August 27, 2010 

Secretary Timothy Geithner, Department of the Treasury 

Secretary Hilda Solis, Department of Labor 

Secretary Kathleen Sebelius, Department of Health & Human Services 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration, Room N-5653 

U.S. Department of Labor 

200 Constitution Avenue NW 

Washington D.C. 20210 

Re: Interim Final Rules — Patient’s Bill of Rights 

Dear Secretaries Geithner, Solis and Sebelius: 

Community Health Councils writes to share our recommendations on the Interim 

Final Rules of the Patient Protection and Affordable Care Act’s Patient’s Bill of 

Rights. This new set of patient protections will benefit millions of Americans 

across the country and, as a community-based health policy and advocacy 

organization, we are grateful for the opportunity to provide input. Although the 

regulations make significant progress towards putting consumers back in charge 

of their health coverage and care, we believe further specificity and stronger 

language should be developed to fully protect consumers from weak 

interpretations of the rules. Our recommendations are as follows, detailed by 

consumer protection area. 

Pre-Existing Condition Exclusions for Children Under Age 19 

 Ensure affordable policies for people with pre-existing conditions. The 

new regulations help increase access to coverage by prohibiting insurance 

plans from denying coverage to children under age 19 based on pre-existing 

conditions. However, the regulations are silent on what rates may be 

charged to children with pre-existing conditions until 2014, when adjusted 

community ratings are required. Therefore, health insurance coverage 

available to these families may be drastically unaffordable as many states 

allow high premiums rates based on health underwriting. Some states like 

California have already recognized the risk the new regulations impose and 

are close to passing legislation (AB 2244) to limit premiums for children 

with pre-existing conditions. To prevent rendering the intent of the provision 

ineffective due to unaffordability, clear regulations should be introduced to 

prohibit insurers from charging children unreasonably high premiums. The 

Department of Health and Human Services (HHS) should also work closely 

with states to monitor affordability in the health insurance marketplace. 

HHS should require that annual rate submissions or proposals include 

documentation about any increases applied to policies covering children 

with pre-existing conditions, accompanied with a full accounting, actuarial 

analysis, and justification for the rate increases. 

 Require continuous open enrollment for children with pre-existing 

conditions Families must be able to enroll their children in healthcare 
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Patient’s Bill of Rights 2 

coverage when they need it. Relying on annual open enrollment periods restricts families from 

having continuous access to healthcare services. During the first year, we recommend 

permitting families to enroll in insurance coverage at any time to allow for adequate notice and 

public education to families who can benefit from the policy change. After initial enrollment, if 

HHS returns to an annual open enrollment period, a waiver process for families who have 

extenuating circumstances should be developed to permit them to enroll in coverage outside of 

the open enrollment period. 

 Require health plans to cover young adults with pre-existing conditions to age 26. As new 

coverage options through a parent’s plan become available for young adults under the age of 

26, this population must also be protected from discrimination based on pre-existing 

conditions. Unfortunately, more than 30% of young adults do not have health insurance, while 

47% report being uninsured at some point in the last year.1 Although new consumer protection 

regulations will be extended to Americans of all ages starting in 2014, if young people ages 19 

to 26 are not exempt from discrimination earlier, their newly implemented insurance coverage 

options may be denied. Many states have created a new high risk pool for such patients yet the 

average premium rates are unaffordable for this younger population. Therefore, we urge you to 

modify the language of the new regulations to prohibit insurance plans from denying coverage 

based on pre-existing conditions from ages 19 to 26. 

Arbitrary Rescissions of Insurance Coverage

 Clarify burden of proof and require a third-party reviewer. We are excited that under the 

new regulations, insurers and health plans will be prohibited from rescinding coverage except 

in cases of fraud, intentional misrepresentation of material facts or failure to pay premiums. 

However, the burden of proof by which to measure fraud or intentional misrepresentation is not 

clearly delineated in the rules. This gives insurers an opportunity to continue to take advantage 

of consumers. The current rules trust insurers over consumers to determine whether, for 

example, an omission was done intentionally or not and would then allow for rescission. 

