Hospital billing reform measures in other sections of the ACA show the
intent of Congress to make hospital billing fairer to consumers, but these
protections are too narrowly drawn to protect insured consumers from balance
billing by out-of-network emergency providers. Section 9007 of the ACA
provides new requirements for tax-exempt hospitals regarding financial assistance
and billing. This section prohibits tax-exempt hospitals from using gross charges
when billing financial assistance-eligible individuals for emergency care; instead,
the rule requires that they charge these individuals “not more than the amounts
generally billed to individuals who have insurance covering such care.”

Similarly, the interim rules under consideration should include a
requirement that hospitals charge out-of-network patients no more than the
amounts generally billed to in-network patients, or patients covered by Medicare.
New York state has adopted this approach in our hospital financial assistance law
for uninsured patients and patients who have hit their maximum benefits caps.
Alternatively, a patient’s bill could be based on the rate the plan or issuer is
required to pay under these rules. Hospitals should not be permitted to bill
consumers protected by this statute using gross charges.

Further, if a facility negotiates an agreement with an insurance plan to provide
services at in-network rates, all providers practicing at the facility should be
required to accept the negotiated rates. The rules should also clarify that any state
laws that provide more protection for consumers in this regard are not pre-empted
by the ACA.

Thank you for considering our comments. If you have any questions, please

contact Elisabeth Benjamin at ebenjamin@cssny.org or at (212)614-5461 or
Carrie Tracy at ctracy@cssny.org or at (212)614-5401.

Sincerely,

fir & ay

Elisabeth Benjamin, MSPH, JD
Vice President of Health Initiatives
Community Service Society of New York

Carrie Tracy
Policy Associate
Community Service Society of New York


§ 147.128)

The ACA and these interim final rules limit rescission of insurance
coverage to cases of fraud, intentional misrepresentation of material fact, and
failure to pay premiums. The interim rule’s also requires that a plan or insurance
issuer provide at least 30 days advance written notice before coverage may be
rescinded.

CSS recommends:

CSS believes that the interim rules would allow insurance companies too
much discretion in determining whether a consumer has committed fraud or an
intentional misrepresentation of fact. HHS should consider providing a clear
standard explaining that the burden of proof is on the plan or insurer when
determining whether a consumer’s fraudulent act or misrepresentation was
intentional. Insurers should be required to include allegations of the facts they will
rely on to justify the proposed rescission in the written notice. Further, we urge
HHS to outline a process requiring external review of the determination by an
impartial party before the rescission takes effect.

Patient Protections (26 CER § 54.9815-2719AT, 29 CFR § 2590.715-2719A, 45
CER § 147.138)

The ACA and the interim final regulations require a health plan or
coverage that provides any benefits for emergency services to do so without
requiring prior authorization and without regard to whether the provider is in-
network with respect to emergency services. A plan with a network of providers
that provides benefits for emergency services may not impose any administrative
requirement or limitation on benefits more restrictive for out-of-network
emergency services than that in effect for in-network emergency services.

CSS recommends:

The ACA’s protections regarding coverage of emergency services are
designed to protect consumers from receiving excessive bills for emergency
services received without prior authorization or from out-of-network providers.
They are also designed to eliminate the uncertainty that consumers face when
forced to visit an out-of-network emergency room. The interim final rules
regarding coverage of emergency services are well-designed to protect consumers
from these common experiences.

The rules’ failure to prohibit balance billing, however, leaves consumers
open to receiving unaffordable bills from providers and prevents consumers from
knowing, in advance, what level of debt they will incur during an emergency visit
to an out-of-network provider. CSS urges HHS to adjust the rules to prevent or
reduce balance billing by out-of-network providers for emergency services.


Community
ervice [revere
ociety

New York

David R. Jones
President & Chief Executive Officer

105 East 22nd Street
New York, NY 10010
PH 212.254.8900,
FAX 212.260.6218
www.cssny.org

Steven L. Krause
Executive Vice President &
Chief Operating Officer

August 27, 2010

Secretary Timothy Geithner
Department of the Treasury

Secretary Hilda Solis
Department of Labor

Secretary Kathleen Sebelius

Department of Health and Human Services

Office of Consumer Information and Insurance Oversight
Department of Health and Human Services

Attention: OCIIO-9994-IFC

P.O. Box 8016

Baltimore, MD 21244-1850

Dear Secretary Sebelius:

The Community Service Society (CSS) of New York writes to comment on the
interim final rules implementing the Patient Protection and Affordable Care Act
(ACA) provisions regarding preexisting conditions, lifetime and annual limits on
benefits, rescissions, and patient protections. CSS is a 160 year-old organization
that seeks to address the root causes of economic disparity. The organization’s
mission is to promote policies that advance the economic security of working
low-and moderate-income New Yorkers by bringing their perspectives to the
policy conversation. We work to expand access to affordable, quality care for all
New Yorkers, through advocacy and consumer assistance.

