Stakeholders React to HHS’s Notice of Benefit and Payment Parameters for 2020. Part 3: Consumer Advocates

On April 18, 2019, the Department of Health and Human Services (HHS) published the Notice of Benefit and Payment Parameters (NBPP) for Plan Year 2020. The NBPP is the annual rule that outlines changes to the Affordable Care Act (ACA) marketplaces and insurance standards for the upcoming plan year.

In its first draft of the 2020 NBPP, HHS requested comments on an array of proposed policy changes, including modifications to prescription drug coverage, changes to the standards of marketplace enrollment and eligibility standards, changes to training standards in the navigator program, the user fee, and new methodologies for calculating premium growth. You can read our summary of the rule’s proposals here.

The agency received over 26,000 comments on the proposed rule after a 30-day comment period. To assess how stakeholders viewed HHS’ proposals, CHIR reviewed a selection of comments from insurers, state officials, and consumer advocates. For the third and final blog of this series, we looked at a sample of comments from consumer advocates, including:


American Cancer Society Cancer Action Network (ACS-CAN)

Community Catalyst

Families USA

National Health Law Program (NHeLP)

National Partnership for Women and Families (NPWF)

Young Invincibles (YI)

Consumer advocates applaud new special enrollment period

The groups were unanimous in approving a new special enrollment period (SEP) for individuals who currently have individual coverage outside the marketplace and experience a mid-year change in income that would make them eligible for premium tax credits (PTCs). Respondents observed that although coverage outside of the marketplace can be less expensive for people who don’t qualify for subsidies, consumers who experience income fluctuations – for example if they get sick and have to reduce their work hours – are currently locked out of the marketplace even if their income drops enough to become eligible for financial help. HHS ultimately finalized this new SEP as proposed.

Navigator program changes worry consumer groups

An HHS proposal to loosen standards for the Navigator program received unanimous criticism from consumer respondents, but the agency finalized these changes as envisioned. The new rule streamlines training requirements and makes certain types of consumer assistance optional for Navigator grantees, such as helping with appeals related to eligibility and minimum essential coverage requirements, reconciling tax credits, educating consumers on general concepts and rights pertaining to health coverage, and providing referrals to tax professionals. Young Invincibles (YI) expressed its “concerns that there will be no place for consumers to turn if they face certain enrollment or post-enrollment issues,” especially since brokers are less and less likely to help consumers enroll in the ACA-compliant individual market. The consumer groups understood that the lack of funding places constraints on Navigators, but asserted that weakening training and assistance requirements is “no solution … the Navigator entity as a whole must still provide a full array [of] assistance and ensure that people are appropriately trained for their job responsibilities.” Removing training and assistance requirements, consumer advocates argued, will only hurt the consumer.

Additionally, consumer groups rejected HHS’ encouragement of enrollment through web-brokers, even with “modest enhancements to oversight authority and display requirement restrictions” (Community Catalyst). The groups had concerns that such websites result in lost opportunities for eligibility screening for Medicaid and CHIP, and noted documented website navigation that inappropriately steers consumers to non ACA-compliant coverage. All consumer groups urged the agency to prohibit web-broker sites from biased displays of health care plans, and require them to display all marketplace plan information impartially. Families USA, AARP, and YI urge HHS to require agents and brokers to undergo the same training as Navigators, and prohibit assistance through web-brokers unless standards are put in place to require impartiality. In spite of these concerns, HHS adopted rules that allow direct enrollment entities to display non ACA-compliant plans, so long as they do so on separate webpages with prominent disclaimers. Lastly, HHS did agree with commenters regarding the use of direct enrollment entities by assisters, and did not finalize its proposal to allow assisters to use such sites in lieu of

Groups urge maintaining current auto re-enrollment policies

HHS requested comments on how to reduce eligibility errors and potential government “misspending” related to auto re-enrollment on the federal marketplace. The agency has suggested it may eliminate or limit auto re-enrollment in future years. Consumer groups expressed concerns that doing so would result in more people losing their coverage, and urged the agency to keep current policies and procedures. NHeLP asserted that the while some consumers are undoubtedly enrolled into a plan they may not otherwise have chosen due to auto-enrollment, the “alternatives are much more dire” if HHS ends the practice. Many of these consumers could end up losing coverage for a year, which can exacerbate health conditions and inhibit the prevention of others.

