Stakeholder Perspectives on CMS’s 2023 Notice of Benefit and Payment Parameters: Consumer Advocates

By Emma Walsh-Alker and JoAnn Volk

On January 5, 2022, the Centers for Medicare & Medicaid Services (CMS) released its annual proposed rule governing the Affordable Care Act (ACA) health insurance marketplaces and insurance standards for 2023. The rule reverses several provisions instituted by the previous administration and proposes several new requirements. Comments on the proposed rule were due by January 27, 2022.

The CHIR team reviewed a selection of stakeholder comments that were submitted in response to the proposed rule. In this first installment, we summarize key takeaways from comments submitted by the following consumer advocacy organizations:

Future posts will summarize comments from health insurers, state insurance departments, and state-based Marketplaces.

The consumer advocates in our review approved of CMS’ proposals to reverse policies enacted by the prior administration, as well as new proposals to improve the marketplace experience for beneficiaries. Policy updates in the payment rule include network adequacy standards and oversight, prohibitions on discrimination based on sexual orientation or gender identity, changes to essential health benefits (EHB), the development of standardized plans, improvements to automatic reenrollment, new requirements for web-brokers, protections for enrollees who owe past-due premiums, and modifications to the risk adjustment program.

Network Adequacy

In light of the current patchwork of network adequacy standards across the country, CMS proposed quantitative requirements and procedures to monitor compliance for Marketplace Qualified Health Plans (QHP). All consumer advocates in our review applauded CMS for strengthening network adequacy requirements, since factors like travel time and distance, appointment wait times, and access to telehealth and essential community providers can determine whether “enrollees actually have access to care” (Families USA). Multiple commenters specified that the availability of timely care for individuals with substance use disorders and other mental health conditions should be monitored separately. Commenters also noted the importance of ensuring QHPs meet these proposed standards before they are certified, rather than after they are made available to consumers on the exchange. Commenters further emphasized the need for frequent evaluation of plan compliance through “secret shopper” surveys or other objective studies (Community Catalyst, NHeLP).

Commenters supported requiring QHPs to submit information about their telehealth offerings, but clarified that evaluations of a plan’s network adequacy should not count telehealth as a substitute for in-person care (ACS CAN, NHeLP). Finally, commenters unanimously supported the proposal to increase the network participation threshold for essential community providers (ECP) from 20 to 35 percent, with some suggested additions to the rule. Community Catalyst, NPWF, and NHeLP urged CMS to require plans to submit data on populations with limited access to care, and adjust their distribution of ECPs appropriately to address provider shortages and lack of diversity in provider networks.

Discrimination Based on Sexual Orientation or Gender Identity

CMS proposes to restore protections prohibiting health insurance discrimination based on sexual orientation or gender identity that were removed by the prior administration. All of the stakeholder comments we reviewed strongly supported this proposal. Many stakeholders reported that LGBTQ individuals experience discrimination in health settings and therefore often choose to forgo care – despite being at higher risk for substance use and mental health disorders, HIV, and cancer (ACS CAN, NPWF). NHeLP’s comments observed that documented patterns of discrimination directly undermine the “fundamental purpose of the ACA” to ensure health care services are available to all.

Essential Health Benefits

CMS solicited comments on multiple proposed changes to the essential health benefits (EHB) standard. All comments we reviewed expressed strong support for reversing the previous administration’s rule granting flexibility for states to allow insurers to substitute benefits between EHB categories. Stakeholders said substitution would allow for “a less generous EHB benchmark, thus potentially exposing consumers to additional out-of-pocket costs” (ACS CAN) and empowers insurers to “discourage enrollment by persons with significant health needs.” (NHeLP).

While all commenters affirmed the critical need to hold insurers accountable for federal non-discrimination standards, some raised concerns that requiring benefit designs be “clinically based” may not sufficiently represent the needs of marginalized communities. NPWF pointed out the “insufficiency of the current evidence base when it comes to racial and ethnic and other types of diversity” and NHeLP encouraged CMS to take steps to overcome institutional bias, such as prioritizing community-based research.

