8/5/19 “Direct Enrollment” in Marketplace Plans Raises ... · • Insurers that sell...

“Direct Enrollment” in Marketplace Plans Raises Concerns for Consumers

Sarah Lueck and Claire McAndrewNAIC Consumer RepresentativesAugust 5, 2019

Slide Show Consumer Liaison Committee

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What is "Direct Enrollment?"• In general, brokers and agents, including web brokers,

can sell Marketplace plans if they meet federal and state requirementsand complete a certification process.

• Some broker and insurer websites have gotten approval to conduct"direct enrollment" in states that use the Federally Facilitated Marketplace(FFM). This means they can use their own websites to help people applyfor Marketplace plans and subsidies.

• In Direct Enrollment, a consumer starts out on the broker or insurerwebsite, is transferred electronically to the Marketplace to apply foreligibility, and is then transferred back to the broker or insurer website tocomplete plan selection.

• Two primary entities (Health Sherpa and Stride Health) currently haveapproval to conduct "Enhanced Direct Enrollment, in which peoplecomplete the eligibility and plan selection processes at the non-Marketplace website. Insurers use those entities’ services too.

• This presentation focuses mainly on "direct enrollment" through the FFM.

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ACA Marketplaces• Operated by the federal or state

government.• Display all qualified health

plans the person could buy.

• Provides "no wrong door"eligibility process that helpspeople to connect with a QHP(including with subsidies) or withMedicaid or CHIP if they areeligible.

Non-Marketplace Websites• Operated by online broker

companies or insurers.• May not display all plans that are

available to the person or all planinformation.

• May lead consumers to the ACAeligibility application, but in somecases website features may leadconsumers to non-ACA plans orfail to connect them with otherhealth care programs they areeligible for.

Different Standards Can Lead to Disparate Consumer Experiences

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Direct enrollment websites may sell non-ACA-compliant plans

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See: Tara Straw, “Direct Enrollment in Marketplace Coverage Lacks Protections for Consumers, Exposes Them to Harm,” CBPP, March 15, 2019. https://www.cbpp.org/sites/default/files/atoms/files/3-15-19health.pdf


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Some DE sites may ask for personal information and use it to market other products

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Direct enrollment sites may provide inaccurate or incomplete eligibility details

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Direct enrollment sites may reduce consumers’ ability to compare plan details

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States Can Use Their Authority to Protect Consumers and Insurance Markets

• Know which entities are selling insurance in your state if you don’t already.• Which web brokers, brick and mortar brokers, and insurers are selling

qualified health plans “through the Marketplace” using websites otherthan the Marketplace website? (through DE and EDE)

• Which brokers and insurers are selling off-Marketplace or non-ACA-compliant plans in ways that may confuse consumers?

• Notify consumers about the differences between the officialmarketplace/exchange site and other websites.

• Inform consumers about how to contact you with complaints or concerns.• Consider state standards for plan display that will promote competition on

price and quality and help consumers more easily compare the plansavailable to them.

• Consider improving state standards to ensure consumers are fullyinformed about the coverage they may be eligible for, including Medicaid,CHIP, and subsidized QHPs.

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Sarah [email protected]

www.cbpp.org

Claire [email protected]

www.families.org


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HHS Proposed Rule on Non-Discrimination in Private

Health Insurance

NAIC Summer MeetingAugust 2019


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Presenters

• Carl Schmid, The AIDS Institute, ([email protected])• Luc Athayde-Rizzaro, National Center for Transgender Equality

([email protected])• Silvia Yee, Disability Rights Education and Defense Fund

([email protected])

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mailto:[email protected]

mailto::[email protected]


Presentation Focus

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Disability Discrimination(including formulary design)

Sex Discrimination

National Origin Discrimination

Defining Discrimination and Impact on

Consumers

Highlighting Federal

Rollbacks

Identifying Gaps and

Areas of State Regulatory

Action


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Section 1557 of the ACA• Section 1557 prohibits discrimination based on race, color, national origin, sex,

age or disability in any health program or activity that receives federal financialassistance

• Section 1557 incorporates existing Federal civil rights laws and applies them tofederally funded health care programs:• Title VI of the Civil Rights Act of 1964 (race, color, national origin)• Title IX of the Education Amendments of 1972 (sex)• Section 504 of the Rehabilitation Act of 1973 (disability)• Age Discrimination Act of 1975 (age)

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Section 1557 Regulations: Who is Covered

• Any entity that receives federal financial assistance, including:

• Insurers that sell Marketplace plans, Medicare Advantage plans, Medicare Part D plans, and/or Medicaid managed care plans

• Health insurance marketplaces• State agencies that provide Medicaid and CHIP

coverage• Entities that receive Medicare or Medicaid

payments (e.g., hospitals, nursing facilities, home health agencies, CHCs, FQHCs, etc.); public health agencies

• HHS health programs (CMS, CDC, etc.)