Therefore, a health plan should only be allowed to initiate an investigation if it can prove to the 

state that it has reasonable evidence. In such cases, enrollees should be promptly notified with 

full disclosure of the alleged omission or misrepresentation, be given the opportunity to offer 

relevant evidence and notified of their rights to file an appeal. We also recommend a thirdparty review be required before an insurer can rescind coverage to protect consumers from 

losing coverage unnecessarily. 

Lifetime and Annual Dollar Limits on Coverage 

 Extend the annual and lifetime cap rules by prohibiting caps on services. The new 

regulations prohibit the use of lifetime dollar limits on essential benefits and phases in new 

rules on annual dollar limits on coverage leading to the prohibition of annual limits in 2014. 

While the rules prohibit monetary lifetime limits and restrict annual limits, health plans may 

likely apply non-monetary annual limits to coverage such as the number of physician visits and 

hospital days. Such limits would force families to forego necessary treatments to preserve their 

benefits and be additionally disruptive to high-utilizing chronic disease patients, undermining 

the clear intent of the law. 

 Closely monitor annual limits until “essential health benefits” are defined. Because the 

interim rules allow a restricted level of annual caps on “essential health benefits” until 2014, it 

 

1 www.healthreform.gov “Young American & Health Insurance Reform: Giving Young Americans the Stability and Security they Need.” 
Community Health Councils 

Patient’s Bill of Rights 3 

is critical that any limits are sufficient for patients to receive adequate and comprehensive 

medical care. The current language clarifies that insurers must show good faith efforts in 

defining “essential health benefits” until this term is defined by HHS. Unfortunately, the 

interim final rules do not clarify what constitutes a “good faith effort,” opening the door to 

potential abuse by the insurance industry to deem essential benefits as non-essential. We 

suggest that a “good faith effort” be defined at least as using standard medical practices or 

independent clinical evidence to determine which health services are essential benefits. 

Selecting Primary Care Providers 

 Mandate notice of changes to an enrollee’s health insurance. We are pleased by the 

regulations to improve access and continuity of care by allowing patients to choose their 

primary care provider and see obstetrical or gynecological care without a referral. However, the 

current rules are void of any timeline on when notice requirements go into effect or standards 

for notifying an enrollee of the changes to his/her plan. Therefore, HHS should require that the 

insurance plan immediately begin the notification process and stipulate a clear set of standards 

for notification, such as certified mail, so that the insurer knows to a reasonable certainty that 

the enrollee has received the notice. Optimally, multiple forms of affordable technology and 

information systems should be used to broaden the reach of communication including, at a 

minimum, making phone calls to enrollees similar to Medi-Cal processes.

Removing Insurance Company Barriers to Emergency Department Services

 Establish fair standards for provider billing and clarify that the rules should not preempt 

stronger state laws. Although, health plans and insurers will no longer be allowed to charge 

higher cost-sharing for emergency services out-of-network, families remain unprotected from 

out-of-network provider charges not paid by their health plan (“balance-billing”). While the 

new regulations protect providers from unreasonably low payments from insurers, consumers 

deserve equitable protections from extreme hospital bills in order to avoid medical debt.

Therefore, any amount billed by a provider should be calculated at the lower of either the 

lowest rate that would be paid by Medicare or Medicaid or the actual unreimbursed cost to the 

hospital for the service. Lastly, the interim final rules must also clarify that stronger state 

protection against harmful balance-billing and financial assistance policies will hold.

The implementation of the Patient Protection and Affordable Care Act provides exciting yet 

challenging opportunities for administrators, officials and stakeholders across the nation. Community 

Health Councils is looking forward to working with you to build upon the strengths of our current 

healthcare system and to make needed reforms to improve quality, access, and affordability of care for

children and families. 

Should you require additional information or have any questions, please feel free to contact Laura 

Ewing, Policy Analyst, at 323.295.9372 extension 228. 

Respectfully submitted, 

Lark Galloway-Gilliam, MPA 

Executive Director