Stakeholder Perspectives on Round Three of CMS’s 2022 Notice of Benefit and Payment Parameters. Part 3: Consumer Advocates

By JoAnn Volk and Nia Gooding

The United States Department of Treasury and Centers for Medicare & Medicaid Services released a proposed rule governing the Affordable Care Act (ACA) health insurance marketplaces and insurance standards for plan year 2022 on July 01, 2021. The rule reverses several provisions that were finalized on January 19, 2021 by the Trump administration, and includes a number of new proposals. A full summary of the proposed rule can be found on the Health Affairs blog, here. Comments on the proposed rule were due by July 28, 2021.

The CHIR team reviewed a selection of stakeholder comments that were submitted in response to the proposals. Posts summarizing the comments from state insurance departments and state-based marketplaces and those of insurers can be found here and here. In this post we summarize the key takeaways from comments submitted by a number of consumer advocates, including the following organizations:

Consumer Groups Approve of Updates to Previous Policies

Advocates unanimously approved of the reversal of several prior policies that were adopted in the January 19 final rule. In comments that closely tracked the comments they submitted in opposition to many of the proposals made final in January, consumer organizations supported repeal of several rules proposed and made final under the previous administration: the direct enrollment option, the relaxed guardrails for Section 1332 waiver, reduced marketplace user fees.

Direct Enrollment

The consumer groups in our review all supported the proposal to repeal the option for states to establish “direct enrollment” exchanges, which would allow states to eliminate for marketplace enrollment and instead contract with private sector entities such as web brokers to operate enrollment websites through which consumers could apply for coverage and receive premium tax credits and cost-sharing reduction (CSR) plans. The Trump administration’s rule would have allowed states to pursue this change without having to submit a waiver. The groups noted the increased risk that consumers would be steered to insurance plans that do not provide Affordable Care Act (ACA) protections, particularly when enhanced subsidies are available to all consumers, regardless of income, as a result of the American Rescue Plan Act. Further, Direct Enrollment “poses additional threats to health care coverage to historically marginalized populations by making Medicaid less accessible. That’s because allows applicants to learn whether they are eligible for Medicaid and how to enroll, if eligible. Direct enrollment sites do not.” (Community Catalyst)

Section 1332 Waivers

The administration proposes to revoke the prior administration’s relaxed interpretations of the guardrails that ensure consumers are not made worse off under a waiver that provides for higher cost or less comprehensive coverage, and with fewer people enrolled. All the consumer organizations included in our review supported a return to the 2015 guidance. However, Community Catalyst and Families USA went further to ask that the administration revisit the “deficit neutrality” guardrail, which requires states to demonstrate that proposed waiver programs do not increase the federal deficit. “An overly narrow interpretation of this requirement has prevented states from pursuing innovative new models that would expand coverage.” (Community Catalyst). Both organizations said the narrow interpretation of deficit neutrality is inconsistent with the goal of increasing enrollment in comprehensive coverage. “The ACA’s core policy objective is reducing the number of uninsured. The Department’s interpretation of state innovation waivers means that such waivers are effectively forbidden when they promise to better achieve that core policy objective. (Families USA).

Marketplace User Fees

CMS proposed to increase Marketplace user fees, a fixed percentage of premium revenue paid by insurers, from the current level of 2.25 percent to 2.75 percent for insurers offering coverage through In addition, the user fee for state-based marketplaces that use the federal platform would be increased from 1.75 percent 2.25 percent. This measure reverses action taken by the previous administration.

Consumer advocates applauded this reversal, writing that “user fees are essential to operate the marketplace, improve the consumer interface, provide consumer support, fund outreach, and overall ensure a smooth enrollment system for consumers.” (NHeLP) Several groups urged CMS to further increase user fees to 3.5 percent– the level in effect prior to 2020– in order to “make much needed fixes and enhancements to marketplace enrollment.” (Community Catalyst)

Expanded Marketplace Enrollment Opportunities

CMS proposes several changes to expand enrollment opportunities in Marketplace plans, which include extending the open enrollment period and establishing a monthly Special Enrollment Period (SEP) for low-income individuals. The annual open enrollment period for the 2022 plan year would be extended by one month, to last from November 1 to January 15.  The new monthly SEP applies to individuals and dependents who are eligible for premium tax credits and whose household income is below 150 percent of the federal poverty level (FPL). The low-income SEP would allow those who are eligible to enroll at any time during the year based on their income or upon learning of their eligibility.

