ACA Round-Up: Navigator Grantees, GAO Investigation, Contraceptive Mandate, And More

As we await potential new health care legislation from Capitol Hill and the release of several major new federal rules, the Biden administration continues to advance its priorities under the Affordable Care Act (ACA). This post summarizes navigator grantees for 2022, updates to HealthCare.gov operations for those receiving unemployment compensation, a new investigation of agents and brokers on HealthCare.gov, planned rulemaking for the contraceptive mandate, and additional guidance on direct enforcement (DE) entities, risk adjustment, and more.

CMS Announces New Navigator Grantees

On August 27, 2021 CMS announced $80 million in grants to 60 organizations to serve as navigator grantees beginning with the 2022 plan year. The 60 navigator grantee organizations will be able to train and certify more than 1,500 navigators to help uninsured consumers in the 30 states that use the federal marketplace. The history of the navigator program, funding, and implementing regulations are described in detail in prior posts.

This is the largest-ever funding allocation for navigators and a significant increase from the $10 million in annual funding in recent years. It also doubles the number of navigator entities from 30 organizations for 2021 to 60 organizations for 2022. These gains notwithstanding, this number remains below 2018 when more than 80 organizations served as navigators (and below CMS’s expectation of issuing 85 to 120 awards). Entities may not have had enough time to apply given a short application window.

Navigator grants are awarded from August 27, 2021 to August 26, 2024, with the expectation of $80 million in funding per year. However, funding for subsequent years (i.e., beyond the initial budget period that extends to August 26, 2022) is contingent on the availability of funds and compliance with the award. Funding varies by state and ranges from a minimum of about $245,000 in Hawaii to $14.4 million in Florida. Several states will have more than one navigator entity for the first time in several years, and all 30 states with the federal marketplace will have at least one navigator entity.

Consistent with the Biden administration’s navigator funding announcement, grantees will focus on outreach to underserved or vulnerable communities. This includes people of color, people in rural communities, LGBTQ people, American Indians and Alaska Natives, refugee and immigrant communities, low-income families, pregnant women and new mothers, people with transportation or language barriers, people who lack internet access, veterans, and small business owners.

HealthCare.gov Enrollment For Those With Unemployment Compensation

The American Rescue Plan Act (ARPA) extended marketplace subsidies to those who have received or been approved to receive unemployment compensation at any time during 2021. For those who qualify, their income will be treated as no higher than 133 percent of the federal poverty level, meaning they can receive the maximum amount of premium and cost-sharing subsidies; they can enroll in a $0 or very low-cost silver plan and receive platinum-equivalent marketplace coverage. 

In new materials, CMS clarifies that these enhanced subsidies are available to all qualifying members of a household if the eligible taxpayer qualifies. Said another way, if a taxpayer currently or previously received or was approved to receive unemployment compensation during 2021, they and other members of their household who qualify can receive the maximal marketplace subsidies. There are some limits if only a tax dependent (rather than a taxpayer) received or was approved to receive unemployment compensation. CMS also confirms that those whose household income is below 100 percent of the federal poverty level—i.e., those in the Medicaid coverage gap or who are otherwise ineligible for Medicaid—who receive or are approved to receive unemployment compensation in 2021 can receive maximal ACA subsidies for their entire household. Additional details, including what counts as unemployment compensation, are included in these materials.

CMS also highlights some operational changes. The subsidy enhancement became available through HealthCare.gov on July 1. As a result, many people who qualified were able to enroll during the Biden administration’s broad COVID-19 special enrollment period, which extended through August 15. However, now that this broad enrollment opportunity has ended, CMS confirms that individuals who qualify for this ARPA subsidy can still enroll in marketplace coverage for 2021.

To help CMS identify those who qualify, the marketplace application includes a new question that asks whether the applicant has received or was approved to receive for unemployment compensation during 2021. Individuals who are uninsured but agree to the attestation can enroll in marketplace coverage via a separate special enrollment period. This is true even if the individual does not otherwise qualify for a special enrollment period (such as losing job-based coverage).

