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September 27, 2011 VIA RULEMAKING PORTAL Centers For Medicare and Medicaid Services Department of Health and Human Services Attention: CMS-9989-P Baltimore, MD Dear Sirs/Madams: We appreciate this opportunity to comment on the proposed rules that would implement Affordable Insurance Exchanges (Exchanges) pursuant to Title I of the Patient Protection and Affordable Care Act (ACA). Advocacy for Patients with Chronic Illness, Inc. is a 501(c)(3) nonprofit that provides free information, advice and advocacy services to patients with chronic illnesses nationwide in areas including health insurance. We receive many inquiries on a daily basis from consumers around the country who are trying to find or select health insurance. The Exchanges will be critical vehicles towards providing consumers with knowledge of their health insurance options, autonomy and support in selecting insurance, and, thus, empowerment. We write to suggest ways in which we believe these consumer interests can best be protected. Part 155: Exchange Establishment 1. Section 155.110 provides that consumer interests will be represented by requiring that overall governing Board membership is not made up of a majority of voting representatives with a conflict of interest, including insurers and agents/brokers. However, the rule also provides that the majority of Board members have to have expertise in a related field, which will limit the number of consumers who will be able to sit on the Board. Still, the Preamble states: Exchanges are intended to support consumers, including small businesses, and as such, the majority of the voting members of governing boards should be individuals who represent their interests. Thus, there must be a careful balance of expertise and consumer representation.

CMS-9989-P September 27, 2011 Page 2 of 12 We strongly oppose representation on the Exchange Boards by those with conflicts of interest even if those members comprise a minority. Insurers, brokers, agents, and even health care providers are invested in their own self-interest. Due to their clout, their interests will be considered and protected by others on the Board. They do not need to have votes on the Board in order to have their interests protected. However, if they do have votes on the Board, there is the strong possibility that they will dominate decision-making, even if they hold only a minority of seats on the Board. Thus, we would strongly urge you to preclude anybody with a conflict of interest from serving as a voting member of the Board. Certainly, the Board might have advisory committees or other formal or informal way of eliciting opinions from the various industries. However, a conflict of interest should bar one from serving in a voting capacity. In addition, in order to ensure enough expertise while also guaranteeing sufficient consumer representation, we strongly urge the adoption of a consumer quota on the Board of the Exchange at least 25 percent of its voting members. These Board members would represent both individual consumers and small businesses. They may be consumers themselves (as we all are, of course), or they may be an employee or member of an organization that represents consumer interests. Their ability to represent consumers does not preclude them from having the sort of expertise specified in the rule, but it should not be required of them. Only by including several members of the Board who are or represent consumers can the Department be certain that consumer interests will be heard and acted upon. 2. Section 155.130 provides for stakeholder consultation on an ongoing basis. We suggest that the fact of ongoing stakeholder consultation be checked by the Department on a periodic basis, requiring the States and, ultimately, the Exchanges to report to HHS the nature and extent of stakeholder involvement. We are concerned that stakeholder consultation may not be regarded as warmly in some states as in others. We also are concerned that, in states in which one or two large insurers dominate, they may be the only stakeholders who are consulted. Thus, stakeholder involvement should be monitored by the Department to ensure that all stakeholders are consulted on an ongoing basis. 3. Section 155.200(c) requires the Exchange to perform eligibility determinations and operate an appeal process. The appeal process is very important for many reasons. First, the Exchange will be making Medicaid and CHIP eligibility decisions, as well as decisions regarding eligibility for the advanced payment of premium tax credits, which will require due process hearings. Second, Exchanges will make errors or be provided with inaccurate information that only can be reversed through an opportunity for a meaningful hearing. Will the Exchange conduct hearings for all issues, including Medicaid denials? If so, will the Exchange be staffed with hearing officers? We strongly urge the Department to provide guidance on rules for appeals constituting a set of minimum consumer protections that will apply nationwide. While many states will respect consumers rights to appeal, some will not, just as some states have failed or refused to implement the external appeal process mandated by the ACA. In light of the experience the Department has had with states in the context of internal claims review and external appeals, we suggest that HHS consider setting a floor for appeals to be conducted by the Exchanges to ensure that minimum consumer protections are provided uniformly nationwide.