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Section 1557 Regulations: Benefit Design

• 92.207 (b)Discriminatory actions prohibited. A covered entity shall not, inproviding or administering health-related insurance or other health-relatedcoverage:

• (1) Deny, cancel, limit, or refuse to issue or renew a health-relatedinsurance plan or policy or other health-related coverage, or deny or limitcoverage of a claim, or impose additional cost sharing or other limitations orrestrictions on coverage, on the basis of race, color, national origin, sex,age, or disability;

• (2) Have or implement marketing practices or benefit designs thatdiscriminate on the basis of race, color, national origin, sex, age, ordisability in a health-related insurance plan or policy, or other health-relatedcoverage;

. . .

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Section 1557 Regulations: Who is Covered

• Any entity that receives federal financial assistance, including:

• Insurers that sell Marketplace plans, MedicareAdvantage plans, Medicare Part D plans, and/orMedicaid managed care plans

• Health insurance marketplaces• State agencies that provide Medicaid and CHIP

coverage• Entities that receive Medicare or Medicaid

payments (e.g., hospitals, nursing facilities, homehealth agencies, CHCs, FQHCs, etc.); publichealth agencies

• HHS health programs (CMS, CDC, etc.)

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Section 1557 Regulations: Benefit Design

• 92.207 (b)Discriminatory actions prohibited. A covered entity shall not, in providing or administering health-related insurance or other health-related coverage:

• (1) Deny, cancel, limit, or refuse to issue or renew a health-related insurance plan or policy or other health-related coverage, or deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, on the basis of race, color, national origin, sex, age, or disability;

• (2) Have or implement marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability in a health-related insurance plan or policy, or other health-related coverage;

• ...

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Impact of Proposed Rule• Removes Definition of “Covered Entity”

• Limits applicability and scope (i.e. plans that need to comply)• Removes Explicit Benefit Design & Marketing Practices Protection

• Although exists elsewhere, but rests with Secretary enforcement (e.g., 42U.S.C. § 18031(c)(1)(A))

• More difficult for consumers to know their legal rights and responsibilities• Clear Guidance Needed to protect against discriminatory benefit design

• E.g. Put Rx to treat same condition on highest tier, excessive utilizationmanagement, not covering certain Rx

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Sex Discrimination


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Discrimination against transgender consumers

Over 1.5 million Americans are transgender, and many face barriers to health care:• One in three (33%) avoided going to a doctor when needed in the last

year because of cost.• One in four (25%) faced insurance discrimination in the last year,

including being denied preventive tests, care related to gender transition,and other necessary care because of being transgender.

Source: U.S. Transgender Survey, 2015 (n=27,715)

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Section 1557 transgender protections

• Prohibits discrimination on the basis of sex (Title IX)

• Includes:• Sex stereotypes• Gender identity

• 2016 Final Rule clarifies protections and obligations for insurers and transgender consumers

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Section 1557 transgender protections

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• Plans cannot categorically exclude all services relatedto gender transition

• Plans cannot exclude or limit services in any other waythat discriminates against transgender consumers

• Consider whether service is covered for otherconsumers/conditions, medical necessity

Transgender-specific Exclusions

• Must ensure transgender consumers are not deniedtests or treatments solely based on gender coding

• Solutions can include special claims modifier; flaggingwith prompt review

Services Typically Associated with One

Gender

Section 1557 Final Rule


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Regulatory Action on Sex Discrimination

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• 19 states and D.C. have issued bulletins or regulations prohibiting broad or categorical exclusions of care related to gender transition

• Bulletins are based on state laws on sex and gender identity discrimination, unfair insurance practices, and mental health parity, in addition to federal law

State Department of Insurance Bulletins

• States have reviewed plans to ensure they did not contain improper transgender exclusions

• States have responded to consumer complaints on denial of medically necessary care, reached agreements on recurring improper denials or criteria

State enforcement

Pro-Active Review and Protections


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Transgender-Specific Exclusions

• Only 8 insurers in 5 states (6%) hadtrans exclusions

• 41% of plans had affirmative coveragelanguage

• 24.8% had broad cosmetic exclusions

• 10% had no info available

• Guides available at:out2enroll.org/2019-cocs

2019 marketplace analysis: 622 silver plan options from 129 insurers in 38 states


