HHS seeks advice on how to revamp federal, state laws & policies -- including Medicare, Medicaid -- to hike competition, choice

January 26, 2018
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Editor's Note: This article was originally published Jan. 3, 2018 on InsideHealthPolicy.com.

HHS has informally asked stakeholders to weigh in by the end of the month on federal and state laws and policies -- including those pertaining to Medicare, Medicaid and other pay systems -- that may “discourage or prevent” a high-quality health system, strong competition and consolidation limits. HHS suggests it will use the request, quietly sent out by the department's policy shop in late December, to come up with reform ideas. The move comes as some House Republicans signal they may take up entitlement reform this year.

The request for information, by broaching potential legislative reforms, goes beyond the administration's earlier efforts to gather advice on how to make exchange regulations less burdensome within the current legal structure.

HHS notes that over the summer it sought input on changes, consistent with current law, that could be made to existing regulations to create a more streamlined and less-burdensome structure. The administration has made several policy changes, but still worries about the barriers, the RFI says, noting that premiums for exchange coverage continue to go up.

The department stresses that the “effects of limited healthcare competition go well beyond insurance markets and touch on a variety of healthcare markets.”

As a result, HHS says it is using the informal RFI to seek input “on the extent to which existing State and Federal laws, regulations, guidance, requirements and policies limit choice and competition across all healthcare markets, and the identification of actions that States or the Federal Government could take to support the development and operation of a healthcare system that provides high‐quality care at affordable prices for the American people.”

The RFI is the latest move by HHS to implement an Oct. 12 executive order that called for a report on barriers to competition, promotion of association health plans (AHPs), allowance of longer-duration short-term plans and expansion of health reimbursement arrangements (HRAs).

One source found it particularly interesting that the RFI mentions a need to prevent provider consolidation, since CMS Administrator Seema Verma has publicly suggested that some of the Affordable Care Act's goals of encouraging value-based care may have spurred more consolidation.

The RFI asks stakeholders to identify federal or state laws, regulations or policies that reduce or restrict competition and choice in health care markets or promote or encourage anti-competitive behavior. HHS also wants to know what federal or state grants or other funding mechanisms restrict competition or encourage anti-competitive behaviors.

Finally, HHS asks: “What suggestions do you have for policies or other solutions (including those pertaining to Medicare, Medicaid, and other sources of payment) to promote the development and operation of a more competitive healthcare system that provides high‐quality care at affordable prices for the American people?”

The RFI was issued by HHS' Office of the Assistant Secretary for Planning and Evaluation (ASPE) on Dec. 26, and comments are due by Jan. 25. HHS did not respond to a question by press time on why the administration issued the RFI through ASPE and not through the Federal Register, or on whether the comments it receives will be published.

The department notes in the request that it also expects to hear from the public on the administration's promotion of association health plans (AHPs), short-term plans and health reimbursement arrangements as part of rulemaking or other guidance in response to the October executive order. The White House Office of Management and Budget recently finished its review of a proposed rule on AHPs and the regulation is expected out shortly, potentially as early as Thursday (Jan. 4). OMB is also reviewing a proposed rule on longer-duration short-term plans, and stakeholders also anticipate seeing the rule fairly soon.

But in this RFI, HHS specifically requests information about barriers to choice and competition other than any attributable to rules regarding AHPs, short-term plans or HRAs.

HHS furthers points out that the October executive order required HHS, in consultation with secretaries of Treasury, Labor and the Federal Trade Commission, to provide a report to the president detailing the extent to which existing laws and policies do not promote competition and choice, and identify actions that would achieve them. “Through this informal request for information, HHS seeks comment from interested parties to inform its report and lay the groundwork for future action,” the RFI says.

The RFI notes that each HHS agency is already doing an analysis of regulations issued under the ACA to “determine whether each rule advances or impedes HHS priorities of: empowering patients and promoting consumer choice; enhancing affordability; and returning regulatory authority to the States.” -- Amy Lotven (alotven@iwpnews.com)