CMS-9989-P September 27, 2011 Page 3 of 12 4. Section 155.210 addresses Navigators. We applaud the Department for prohibiting those with conflicts of interest from serving as Navigators. In addition, we agree that the conflict of interest should be evaluated at the time the person or entity serves as a Navigator. Thus, for example, an insurance agent who received commissions in the past from an insurer offering a qualified health plan (QHP) from the Exchange can serve as a Navigator so long as he or she no longer receives commissions from such an insurer. This makes sense not only to guard against conflicts of interest, but also to ensure that an agent does not receive payment through a Navigator grant in addition to a commission, which would be a duplicate payment. Further, as set forth in section 155.220, agents/brokers could continue to assist clients in enrolling in QHPs even if they are not Navigators. Thus, it would be up to the agent/broker to decide which role they would like to play simply enrolling clients as an agent/broker, or taking on the more robust counseling role of a Navigator. The Department has asked whether it should require that at least one category of Navigators be community and consumer-focused nonprofit organization or whether the Department should require that Navigators reflect a cross section of stakeholders. We contend that one category, especially for the individual market, should be community and consumer-focused nonprofit organizations. These organizations already have established relationships of trust with consumers who will have to understand changes to the insurance system once the Exchanges are operational. Many of them already are providing culturally and linguistically appropriate services. To ensure the strongest protection of consumers, we urge the Department to require that community and consumer-focused nonprofits should be one category of Navigators. 5. Section 155.230 provides that notices to enrollees should, inter alia, cite to or identify the specific regulation serving as the basis for the substance of the notice. We urge the Department to require that the substance of the regulation, or at least a summary of it, should be included in the notice. Most consumers will not know how to find a regulation with only a citation. In addition, the rule states that Exchanges must provide meaningful access to interpretation for those with limited English proficiency (LEP) and effective communication with people with disabilities. We strongly urge the Department to flesh out the details of these requirements. As you know, the issue of interpretation/translation services in the context of insurance company coverage denial notices has been a thorny one that still has not been resolved fully. How many languages will the Exchange have to make available? Should the Exchange track language preferences so that, once a consumer indicated a preference for communication in Spanish, all further communication is in Spanish? Should written translation be provided or is verbal interpretation sufficient? These are difficult issues about which the Exchanges should be provided guidance. It is our contention that Exchanges should provide written notices in any language preferred by at least 500 consumers in the Exchanges service area. Similarly, there should be clear standards for communication with people with disabilities. For those who are not able to sit at a computer, dial a telephone, or travel to an office, the Exchange should ensure that there is a Navigator prepared to service that consumer in his or her home. Of course, all telephone communications

CMS-9989-P September 27, 2011 Page 4 of 12 should be available on TDD lines for the deaf or hard of hearing. Sign language interpretation should be available at any in-person educational sessions or any video presentations available on the internet. The location of all offices the Exchange and Navigators should be handicapped accessible. 6. Section 155.405 provides that an authorized representative may apply on behalf of a consumer. To facilitate this, an authorization form should be available for download on the Exchange website or by mail upon request. In addition, you asked whether consumers should be permitted to apply for enrollment in person. We strongly feel that they should. For several segments of the population, cultural preferences strongly favor communications with someone who is not an anonymous voice over the telephone, or even worse, no voice on the internet. In addition, there are consumers who, due to disabilities, cannot use computers, even if they have access to one at a public library or in locations established by the Exchange for this purpose (which should be made available for consumers who do not own computers). People who are confused or who have particularly complex medical conditions will have questions and they will want to meet with somebody in person to feel comfortable with the answers they receive. Thus, for all of these reasons, we would answer the Departments question in the affirmative. 