By Joseph Burns
Last year, the Trump administration proposed new regulations governing association health plans and short-term, limited-duration health plans. At the time, federal regulators said both proposals were designed to offer more choice to consumers seeking low-cost health plan options.
It’s true that the health plan options the government proposed were less costly than health plans that comply with the Affordable Care Act’s consumer-protection rules.
After the proposals became public early last year, the federal Centers for Medicare and Medicaid Services accepted comments on the short-term, limited-duration plans and the federal Department of Labor accepted comments on the rules governing association health plans (AHPs).
Before the rules became final, Noam N. Levey reported extensively on the public comments federal regulators received on both proposals. Working from Washington, D.C., Levey writes about national health care policy for the Los Angeles Times. We covered his work on the proposed rules in a blog post last fall.
After that blog post was published, we interviewed Levey about how he analyzed almost 10,000 comments submitted to CMS and DOL on both rules and why such reporting is useful for health care journalists.
Before getting into his comments, it’s important to understand a bit about both proposals. First, on Jan. 5, 2018, DOL’s Employee Benefits Security Administration published a proposed rule for association health plans by revising the definition of “employer” under the Employee Retirement Income Security Act (ERISA). DOL wanted to establish a commonality-of-interest test to make it easier for self-employed Americans and small businesses to band together to form association health plans, as Levey reported.
Second, HHS said in a press release that it proposed allowing short-term, limited-duration coverage for any period of less than 12 months. HHS published the proposed rule along with the Internal Revenue Service and DOL’s Employee Benefits Security Administration in the government’s daily journal, The Federal Register, on Feb. 21, 2018. In a fact sheet, HHS said, “Short-term, limited-duration insurance is a type of health insurance coverage that is designed to fill temporary gaps in coverage when an individual is transitioning from one plan or coverage to another form of coverage.”
After both proposals were issued, Levey, like other journalists, found his inbox was filling up with comments from associations representing groups of providers and patients. “From those emails, it was fairly clear that the weight of expert opinion was pretty solidly against these proposals,” he recounted. “That made me think that maybe there’s a story in reviewing in the Federal Register the official comments these agencies were getting.” Among groups representing patients, medical associations and hospitals, Levey had seen a common theme: They somewhat unified in their opposition to the various efforts to repeal or weaken the ACA, he said.
Federal procedures require agencies proposing new rules to give the public time to comment on the rules before they become effective as final rules. On May 30, 2018, the LA Times published Levey’s article on the comments submitted for both rules.
Three weeks later, on June 21, 2018, the DOL published its final rule on association health plans, and two months later, on Aug. 3, 2018, the IRS, DOL and HHS published the final rule on short-term, limited-duration plans.
Getting the comments
For his analysis, Levey explained that some federal agencies, such as the Department of Labor, summarize comments they receive about proposed rules and make it possible to download the comments into a spreadsheet. By downloading the comments, Levey could sort and categorize the comments. Other sites, such as CMS, post comments in a way that is not as easy to download or manage, he said. In his article, he reported that the DOL posted 722 comments about the proposed association health plan rule and that HHS posted 9,205 comments on the proposed short-term health plan rule.
Finding it difficult to work with the comments on the proposed AHP rules on Regulations.gov, Levey next sought out the comments on the Federal Register, the government’s daily journal.
“The way the Federal Register lists comments was a major pain,” he said. “For example, when you download comments from the Federal Register, they don’t appear to be intuitive in any way. That’s because every agency dictates how the comments are presented.”
In one of the first visible fields, it would be useful for agencies to list comments by who made the comment, he said. “For whatever reason, CMS has decided that the piece of information that displays is not who the commenter is, but what state the commenter was from,” he added.
Levey wanted to be able to separate comments from individuals from those comments that came from organizations, such as associations representing patients, physicians and hospitals.
“If I’d been able to download them into a spreadsheet in which the left-hand column was the commenter’s name and the next column had the commenter’s association, then sorting the comments would have been relatively easy,” he said.
Instead, he had to review more than 9,000 comments to CMS without being able to sort them easily. “It’s not technically difficult,” he said. “It’s just time consuming.’
Only the first line of each comment was visible, making it hard to determine whether the full comment was worth reading. He was most interested in comments from health care organizations because those offered the most detail on the proposed rules.
Comments from individuals tended to focus on their personal experiences and so were not as relevant to his reporting. “I wasn’t interested in trying to adjudicate the legitimacy of any single comments from individuals,” he explained. Some organizations that represent patients would encourage their members to write letters. Levey could spot those comments because they had similar wording as if the organizations had provided form letters to their members.
His review of comments from health care groups gave him a thorough view of concerns about the proposed rules from those who work in health care and those who would implement the new rules. Also, his work was useful to at least one law firm that cited his article in a lawsuit it filed challenging the rules.
In addition, comments on regulations tend to be rather technical, which can be a source of future stories or simply afford a deeper understanding on how regulations work in practice. “There’s a rich mine of information in the technical parts of these regulations, and in the comments themselves there’s the potential to see that the new rules could have an adverse impact on patients,” he said.
For anyone reporting for a consumer audience or for those reporting for hospitals or physicians, story ideas can be buried in regulations, he added. “I would certainly advise journalists to consider at least reviewing the comments because it’s a way to get expert opinions all in one place,” he said.