Advocates strongly support these measures, writing that “these strategies will go a long way to reduce the number of people who are uninsured.” (YI) Several consumer groups urged CMS to extend the open enrollment deadline to January 31, arguing that, as indicated by the experience of states with SBMs, extending open enrollment “greatly benefits consumers and helps to reduce the number of uninsured.” (YI) Some noted particular benefits for those who are auto-enrolled in coverage and may want to change into a new plan, particularly if they receive a lower subsidy than the prior year because the cost of their benchmark plan has dropped. (YI, NHeLP)

Regarding the low-income SEP, consumer groups pointed to state experiences with lower barriers to enrollment through an SEP, noting that data from 2020 state COVID-related SEPs in Colorado, the District of Columbia, and Massachusetts show that reducing barriers  to SEPs may actually attract younger and subsequently healthier enrollees. Multiple organizations also said the new SEP will also be helpful for those transitioning from Medicaid to marketplace coverage, particularly following the end of the Public Health Emergency. “This new SEP will be particularly helpful as low-income individuals transition from Medicaid coverage to the Exchange once the public health emergency ends and states begin terminating Medicaid beneficiaries whose income exceeded Medicaid eligibility.” (ACS-CAN)

Network Adequacy Standards

CMS requested input on strategies the federal government should employ for network adequacy reviews for the 2023 plan year. In response, consumer advocates offered several recommendations for the establishment, monitoring, and enforcement of network adequacy standards.

Regarding the establishment of strong networks, several groups urged CMS to prioritize ensuring that provider networks are sufficient to deliver culturally and linguistically competent, anti-biased care that is fully accessible to persons with disabilities. (NHeLP, Community Catalyst). In addition, consumer groups urged CMS to require plan networks to provide enrollees with sufficient access to reproductive health services, LGBTQIA+-inclusive care, and to providers with appropriate non-English language proficiencies or language services.

Some consumer groups also recommended HHS consider implementing a number of different strategies for federal network adequacy review. For example, some advocates, such as ACS CAN, urged CMS to track enrollees’ use of the appeals process for access to specialty care in order to assess the adequacy of a plan’s network. Others, such as NPWF, noted that it may be helpful to review out-of-network claims submitted and not just those that have been denied, and assess plans with high rates of denials as an important indicator of inadequate network.

Standardized Plans

CMS also requested input on reinstating standardized plans to In response, consumer groups offered their support, noting standardized plans can promote informed decision-making that allows consumers to compare plans based on premium and network composition. Groups also offered specific suggestions on how to design standardized plans: “CMS should adopt standard plan designs that move broad segments of preventive and outpatient care…. to be pre-deductible.” (Families USA). ACS-CAN said CMS should prioritize copays over coinsurance, so consumers can more easily understand their cost-sharing, and to design plans with low or no deductibles, to remove a barrier to accessing care.


Overall, consumer groups applauded the proposed changes, many of which track the comments they submitted in opposition to the rule finalized in January by the previous administration. They also supported the longer open enrollment and a new SEP, consistent with their long-standing support for expanded enrollment opportunities, and took the opportunity to weigh in on network adequacy and standardized plans, in light of the administration’s plans to revisit those requirements.

A Note on Our Methodology

This blog is intended to provide a summary of comments submitted by some consumer advocates. This is not intended to be a comprehensive report of all comments on every element in the Notice of Benefit and Payment Parameters proposed rule, nor does it capture every component of the reviewed comments. To view more stakeholder comments, please visit

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The opinions expressed here are solely those of the individual blog post authors and do not represent the views of Georgetown University, the Center on Health Insurance Reforms, any organization that the author is affiliated with, or the opinions of any other author who publishes on this blog.