7. Section 155.410(e) provides that the annual open enrollment period will run from October 15 to December 7. This is shorter than the 60 day special enrollment periods. In addition, December 7 is a random date that will be difficult for people to remember. We would suggest that the annual enrollment period should run from October 15 through December 15. The Department has asked whether it should provide for automatic enrollment of people who are disenrolled from QHPs who are receiving advanced payment of tax credits or if there is a merger of the insurer with another insurer, or if the particular QHP is terminated but the same carrier offers other, similar options. We contend that consumers should have maximum autonomy to make plan selections. Thus, we would suggest that, in the situations outlined above, the Exchange send the consumer a notice that states that, unless the consumer makes a different choice by a date certain, the consumer will be auto-enrolled in the most similar QHP available. But the consumer should be provided with notice and an opportunity to choose a QHP before auto-enrollment. 8. Section 155.420 provides for special enrollment periods. Paragraph (b) states that, if an applicant enrolls by the 22nd of the month, he or she will have an effective date of the first day of the following month, but if the consumer applies after the 22nd, the effective date may be the first day of the second following month. Consumers should be advised of this conspicuously and clearly so that, if they are looking for an earlier effective date, they will realize that time is of the essence. Paragraph (f) provides that, if a consumer loses coverage and applies for enrollment through the Exchange during a special enrollment period, the consumer can only move to a plan at the same level of coverage. We do not understand the reason for this restriction. In the Preamble, you say that it serves the need to avoid adverse selection, but we do not understand how allowing someone to switch from a silver plan to a gold plan encourages adverse selection. Indeed, we can envision the

CMS-9989-P September 27, 2011 Page 5 of 12 opposite that a consumer who was enrolled in a QHP through the Exchange but who wants to change from a silver to a gold plan would go outside of the Exchange if they cannot have this same option inside the Exchange. We contend that the Department should allow consumers to choose any QHP during a special enrollment period. A consumer may want more comprehensive coverage than that which her employer or former employer selected; if she chooses to pay that higher premium, she should be permitted to do so. On the other hand, if an employer chooses a gold level plan that the consumer feels she cannot afford, she should not be restricted from choosing a silver level plan instead. The Department also asks whether someone who is in a catastrophic plan and becomes pregnant should be permitted to upgrade to a higher coverage level. Again, we favor as much consumer autonomy in decision-making about plan selection as possible, so we would answer this question in the affirmative. We are very concerned about a possible consequence of the rule as written that, as best we can tell, was unintentional. If COBRA is minimum essential coverage, then under the rule as proposed, a consumer might have to exhaust COBRA before being eligible for a special enrollment period. However, we understand from the Departments verbal statements that COBRA is only minimum essential coverage it if is elected; an individual may decline COBRA and, instead, enroll in a QHP through the Exchange. We strongly urge the Department to state this expressly and to require that notice of this rule be included in all COBRA notices that are sent to eligible individuals so that they will understand their options before they elect COBRA. Next, in the Preamble to this section, the Department states that one event that would trigger a special enrollment period would be reaching a lifetime limits on all benefits in a grandfathered plan. However, the Department issued interim final rules on June 17, 2010 that state, inter alia, that the prohibition against lifetime limits found in 2711 of the Public Health Service Act applies to grandfathered plans. 75 Fed. Reg. 34542. Thus, we suggest that this statement in the Preamble is an error. 9. Section 155.430(c)(3) provides standards for termination of coverage that require issuers of QHPs to provide reasonable accommodations to individuals with mental or cognitive conditions, including mental and substance abuse disorders, Alzheimers, developmental disabilities. We ask that the Department expand this and be more explicit about what types of accommodations Exchanges should provide. First, accommodations should be provided to any person who, by reason of or related to disability, fails to pay a premium on time. For example, we assisted a consumer with myasthenia gravis whose coverage was terminated due to late payment of premium because he had become disabled, his house was foreclosed on, and there was a delay in forwarding his mail to his new address, resulting in a late premium payment. Similarly, consumers may spend more than a month in a hospital and may be unable to make a premium payment during that time. Any consumer who can establish that they have a good faith, disability-related basis for the late premium should be provided with additional time.

