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Essential Health Benefits Benchmarks Need Active Government Oversight to Be Successful

By Nellie Bristol, CQ HealthBeat Associate Editor

January 20, 2012 -- Federal and state oversight will be critical to ensuring the plans states choose to represent essential health benefits meet both the requirements of the health overhaul and the needs of patients with chronic disease and disabilities, said Marc Boutin of the National Health Council.

Of the 500 potential benchmark plans in the states, "some of them will be excellent, some of them not as excellent and some of them potentially could be disastrous," he said at a National Health Council briefing on Capitol Hill. "Somebody needs to have the oversight to say 'I'm sorry this benchmark is not going to address what was statutorily required by the Accountable Care Act.' " The council is coalition of groups representing people with chronic diseases and disabilities.

In particular, Boutin said, regulators should look out for plans that do not provide adequate services in the areas of pediatric care, mental health and substance abuse, and rehabilitation and habilitation, saying there are no good benchmarks for those services. Through oversight, enrollees should be protected from discrimination against high-cost patients, have adequate medical necessity appeals processes and be fair and equitable for all participants, he added. Boutin is vice president and chief operating officer for the group.

The Centers for Medicare and Medicaid Services (CMS) issued a pre-regulatory bulletin Dec. 16 to indicate how the benefits would be determined under the health law (PL 111-148, PL 111-152). The approach has caused anxiety for a number of patient groups that said it leaves many questions unanswered and creates the potential for varying benefits levels among the states.

Boutin said that while flexibility could be good for people with disabilities, there are gaps in the current approach that need to be addressed to ensure equitable coverage. In addition to oversight, Boutin said, there should be standards for determining what services will be excluded. "Are we going to exclude services for autism? Are we going to exclude services for infertility? Are there other kinds of services we are not going to address? That is going to be a challenge," he said. "And right now, it's left to the benchmarks with no descriptive language as to how that will be addressed."

He also called for a "consistent national policy" on medical necessity and an appropriate and accessible appeals process.
While generally positive about the guidance if it is followed up with adequate regulatory details, Boutin criticized the plan in its treatment of prescription drugs.

"I do not understand what the secretary was thinking in limiting the formularies to one medicine per class," he said. "That is fundamentally not workable." He said it could particularly cause problems for people with HIV and mental health issues and could lead to higher health costs when people cannot get access to needed drugs. He suggested CMS "leave the benchmark alone" when considering prescription drug policies, since many of the plans will have more flexible programs than proposed in the bulletin.

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