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Comment Letter to CMS: Notice of Benefit and Payment Parameters

On January 8, 2024, CCPA submitted the following comment to the Centers for Medicare and Medicaid Services Department of Health and Human Services regarding the Notice of Benefit and Payment Parameters (NBPP) 2025 Proposed Rule:

The Honorable Chiquita Brooks-LaSure
Centers for Medicare and Medicaid Services
Department of Health and Human Services
7500 Security Boulevard
Baltimore, MD 21244

RE: Patient Protection and Affordable Care Act, HHS Notice of Benefit and Payment
Parameters for 2025; Updating Section 1332 Waiver Public Notice Procedures;
Medicaid; Consumer Operated and Oriented Plan (CO-OP) Program; and Basic Health
Program (CMS-9895-P)

Dear Administrator Brooks-LaSure,

Thank you for the opportunity to provide comment on the Notice of Benefit and Payment Parameters (NBPP) 2025 Proposed Rule. The Chronic Care Policy Alliance (CCPA) is a network of state and regional advocacy organizations advancing public policy that improves the lives of those living with chronic conditions and diseases. Dedicated to achieving better access to quality, affordable health care, CCPA brings together advocates who share common goals and lends its experience in legislative action and public policy creation to support statewide and regional networking development.

CCPA’s comments, below, focus on two key areas of importance to patients: reducing patient out-of-pocket costs by prohibiting copay accumulator programs, and proposals related to Essential Health Benefits (EHBs).

Copay Accumulator Programs

CCPA has long advocated for prohibiting copay accumulator programs in health plans; these policies increase out-of-pocket costs to patients and present a financial barrier to patients receiving needed treatments causing additional pain, distress, and potential worsening of their conditions. As a member of the All Copay Counts Coalition, CCPA is working with other patient groups and stakeholders to eliminate these policies, as 19 states and the District of Columbia have already done.

In October 2023, the U.S. District Court for the District of Columbia ruled in favor of patients in the case of HIV and Hepatitis Policy Institute et al. v. U.S. Department of Health and Human Services et al., striking down a policy in the 2021 NBPP Final Rule that allowed health insurers to exclude copay assistance from counting towards the annual limit on patients’ out-of-pocket costs. CCPA – along with 29 other organizations – signed onto an amicus brief led by Aimed Alliance. The amicus brief supported the lawsuit filed by the HIV+Hepatitis Policy Institute, Diabetes Leadership Council, and Diabetes Patient Advocacy Coalition. In reaching this decision, the Court supports the arguments in the amicus brief filed by Aimed Alliance and fellow health policy and patient advocacy organizations explaining the impact of copay accumulators on patients.

With the Court’s decision, CCPA urges CMS to protect patients and use its rulemaking authority to prohibit copay accumulator programs in the plans covered by this Proposed Rule. While we are disappointed that CMS did not act on this matter in this Proposed Rule, we urge CMS to act in the Final Rule or in future rulemaking.

Xcenda, a life sciences research company, examined the average monthly medication costs for four therapeutic areas (rheumatoid arthritis, cardiovascular disease, rare disease, and oncology) across four insurance plan designs (two employer-sponsored plans and two health insurance exchange plans) modeling patient out of pocket costs under the plan benefit with and without copay accumulator adjustment programs.1

The report found that patients face substantially higher out-of-pocket costs under copay accumulator adjustment programs, an increase, on average, of $4,000 to $4,200 per year in three of the four therapeutic areas:

For rheumatoid arthritis, rare disease, and oncology patients, annual out-of-pocket costs increased by about $4,000 under a copay accumulator adjustment program.
Cardiovascular disease was associated with a smaller increase in average patient out-of-pocket costs (~$2,600) due to a lower manufacturer copay assistance limit compared to other therapeutic areas.

At the same time, higher patient out-of-pocket costs under copay accumulator adjustment programs correspondingly reduce health plan expenses by:

Nearly $13,000 per patient for rare disease and oncology patients;
Approximately $5,100 for rheumatoid arthritis patients; and,
Approximately $2,600 for cardiovascular patients.

Prohibiting copay accumulator programs will have a direct impact on patient out-of-pocket costs and should be a priority for CMS. Furthermore, the Department of Health and Human Services should abandon its appeal of the decision in the HIV and Hepatitis Policy Institute et al. v. U.S. Department of Health and Human Services et al. case, and instead accept and implement the court’s ruling to protect patient access to treatments.

Essential Health Benefits

In the Proposed Rule, CMS proposes to amend regulations pertaining to which prescription medications are considered Essential Health Benefits (EHB). Specifically, CMS is proposing to codify in regulations that “prescription drugs in excess of those covered by a State’s EHB-benchmark plan are still considered EHB. As a result, they would be subject to requirements including the annual limitation on cost sharing and the restriction on annual and lifetime dollar limits, … unless the coverage of the drug is mandated by State action and is in addition to EHB… in which case the drug would not be considered EHB.”

CCPA supports patient access to all prescription medications. Knowing that all patients are unique, and that patients with chronic conditions often try multiple medications before finding what is right for them, ensuring the broadest and most robust coverage possible for prescription medication benefits ensures patients have the flexibility to find the treatment that works best for them, in consultation with their health care provider.

CCPA supports the inclusion of prescription medications beyond the State’s EHB-benchmark plan as still being EHB; additionally, CCPA believes the coverage of medications mandated by State action should also be considered EHB, as this would be beneficial to patients.

Additionally, CMS discusses in the Proposed Rule that plans can cover prescription medications beyond the minimum coverage requirements and still have those treatments considered EHB. Yet it is troubling that CMS reports that it has received information that some plans are offering prescription medications as “non-EHB,” which CMS describes as, “outside the terms of the rest of the coverage.” We appreciate CMS seeking comment on how widespread these practices are; while we do not have specific information to share, bringing this issue to light is important for protecting patients.

Furthermore, CCPA supports CMS’ proposal to amend regulations to address concerns of “non-EHB” prescription medications, by explicitly stating that medications in excess of the benchmark are considered EHB, and plans would be required to count these treatments toward the annual limitation on cost sharing. However, our concerns remain that CMS proposes to exclude medications from the EHB if they are covered because of state mandates – we believe that it is in the best interest of patients to have blanket coverage of prescription medication as EHB.


Thank you again for the opportunity to submit these comments. Across both the policies on which CCPA offered comment, our core focus is on what is best for the patient. CCPA urges CMS to put patients first as it works to finalize the NBPP for 2025.

Liz Helms
Chronic Care Policy Alliance
1001 K ST. 6th Floor
Sacramento, CA 95814