-related flexibilities remain in effect; it also means that the federal government will continue to provide extra federal funding to state Medicaid programs. So long as states accept that enhanced funding, they cannot disenroll existing beneficiaries from their Medicaid programs.
• The South Dakota Secretary of State announced that an initiative to expand the state’s Medicaid program will appear on the ballot in November 2022. South Dakota is one of 12 states that still have not expanded their Medicaid programs to cover all low-income adults. Voter-approved ballot initiatives have been the vehicle for Medicaid expansion in six states to date (ME, UT, ID, NE, OK, and MO), and have been approved everywhere that they have been allowed to come up for a vote.
• The state of Georgia is suing the Biden Administration over CMS’s revocation of Georgia’s plan to impose work reporting requirements and premium payments on certain Medicaid beneficiaries. Georgia had secured approval, in the waning days of the Trump Administration, of a plan that included partial Medicaid expansion, subject to additional limits in the form of work and premium requirements. The Biden Administration determined that Georgia’s proposal would not achieve the purposes of the Medicaid program.
• The fate of the Build Back Better Act (including the extension of enhanced ACA premium subsidies, and a fix for the Medicaid coverage gap) remained up in the air at the end of January. Some reports suggest that Congressional Democrats will try to pare the measure down to secure its passage.