Groups have varied, but supportive, views on silver loading

Five of the seven groups in this analysis responded to the agency’s request for comment on the practice of silver loading, in which insurers raise the price of premiums for silver-level plans on the marketplace to compensate for the loss of federal Cost-sharing Reduction (CSR) payments. All five groups supported silver loading in the absence of restored federal CSR payments to insurers, noting that the strategy has been effective in stabilizing the ACA-compliant market. Moving forward, however, groups differed on whether the federal government should restore the CSR payments. ACS-CAN and Community Catalyst both encouraged a permanent legislative solution to CSR funding, but urged the agency to allow silver loading in the meantime. Families USA and YI, however, did not recommend restoring CSR funding due to concerns that consumers will face reduced federal PTCs as an unintended consequence. Families USA did express support for restoring funding so long as moderate-income consumers receive increased financial assistance. While HHS has not banned silver loading for plan year 2020, it’s possible they will revisit the issue in the 2021 NBPP.

Consumer advocates take issue with mid-year formulary changes

Although the groups in our sample generally agreed that encouraging the use of generic drugs is important, they argued that coercing such use without appropriate safeguards can lead to negative health and financial consequences for consumers with chronic and serious health conditions. NPWF, NHeLP, ACS-CAN, Community Catalyst, and Families USA agreed that plans should be allowed to introduce generic drugs to a formulary mid-year when they become available. However, the groups rejected HHS’ proposal to allow insurers to discontinue covering the brand name equivalent mid-year. This, as the NPWF said, “can be particularly harmful for people with certain medical conditions, where there is no one-size-fits-all treatment regimen.” ACS-CAN noted that such customized treatment regimens are particularly common for cancer patients, placing these patients at elevated risk if a brand-name drug is dropped from their plan’s formulary mid-year.

Additionally, consumer advocates were concerned that the proposed 60-day notice to consumers of mid-year changes will not be adequate. NPWF, Community Catalyst, and Families USA recommended increasing the notice period, with NPWF and Families USA preferring a 120-day notice to consumers. In response to these and similar comments, HHS chose not to finalize this proposed rule, but may release additional guidance in the future.

NHeLP, ACS-CAN, Community Catalyst recommend adequate public comment opportunities for EHB changes

All three groups objected to the 2019 NBPP rule to increase flexibility in a state’s benchmark selection process. This year, HHS proposed to move the deadline for states to inform the agency of their intent to make EHB changes from the July deadline last year to May 6, 2019 for plan years beginning in 2021. Without withdrawing their objection to the selection process, NHeLP, ACS-CAN, and Community Catalyst urged the department to ensure states follow existing notice and comment requirements, citing the lack of public comment opportunities in the previous year. NHeLP and ACS-CAN also recommended the agency institute a federal comment period in addition to the state-level notice and comment requirements. In its final rule, HHS established this new deadline and did not address the current objections to the 2019 NBPP changes to the benchmark selection process.

Other trending topics include objections to changes to the premium adjustment percentage and the marketplace user fee

Another top concern for consumers were proposed changes to the premium adjustment percentage. The premium adjustment percentage is a measure of premium growth used to set (i) the maximum annual limitation on cost sharing, (ii) the required amount that subsidy-eligible enrollees must contribute to premiums, and (iii) the employer shared responsibility amounts. In 2015, the percentage was set based on projected average premiums in employer-sponsored insurance (learn more here). Under the proposed rule, HHS recommended updating the percentage using an alternative measure that captures both employer-sponsored and private individual market premium increases since 2013. HHS admitted that this would result in “a higher maximum annual limitation cost sharing, a higher required contribution percentage, and higher employer shared responsibility payment amounts[.]” Consumers would be responsible for paying an increased portion of premiums. If implemented, HHS estimated that 100,000 fewer consumers would enroll in coverage and tax credits would decrease by $900 million. Although consumer groups uniformly urged HHS to maintain the existing methodology, the agency finalized this proposal.

Lastly, HHS proposed reducing the user fee for the federal exchange from 3.5 percent to 3 percent of total monthly premiums, and from 3 to 2.5 percent for state-based marketplaces operating on the platform. YI and Families USA objected to this change, asserting that the Administration should “demonstrate how the funds accrued from user fees are being spent to adequately fund outreach and enrollment support.” However, HHS finalized the new fee structure as proposed.

A Note on Our Methodology

This blog is intended to provide a summary of comments submitted by specific stakeholder groups: 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. Additionally, a portion of submitted comments were not available for our review at the time of publication. For more stakeholder comments, 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.