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.
