Finally, the interim final and proposed rules do not establish an effective mechanism for
oversight and enforcement of these important rules. Without such a process in place, there is no
way to ensure adherence and plans may avoid complying with the rules yet maintain that they are
a grandfathered plan. Without an effective process for challenging grandfathered status,
consumers will be without a remedy in the face of significant changes to their grandfathered plan
that may keep them indefinitely from the protections afforded under the Affordable Care Act.
CCD recognizes the value of grandfathered status of some plans as a means to smoothly
transition into a completely reformed private insurance market. But grandfathered status should
be viewed as a temporary option to those plans that make a good faith effort to retain current
coverage, not a permanent exemption from the new rules of the insurance market.

If you have any questions, please feel free to contact Peter Thomas, CCD Health Task Force co-
chair, at 202.466.6550 or Peter. Thomas@ppsv.com.

Sincerely,

American Association of People with Disabilities
American Counseling Association

American Medical Rehabilitation Providers Association
American Music Therapy Association

American Network of Community Options and Resources
American Occupational Therapy Association

American Physical Therapy Association

American Speech language Hearing Association
Association of University Centers on Disabilities

Autism National Committee

Autism Society

Bazelon Center for Mental Health Law

Brain Injury Association of America

Children and Adults with Attention-Deficit/Hyperactivity Disorder
Community Access National Network

Easter Seals

Epilepsy Foundation

National Alliance on Mental Iliness

National Association of County Behavioral Health and Developmental Disability Directors
National Association of State Head Injury Administrators
National Council for Community Behavioral Healthcare
National Disability Rights Network

National Down Syndrome Congress

National Multiple Sclerosis Society

National Spinal Cord Injury Association

Paralyzed Veterans of America

TASH

The Arc of the United States

United Cerebral Palsy

United Spinal Association


¢ Significant changes to the prescription drug formulary should result in loss of
grandfathered status. Although the use of prescription drug formularies may provide
valuable cost containment and quality assurances to health plan enrollees, changes in the
design and administration of prescription drug benefits can have a major and negative
impact on some of a plan’s most vulnerable enrollees, To encourage plans to maintain
grandfathered status through the continued provision of “all or substantially all benefits
to diagnose or treat a particular condition”, grandfathered status should cease upon any
of the following changes to the administration of prescription drug benefits and
formularies.

1. Restricting the formulary overall by shifting from an open formulary to a closed or
tiered formulary;

2. The establishment of new, higher, or specialty tiers with the effect of increasing
enrollees’ cost-sharing requirements;

3. The elimination of one or more tiers with the effect of increasing certain enrollees’
cost-sharing requirement;

4. The re-arrangement of tiers among a covered class of drugs resulting in a reduction
in the total number of drugs with the lowest cost-sharing requirement;

5. Restricting a formulary to ‘generics only’;
6. Requiring mail-order delivery for some or all drugs on the formulary.

7, Eliminating specialty pharmacy support services for certain plan members with
special needs;

8. Imposing, or lengthening the moratorium period before new therapies can be added
to the formulary; and/or

9. The elimination of a drug(s) from the formulary for reasons other than patient safety.

¢ Plans that place significant additional limits on a provider network should also lose
grandfathered status. Under the existing regulations, an enrollee could see their provider

network drop to 5 doctors while the plan maintains its grandfathered status. Even losing
one or two physicians could have a serious impact to individuals with disabilities and
chronic conditions who often rely on specialized care.

Additionally, we believe that it is crucial that individuals covered under a grandfathered plan
know exactly what consumer protections they are afforded. As such, grandfathered plans should
not only be required to list what benefits they do provide but also which consumer protections
they lack.


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SEP 9 ii0 REC- } 1 F4/2-/0

'LEGAL PROCESSING DIVISION

PUBLICATION & REG
eee. ULATI
BRANCH ONS. As of: September 09, 2010

PUBLIC Status Posted

Posted: September 09. 2010
SUBMISSION racking No; 8003220 nag

Submission Type: Web

Docket: IRS-2010-0010
Group Health Plans and Health Insurance Coverage Rules Relating to Status as a Grandfathered
Health Plan Under the Patient Protection and Afforable Care Act

Comment On: IRS-2010-0010-0001
Group Health Plans and Health Insurance Coverage: Interim Final Rules for Relating to Status as
a Grandfathered Health Plan under the Patient Protection and Affordable Care Act

Document: IRS-2010-0010-0907
Comment on FR Doc # 2010-14488

Submitter Information

Name: Theresa Morgan
Address:

