Comments from Richard Besser, MD, on Proposed Changes to Affordable Care Act Marketplace Rules 

The following comments were submitted by Richard Besser, MD, Robert Wood Johnson Foundation President and CEO, in response to a request for comments from the Centers for Medicare & Medicaid Services, Department of Health and Human Services.

The Robert Wood Johnson Foundation (hereinafter “RWJF” or “the Foundation”) appreciates the opportunity to submit comments in response to the U.S. Department of Health and Human Services (HHS)’ Centers for Medicare & Medicaid Services (CMS) proposed rule, Patient Protection and Affordable Care Act; Marketplace Integrity and Affordability (hereinafter “Proposed Rule”).  

RWJF is a leading national philanthropy dedicated to taking bold leaps to transform health in our lifetime. Through funding, convening, advocacy, and evidence-building, we work side-by-side with communities, practitioners, and institutions to build toward a future where health is no longer a privilege, but a right.  

We are pleased to offer the following comments in response to the Proposed Rule. The Foundation’s comments are based on results from Foundation-funded health services research and the Foundation’s work to ensure that everyone has a fair and just opportunity to be as healthy as possible. The comments reflect the views of RWJF and not of our grantees.  

While we fundamentally disagree with the premise of the Proposed Rule that increasing administrative requirements on consumers will promote program integrity, we agree that steps can be taken to address fraud and improper enrollment. However, we are concerned that the net effect of the Proposed Rule would be to substantially reduce enrollment among several populations, including low- and moderate-income individuals and families, people who identify as lesbian, gay, bisexual, transgender, queer, intersex, or asexual (LGBTQIA+), and Deferred Action for Childhood Arrivals (DACA) recipients. These groups largely lack affordable coverage options outside the Affordable Care Act Marketplace (hereinafter “Marketplace”), so depressing their enrollment in Marketplace coverage will increase the number of people without health insurance.^{1, 2}  

CMS estimates that the Proposed Rule will result in 750,000 to 2,000,000 fewer individuals enrolling in Marketplace coverage in 2026. CMS acknowledges that healthier enrollees are more likely than unhealthy enrollees to drop coverage, leading to higher overall premiums for enrollees that remain in the Marketplace. These impacts run contrary to the Trump Administration’s goal to “make America healthy again.” Access to health coverage improves health outcomes. People with health coverage are more likely to have a regular source of care and to receive preventive care, timely diagnosis of disease, and assistance with management of chronic conditions. Studies repeatedly demonstrate that uninsured individuals are less likely than insured individuals to access preventive care for major health conditions and chronic diseases.³

Instead of creating enrollment barriers for individuals who are eligible for Marketplace coverage, premium subsidies, and cost-sharing assistance, CMS should focus its regulatory and oversight efforts on rogue brokers and agents that conduct unauthorized plan switching and improper enrollment activity. We offer recommendations to address improper enrollment in section III below that focus on greater oversight, monitoring, and significant penalties for brokers and others who mishandle enrollment.    

We focus our comments on provisions of the Proposed Rule that directly and significantly affect enrollment processes, eligibility for DACA recipients, and access to gender-affirming care. We offer our analysis and recommendations related to elements of the Proposed Ruled Rule as outlined below. 

1. Allowing coverage denials for past-due premiums discourages enrollment in coverage (§ 147.104(i)).
2. Shortening the open enrollment period will reduce overall enrollment (§ 155.410). 
3. Eliminating the monthly Special Enrollment Period for low-income individuals reduces access to affordable care coverage (§ 155.420). 
4. Increasing pre-enrollment income verification imposes substantial burdens on consumers (§§ 155.305, 155.315, and 155.320). 
5. Denying Advanced Premium Tax Credits (APTCs) for failure to reconcile deters enrollment (§ 155.305(f)(4)). 
6. Requiring premiums for individuals who are automatically enrolled disadvantages low-income individuals (§ 155.335). 
7. Excluding DACA recipients from the Marketplace creates significant barriers to accessing healthcare and widens health disparities (§ 155.20).
8. Prohibiting coverage of “sex-trait modification” as an Essential Health Benefit denies medically necessary care (§ 156.115(d)).  

1. Allowing coverage denials for past-due premiums discourages enrollment in coverage (§ 147.104(i)). 

RWJF strongly opposes allowing issuers to refuse to effectuate new coverage if a consumer fails to pay a past-due premium from any prior year—a policy that is more far-reaching than the 2017 Market Stabilization Rule, which was limited to past-due premiums within the prior 12 months.⁴ This proposal is inconsistent with the Affordable Care Act (ACA)’s guaranteed availability requirement and creates barriers to health coverage that disproportionately affect low-income individuals and marginalized communities.  