Standardized Benefit Designs & Plan Choice

CMS sought comments on their proposal to require all exchanges on the federal platform to offer standardized plans. All the stakeholder comments that we reviewed supported simplifying consumer choice through plan options with standardized cost-sharing. Multiple commenters also approved of CMS’ specification that plan designs should focus on copays instead of coinsurance, since copays are “more transparent” for consumers (ACS CAN). Community Catalyst further argued that “standard plans should contribute to larger policy efforts to reduce health disparities by lowering cost barriers” to care.

Consumer advocates voiced concerns that the plethora of marketplace plan options can unnecessarily overwhelm consumers, leading to “choice overload” (NHeLP).
For instance, Families USA cited “silver spamming,” where insurers offer multiple QHPs with insignificant differences between premiums in order to secure a “near-monopoly among low-income silver Exchange families.” Commenters generally approved of limiting the number of plan offerings, “so that enrollees have a manageable choice, especially if there are several meaningfully different offerings” (AARP).

Automatic Reenrollment

CMS asked for comments on whether an enrollee’s net premium, annual out-of-pocket maximum, deductible and other cost-sharing should be taken into account when the marketplace is automatically re-enrolling them into a new plan. Commenters noted that while auto reenrollment can help keep people insured if they don’t actively shop for a plan, the current process does not always serve the best interests of enrollees when it comes to key aspects of their coverage such as cost sharing and provider networks. To illustrate this point, commenters cited data from Covered California in 2018, where researchers found 30% of households auto-renewed into coverage “were certain to be better off in a different plan” and subsequently faced “an extra $466 a year in annual premiums” (NHeLP, Families USA). Consumer advocates noted for example that if an individual is auto reenrolled into a plan with a narrow network because it offers a lower premium, they may ultimately face higher out-of-pocket costs from having to rely on out-of-network care (Community Catalyst). Families USA suggested that when an enrollee “is certain to be better off in a different plan” than their current one, they should be auto reenrolled into the more favorable plan, with the option to opt out.

Web Broker Requirements

CMS has proposed to strengthen display and other requirements for web-based brokers. Consumer advocates supported these proposals but many pushed for stronger protections. Families USA and Community Catalyst recommended that web brokers be required to provide screening questions to determine a consumer’s Medicare, Medicaid or CHIP eligibility. Stakeholders also suggested that CMS require the display of all special enrollment period dates and extensions; prohibit brokers from asking for personal or health information irrelevant to enrollment that could be used to discriminate; and work with online search engines so that and state-based exchange sites are displayed at the top of search results as much as possible (Families USA).

Past-due Premiums

A 2017 policy allowed issuers to deny coverage to individuals who owed past-due premiums and CMS’ proposed rule would reverse this policy. All commenters supported this change. NHeLP stated that the 2017 policy is “contrary to the ACA, and disproportionately hurts persons who are low-income.” Families USA similarly noted that the 2017 policy undermines the accessibility of marketplace coverage for low-income communities that disproportionately consist of people of color.

Risk Adjustment

Two consumer advocate stakeholders, Families USA and NHeLP, opposed methodological changes to the CMS risk adjustment model that would increase payments for insurers with lower-risk enrollees and decrease payments to insurers with higher-risk enrollees. Families USA in particular said CMS should not finalize the proposed changes without sufficient data confirming they would be “necessary or helpful.” Although the risk adjustment model’s goal is to prevent insurers from avoiding higher-risk enrollees, commenters argued that the proposed rule could actually do the opposite by providing financial incentives for insurers to enroll lower-risk enrollees and reduce the quality of coverage they offer to those who need it most (NHeLP, Families USA).


Consumer advocates have a lot at stake – and a lot to say – when it comes to proposed changes to the marketplace for 2023. Overall, the commenters we reviewed strongly approved of CMS’ increased regulation of marketplace plans so that they better serve consumers’ needs. However, many commenters suggested further strengthening these requirements to address the structural barriers to marketplace coverage that disproportionately affect marginalized groups.

A Note on Our Methodology

This blog is intended to provide a summary of comments submitted by a selection of consumer advocates. This is not intended to be a comprehensive review of all comments on every provision in the Notice of Benefit and Payment Parameters proposed rule, nor does it capture every component of the reviewed comments. To view more stakeholder comments, please visit

Stay tuned for upcoming CHIRblog summaries of stakeholder comments from insurers, state insurance departments, and state marketplaces.

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