In a notably quick turnaround, Health and Human Services (HHS) issued a final rule on what data insurers must provide regarding the essential health benefits (EHB) potential benchmark plans. As a reminder, the EHB is the standard benefit package that must be provided to consumers in the Exchange as well as in the small and individual insurance markets. The package includes coverage across 10 categories of care, balanced equitably to protect consumers against discrimination. In a December 2011 Bulletin, HHS tasked states with selecting an EHB from four possible categories (if states forego selection, HHS will automatically use the state’s largest small group plan). In February, HHS inched the ball forward by releasing an FAQ further clarifying their commitment to a state-driven approach to EHB selection.

Some in the wonk world suspect the quick release of the rule (just under two weeks between the comment deadline and the release of the final rule) is due to the Supreme Court’s favorable ruling on the individual responsibility requirement (aka the individual mandate) and the affirmation that the Affordable Care Act is the “law of the land.” And not a moment too soon; states must ready themselves for the 2014 windfall of insured consumers. As some states sprint ahead (and others prefer to pick daisies), there are a couple of important things for consumer advocates to know about the EHB data collection final rule.

HHS bails on collecting data on some limits to care. More nuanced design tools (“non-quantitative limits”) that may influence patient behavior in a way that limits access to care will not be reported. An example of a non-quantitative limit is step therapy or the requirement that a patient tries the most cost-effective drug in its class before a more expensive one. The patient is required to go through a series of ‘steps’ if the desired outcome is not achieved before obtaining coverage for the more expensive treatment. Initially, HHS proposed to collect this information on non-quantitative limits, a move welcomed by consumer advocates. Reporting these non-quantitative limits would lend greater transparency to these insurer practices that have the potential to discriminate against sick or at-risk people.

HHS, in response to a battery of insurer concerns, however, determined the requirement was burdensome and it was swiftly dropped. This is a disappointment for advocates. HHS will, however, collect data on quantitative limits. A quantitative limit is, for example, having limits on the number of outpatient visits a year. This will be useful to consumers, offering a measure of the robustness of some benefits.

Transparency gets a slight nod. As is stated in the ACA, the Secretary of HHS is responsible for final EHB approval. Despite devolving the benchmark selection to the state, the Secretary has final say on whether an EHB selection meets ACA requirements (benefit representation across all ten categories, overall balance and non-discrimination). In some states, government has sidestepped consumer involvement or is choosing not to act at all. This is concerning for advocates; many lives will be impacted by the benefits package and having no mechanism for consumer engagement in the selection process is frustrating.

HHS appears to take note of the value of consumer input and in the final rule “intends to make public State-specific benchmarks for notice and comment.” This is an opportunity for advocates to voice their concerns about the potential EHB plans including what information consumers lack, such as non-quantitative limits.

What can advocates do now. Continue to demand transparency. Learn more about how to support a transparent EHB process in a new paper by Community Catalyst.

Encourage your state to choose a benchmark. The clock is ticking for states to analyze and choose a benchmark that best meets the needs of their populations. States must act by the end of September or they will automatically default to the state’s largest small group plan. Advocates must try to work with state officials and encourage them to pick a consumer-friendly benchmark plan. Advocates can remind states that actively choosing a benchmark allows the state to retain authority over the EHB process and allows for state input around shaping the final EHB package.

Continue acting as the watchdog. The data rule regarding the potential benchmark plans in states is a reminder that transparency matters – and will continue to matter. The work for advocates does not end with selection. Consumer advocates must continue to monitor and be a source of consumer feedback regarding what does and what does not work as EHB plans are selected and implemented in states. Consumer voices can help shape the standard for a health care benefit package – therefore, working for a transparent process now is paramount.

— Eva Marie Stahl, Policy Analyst