CMS-9989-P September 27, 2011 Page 6 of 12 Second, we would suggest that there should be a grace period for people with disabilities, as there is for people who receive the advance payment tax credit. Section 156.270. The Exchange or QHP should be required to state expressly in any termination for nonpayment notice that reasonable accommodations are available for people with disabilities, and provide specific instructions for requesting accommodations, including a statement of the precise documentation that will be required to prove that nonpayment was related to the consumers disability. Subpart H: SHOP Exchange 10. Section 155.705 requires that employers be allowed to choose the level of coverage and let employees choose any plan on that level, or the employer may choose a single plan, or the employer may allow employees to choose any plan. Again, we do not understand the rationale for allowing employers to make these choices on behalf of employees. The employer should have the ability to decide how much of a financial contribution it wishes to make to the employees health insurance premiums. Beyond that, consumers should have the right to choose their plan. Not only does this maximize consumer autonomy, but it gets employees used to making selections from the Exchange in the case that they ever lose group coverage. 11. We strongly support the definition of small employer that includes one-employee groups (excepting sole proprietorships and S corporations). Section 155.20. Often, a small employer may lose an employee and be reduced to a single employee for a time. Rather than force such individuals to switch back and forth from individual to group insurance, it makes good sense to include one-employee groups in the small business market. 12. Section 155.715(g) provides for the notice that must be provided if an employer ceases to purchase coverage through the SHOP Exchange. In the Preamble, the Department asks whether the notice should inform the employees about their eligibility for special enrollment period, tax credits, Medicaid, CHIP, and so on. We cannot imagine a reason why such information should not be included in the notice. The better informed the consumer is, the better his or her choices will be. We strongly urge that all of this information be provided in any such notices. 13. Finally, there are issues that the proposed rule does not address. For example, many employers in small states like ours have employees who live in other states, which would be outside of the SHOP Exchanges service area. We cannot determine how the SHOP Exchange would treat such employees. For example, if a Connecticut employer has an employee who resides in Massachusetts, will that employee be covered through the Connecticut SHOP Exchange? If so, will out-ofnetwork coverage be available. Or will the employer be required to enroll in both the Connecticut and Massachusetts SHOP Exchanges; or will the employee be required to enroll as an individual in the Massachusetts Exchange? This seems to us to be a common enough phenomenon so that it should be squarely addressed in the regulations. Similarly, if the state limits its SHOP Exchange to employers with 1 to 50 employees rather than expanding to 100 employees, and a large employer is defined as one with at least 101 employees, what should employers with 51 to 100 employees do? Are they excluded from the Exchange entirely? By allowing states to

CMS-9989-P September 27, 2011 Page 7 of 12 restrict SHOP Exchange enrollment to 50 employee groups, the Department appears to create the possibility of a gap in Exchange coverage for mid-sized employers. Subpart K: Exchange Functions - Certification of QHP 14. Section 155.1000 requires a multi-state plan must offer a benefit package that is uniform in each state. Is this tantamount to federal pre-emption of state insurance coverage mandates? We strongly object to any provision that eliminates the coverage mandates that Connecticut consumers have fought hard to obtain. 15. Section 155.1020 requires the QHP to justify rate increases prior to implementation, and states that the Exchange must consider rate increases in certifying plans. This raises a whole host of issues about how the Exchanges consideration of rate increases will affect or interact with state rate review procedures. In many states, rate review is not conducted with appropriate zeal; in such states, we certainly welcome scrutiny of rate review by an Exchange. However, we can envision a circumstance in which a states regulatory authority would approve a rate increase but the Exchange might feel that the rate increase is excessive. How does the Department anticipate that such inconsistent determinations would be resolved? 