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https://out2enroll.org/2017-cocs/

Sex discrimination on 2019 NPRM

• Erases all references to the ACA’s protections against discrimination on the basis of gender identity

• Erase all references to long-standing Supreme Court precedent recognizing protection from discrimination on the basis of sex stereotypes

• Erases all references to gender identity and sexual orientation in several other long-standing HHS regulations (including QHPs, marketplace)

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Sex discrimination on 2019 NPRM

• Proposed rule cites Franciscan Alliancepreliminary injunction on HHSenforcement of gender identity portionsof the rule

• Several other federal courts to considerthe issue arrived at opposite conclusion

• Courts have also found plain language ofACA includes gender identity protections,regardless of HHS interpretation

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Recent federal court cases• Flack v. Wis. Dep’t of Health Servs., No. 3:18-cv-00309-wmc

(W.D. Wis. July 25, 2018) (holding that a Medicaid program'srefusal to cover treatments related to gender transition is “text-book discrimination based on sex” in violation of the AffordableCare Act)

• Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016) (holdingtransgender exclusion invalid under the Medicaid Act and theAffordable Care Act)

• Prescott v. Rady Children’s Hosp.-San Diego, 265 F.Supp.3d 1090(S.D. Cal. Sept. 27, 2017) (holding that discrimination againsttransgender patients violates the Affordable Care Act)

• Tovar v. Essentia Health, No. 16-cv-00100-DWF-LIB (D. Minn.September 20, 2018) (holding that Section 1557 of the AffordableCare Act prohibits discrimination on the basis of gender identity)

• Boyden v. Conlin, No. 17-cv-264-WMC, 2018 (W.D. Wis.September 18, 2018) (holding that a state employee health planrefusal to cover transition-related careconstitutes sex discrimination in violation of Title VII, Section 1557of the ACA, and the Equal Protection Clause). 26


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Expected impact of NPRM• Create uneven playing field in the

insurance market and confusion among payers about their obligations

• Encourage insurance companies to deny coverage for health care services that they cover for non-transgender people.

• Discourage transgender patients from seeking coverage in the first place or appealing denials

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National Origin and Disability Discrimination


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LEP Related Healthcare DisparitiesPoor provider communication with LEP patients:• Decreases rates of medication adherence, patient satisfaction, & patient-

centered care• Increases negative clinical experiences, risks of errors, health disparities,

& malpractice exposure• In a 2016 survey of over 4500 hospitals, only 56% offered some level of

linguistic/translation service, a 2% improvement over a 2011 survey• 97% of physicians in a 2008 survey said they have at least some LEP

patients

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Disability-Related Healthcare DisparitiesAdults with disabilities:

• 58% more likely to experience obesity• 3 times more likely to be diagnosed with diabetes• 4 times more likely to have early-onset cardiovascular disease• Nearly 3 times more likely to have not accessed needed health care

because of cost and twice as likely to have unmet mental health needs.Non-discriminatory benefit design helps reduce the uninsurance rate and increasing the likelihood of having a regular health care provider.

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Language and Disability Changes

• Weakens the individualized standards for when oral interpretation and written translation is required for meaningful access

• Eliminates requirement for notices & taglines in a state’s top 15 languages spoken by LEP persons

• Eliminates the prohibition against discrimination on the basis of association

• Seeks comment on current standards on provision of (1) auxiliary aids & services & (2) architectural standards relevant to people with disabilities

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State Regulator Considerations• 1557 law and regulations remain the law of the land

• Finalized rule would be open to litigation and increase marketuncertainty

• Effective notice of consumer rights is a key concern of all state regulators• States have and can pass their own discrimination and patient protections• States must uphold and enforce existing federal and state laws and

regulations

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State Regulator Considerations Cont’d

• Regulators should consider submitting your own comments• Sign-on Commissioner letter on transgender protections• Provide information on outcomes of non-discrimination and disparity-

related measures in your state• Provide examples of discrimination cases and investigations brought

in your state• Include any data on the development and operation of state

measures to reduce language, structural accessibility, or disabilitycommunication barriers among healthcare providers and entities inyour state

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Questions and Discussion

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How Can Regulators Protect Consumers Shopping for Short-Term Health and Other Limited

Benefit Products?