We are concerned that requiring repayment of past-due premiums as a condition for coverage may deter individuals with outstanding premium debt from seeking coverage altogether. CMS anticipates that “enrollment losses should be minimal because the amount most individuals owe in past-due premiums is relatively small.” However, research shows that even small premiums can be a significant barrier to enrollment, especially for low-income families. This barrier often involves navigating long wait times to speak with customer service representatives, opaque eligibility rules, complex applications, lack of internet access, and being unbanked or unable to set up online payment.⁵ In 2024, the average monthly premium after the advanced payment of premium tax credits (APTCs) ranged from $36 in Mississippi to $775 in the District of Columbia, with monthly premiums exceeding $100 in 24 states and D.C.⁶ These sizable amounts would increase significantly if enhanced APTCs expire at the end of 2025 as scheduled, amplifying the impact on disenrollments resulting from the proposal if finalized. 

CMS advises that “enrollees, particularly those facing financial constraints, might need to adjust their household budgeting to maintain coverage or, if they are not able to, become uninsured,” which could, in turn, lead to “higher costs for care and medical debt if care is needed.” This suggestion overlooks the impact of barriers to health caused by structural racism and other forms of discrimination, including sexism, ableism, classism, and discrimination based on gender identity and sexual orientation.⁷ These barriers both contribute to and exacerbate financial instability, which widens inequities in who can afford coverage and who cannot. Individuals without health insurance are more likely to postpone or forgo healthcare and incur medical debt when they do seek care.⁸ If finalized as proposed, the policy would exacerbate persistent disparities in coverage, access to care, and health outcomes.  

Moreover, allowing these coverage denials will worsen Marketplace risk pools and raise premiums for all consumers, including individuals who do not receive subsidies for their health insurance coverage. These effects are the exact opposite of CMS’s articulated goals in the Proposed Rule. A large body of literature demonstrates that young and healthier enrollees are far more price sensitive than older and sicker enrollees.^{9, 10, 11} 

Young and healthy individuals are more likely to decline to enroll if they make a payment—which they expect is their full premium payment—and yet are told they need to make an even greater payment to enroll. These individuals are far more likely to have fallen out of coverage in the first place for past nonpayment of premiums. Deterring this group from returning to the Marketplace will only worsen the overall risk pool. In the Proposed Rule preamble, CMS notes that the proportion of enrollees terminated for nonpayment of premiums fell in a prior time period in which a version of this policy was in place. That analysis, however, ignores the fact that overall Marketplace enrollment also fell during this time period and premiums rose significantly, which suggests that a combination of policies led to fewer healthy enrollees retaining coverage and Marketplace coverage remaining only for those more at risk of health events, who are more likely to pay premiums throughout.¹² CMS fails to account for these negative effects on this risk pool in their analysis of the Proposed Rule.  

In addition, issuers have substantial recourse under current regulations to address overdue premium payments. They are permitted to collect past-due premiums and are authorized to terminate coverage for nonpayment following a grace period of typically three months. This system provides issuers with the necessary tools to manage overdue payments effectively.   

When a consumer makes a payment to the issuer for a new enrollment, the issuer must accept their new enrollment and cannot treat that payment as if it were payment for an old debt. To allow otherwise would be extremely confusing for consumers. Marketplace consumers are generally engaging in an ecommerce-like transaction in which they have gone to a website, selected an item for purchase, and then visited another website and provided payment information in order to complete the purchase. CMS proposes to allow the issuer to accept the consumer’s payment—but not actually sell them the item and instead keep the payment for an unrelated debt. Consumers in this situation could be effectively tricked into payment, and CMS is proposing to newly permit this form of deception.

The ACA does not offer any exceptions related to past due premium collections. Thus, an issuer that takes a consumer’s payment but refuses the enrollment on the grounds that the funds have been applied to an old debt has violated the guaranteed availability requirements of the ACA. CMS was historically correct to articulate that the statute prohibits this behavior. The Foundation urges CMS not to finalize the proposal.

