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HCFA Raises Concerns at Insurance Division Session on Regulations

HCFA Raises Concerns at Insurance Division Session on Regulations

August 7, 2015

Today the Division of Insurance (DOI) held a public listening session as part of its review of state regulations, as directed by Governor Baker through Executive Order 562 from March of this year. Executive Order 562 is the Governor's controversial directive requiring state agencies to review every state regulation. The Division of Insurance, as part of a statewide effort under the order, is undertaking a review of all of its existing regulations to determine whether there is a clearly identified need for continuing to retain the particular regulation, including: 

  • whether any costs associated with the regulation exceed the benefits that result from the particular regulation;
  • whether the regulation exceeds federal requirements or duplicate local requirements;
  • whether less restrictive alternatives to the particular regulation exist;
  • and whether the regulation unduly and adversely affects Massachusetts citizens and consumers, or the competitive environment in Massachusetts.

A few weeks ago, a broad coalition of 75 business, labor, consumer, public health, energy, environmental protection, elder care, housing, poverty and social service organizations sent a letter to the Governor, urging him to embrace more transparency and stakeholder involvement in the process. HCFA has joined the "562 Coalition" in support of their call to promote fairness and transparency in the process. 

Today's was DOI's turn to hear public comments on 23 separate health care regulations, totaling some 394 pages.

Very few speakers chose to comment during the meeting. The Massachusetts Association of Health Plans and Blue Cross Blue Shield of MA both expressed concerns about burdensome and duplicative data filings with the DOI and recommended that information should instead be obtained from state agencies when available. 

Alyssa Vangeli from Health Care For All and Laura Goodman from Health Law Advocates also testified. Vangeli stated that she understands the need to revise regulations in need of updates and avoid duplication, but cautions that wholesale changes to all rules should go through a more deliberative process that informs the public, considers the impact and includes stakeholders.  Vangeli also said that certain criteria in the Governor’s Executive Order 562 are not consistent with state and federal administrative law, citing the following concerns:

  • most regulations are required by state or federal law and cannot be legally sunsetted by an Exective Order without full regulatory review;
  • a provision that state regulations “not exceed federal requirements or duplicate local requirements” appears to violate the key federal principle where states are encouraged and expected to go beyond federal minimums.  There should not be a broad, unilateral limit on state regulations that go beyond federal regulations, especially in the area of health care and health insurance policy.  Massachusetts should be proud of its more protective health care laws and consumer rights in the area of health insurance.

Lastly, Vangeli requested that the DOI continue the review process in a transparent and inclusive manner, including ensuring that all regulations subject to amendments go through the formal public comment process with adequate notice to the public and opportunity to testify orally and in writing.

Laura Goodman of Health Law Advocates noted that Massachusetts has one of the most comprehensive mental health parity enforcement schemes in the country, due in large part to the Division’s careful efforts over the last several years to promulgate regulations and guidance. These regulation, developed in 2013, has strong public support. In some respects, our state parity regulation goes beyond what is required under the federal parity law, and puts additional obligations on health plans to ensure parity compliance. However, the regulation offers vital protections for consumers against potential health plan practices or policies that are discriminatory.   

Health Care For All also issued a public statement on the regulatory review process. In the statement, HCFA Executive Director Amy Whitcomb Slemmer warned against taking actions that hurt consumers: 

Health insurance regulations are essential to protecting public health and the welfare of some of the most vulnerable people throughout the state. These provisions should be reviewed and evaluated with the most transparent process possible. Widespread changes could place undue burdens on consumers and we urge the Division of Insurance to continue with the implementation of laws which are vital to protecting Massachusetts consumers.

HCFA's statement reminded the Division of Insurance that their groundbreaking work implementing the 2006 health reform law paved the way for federal passage of national reform, expanding coverage for millions. “Rolling back state regulations of this nature would set the Commonwealth back in its efforts to find new and innovative ways to improve our health care delivery system and manage growing costs.” 

                                   -- Michelle Savuto