16. Section 155.1050 addresses network adequacy. In the Preamble, the Department states that that the consumer has to be able to go to an out-of-network provider (OON) at no additional cost if in-network isnt accessible in a timely manner. In addition, the Preamble to sections 156.220 and 156.230 mentions OON coverage in requiring that QHPs provide information about the availability of both in-network and OON providers. These provisions do not adequately address our far broader concern about OON coverage. We work with many people with complex illnesses who can only locate appropriate experts in other states, for example. Currently, if a consumer is enrolled in an HMO that restricts members to in-network providers, there is a procedure according to which they can request an exception that would allow them to see an OON provider. In addition, currently, there are PPO and POS plans that include OON coverage, albeit at a higher copayment. Although the ACA does talk about bronze, silver, gold, platinum and comprehensive levels of coverage, it does not require that insurers offer PPO or POS plans with OON coverage, nor is there any requirement that a QHP include a procedure according to which an exception to network requirements can be sought and obtained if medically necessary. We have worked with many consumers who have a compelling medical need for OON coverage. For example, we know of a patient with a severe case of Crohns disease who has tried several in-network gastroenterologists. At one point, she became so ill that her kidneys began to cease functioning and her treating providers did not know what to do. They admitted her to the hospital and prescribed powerful pain medications. When she overdosed and could not be aroused over an entire week-end, her treating physician insisted that she must have tried to commit suicide although it was clear that the only drugs that had been administered were provided intravenously, so she could not have taken them herself. She went to another innetwork provider who performed a colonoscopy and upper endoscopy using Propofol as an anesthetic. She awoke the next morning with fingerprint bruises on her neck.

CMS-9989-P September 27, 2011 Page 8 of 12 She later learned that she had stopped breathing during the procedures, but her physician chose not to advise her of this fact. As a result of these experiences, she located an expert in Crohns disease located in New York, which is out of network. That expert saved her life and continues to be her trusted expert to this day. We could provide many similar stories supporting the need for OON coverage as an option. We strongly believe that, when a patient has made every effort to locate innetwork providers and has had a history of experience like that recounted above which would lead any intelligent person to seek treatment elsewhere there should be OON coverage. This may be accomplished by ensuring that patients have the option of enrolling in a QHP with OON coverage such as a PPO or POS, or by requiring Exchanges to offer riders for OON coverage, and/or it may be accomplished by ensuring that every QHP have in place a process by which any member can request permission to seek treatment OON, with the full array of appeal rights set forth in the rules regarding internal claims procedures and external appeal processes. We are very concerned, though, that this issue has not yet been addressed in statute or regulation. This omission should be remedied. 1 Part 156: Health Insurance Issuer Standards 17. Section 156.210 provides that QHPs must post rate increase justifications on their websites. The Department asks whether this justification should be prominently posted? We answer strongly in the affirmative. In many states, including Connecticut, there is no prior notice to consumers that a rate increase has been requested; consumers learn of rate increases after they have been approved in most instances. The least that should be required is that QHPs post their rate increase justifications prominently, before they take effect, so that consumers may contact their Insurance Department and weigh in about the rate increase before it is quietly approved. 18. Section 156.220 provides that claim denial data be provided to the Exchange. We would suggest that this should include the number of appeals and how often denials are reversed in response to either internal or external appeal. This would allow consumers to assess whether claim denials typically are upheld on appeal and, thus, deemed to be justified, as opposed to when they are deemed to be unjustified. Consumers may find this to be important information in evaluating a QHPs past performance.

In addition, in 45 C.F.R. 155.710, as well as in CMS-9974-P, Notice of Proposed Rulemaking on Exchange Functions in the Individual Market: Eligibility Determinations; Exchange Standards for Employers at 76 Fed. Reg. 51224, the Department suggests that there should be no residency requirement for qualified employers or employees in the SHOP Exchange, and that the employer should offer employees coverage through either the SHOP serving the employers principal business address or at the employees primary worksite. So if an employee lives outside of the SHOP service area, he or she will need access to OON coverage. Indeed, in such a case, it seems to us that charging higher copays or coinsurance in such an instance is unfair to employees who do not reside in the SHOP service area. We strongly contend that the Department should undertake a fuller consideration of the availability of OON coverage.