2. Shortening the open enrollment period will reduce overall enrollment (§ 155.410).  

RWJF strongly opposes limiting the annual open enrollment period (OEP) so that it runs from November 1 through December 15 (45 days) instead of November 1 through January 15 (75 days). Shortening the OEP would reduce the time consumers have to sign up for Marketplace coverage. Shorter enrollment windows lead to lower enrollment, as demonstrated by the 2018 OEP (November 1 through December 15, 2017). According to the Urban Institute, every state that relied on HealthCare.gov during this OEP saw enrollment losses. Louisiana and West Virginia reported the largest decreases, with 23.5 percent and 19.5 percent fewer people, respectively, enrolled in Marketplace plans in 2018 compared with 2017.¹³  

Available data does not support CMS’s claims that extending the OEP past December 15 contributes to adverse selection. The experience of state-based Marketplace exchanges (SBEs) suggests that longer OEP durations encourage greater enrollment among younger, healthier individuals, thereby strengthening the Marketplace risk pool.  

For example, average risk scores for individuals enrolling early in Covered California’s OEP (before December. 15) have consistently been higher than those enrolling after January 1, illustrating that healthier consumers tend to enroll later in the OEP.¹⁴ Similarly, in the final month of New York State of Health’s (“NYSOH”) 2017 OEP, which ended January 31, more than 135,000 individuals enrolled in Marketplace health plans.¹⁵ This is hardly a small number of enrollees. Using age as a proxy for risk status, New York found that younger enrollees made up a higher share of total enrollment than they did earlier in the OEP. Conversely, before January, enrollees ages 55-64 comprised a larger proportion of Marketplace enrollees. NYSOH has also found that a greater share of consumers enrolled in Platinum and Gold plans earlier during OEP versus the final month of enrollment, when Bronze and Silver enrollment was predominant. This suggests that those enrolling in January are healthier than those who enroll early in the OEP.  

Further, CMS has not shared data on the relative risk profile of January federally facilitated Marketplace enrollees to support its assertions about adverse selection. It is likely that, just as in the SBEs, sicker individuals or those expecting significant health expenditures are more motivated to sign up for coverage early in the OEP. Those who are healthy are less motivated to enroll, and more likely to be deterred by financial and time constraints during the busy holiday period. 

For the upcoming 2026 OEP, consumers will face higher premiums and more difficult choices if the enhanced premium tax credits expire. With a 90 percent reduction in funding for the ACA Navigator program, many consumers may not receive the help they need to enroll in a health plan.¹⁶ The Proposed Rule also introduces several other policy changes—such as new income documentation requirements—that, if finalized, would increase the administrative burden on consumers and further depress enrollment rates. All of these changes underscore the need for an OEP that is long enough for consumers to weigh their coverage choices and successfully navigate the enrollment process. 

The Foundation urges CMS not to finalize the proposal and instead maintain the current OEP duration and timeframe as well as the flexibility for State Exchanges to extend their timeframe. As an alternative, we recommend an OEP from November 1 through January 1, providing consumers with an additional two weeks to obtain an eligibility determination and select a plan.  

3. Eliminating the monthly Special Enrollment Period for low-income individuals reduces access to affordable coverage (§ 155.420). 

RWJF strongly opposes eliminating the monthly Special Enrollment Period (SEP) for low-income individuals. This monthly SEP has been successful in promoting continuity of affordable coverage among low-income individuals. It is an added safety net for consumers who may be unaware that losing Medicaid or CHIP coverage is a qualifying life event, leaving them uninsured for potentially extended periods until the next annual OEP.  

The Proposed Rule relies on a comparison of the number of plan selections for people with household incomes between 100 percent and 150 percent of the federal poverty level (FPL) in 2024 and the population at that income level based on the 2022 American Community Survey conducted by the U.S. Census Bureau. However, this analysis erroneously compares the number of people who estimated their income when enrolling in 2024 Marketplace coverage to the income of respondents from the 2022 survey, resulting in an inaccurate assessment of potentially improper enrollments. 

According to the Wakely Consulting Group, most industry pricing actuaries believe that eliminating the SEP for low-income individuals will increase premiums. Wakely’s nationwide ACA individual database (Wakely ACA Database or WACA), which aggregates detailed claims for millions of members each year, indicates that members joining via SEP in 2022 had a similar loss ratio (claims/premium) as those who joined during the OEP.¹⁷ The existence of the SEP is also generally beneficial for insurance plans because higher enrollment related to the SEP provides plans with a bigger pool for spreading risk and administrative costs. In 2019, however, prior to the loosening of SEP rules, loss ratios for SEP enrollees were 15 percent higher than those who enrolled during the OEP. This implies that eligible individuals who are sicker will be more likely to navigate enrollment barriers and ultimately obtain coverage compared to healthier Marketplace-eligible individuals. 

