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First Focus Recently Submitted Comments to the Treasury Department and Health Human Services in Response to the Proposed Rules Related to the Affordable Care Act.

By Carrie Fitzgerald

November 4, 2011

The comments to the Treasury focus on affordability and the family discrimination issue at the heart of their proposed rule can be found here. The main takeaway from these comments is our concern over what’s being called the “family discrimination clause”, that is the section of the proposed rule that looks at the offer of employer-sponsored-insurance and what counts as an affordable offer of coverage. Under the Treasury Department interpretation of the ACA employees cannot purchase coverage through an Exchange if they are offered affordable coverage through their employer. However affordability is defined as only being a percentage of the individuals cost. Meaning, if an employee is offered single coverage, under 9.5% of their income from that employer, it is considered “affordable” and disqualifies them from purchasing on the exchange. However, if the employer also offers the employee family coverage that will preclude the family members from accessing the Exchange even if the family coverage is higher than the 9.5%. The affordability test, therefore, is tied only to the individual’s offer of coverage. We are very concerned that this will leaves spouses and children without access to coverage, either through the employer, due to cost, and through the Exchange, due to being excluded from purchasing. As Lisa Shapiro wrote in our comments, "These unintended results would disrupt existing coverage arrangements for millions of dependents, undermining the administration’s important goal of maintaining the current system of employer-sponsored health coverage."

The Medicaid eligibility comments include statements in support of the Medicaid expansion and the creation of the streamlined application process can be found here. Among many pages of comments we said: Overall, we applaud HHS’s efforts to promote coordinated eligibility and enrollment procedures between state Medicaid Agencies and Exchanges consistent with ACA. A coordinated approach will be vital to ensuring that consumers access the best coverage for their circumstances. These proposed regulations take several positive steps to ensure that consumers will be enrolled in coverage appropriately. Medicaid and CHIP are the bedrock of children’s health coverage in this country and ACA implementation should only strengthen these programs.

The Exchange Functions comments cover coordination of CHIP and Medicaid in the Exchange can be found here. In these comments we: support the use of electronic verification systems to enroll and maintain people in coverage; support the idea that people found eligible for CHIP or Medicaid by the Exchange should not have to submit another application and should be enrolled in coverage; and we applaud the proposed rule that prohibits the Exchange from requiring an individual who is not seeking coverage for herself to provide information regarding citizenship or immigration status on any application or supplemental form. We support the goal of these policies not to deter ineligible parents and caretakers from seeking coverage for their family members by asking for unnecessary information.

Lastly, the Exchange Establishment comments review many exchange issues including how Exchanges will handle outreach, navigators, and governance boards can be found here. In our comments about who should be the qualified entities to be Navigators in the Exchange, First Focus said this: The proposed rule requires that Exchanges engage at least two types of qualified entities to serve as Navigators and requests comment on whether one of those should be community or consumer-oriented non-profit organizations. First Focus strongly recommends that at least two types of entities be required to serve as Navigators and that one must be from a community or consumer-oriented non-profit organization. Additionally, we would like to see states encourage Navigators from non-profit organizations that have a history of serving children and families who receive CHIP and/or Medicaid coverage.

These recent regulations are just some of the many proposed rules that we expect from HHS. Future regulations will probably include enrollment procedures like presumptive eligibility and child-only plans and of course, the essential benefits. As proposed rules are released, First Focus will get them out so you can review and write comments, too. The more voices and opinions involved in this process, the better off children and families will be.

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