By Joel Ferber, Legal Services of Eastern Missouri
One of the most important ways that
the Affordable Care Act (ACA) will improve insurance coverage for Americans is
through the development of state health insurance exchanges. So far in 2011, ten states have enacted
legislation to set up a state-based exchange while eight others have passed
bills indicating an intent to create and/or study the development of an
exchange. At least one state
(Indiana) has demonstrated its intent to implement an exchange by executive
order. Two states (Massachusetts
and Utah) already have a version of a state-based exchange that pre-dates the
ACA’s passage and are considering modifications to meet the criteria set forth
in the ACA. Missouri considered an
exchange bill during the 2011 legislative session, but despite the support of many stakeholders and the fact that it passed the Missouri House of Representatives and a Senate Committee on a bi-partisan basis, it ultimately was not taken up by the full Senate. Instead, the Senate
created an Interim Committee to explore the issue further, delaying the chance
for passage of an exchange bill until at least 2012.
While understandably much attention around the country is focused on state exchange legislation and regulations recently proposed by HHS, much of the important activity around exchange planning and implementation is occurring behind the scenes in state government agencies. Last year HHS
distributed planning grants to most states and “Early Innovator” grants to
states leading the way on the development of exchange IT. This year, HHS made available the next
phase of funding through exchange “Establishment Grants” for states to continue
the process of developing their exchanges. My home state of Missouri submitted
an exchange establishment grant request for $21 million to fund such items as
hiring key staff, developing IT capability for implementing an exchange and
continuing to pay consultant fees.
Missouri is just one of several states seeking extensive grant funds
this cycle. For example,
California (which enacted exchange legislation) requested $41 million for
similar activities.
Missouri’s grant application
addresses a wide range of issues that have been of great interest to consumers
and consumer advocates including: exchange governance, the development of a
navigator program, consumer assistance, the integration of Medicaid and
exchange eligibility and enrollment functions, an integrated purchasing
strategy for Medicaid and the exchange, appeals processes for the exchange and
Medicaid, notices and applications, gaps between ACA requirements and state
Medicaid requirements (on such issues as eligibility, application requirements
and verification), and consumer education and outreach. Most states will not address all of
these issues in state law but rather, will defer to the exchange to make these
policy decisions or revisit them in subsequent legislation. Therefore, even if your state
legislature is not in session, it is critical to monitor the state’s current
planning activities – such as grant applications, research, consultant work,
stakeholder engagement, and IT systems development – to ensure that the
consumer perspective is taken into account.
The State of Missouri began studying
exchange implementation soon after the ACA was enacted and engaged several
high-priced consulting firms to assist with the process. Unfortunately, consumer advocates were
not included in some of the early state discussions, however, consumer groups
were proactive in conducting their own policy analysis, and weighed in with
comments and met with key state officials to press for consumer-centered reform
implementation. Missouri advocates
also monitored and participated in the debate around the state exchange
legislation – providing analysis, testifying and raising concerns about key
issues such as the potentially-conflicted proposed governance structure, the
integration of the individual and small group markets and the role of
navigators to truly serve the needs of the diverse populations likely to be
served by the exchange.
After persistent advocacy (including letters, meetings and public
records requests), several Missouri advocates were eventually appointed to
stakeholder advisory groups. So far, these groups have had only a few meetings,
and the format of such meetings often involves didactic presentations from
state officials and their consultants rather than an interactive and inclusive
dialogue. However, the meetings
provide an opportunity for advocates to ask questions, digest key information,
and follow up with written comments.
One important role advocates played
in the state’s exchange planning process was to provide feedback on a draft of
the state’s 80-plus page exchange establishment grant narrative (despite the limited
3 day period to do so). Advocates
objected to the state’s initial plan to share only the completed version of the
grant application with stakeholders, which led the state to include
stakeholders in the development of the final version. Because of such diligence, advocates were able to achieve
small but important changes to the grant application in such areas as
stakeholder input, integration of Medicaid and the exchange, and development of
the consumer assistance program.
The overall story presented by
developments in Missouri is that there is significant ACA implementation
activity occurring within state government that is ripe for consumer advocacy,
regardless of whether or not a state has enacted exchange legislation. In fact, for states that have not
passed legislation, these next few months present a critical period in the
development of a state’s underlying plans for a possible exchange bill in 2012
that may well be moved rapidly without much deliberation.
Another important point for advocates
who work exclusively on Medicaid (as opposed to private market issues), is that
much of the work being done under these grants involves Medicaid (and its
interaction with the exchange), not just the exchange itself. For example, Missouri’s grant includes
exploring the possibility of an integrated “purchasing strategy” for Medicaid
and the exchange, which could require Medicaid beneficiaries to receive
“essential benefits” from commercial plans in the exchange, while wrapping
around additional Medicaid services.
Such an approach raises concerns and could have huge implications for
Medicaid beneficiaries. And of
course, IT systems development issues for making eligibility determinations,
coordinating Medicaid and the exchange, etc. will also have huge ramifications
for low-income persons who are eligible for Medicaid.
An important challenge for advocates
is to ensure that stakeholder input regarding exchange implementation is
actually meaningful. Being appointed
to a committee does not necessarily ensure that such input is carefully
considered by the state. The ACA
and HHS guidelines require “stakeholder engagement” in the development and
operations of the exchange but do not guarantee that the state will make such a
process fair and meaningful. Another key challenge is that, while we all want
consumer input into state implementation, once such an opportunity arises,
providing that input requires a lot of work as well as significant time and
resources.
Finally, advocates for low-income consumers must be at the table
during the implementation process to ensure that the consumer perspective is
adequately represented. The
decisions made today will have significant ramifications, not just on implementing
an exchange or how it operates in the near future, but on the overall
trajectory of insurance reform for years to come. People with on-the-ground knowledge of the impact of these
key policy decisions, and technical expertise on public benefits programs (and
whose focus is the well-being of low-income consumers rather than industry,
budgetary or political considerations) need to maintain involvement in all
levels of these discussions.
Given
that many states are like Missouri and are requesting and receiving significant
federal grant funding for implementation, even without enacted exchange
legislation, the opportunities for advocacy abound.