While we understand concerns about agents, brokers, and web-brokers engaging in improper enrollments, we believe the Proposed Rule may harm low-income individuals rather than directly addressing the misconduct of these agents and brokers. The Conswallo Turner et al. v. Enhance Health, et al. litigation cited by CMS highlights the deceptive actions of call centers and sales agents targeting low-income individuals, who are exploited by these practices.  

By CMS’ own estimates, fraud associated with unauthorized enrollments and plan switching for people under 150 percent FPL is concentrated in states that have chosen not to expand Medicaid. There is no evidence of any meaningful fraud in the SBE states, all but two of which have implemented the low-income SEP and have had it available to consumers for multiple years.¹⁸ None of these SBEs have reported problems with fraud. Indeed, Covered California reports that SEPs have become a critical source of enrollment, with more consumers signing up via SEP than during the annual OEP.¹⁹ Yet there is no evidence of any meaningful fraud, due to Covered California’s comprehensive safeguards to ensure that brokers obtain consumer consent before completing an enrollment.²⁰ Similarly, the Massachusetts Health Connector, which has long had a year-round SEP for low- and moderate-income individuals, has identified “zero consumer reports among the 1.2 million calls to its customer service center in 2024” of unauthorized enrollments.²¹

CMS does not provide data supporting its claim that the low-income SEP has contributed to adverse selection. The experience of SBEs suggests that the people enrolling through low-income SEPs are, in fact, younger and healthier on average than those who enroll via OEP. For example, Massachusetts has long offered year-round enrollment to people who qualify for Connector Care, their Marketplace health plans for low- and moderate-income individuals. Massachusetts Health Connector officials report that they have “not experienced adverse selection within the program,” and their “risk scores have been healthier than for insurers off-Marketplace.”²² Covered California has found that the prospective risk scores of consumers enrolling through SEPs have been equal to or lower than those enrolling through the OEP.²³

To address improper enrollment, we recommend CMS consider investing more resources into oversight and monitoring of brokers, enhanced direct enrollment (EDE) vendors, and direct enrollment (DE) pathways to ensure rigorous compliance with existing rules and that consumers are being treated properly and lawfully. Significant consequences for fraudulent actors could also deter bad and illegal behavior. CMS could require brokers with fully subsidized clients to ensure active confirmation of eligibility and create new penalties for failure, such as lower commissions, removal of commissions, conditional certification, and decertification. In addition, we recommend that CMS provide additional resources for state insurance departments to investigate licensed brokers and potentially take action against their licensure, which would have broader consequences for a broker’s ability to earn on all lines of business, not just individual Marketplace policies. 

4. Increasing pre-enrollment income verification imposes substantial burdens on consumers (§§ 155.305, 155.315, and 155.320). 

RWJF strongly opposes imposing additional administrative barriers for consumers with data matching issues (DMIs), specifically individuals with income below 100 percent FPL and individuals lacking tax data. The administrative barriers are likely to disproportionately affect people of color and other marginalized groups, who may be more likely to face language barriers, experience changes in circumstances and contact information, and lack the resources to overcome these barriers. CMS estimates these proposals will reduce the number of people who receive premium tax credits (PTCs) by 488,000 people annually and that those affected will face significantly higher premium costs, leading to significant losses in health coverage. This estimate does not capture the many people who remain eligible for PTCs but are unable to navigate the proposed process. 

Moreover, younger and healthier enrollees are less motivated than sicker individuals to overcome administrative hurdles to obtain coverage, which leads to problematic adverse selection.²⁴ CMS has long underscored that coverage losses associated with DMIs are concentrated among young people—a pattern that CMS acknowledges continues to this day.²⁵ Recent data from Massachusetts document the same pattern.²⁶ Deterring younger and healthier people from enrolling worsens the risk pool and increases premiums—further deterring enrollment of healthy, unsubsidized enrollees. This “spiral” is exactly the kind of practice that CMS purports to be trying to avoid in the Proposed Rule. 

Furthermore, the Proposed Rule disadvantages individuals with lower household incomes, who are more likely to experience income volatility and who are more likely to struggle with providing necessary documentation to resolve DMIs. According to the Brookings Institution, more than half (56 percent) of households earning less than $25,000 a year in 2023 reported experiencing income that varies month-to-month occasionally or often, compared to only about a quarter (25 percent) of households earning over $100,000 a year.²⁷ These income fluctuations are often driven by factors beyond workers’ control inherent to the low-wage labor market, such as instability in work hours due to short notice of scheduling, on-call scheduling, shift cancellation, and changes in schedules week to week.

