Proposed CMS Policy Will Allow Insurers to Broadly Implement Copay Accumulators

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On January 31, 2020, the Centers for Medicare & Medicaid Services (CMS) released the proposed Notice of Benefit and Payment Parameters for 2021 (NBPP 2021). The Notice of Benefit and Payment Parameters is an annual rule that outlines the benefit and payment policies that will govern health plans in the coming year. For the 2021 plan year, CMS has proposed to allow health plans to exclude the value of third-party financial assistance used to purchase prescription drugs from the calculation of enrollees’ cost-sharing requirements, including deductibles and maximum out-of-pocket costs. This policy is known as a “copay accumulator,” and it has grown in popularity among health plans in recent years.

The proposed copay accumulator policy is a shift from the rule that CMS proposed last year in the Notice of Benefit and Payment Parameters for 2020 (NBPP 2020), which would have allowed health plans to exclude the value of third-party financial assistance from the calculation of enrollees’ cost-sharing requirements when they fill a prescription for a brand drug with a generic equivalent. The proposed copay accumulator policy, by implication, would have required health plans to count third-party financial assistance towards enrollees’ cost-sharing responsibilities when they filled a prescription for a brand medication that did not have a generic equivalent available. This policy was meant to steer patients towards selecting cheaper medications when they are available.

However, on August 26, 2019, the Department of Health and Human Services (HHS) issued an FAQ document in conjunction with the U.S. Department of Treasury and U.S. Department of Labor (DOL). The FAQ announced that the agencies would not enforce the policy limiting copay accumulators because of a perceived conflict with an Internal Revenue Service (IRS) Bulletin that governs high-deductible health plans (HDHPs) with health savings accounts (HSAs). In response, Aimed Alliance submitted a petition for rulemaking to agencies, requesting that they rescind the FAQ document and issue a new guidance document clarifying how health plans can comply with both the NBPP 2020 and the existing IRS Bulletin. Unfortunately, CMS chose to maintain its nonenforcement policy in the proposed NBPP 2021. Health insurers will likely perceive the 2021 proposal favorably, as it will allow them to reap the benefits of third-party financial assistance without counting it towards enrollees’ cost-sharing responsibilities. This will keep enrollees in the deductible phase of their health plan for a longer duration and will delay health plans’ obligations to contribute a greater share towards enrollees’ health care costs.

Aimed Alliance opposes the proposed NBPP 2021 because of the adverse impacts that it will have on patients who rely on financial assistance to purchase their prescription drugs. Stay tuned for additional updates.

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