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CMS-9989-P September 27, 2011 Page 9 of 12 19. Section 156.225 pertains to marketing. Specifically, the Department asks how best to monitor marketing to ensure that QHPs do not discourage people with significant health needs from enrolling. While we very much favor wellness programs, too often they stress activities in which people with significant health needs cannot participate. For example, offering gym memberships without also offering options for people who cannot participate in vigorous activities may send the message that only healthy people are wanted by the Plan. Photographs on brochures of healthy consumers engaged in sports activities abound; rarely do they include photographs of people in wheelchairs, too, for example. In addition, informational seminars may be held in locations that do not provide easy handicapped access, or sign language interpreters may not be provided. TDD numbers may be difficult to locate. And, of course, plans can use past claims data to determine to whom they wish to market. We believe that the key to ensuring that plans do not use marketing practices calculated to discourage people with significant health needs from enrolling is robust monitoring of marketing practices. Marketing materials should be reviewed before they are used, and that review should focus largely on whether the materials convey the impression that the Plan prefers healthy members. Enticements like gym memberships should be balanced with activities that people with health issues could enjoy perhaps swimming or yoga or a gym membership offering could include a photograph of a person in a wheelchair working on upper-body strengthening. There are many ways to convey subliminal messages. Monitoring of marketing tools should be conducted with an eye towards identifying such messages and ensuring that appropriate messages are conveyed. In addition, the Department asks whether the QHPs should be prohibited from engaging in unfair and deceptive marketing. We again answer strongly in the affirmative. Although many states have laws prohibiting unfair and deceptive practices by insurers that arguably might include marketing, we contend that this point cannot be over-emphasized. We would support the inclusion of this prohibition in the rules governing QHPs. In addition, there should be a procedure for example, the ability to file a complaint with a state Insurance Department according to which claims of unfair and deceptive marketing practices can be addressed. 20. Section 156.235 requires QHCs to include essential community providers in their networks. We strongly support this rule. It will be particularly important for consumers who lose Medicaid coverage and must enroll in a QHP but wish to stay with their existing providers, who may be on staff at essential community providers, including FQHCs. The Department has raised the question that appears to arise out of section 1311(c)(2) of the ACA, which requires QHPs are allowed to pay essential community providers the generally applicable payment rates of the Plan, and section 1302(g) of the ACA, which requires that QHP issuers pay FQHCs at the facilitys Medicaid prospective payment system rate. It seems to us that the Departments second proffered resolution to this apparent or potential inconsistency which arises only in the relatively unlikely situation in which an FQHCs Medicaid rate is higher than the rate generally applicable under the Plan is the preferable solution. Under that approach, issuers would simply negotiate rates with FQHCs that are at least equal to

CMS-9989-P September 27, 2011 Page 10 of 12 the issuers generally applicable payment rates. This allows FQHCs to continue to serve their patients at rates that they find to be acceptable. 21. Section 156.245 permits QHPs to provide coverage through a direct primary care medical home. The Department asks what standards should govern direct primary care medical homes. Here, we feel that there is no need for the Department to reinvent the wheel, as it were. Both the NCQA and URAC have established criteria according to which patient-centered medical homes can be accredited. QHPs should be required to permit coverage through any medical home that is so accredited. 22. Section 156.255 pertains to rate variations for individuals and families. The Department uses several phrases two adults, family, tax household that, in our view, raise the issue of whether domestic partners and same-sex married couples will be covered under two adult and family categories, if not the tax household category. We in Connecticut are proud to be one of several states to have legalized same-sex marriage. We strongly believe that two adults should include domestic partners and same-sex married couples, as should the word family. In addition, a single adult and one child constitute a tax household, so they should be eligible for family coverage, as well. 23. Section 156.265 sets forth the requirements for enrollment packets. We suggest that, in addition to the items the Department lists as necessary inclusions, enrollment packets also should include appeal