The Foundation urges CMS to not finalize proposals imposing income verification for individuals with income below 100 percent FPL and for individuals lacking tax data. We encourage CMS to explore adopting a facilitated enrollment program for the Marketplace.²⁸ Facilitated enrollment leverages information collected during existing interactions between individuals and a state (or an entity that reports to the state), such as applying for a state benefit, completing an application for health coverage at some earlier time, or disenrolling from commercial coverage. Information collected during these interactions may be used to contact the consumer, establish an account, estimate eligibility, or suggest a plan. Nineteen states, including virtually every state with an SBE, have adopted at least one facilitated enrollment program, offering an opportunity for potential federal-state partnerships. 

5. Denying Advanced Premium Tax Credits (APTCs) for failure to reconcile deters enrollment (§ 155.305(f)(4)). 

RWJF opposes the proposal to deny APTCs to consumers that fail to file their federal income tax and reconcile APTC (FTR) for one year, instead of for two consecutive tax years. The current two-year FTR policy strikes a balance that avoids accruing large tax liabilities over multiple years while ensuring program integrity. This approach mitigates concerns about delayed or missing IRS data, consumer confusion, and administrative burden. The Foundation urges CMS to not finalize this proposal.     

6. Requiring premiums for individuals who are automatically enrolled disadvantages low-income individuals (§ 155.335).

RWJF opposes requiring individuals who are automatically enrolled into Marketplace coverage with no premium to pay $5 until they confirm their eligibility information. The Proposed Rule removes financial assistance that low-income individuals are eligible for and instead imposes administrative and financial barriers, which could lead to a coverage gap or loss. Research shows that even small premiums can be a significant barrier to enrollment, especially for low-income families. This barrier often involves navigating long wait times to speak with customer service representatives, opaque eligibility rules, complex applications, lack of internet access, and being unbanked or unable to set up online payment.²⁹ The Proposed Rule unfairly penalizes individuals based on their income and choice of metal tier.  

Under current regulations, Marketplaces “...must not require an applicant to provide information beyond the minimum necessary to support the eligibility and enrollment processes of the Exchange, Medicaid, CHIP, and the BHP.”³⁰ The Proposed Rule would require consumers to provide the Marketplace with information that already exists. Automatic re-enrollment is a standard practice that protects enrollees from experiencing coverage gaps or losing coverage entirely. Notably, automatic re-enrollment is not unique to the Marketplace and is a long-standing process used in Medicaid, Medicare, and commercial job-based coverage. Real-world evidence underscores that supporting automatic re-enrollment rather than imposing small premium burdens is associated with retention of healthier consumers.³¹ CMS’s proposal will worsen the risk pool and drive up premiums for unsubsidized consumers. 

Additionally, the Proposed Rule would require SBEs to modify their automatic re-enrollment processes, which would involve expensive IT system updates, changes to consumer notifications, and additional investments to enhance customer service capacity to manage the consumer confusion resulting from the change. 

The Foundation urges CMS to not finalize the proposal. The current automatic re-enrollment process reduces administrative costs for Exchanges and issuers, promotes continuity of coverage, and reduces the number of uninsured individuals. Additionally, the reconciliation of APTCs provides an effective safeguard against overpayment.  

7. Excluding DACA recipients from the Marketplace creates significant barriers to accessing healthcare and widens health disparities (§ 155.20).   

RWJF strongly opposes the proposal to change the definition of “lawfully present” to exclude people with DACA status from health insurance Marketplace eligibility, premium tax credits and cost sharing reductions, and the Basic Health Program (BHP). DACA recipients are immigrants who arrived in the United States without status as children. There are approximately 538,000 DACA recipients who have gone through extensive vetting and renewals to maintain their presence in the U.S.   

CMS estimates the Proposed Rule will reduce enrollment of 10,000 people in the qualified health plans and 1,000 more in BHP. This number—11,000 people—underestimates the potential harm of excluding DACA recipients from Marketplace and BHP eligibility. The 2025 plan year was the first year that DACA recipients were eligible to enroll in the Marketplace. Experience suggests that enrollment by DACA recipients will increase over time as awareness of the coverage option grows. Further, pending court challenges depressed enrollment by DACA recipients in the 2025 plan year. DACA recipients in 19 states—including Florida and Texas, where one in five DACA recipients resides—were unable to enroll in coverage after the first month of open enrollment. CMS previously estimated that over 100,000 DACA recipients would enroll in a qualified health plan or BHP. 

