July 28, 2021

Xavier Becerra
Secretary, Health and Human Services
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-9906-P
PO Box 8016
Baltimore, MD 21244-88016

Re: Comments on Patient Protection and Affordable Care Act; Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond Proposed Rule

Dear Secretary Becerra:

The New York Department of Financial Services (DFS) submits the following comments on the Proposed Rule regarding 45 CFR Parts 147, 155, and 156 Patient Protection and Affordable Care Act; Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond [CMS-9906-P] (Proposed Rule).  For the reasons set forth below, DFS supports the adoption by the Centers for Medicare & Medicaid Services (CMS) of the Proposed Rule regarding the segregation of funds for abortion services (§ 156.280), except for the language of the regulation that would allow insurers to send insureds two bills.  If the language permitting two bills is maintained, DFS respectfully encourages CMS to consider adopting consumer protections to guard against the potential for insureds to lose their health insurance coverage because they failed to pay the de minimis amount of the separate premium bill for abortion services.

Access to health insurance coverage for abortion services is essential.  Unnecessary barriers making it more difficult for women to maintain insurance coverage for such crucial services should not be imposed.  DFS supports the Proposed Rule’s repeal of the requirement for insurers to provide a separate bill for the portion of an insured’s premium that is attributable to coverage for abortion services for which federal funds are prohibited (“abortion coverage”), as well as the repeal of the requirement for insureds to separately pay the portion of their premium attributable to abortion coverage.  The Proposed Rule codifies a more flexible approach by adopting several billing options for an insurer to use to satisfy the obligation to notify an insured of the segregation of funds requirement for abortion coverage.  These options include sending separate bills (while permitting the insured to submit one payment), sending notice at the time of enrollment that a separate charge will be included in the premium, or including a separate, itemized charge in a single premium bill.

The flexible approach detailed in the Proposed Rule will alleviate the potential harm to consumers created by the previous rule, which requires insurers to send consumers two bills for their health insurance (one for all benefits except abortion and one for a de minimis amount (typically one dollar) for abortion coverage) and for consumers to make two separate payments.  Requiring consumers to pay two premium bills puts consumers at risk of having their coverage terminated for failure to pay a one-dollar separate premium bill that has no practical or actuarial significance, other than to make it more difficult for consumers to maintain health insurance coverage, especially for abortion services.  While DFS supports permitting notice at the time of enrollment that a separate charge will be included, or providing an itemized charge in a single premium bill, DFS recommends removing the language from the Proposed Rule that allows insurers the option of sending separate bills for abortion coverage.

If the separate billing provision is not removed, DFS strongly urges CMS to put in place consumer protections to guard against the potential for insureds to lose their health insurance coverage because they were sent two bills and did not realize that they were supposed to pay a separate, unnecessary, de minimis bill for the portion of their health insurance premium attributable to abortion coverage.

DFS appreciates CMS’s consideration of these comments and supports the adoption of the Proposed Rule in relation to the repeal of the separate billing and payment requirements for abortion services without a permissible option for sending two separate bills.  However, if the option is maintained, DFS recommends adopting the Proposed Rule with added consumer protections when separate bills are sent.

Very truly yours,

Linda A. Lacewell
Superintendent of Financial Service