CMS will not, however, build this into an individual’s eligibility results, meaning a consumer may not be aware of this option to enroll when completing the marketplace application. Instead, CMS will review HealthCare.gov applications on a weekly basis and identify those who qualify. The marketplace will then email or call the applicant to inform them that they are eligible for this special enrollment period; this notification will also appear in their HealthCare.gov account. From there, eligible consumers can select a plan and enroll in coverage. CMS encourages consumers to contact an enrollment assister or the marketplace call center with any questions. Those who attest to currently receiving unemployment compensation will complete their application as normal and not be asked to attest to prior receipt of unemployment compensation.

New GAO Report On Agents And Brokers Listed On HealthCare.gov

On August 10, the U.S. Government Accountability Office (GAO) issued a new report summarizing its covert testing of sales representatives listed on HealthCare.gov from five states. The GAO was asked to conduct this covert testing to assess the degree to which sales representatives listed on HealthCare.gov provided accurate information to a consumer with a preexisting condition or tried to sell a consumer a non-ACA-compliant product (that may not cover preexisting conditions).

GAO investigators conducted 31 undercover phone calls to sales representatives listed on HealthCare.gov under the “Find Local Help” link. The investigator posed as an individual with diabetes or heart disease in need of health insurance and requested coverage for those conditions to see if the sales representative would refer them to an ACA-compliant plan or a different plan option. The calls were placed from November 5, 2020 to February 3, 2021 to sales representatives in Alabama, Florida, Kansas, Texas, and Wyoming. Half of the study was conducted during the 2021 open enrollment period; half was conducted outside of that period while making clear that the individual would qualify for a special enrollment period under the ACA. (Investigators called a total of 39 sales representatives, but eight sold only ACA-compliant plans and were thus excluded from the study results.)

Of the 31 calls with sales representatives, none engaged in deceptive marketing practices, and all referred the caller to an appropriate plan that covered preexisting conditions. Most sales representatives also explained that non-ACA plans would not cover preexisting conditions. And no sales representative engaged in potentially deceptive marketing practices that misrepresented or omitted information about the products they were selling. CMS has removed 362 of its 59,000 registered sales representatives from the HealthCare.gov website for invalid licenses or misconduct since 2016. Of those removed, 288 had a revoked or invalid license while 74 engaged in enrollment misconduct.

This GAO investigation follows a 2020 investigation that revealed far more troubling marketing practices by sales representatives selling non-ACA products such as short-term plans, limited benefit plans, health care sharing ministries, and association health plans. In that investigation, the GAO identified sales representatives through web searches (as opposed to contacting sales representatives listed on HealthCare.gov). In the prior study, 26 percent of calls included potentially deceptive practices and another 6 percent of calls were not deceptive but provided unclear or inconsistent information. The remaining 68 percent of calls were appropriate and accurate.

Both GAO investigations were conducted in response to requests from Sens. Robert P. Casey (D-PA) and Debbie Stabenow (D-MI). Sen. Casey previously issued an investigative report on misleading online ads for non-ACA plans and the challenges consumers face when shopping for health insurance.

New Rulemaking On The Contraceptive Mandate

There is a long history of rulemaking and litigation over the ACA’s contraceptive mandate, which stems from Section 2713 of the Public Health Service Act. To date, there have been three major Supreme Court decisions on the scope of the contraceptive mandate and whether it applies to entities that object to providing contraceptive coverage for religious or moral reasons: Hobby Lobby v. Burwell in 2014, Zubik v. Burwell in 2016, and Little Sisters of the Poor v. Pennsylvania  in 2020.

(Litigation continued even after the most recent decision in Little Sisters. Lawsuits from California and Pennsylvania were remanded and separate litigation in Massachusetts continued, as did a class action lawsuit over the Obama-era rules on the contraceptive mandate and a lawsuit in Indiana over the Trump-era rules and a settlement agreement between the Trump administration and objecting organizations. Other litigation over Section 2713 itself is pending in Texas. These lawsuits are not described in detail here.)

The Biden administration issued new guidance documents on the contraceptive mandate and women’s preventive services. On August 6, CMS issued a new notice soliciting public comment on materials associated with the contraceptive mandate. These include a model notice that can be used as part of the accommodations process, a notice to enrollees, a revocation notice, and a self-certification form. These documents are unchanged from the currently approved information collection request, and any comments on these materials must be received by October 5.