DACA recipients are critical members of families and communities across the United States. More than 1.3 million people live with a DACA recipient, including 300,000 U.S.-born children who have at least one parent who is a DACA recipient. A majority of DACA recipients are employed and three quarters of DACA recipients in the workforce are essential workers, including 45,000 healthcare professionals and 20,000 educators. Yet, DACA recipients are nearly three times as likely to be uninsured than the general population in the United States, according to a 2023 survey conducted by the National Immigration Law Center, United We Dream, and the Center for American Progress.³² DACA recipients are disproportionately uninsured due to their previous exclusion from the ACA, their continued exclusion from programs like Medicaid, and limited access to employer-sponsored insurance.  

The Proposed Rule will compound ongoing barriers faced by DACA recipients to accessing healthcare coverage and services. In the above-referenced 2023 survey, respondents mentioned their immigration status, the lack of available affordable care or coverage options, and their concern that using healthcare services could negatively affect their own or their family’s immigration status as significant barriers to accessing coverage.³³ Further, 36 percent of respondents skipped recommended medical tests or treatment due to the costs of care and 12 percent avoided seeking medical attention because they feared that doing so would impact their immigration status. Among respondents who obtained medical care, 27 percent took on medical debt. By exacerbating these problems, this proposed action will hurt the health of individuals and the economies of communities and states. CMS should withdraw this proposal.  

8. Prohibiting coverage of “sex-trait modification” as an Essential Health Benefit denies medically necessary care (§ 156.115(d)).  

RWJF strongly opposes the section of the Proposed Rule that would prohibit issuers from offering “sex-trait modification” as an essential health benefit (EHB). The term “sex-trait modification” has no basis in law, policy, science, or medicine. CMS seeks to deny people diagnosed with gender dysphoria medically necessary care, including hormone therapy and other medical interventions. Such coverage and care denials are not only unlawful; they are unconscionable. 

Gender dysphoria is a serious medical condition characterized by clinically significant distress or impairment in social, occupational, or other important areas of functioning due to a marked incongruence between the patient’s gender identity (i.e., the innate sense of oneself as being a particular gender) and sex assigned at birth.^34,35 People diagnosed with gender dysphoria can greatly benefit from treatment.^36,37   

By targeting individuals with gender dysphoria, this proposal would exceed CMS’ authority to define EHBs. First, banning states from covering treatment for people with gender dysphoria at the national level is contrary to the requirement that EHBs be defined in a way that protects individuals from discriminatory benefit designs. Second, the proposal goes beyond the limit imposed by the ACA that ties EHBs to coverage in typical employer plans.  

CMS claims, without evidence, that treatment for gender dysphoria is not typically covered in employer plans. This is false. In the 2025 Corporate Equality Index (CEI), the Human Rights Campaign Foundation found that 72 percent of Fortune 500 businesses (and 91 percent of businesses listed on the CEI) offer coverage of gender-affirming care.³⁸ This translates to over 1,300 major employers that offer coverage of gender-affirming care, which is 28 times as many businesses as in 2009.³⁹

This proposal would also disrupt the balance CMS has established between safeguarding access to a minimum level of services across the country and state flexibility to address the healthcare needs of their populations. Since CMS established the EHB benchmarking process, the agency has often used its authority to define EHBs to create national coverage standards as minimum requirements but has never utilized it to force states to categorically exclude benefits that target populations with a particular condition. This approach has afforded all 50 states and D.C. the opportunity to use EHBs as a tool to close remaining gaps in coverage that impact the health of their populations.  

CMS’s proposed exclusion of “sex-trait modification” is simply to inflict harm on transgender and nonbinary people who already experience violence and discrimination at an unprecedented level. CMS should withdraw this proposal. 

Conclusion 

We have included numerous citations to supporting research, including direct links to the research. We direct CMS to each of the materials we have cited and made available through active links, and we request that the full text of each of the studies and articles cited, along with the full text of our comment, be considered part of the formal administrative record for purposes of the Administrative Procedure Act. If CMS is not planning to consider these materials as part of the record as we have requested here, we ask that you notify us and provide us with an opportunity to submit copies of the studies and articles into the record.  