Overall, we commend the Departments for the progress these interim final rules
make in implementing the consumer protections of the ACA. However, we have
concerns regarding four sections of the new regulations: the rules prohibiting
preexisting conditions exclusions; the rules restricting annual limits; the rules
limiting rescissions; and the rules regarding coverage of emergency services


(patient protections). We will address these sections in the same order as the
interim final regulations notice.

Prohibition of Preexisting Conditions Exclusions (26 CFR § 54.9815-2704T, 29

CER § 2590.715-
2704 and_45 CFR § 147.108

The ACA and these interim final rules prohibit preexisting conditions
exclusions for group health plans or group health insurance coverage and
individual health insurance coverage. The prohibition takes effect for plan or
policy years beginning on or after January 1, 2014, but for enrollees under 19
years of age the prohibition becomes effective for plan or policy years beginning
on or after September 23, 2010.

CSS recommends:

The interim final regulation should be changed to require insurers to allow
young people with preexisting conditions to enroll in coverage at any time during
the year, for at least the first year, rather than requiring them to wait for an open
enrollment period. This is a significant change in the law, opening coverage to
many young people. Educating all of the eligible children and their families will
take time. Covering children is a high priority under the ACA, and the statute
should be interpreted to maximize their ability to take advantage of new
eligibility.

We also recommend that HHS consider establishing a waiver process
under which children can apply to enroll in coverage outside an open enrollment
period. The Massachusetts legislature recently enacted an annual enrollment
period (Section 8 of Chapter 288 of Acts of 2010) that allows, in addition to the
exemptions provided under ERISA, an additional opportunity for an individual to
apply for a waiver from the restricted enrollment rule. The waiver allows
individuals who inadvertently missed an open enrollment opportunity to purchase
coverage, without allowing individuals to game the system.

Lifetime and Annual limits (26 CFR § 54.9815-2711T, 29 CFR § 2590.715-2711,
45 CFR
§ 147.126)

The ACA and the interim final regulations generally prohibit annual or
lifetime caps on the dollar value of health benefits. The ACA allows insurers to
establish a “restricted annual limit” on the dollar value of essential health benefits
for plan years beginning prior to January 1, 2014. The interim final rules outline
the following schedule of minimum permitted annual limits for this period:

° For a plan (or policy) year beginning on or after September 23, 2010 but
before September 23, 2011, $750,000;


° For a plan (or policy) year beginning on or after September 23, 2011 but
before September 23, 2012, $1 ;250,000; and

e For plan (or policy) years beginning on or after September 23, 2012 but
before January 1, 2014, $2,000,000.

CSS recommends:

We recommend that the interim final regulations be amended to increase
the restricted annual limits and allow adjustments to these minimum limits in
regions of the country with higher-than-average health care costs. In New York
state, patients have run up annual bills in excess of $1 million for certain cancer
treatments, severe trauma, and intensive neonatal care for extremely premature
infants. Accordingly, the restricted annual limit for plan or policy years beginning
on or after September 23, 2010 but before September 23, 2011 should be raised to
$1,000,000. The restricted annual limit for plan or policy years beginning on or
after September 23, 2011 but before September 23, 2012 should be raised to
$1,500,000. And the rules should be amended to create a process by which the
Secretary of Health and Human Services (HHS) can raise the restricted annual
limits in regions like New York with higher-than-average health care costs.

The interim final regulations should also be clarified to close two potential
loopholes. Insurance companies could evade the prohibition on dollar value by
adopting new limits to the volume of care covered. It should be made clear that
insurance companies may not institute new limits to the volume of care as a proxy
for annual limits on the dollar value of care. Additionally, the rules should make it
clear that annual limits on a category of service, such as a dollar limit on the
amount of hospital care that will be covered in a year, is an impermissible
violation of the prohibition on annual limits.

The preamble to the regulations states that the Secretary of HHS will be
issuing further guidance related to the scope and process for applying for a waiver
of the limited annual benefits rule. We urge the Secretary, in this guidance, not to
allow providers of “mini-med” plans to continue selling limited benefit plans with
annual limits far below the restricted annual limits set out in this rule. The
recession and related job loss have left many consumers out of work for long
periods of time, leading to loss of work-related coverage; some consumers have
used up the coverage they are permitted through COBRA or state mini-COBRA
laws. These economic difficulties make consumers extremely vulnerable to being
taken advantage of by companies that charge premiums while offering illusory
coverage with very low annual limits. The ACA’s ban on annual and lifetime
limits is intended to protect consumers from these predatory plans, and the rules
should not allow companies to continue to offer coverage that does not protect
consumers.

Prohibition on Rescissions (26 CFR § 54.9815-2712T, 29 CFR § 2590.715-2712, 45
CFR