Utah’s Concerns About Proposed Federal Exchange Rules

The U.S. Department of Health and Human Services (HHS) released a number of proposed rules which would govern the operation of state health exchanges which are mandated by the Patient Protection and Affordable Care Act (PPACA). 
Utah is one of only two states in the country with an operational exchange.  Although the Utah Health Exchange was already in testing before PPACA was even proposed, the proposed HHS rules could necessitate significant changes for our Exchange which could be detrimental to its design and mission.  In our response to HHS’s proposed rules, we strongly express our recommendations that the HHS give states flexibility, listen to state concerns, and not take steps which would lead to any sort of a nationalized social program.
Utah’s Comments on Proposed Rules:
  • Our most important priority is to encourage changes that recognize state sovereignty, differences in markets and allow more flexibility
  • The proposed rules appear to be a slow movement to a comprehensive social program
  • HHS continues to modify their explanations of what they think the proposed rules mean, making it hard to comment on a moving target
  • We do not propose to re-write the language of the rules; we will point out what we think the rules need to accomplish
  •  The process for developing final rules and further decisions needs to involve states as partners, not as subjects

We appreciate very much the opportunity to respond to five distinct, but related proposed rules that apply to provisions of the Affordable Care Act.  From a high-level perspective, it seems that these rules on the whole tend toward a more top-down, bureaucratic approach to implementation instead of allowing flexibility, creativity and market-driven approaches. 

We strongly encourage the federal agencies to revisit each rule to consider ways in which states can be allowed to explore options and features that work best for them, learning from each other.

The rules appear to represent a slow movement toward a model for a health care system in which virtually every citizen will participate in some form of a social program. 

We respectfully express significant pushback on that concept.  As a state founded in independence and compassion, we appreciate that some citizens may be in need of temporary or permanent assistance when it comes to their health care; however, we maintain that this is a small fraction of the population.  The role of free enterprise in the provision of health care provides the tools needed to ensure the highest long term performance, accountability, and most reasonably priced solutions for risk-sharing and financing.  At most, the government role for the vast majority of its citizens in this context is to facilitate increased market interactions and provide reasonable consumer protections, and not to assume roles traditionally reserved for buyers and sellers in the marketplace. 

We strongly encourage the federal agencies to allow states the freedom to utilize private sector and market solutions instead of forcing them to implement an ever-expanding social program.

In formulating these comments, we faced two major difficulties which may limit their effectiveness.  First, of necessity, these proposed rules cover wide swaths of topics related to health reform.  With our limited staff and limited time, we have found it difficult to become experts in every area of the proposed rules to the point of being confident in our ability to make useful comments. 

Second, it appears that even the federal agency staff has had a difficult time fully understanding the depth and impact of these rules.  Almost from the moment the proposed rules were published, we have been inundated with requests to participate in listening sessions, grantee conferences, user groups, and other conference calls where federal agency staff attempts to explain the impact and meaning of the proposed rules.  On many occasions, those explanations have not been consistent from one session to the next, depending on the staff making the presentation.  Furthermore, those sessions are continuing, with some scheduled well beyond the October 31, 2011 due date.
Given our limited resources, the massive amount of material to cover, the relatively short time frame, and the appearance of a moving target, we are sure that there are many important areas that we will miss. 

We strongly encourage federal staff to find a way to continue to listen to state experts and make continued improvements to the rules above and beyond what we are able to express here.

With this in mind, the following comments are not intended to be a comprehensive microanalysis of every point and issue in the rules.  In most cases, where we have not been able to analyze the impact of the particular choice of wording or set of issues, we have instead chosen to express our needs as a state. 

We strongly encourage federal agency staff to re-visit the minutia and particulars of the rules and re-write them in a way that conforms to the expressed needs of the states, even if the states have not been able to identify the specific language that needs to be changed.

Of course, we have appreciated the opportunity to be involved in the development process and we continue to be committed to providing federal agencies with helpful comments from our perspective.  We are critical of any federal process that excludes states from being at the table in working out issues.  We hope that as federal agencies attempt to address state concerns raised through this and other processes, the on-going relationships will continue. 

We strongly encourage the federal agencies to involve state subject matter experts and experienced policy makers to be part of the formal process moving forward.  Please take into account that the states are the foundation of the federal government, not its subjects.

Full Report:  Utahs Comments on Proposed Rules