1. Dawson, L., Long, M., & Frederiksen, B. (2023, June 30). LGBT+ People’s Health Status and Access to Care. Kaiser Family Foundation. Retrieved April 8, 2025, from https://www.kff.org/report-section/lgbt-peoples-health-status-and-access-to-care-issue-brief/  

2. (2025, February 11). Key Facts on Deferred Action for Childhood Arrivals (DACA). Kaiser Family Foundation. Retrieved April 8, 2025, from https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/"https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/  

3. Tolbert, J., Cervantes, S., Bell, C., & Damico, A. (2024, December 18). Key Facts about the Uninsured Population. Kaiser Family Foundation. Retrieved April 8, 2025, from https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/  

4. U.S. Department of Health and Human Services. (2017, April 18). Patient Protection and Affordable Care Act: Market Stabilization. 82 Federal Register 18346. https://www.federalregister.gov/documents/2017/04/18/2017-07712/patient-protection-and-affordable-care-act-market-stabilization  

5. McIntyre, A. L., Shepard, M., & Wagner, M. (2021, April). Can automatic retention improve health insurance market outcomes? (NBER Working Paper No. 28630). National Bureau of Economic Research. https://www.nber.org/system/files/working_papers/w28630/w28630.pdf

6. Centers for Medicare and Medicaid Services (2025, March 3). 2024 Marketplace Open Enrollment Period Public Use Files. Retrieved April 8, 2025, from https://www.cms.gov/data-research/statistics-trends-reports/marketplace-products/2024-marketplace-open-enrollment-period-public-use-files  

7. Furtado, K., Verdeflor, A., & Waidmann, T. (2023, October 25). A Conceptual Map of Structural Racism in Healthcare. Retrieved April 8, 2025, from https://www.rwjf.org/en/insights/our-research/2023/10/a-conceptual-map-of-structural-racism-in-healthcare.html  

8. Tolbert, J., Cervantes, S., Bell, C., & Damico, A. (2024, December 18). Key Facts about the Uninsured Population. Retrieved April 8, 2025, from https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/  

9. Strombom, B. A., Buchmueller, T. C., & Feldstein, P.J. (2002). Switching costs, price sensitivity, and health plan choice. Journal of Health Economics, 21(1), 89–116. https://doi.org/10.1016/S0167-6296(01)00124-2

10. Buchmueller, T. C. (2009). Consumer-oriented health care reform strategies: A review of the evidence on managed competition and consumer-directed health insurance. The Milbank Quarterly, 87(4), 820–841. https://doi.org/10.1111/j.1468-0009.2009.00580.x

11. Ericson, K. M. M., & Starc, A. (2015). Pricing regulation and imperfect competition on the Massachusetts health insurance exchange. The Review of Economics and Statistics, 97(3), 667–682. https://doi.org/10.1162/REST_a_00514

12. Kaiser Family Foundation (n.d.). Marketplace Enrollment, 2014-2024. Retrieved April 8, 2025, from https://www.kff.org/affordable-care-act/state-indicator/marketplace-enrollment/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D  

13. Burton, R. A., Peters, R., Wengle, E., Elmendorf, C., & Aarons, J. (2018, June 20). What explains 2018’s marketplace enrollment rates? Urban Institute. https://www.urban.org/research/publication/what-explains-2018s-marketplace-enrollment-rates  

14. (n.d.). Chronic Illness and Disability Payment System (CDPS). UC San Diego Herbert Wertheim School of Public Health and Human Longevity Science. Retrieved April 8, 2025, from https://hwsph.ucsd.edu/research/programs-groups/cdps.html#Major-Revision-of-CDPS-to-7.0  

15. New York State of Health. (2017, March 7). Comments on proposed market stabilization regulations. New York State of Health. https://info.nystateofhealth.ny.gov/sites/default/files/Comments%20on%20Proposed%20Market%20Stabilization%20Regulations%203.7.17.pdf

16. Centers for Medicare and Medicaid Services (2025, February 14). CMS Announcement on Federal Navigator Program Funding. CMS Newsroom. Retrieved April 8, 2025, from https://www.cms.gov/newsroom/press-releases/cms-announcement-federal-navigator-program-funding  

17.  Tolman, L., & Cohen, M. (2025, April). Pricing Considerations for the Program Integrity Rule [White paper]. Wakely. https://www.wakely.com/blog/pricing-considerations-for-the-program-integrity-rule/"https://www.wakely.com/blog/pricing-considerations-for-the-program-integrity-rule/

18. Swindle, R., Clark, J., Giovannelli, J., & Schwab, R. (n.d.). ACA State Marketplace Models and Key Policy Decisions. Retrieved April 8, 2025, from https://www.commonwealthfund.org/publications/maps-and-interactives/aca-state-marketplace-models-and-key-policy-decisions  