Jackson WilliamsNAIC Consumer Liaison Committee

August 5, 2019


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Loss Ratios for Specified Disease, Group Market

0

10

20

30

40

50

60

70

80

90

100

2009 2010 2011 2012 2013 2014 2015 2016 2017

Loss Ratio


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Short Term Products Are Represented Online in Confusing and Misleading Ways

• Health insurance is already confusing toconsumers.

• The concept of insurance that lacks ACAprotections adds confusion.

• The presentation of insurance products on thetwo key aggregator websites understates the keydifferences between “short term” products andreal health insurance.


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Problem #1: Creating Inflated Impressions of the Products’ Protections


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Inflated Impressions:A. This Is a PPO?

This is in fact a fixed indemnity product.


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Inflated Impressions:B. 36 Months of Coverage?

You are selecting a 12 month policy term with an auto reapply option that will allow you to extend your coverage by 2 additional terms. Your deductible and coinsurance and all benefit limits will reset with each policy term. If you have not selected the Pre-Existing Conditions Waiver or if the Waiver is not available for your plan, then medical conditions developed during your prior term may not be covered by your additional terms. Prices may change at the start of each new policy. You can cancel anytime.

(This language appears when you click on icon; it is not visible on main page.)


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Inflated Impressions:C. $2,000,000 Policy Limit?


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Problem #2: Limitations for Most Common Unexpected Illnesses


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Cholecystectomy (Gallbladder): #1 operating room procedure ages 18-44Hysterectomy: #2 operating room procedure ages 18-44Appendectomy: #3 operating room procedure ages 18-44Knee Arthroplasty: #1 operating room procedure ages 45-64 Rupture of the Achilles tendon is a common injury that causes significant morbidity. Research suggests that, over the past several decades, the incidence of rupture is increasing. Current estimates show an incidence of 2.66 ruptures per 1000 person-years, or about 18 ruptures (range 8.3-24) per 100,000 population. Frequency is highest in 30-39 age group.


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Average price of Appendectomy in U.S: $13,910Source: International Federation of Health Plans 2013 Comparative Price Report.


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Recommendation for Regulators

• Set some standard of comprehensiveness that must be met if products are marketed as “Short Term Health Insurance.” Products that do not meet the standard should be marketed as “Limited Benefit Insurance.”


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Problem #3: Need for Uniform ExamplesSlide Show

Consumer Liaison Committee 8/5/19

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Recommendations for Regulators

• Promulgate uniform “coverage facts examples” showing the most common procedures in 18-64 age group and realistic statements of actual charges that consumers would face.

• Prescribe uniformity in display of other attributes, such as bottom-line prices, out-of-pocket maximums, where variations make price comparisons impracticable.


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The Overarching Problem: Lack of Price Competition in This Market


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The Overarching Problem: Lack of Price Competition in This Market


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Give Consumers Ways of Assessing Product Value and Comparing Products

• Require loss ratios to be disclosed at pointof sale.

• This is not unprecedented: statutes in twostates require this for major medicalinsurance.

• A number between 0 and 100 provides asimple reference point for comparing value.


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Disclosure of Loss Ratio at Point of Sale

• Connecticut: Sec. 38a-477c. Disclosure of medical loss ratio with each health insurance application. An insurer or health care center shall include a written notice with each application for individual or group health insurance coverage that discloses such insurer's or health care center's medical loss ratio, as defined in subsection (b) of section 38a-478l, as reported in the last Consumer Report Card on Health Insurance Carriers in Connecticut, to an applicant at the time of application for coverage.

• District of Columbia: § 31–3311.03. Loss ratio disclosure. Policies, certificates, and marketing materials shall prominently display medical loss ratio disclosure, as defined by rule.


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Engaging Consumers to Design education,

Information, & Disclosures

Karrol Kitt, University of Texas

Brenda Cude, University of Georgia

August 2019 National Meeting


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Consumer Testing

• The gold standard is formal consumer testing• Cognitive interviewing• Structured focus groups• Online testing, surveys

• But it isn’t always practical

7/26/2019 NAIC Consumer Liaison


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The Question

• How to engageconsumers in designingconsumer information,education, or disclosures?



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How States Engage with Consumers without Formal Consumer Testing

• Direct Feedback

• Partnerships

• Web Usability Testing



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What States Learn by Engaging with Consumers

• Consumer Attitudes

• Content Areas

• Organization of Content

• Content Itself



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What NAIC Can Do• Include consumer testing in its process when creating consumer

information, education, or disclosures

• Update Best Practices and Guidelines for Consumer InformationDisclosures paper



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Questions/Thank you

Karrol Kitt and Brenda [email protected]

[email protected]



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