process, information regarding when prior authorization or pre-certification is required and how to request them, coverage limits on OON providers, the ability and forms to be used to request information and notices in other languages, where to find authorized representative forms (and perhaps a copy of such form or direction on where to find this and other forms on the QHPs website or request copies by mail), and the significance and location of coverage policies. In other words, the enrollment packet should be a handbook that tells consumers everything they need to know about their QHP, which they can use as a reference for as long as they are enrolled in the same QHP. Coverage policies are an issue that few consumers understand, and no insurers explain before they deny coverage based on a coverage policy or clinical policy bulletin (CPB). CPBs are used by insurers to establish coverage policies of particular procedures and treatments. They typically include a review of the medical literature and statements about those conditions for which an item is medically necessary as opposed to instances in which an item is considered either not medically necessary or experimental/investigational. Thus, for example, you could look at a drug formulary and see that a drug called Xifaxan is on the formulary, which would lead one to believe that the drug is covered. However, only by going to the CPB could you find that Xifaxan is only considered medically necessary for travelers diarrhea, but may not be considered medically necessary to treat clostridium difficile, an intestinal bacterial infection. In order to really understand whether something is covered, you must review the CPB. This should be explained to consumers in materials that describe covered benefits, and consumers should be given instructions for finding or obtaining a CPB. We realize that CPBs are technical. However, in our experience, it typically is a mistake to underestimate consumers resourcefulness. And, of course, consumers can take CPBs to their health care providers for review. Many insurers now include

CMS-9989-P September 27, 2011 Page 11 of 12 CBPs on the provider section of their website, where consumers would not know to look, and where even providers may not know they exist. However, because CPBs are often the determinants of whether something is covered, their existence, use, and location should be explained and disclosed when outlining covered benefits. 24. Section 156.270 requires that individuals receiving an advance payment tax credit must be given three months grace period before their coverage can be terminated for noncoverage. We strongly urge that the notice to delinquent enrollees whether or not they receive a tax credit should advise them of their options. It will be the case at least some of the time that individuals may have become eligible for Medicaid, CHIP, or the tax credit. Further, consumers should be notified that they may be subject to a penalty if they fail to maintain minimum essential coverage before their insurance is terminated. Thus, for a whole host of reasons, we strongly urge the Department to require that notices of impending termination include all of the information a consumer might need in order to plan next steps. 25. Section 156.275 provides for QHP accreditation based on quality measures, patient experience ratings, consumer access, utilization management, quality assurance, provider credentialing, complaints and appeals, network adequacy and access, and patient information programs. We strongly support these accreditation standards, especially to the extent that they will reflect the patient experience with the QHP. The Department states that accreditation will be evaluated by an entity recognized by HHS. We are troubled by the possibility that this may also be the agency that licenses the QHP issuer; once the issuer is licensed, it is unlikely that the same evaluator will not accredit that issuers QHP even though accreditation is based on different factors. Were this to occur, the consumeroriented accreditation factors listed in the proposed rule would be watered down or, worse, ignored. We would suggest that the Department consider other accreditors such as NCQA, URAC, or nonprofit organizations that have the capability to perform the necessary assessment so as to ensure that the factors listed in the proposed rule are fully and appropriately weighed. 26. Section 156.290 sets forth a process that requires a QHP to notify each enrollee in the QHP of an intent not to seek recertification with the Exchange. This is essential. We contend that each enrollee should be construed to mean each employee in a plan offered within the SHOP Exchange, as well as enrollees in individual plans. We urge the Department to clarify this point.

CMS-9989-P September 27, 2011 Page 12 of 12 Conclusion We welcome the opportunity to provide the Department with this feedback, and look forward to continuing to work with both our own States agencies and the Department to ensure that the Exchanges realize the full promise embodied in the ACA. Respectfully submitted,

Jennifer C. Jaff, Esq. Executive Director