19. State Health & Value Strategies (2025, April 1). New CMS Proposed Rule: ACA Marketplace Integrity. https://www.shvs.org/wp-content/uploads/2025/04/New-CMS-Proposed-Rule-on-ACA-Marketplace-Integrity_Final.pdf  

20. Ibid. 

21. Ibid. 

22. Centers for Medicare & Medicaid Services. (2021). Comment on CMS-2021-0113-0240. Regulations.gov. https://www.regulations.gov/comment/CMS-2021-0113-0240

23. (n.d.). Chronic Illness and Disability Payment System (CDPS). UC San Diego Herbert Wertheim School of Public Health and Human Longevity Science. Retrieved April 8, 2025, from https://hwsph.ucsd.edu/research/programs-groups/cdps.html#Major-Revision-of-CDPS-to-7.0

24. Shepard, M., & Wagner, M. (2025). Do Ordeals Work for Selection Markets? Evidence from Health Insurance Auto-Enrollment. American Economic Review, 115(3), 772-822. https://doi.org/10.1257/aer.20231133  

25. Centers for Medicare & Medicaid Services (2016, June 18). Strengthening the Marketplace – Actions to Improve the Risk Pool. CMS Newsroom. Retrieved April 8, 2025, from https://www.cms.gov/newsroom/fact-sheets/strengthening-marketplace-actions-improve-risk-pool  

26. State Health & Value Strategies (2025, April 1). New CMS Proposed Rule: ACA Marketplace Integrity. https://www.shvs.org/wp-content/uploads/2025/04/New-CMS-Proposed-Rule-on-ACA-Marketplace-Integrity_Final.pdf

27. Bauer, L., East, C., & Howard, O. (2025, January 9). Low-income workers experience—By far—The most earnings and work hours instability. Retrieved April 8, 2025, from https://www.brookings.edu/articles/low-income-workers-experience-by-far-the-most-earnings-and-work-hours-instability/  

28. Levitis, J., & O'Brien, C. (2023, December 12). Expanding Health Coverage through Marketplace Facilitated Enrollment Programs. Retrieved April 8, 2025, from https://www.urban.org/research/publication/expanding-health-coverage-through-marketplace-facilitated-enrollment-programs

29. McIntyre, A. L., Shepard, M., & Wagner, M. (2021, April). Can automatic retention improve health insurance market outcomes? (NBER Working Paper No. 28630). National Bureau of Economic Research. https://www.nber.org/system/files/working_papers/w28630/w28630.pdf

30. 45 CFR § 155.315(i) 

31. McIntyre, A. L., Shepard, M., & Wagner, M. (2021, April). Can automatic retention improve health insurance market outcomes? (NBER Working Paper No. 28630). National Bureau of Economic Research. https://www.nber.org/system/files/working_papers/w28630/w28630.pdf

 Nat32.ional Immigration Law Center (2024, May 29). DACA Recipients’ Access to Health Care: 2024 Report. Retrieved April 8, 2025, from https://www.nilc.org/wp-content/uploads/2024/05/NILC_DACA-Report_2024_06-27-24.pdf  

33. Ibid. 

34. American Psychiatric Association. (2022). Diagnostic and statistical manual of mental disorders: DSM-5-TR (pp. 512–513). American Psychiatric Association. 

35. World Health Organization. (2019/2021). International classification of diseases, eleventh revision (ICD-11). Retrieved April 8, 2025 from https://www.who.int/classifications/icd/en/

36. Hembree, W. C., Cohen-Kettenis, P. T., Gooren, L., Hannema, S. E., Meyer, W. J., Murad, M. H., Rosenthal, S. M., Safer, J. D., Tangpricha, B., & T'Sjoen, G. G. (2017). Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society* Clinical Practice Guideline. The Journal of Clinical Endocrinology & Metabolism, 102(11), 2869-3903. https://doi.org/10.1210/jc.2017-01658

37. E Coleman, E., Radix, A. E., Bouman, W. P., Brown, G. R., de Vries, A. L. C., Deutsch, M. B., … Arcelus, J. (2022). Standards of Care for the Health of Transgender and Gender Diverse People, Version 8. International Journal of Transgender Health, 23(sup1), S1–S259. https://doi.org/10.1080/26895269.2022.2100644

38. Human Rights Campaign Foundation. (2025, January). Corporate equality index 2025: Rating workplaces on lesbian, gay, bisexual, transgender, and queer equality. Retrieved April 8, 2025, from https://www.hrc.org/resources/corporate-equality-index

39. Ibid. 

About the Robert Wood Johnson Foundation

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