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Payers Advise Caution, Request Delays on HHS-Proposed Marketplace Requirements

Analysis  |  By Laura Beerman  
   February 21, 2022

"If the ACA intended to fully commoditize coverage, it could have done so," noted one respondent regarding proposed marketplace standardization.

The comments are in on the Notice of Benefit and Payment Parameters (NBPP), the HHS annual rule governing the ACA-mandated practices of marketplace health plans. HealthLeaders has summarized responses from nine of the largest health plans or plan associations, noting alignments and differences based on the rule's primary proposals. The following overview also includes HHS' curious position on telehealth and one health plan that held multiple positions that differed from its competitors.

Proposal components

As a recap, the HHS proposal included the following:

  • Requiring new data collection to support health equity
  • Mandating standardized plans and benefit design based on clinical evidence
  • A new two-stage risk-adjustment calculation model
  • Reinstating discrimination protections and network adequacy reviews
  • Requesting payer input on health equity program design and quality strategy alignment

This analysis will focus on the first three bullets. A summary of payer health equity recommendations and a more in-depth look at CMS' proposed risk-adjustment changes will appear in separate articles. The information below includes responses from: the Association for Community Affiliated Plans (ACAP), AHIP, Anthem, the Blue Cross Blue Shield Association (BCBSA), Centene, Cigna, CVS Health, Health Care Service Corporation (HCSC), Kaiser Permanente, and UnitedHealthcare (UHC).

Telehealth as a form of discrimination?

Health plan support for HHS non-discrimination protections was predictably and consistently positive.

The same cannot be said for other proposals nor HHS' head-scratching suggestion that zero-copay telehealth benefits could be inadvertently discriminatory by steering enrollees away from in-person service delivery. BCBSA commented most strongly here, stating:

"CMS appears to suggest that some delivery models are inherently superior to others and that steering patients to a preferred delivery model based on quality and efficiency considerations may be inherently discriminatory. Telemedicine … has proved an invaluable tool in expanding access to care in difficult circumstances. It is not appropriate in all circumstances, but encouraging its use when it is appropriate should not be seen as inherently discriminatory."

UHC and others strongly echoed this sentiment.

Support for the "why" of more data, but not the how or when

To bolster health equity analysis and program design, HHS wants health plans to submit the following additional variables:

  • ZIP code
  • Race and ethnicity
  • Individual Coverage Health Reimbursement Arrangements (HRA) and subsidy indicators 

Payer stakeholders understand HHS' purpose but note the added burden of collecting not only more data but select variables in sufficient volume to be valuable and fairly included for updated risk adjustment. HHS' ability to extract this data and use it for broader purposes raised multiple data privacy and security concerns.

Most of the previously referenced stakeholders opposed this data collection and use until standards and availability can be normalized. BCBSA recommended that the government "support industry standardization efforts, such as the Gravity Project, to develop data standards and appropriate data use prior to setting any government mandates around demographic and social determinants of health (SDOH) data collections."

HCSC did not address the item and Kaiser supported it provided the data is accurate, reliable, and serves a unique purpose and benefit that outweighs collection burdens. UHC supports the collection of all proposed data points with three caveats: recommended delay until 2024 or later, no extraction of additional data or for expanded use, and no collection of HRA. Multiple respondents objected to the latter, citing lack of payer involvement in this data collection and the potential for it to "cause abrasion" with the employers who do collect it.

Plans object to standardized design

Plans and their associations generally disagreed with HHS' proposal that they should offer multiple standardized plans, some expanded, at all metal levels to make consumer shopping easier. Most of these stakeholders requested a delayed, modified, or optional implementation of these plans, noting that standardization could curb innovations that help lower premiums, meet unique market needs, and support value-based care (VBC).

Again, AHIP, Anthem, BCBSA, Centene, Cigna, CVS Health, and UHC generally objected. Some advised that standardized plans be limited to one metal and one option only—with AHIP and Centene recommending a single silver plan and Kaiser recommending an expanded bronze plan. All plans agreed that no standardized plans should be listed preferentially on

CVS Health recommended "that HHS use existing tools to improve the consumer shopping and coverage experience before mandating standardized plan offerings," adding that the ACA never intended to "fully commoditize coverage" and noting that the emergence of new payers and benefit designs indicate that HHS is already doing what it needs to protect innovation and competition.

Evidence-based, but according to whom?

To further support non-discrimination, HHS proposed a benefit design standard that is "clinically based, that incorporates evidence-based guidelines into coverage and programmatic decisions, and relies on current and relevant peer-reviewed medical journal article(s), practice guidelines, recommendations from reputable governing bodies, or similar sources."

While the payer community acknowledged the value of clinical evidence, which plans already integrate to some degree in benefit design, none supported exactly as proposed. Most recommended optional or delayed implementation until 2023 (Cigna) or 2024 (Centene). Two plans had opposing recommendations—with Centene requesting specific clinical evidence guidelines while BCBSA stated that these were not for CMS to "further define." Kaiser noted that some clinical frameworks could drive improper utilization inadvertently.


There were three primary components to HHS' risk-adjustment proposal, all designed to improve the risk-adjustment predictions that help distribute more funding to plans with higher-risk members. This analysis focuses on the new two-stage weighting model HHS wants to implement, believing that the existing one underestimates how many low-risk members each plan has.

Rule respondents were concerned about bias as well, but with different objections and conclusions. ACAP, AHIP, and Kaiser generally supported while UHC fully supported. Centene, Cigna, and CVS Health did not specifically oppose or address.

Anthem, BCBSA, and HCSC were all opposed on the grounds that the new model would actually increase adverse selection. BCBSA suggested the proposed adjustment would overfit predictions plan, adding that "a two-stage weighted approach is not a standard procedure for risk adjustment" and suggesting that current administrative adjustment "already addresses some of the underprediction" HHS is seeing.

One payer's differences

Kaiser was a bit of an outlier compared to its competitors. It appeared to express broader support for SDOH data collection and use, clinically based benefit design, and HHS' new risk calculations.

The plan stated it was "generally supportive of the standardized options proposed" and recommended finalizing the proposal" with no implementation delays but, as mentioned, for the expanded bronze plan only. It also stated: "Based on the analyses presented in the Technical Paper and in the proposed rule, we support including the two-stage weighted approach and the enrollment duration factor changes in the risk adjustment models starting with the 2023 benefit year." It was the only plan to express support this clearly.

These differences are perhaps no surprise. Among the respondents named in this feature, Kaiser is the only fully integrated payer-provider. It is the largest such private organization of this kind in the U.S., with an EHR system and an ability to control its membership profile that are the envy of the industry.

Next steps

Respondents noted that the comment period for the NBPP was shorter than normal due to the holidays. Several plans also called on the HHS to withdraw and replace its document. The regulatory process guarantees that HHS will have a lot of work on its hands if it is to finalize the rule this May.

“CMS appears to suggest that some delivery models are inherently superior to others and that steering patients to a preferred delivery model based on quality and efficiency considerations may be inherently discriminatory.”

Laura Beerman is a contributing writer for HealthLeaders.

Photo credit: BOISE,IDAHO/USA - DECEMBER 21 2013: displays information about the Affordable Healthcare Act and directs to to apply. TXTKING / Shutterstock


Payers have responded to HHS' marketplace rule, generally rejecting standardized plan requirements and expressing concern that a new two-stage risk adjustment model would increase adverse selection.

These organizations generally supported additional data collection to improve health equity but not in the timeframe HHS calls for or before guidelines can be established and agreed upon.

The general consensus was that the exchanges are stable, innovative, and marked by healthy competition with no need for requirements and rapid timetables that will upset this apple cart.

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