These materials are related to the accommodation process adopted by the Obama administration. This process enabled employees and students of objecting entities to access contraceptives without cost-sharing directly from an insurer. However, the Trump-era rules made this process optional. In their accompanying analysis, federal officials estimate that nine entities will seek an accommodation from the contraceptive mandate for the first time while 100 entities will continue a voluntary accommodation.

On August 16, the tri-agencies—the Department of Health and Human Services (HHS), Labor, and the Treasury—released a new, one-page frequently asked questions document indicating their intent to “initiate rulemaking within six months to amend the 2018 final regulations” on the contraceptive mandate. Federal officials intend to solicit public input and are considering “how to best address” the prior rules’ religious and moral exemptions “in light of recent litigation.”

While not related to the contraceptive mandate, HHS and the Health Resources and Services Administration (HRSA) separately asked for public comment on recent draft preventive service recommendations that would update HRSA’s women’s preventive services guidelines. Under Section 2713, insurers and plans must cover these evidence-based recommended preventive services.

The draft recommendations update existing recommended preventive services related to well woman preventive visits; counseling for sexually transmitted infections (STIs); and breastfeeding services and supplies. The updated recommendation for well woman preventive visits, for instance, would newly include pre-pregnancy, prenatal, and interpregnancy visits, among other changes. The recommendation on STI counseling would be broadened to include a review of the person’s sexual history and to be more inclusive of other risk factors beyond age, condom use, and number of partners. And the recommendation on breastfeeding services and supplies would include consultation to optimize successful initiation and maintenance of breastfeeding. Comments are due on September 20.

Additional Guidance: DE Entities, Risk Adjustment, And More

CMS has issued additional guidance and information related to COVID-19 and ahead of the upcoming 2022 plan year.

Updates On DE Entities

CMS continues to approve new third-party entities to use the enhanced DE (EDE) pathway. The EDE pathway allows a consumer to complete the entire marketplace enrollment process on the website of a third party, such as a web-broker or insurer. Consumers can thus apply for coverage, be determined eligible for financial help, and enroll in a marketplace plan on a single third-party website without ever visiting or creating an account with HealthCare.gov.

As of August 30, CMS had approved 11 entities to host an EDE platform (meaning these entities can lease their approved EDE platform to other EDE entities) and 35 entities to use the EDE process. Of the host entities, all but one is a web-broker or DE technology provider. The EDE users are primarily insurers with two web-brokers. The number of entities in both categories has increased over time.  

Separately, on August 3, CMS issued a new bulletin regarding its enforcement of certain qualified health plan display requirements for DE entities. For instance, web-brokers must disclose and display all qualified health plan information provided by the marketplace or directly by insurers. If not all plan information is displayed, these entities must prominently display a standardized disclaimer that identifies those qualified health plans and refers consumers to the marketplace. These requirements extend to the display of quality rating information; DE entities are expected to integrate quality rating information in a way that is consistent with the quality rating information bulletin for 2022.

Citing the COVID-19 public health emergency, CMS had relaxed enforcement of these requirements in August 2020. The new guidance informs DE entities that enforcement will resume in 90 days and compliance is expected by November 1.

Risk Adjustment And More

In mid-July, CMS issued updated 2022 final risk adjustment model coefficients. While final risk adjustment models were included in the final 2022 payment rule, CMS identified some errors that impacted the adult models and needed to be corrected. The overall impact of the update is, CMS notes, minimal. In early August, CMS issued revised risk adjustment software for 2021, including instructions, technical details, and the software itself.

In mid-August, CMS issued an updated toolkit on the COVID-19 vaccine for insurers and Medicare Advantage plans. The updates focused on operational considerations and discussed the availability of booster shots for immunocompromised individuals.

Finally, HHS released a list, updated as of early July 2021, of self-funded non-federal governmental plans that have opted out of certain federal health insurance requirements. The list includes more than 160 plans across 29 states and identifies the reforms that these plans waived. Every single plan sponsor and plan on the list opted to exempt those plans from (at least) federal mental health parity standards.