Washington, DC,
Organization: Consortium for Citizens with Disabilities

General Comment

Attached: Consortium for Citizens with Disabilities Comments

Theresa Morgan
202.349.4243
theresa.morgan@ppsv.com

Attachments

IRS-2010-0010-0907.1: Comment on FR Doc # 2010-14488

https://fdms.erulemaking.net/fdms-web-agency/component/submitterInfoCoverPage?Call=P..._ 9/9/2010


CONSORTIUM FOR CITIZENS
WITH DISABILITIES

August 16, 2010

Ms. Karen Levin

Room 5205

Internal Revenue Service
Department of the Treasury
P.O. Box 7604

Ben Franklin Station
Washington, DC 20044

Re: CCD Comments regarding the Interim Final Rule and Proposed Rule for Group
Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health
Plan under the Patient Protection and Affordable Care Act

Dear Ms. Levin:

The Consortium for Citizens with Disabilities (CCD) appreciates the opportunity to comment on
the interim final rule and proposed rule relating to status as a grandfathered health plan under she
Patient Protection and Affordable Care Act (Pub. L. 111-148). CCD believes comprehensive
health care reform should ensure that all Americans, including individuals with disabilities and
chronic conditions, have access to high quality, comprehensive, affordable health care that meets
their individual needs and enables them to be healthy, functional, live as independently as
possible, and participate in the community.

We applaud the Department of Health and Human Services (HHS) for requiring grandfathered
plans to adhere to a number of important consumer protections in order to retain status as a
grandfathered plan. Specifically, CCD commends the HHS Secretary for requiring grandfathered
plans to disclose their status to their enrollees and specifically state which benefits they do
provide and for requiring grandfathered plans to lift lifetime limits on essential health benefits.

The purpose of grandfathering plans is to provide a transition period that allows individuals
satisfied with their current insurance plan to keep it intact during a period of rapid change in the
insurance market, perhaps leading to an avoidance of disruption in their coverage. The regulation
needs to ensure a smooth transition so as not to disrupt current coverage and consumer
protections without inadvertently establishing a permanent “underclass” of grandfathered plans


to which PPACA does not apply. Establishing grandfathering rules that are too permissive risks
the creation of a separate insurance market where patients and consumers do not gain the
benefits of health care reform and would ultimately work to the detriment of persons with
disabilities and chronic conditions who need PPACA’s protections to ensure access to quality
care.

On the other hand, CCD acknowledges some risk in making grandfathering rules too strict,
especially if the essential benefits package is not as expansive as the disability community
expects it to be. Individuals and enrollees in group plans with relatively generous benefit
packages that cover disability and rehabilitation services may stand to lose access to important
benefits if their plan loses grand fathering protection and the new essential benefits package is not
as comprehensive in terms of benefits coverage. But above all, this underscores the importance
of defining the essential benefits package in a way that meets the needs of people with
disabilities and chronic conditions.

In order to protect participants with disabilities that are covered under a grandfathered
plan, on balance, CCD believes that HHS should broaden the circumstances under which
grandfathered plans must become subject to the consumer protections that apply to all
other new plans. In addition to the provisions in the regulation that trigger a loss of
grandfathered status such as changes in cost sharing and employer contributions, which CCD
supports, CCD lists below additional circumstances under which grandfathered plans should lose
their status:

e Any significant decrease in benefits should result in the loss of grandfathered status. The
current version of the rule only retracts status when grandfathered plans eliminate all or
substantially all benefits linked to a specific condition. While this language serves as an
important protection against singling out specific types of conditions or disabilities, we
believe additional guidance should be promulgated that all significant decreases in the
scope or breadth of the benefit package will trigger this loss of grandfathered status. For
instance, if a plan were to decide to cap the number of therapy visits for rehabilitative
care, cap coverage for durable medical equipment, or limit coverage of prosthetic limbs
over a lifetime, these restrictions in benefits should trigger a loss of grandfathered status.
For example, a cap of $500 on durable medical equipment essentially eliminates the
ability of a person requiring a wheelchair to access an appropriate mobility device.
Similarly, a limit of “one prosthetic limb per lifetime” is totally unrealistic and, for
instance, provides only temporary relief for a growing child. If these types of benefit
limits are imposed by plans with grandfathered status, such status should be rescinded.

e Any substantial change to the structure of a grandfathered plan should result in the
elimination of the plan’s grandfathered status. These structural changes could
fundamentally change the existing coverage in a manner that significantly affects
enrollees, particularly individuals with disabilities and chronic conditions whose
coverage may be severely limited by a change in plan structure. For example, ifa
grandfathered preferred provider organization (PPO) becomes a closed-panel health
maintenance organization (HMO), these plans should lose their grandfathered status.