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Just in time for the holidays, the Centers for Medicare and Medicaid Services (“CMS”) issued the Contract Year 2024 Proposed Rule for Medicare Advantage organizations (“MAOs”) and Part D sponsors (the “Proposed Rule”). The Proposed Rule includes changes on an array of topics including: Star Ratings, medication therapy management, marketing and communications, health equity, provider directories, coverage criteria, prior authorization, behavioral health services, identification of overpayments, requirements for valid contract applications, and formulary changes.
We’ve summarized some of the key changes in the Proposed Rule. Comments are due February 13, 2023.
1. Star Ratings
In 2022, MA and Part D marketing was the subject of a Congressional investigation, CMS rulemaking and CMS subregulatory guidance. Please refer to our blog posts of November 4, 2022, October 31, 2022, and May 16, 2022. The Proposed Rule includes additional changes to the Part C and Part D marketing requirements including:
On March 1, 2022, President Biden announced a national strategy regarding behavioral health to strengthen system capacity and connect more individuals to care by ensuring that the nation’s health and social services infrastructure addresses mental health holistically and equitably. The 2022 CMS Strategic Framework also describes CMS’s broad goals to expand coverage and enhance access to equitable health care services for those covered under CMS programs. To support these goals, the Proposed Rule would make various changes that focus on access to behavioral health for MA enrollees, including:
The Proposed Rule would revise the disclosure requirements at § 422.111(e) by establishing specific enrollee notification requirements for no-cause and for-cause provider contract terminations and adding specific and more stringent enrollee notification requirements when primary care and behavioral health provider contract terminations occur, in order to raise the standards for the stability of enrollees’ primary care and behavioral health treatment. These proposals include:
Finally, within a 3-year lookback period, Part D sponsors would be required to: (1) refund incorrect collections of premiums and cost sharing, and (2) recover underpayments of premiums and cost sharing within 45 days of the Part D sponsor’s receipt of such information. The Proposed Rule specifies the applicable refund methods (e.g., lump sum, premium reduction, etc.) and a de minimis amount for applicable refunds and recoveries to remove administrative burdens on plan sponsors and the government.
Under § 422.134’s Reward and Incentive (“R&I”) Programs, MA plans have the option to uniformly offer enrollees rewards in exchange for participating in health related activities which either promote improved health, prevent injury and illness, or promote efficient use of health care resources. In January 2021, CMS finalized a provision permitting R&I programs to offer a gift card “that can be redeemed only at specific retailers or retail chains or for a specific category of items or services.” Since then, CMS has received suggestions to revise and clarify the definition of “cash equivalent” in the MA plan R&I context due to varying guidance on big-box store gift cards in several other contexts, including a 2020 OIG rule and a CMS final rule for a separate R&I program in connection with a Part D real time benefit tool requirement at § 423.128(d)(4) and (5).
In response, CMS is soliciting comments on whether it should further clarify the definition of “cash equivalent” as that term is used in § 422.134. CMS is particularly interested in stakeholder feedback on whether it should include parameters for permissible gift cards being offered as MA reward items. CMS also seeks information on how MA plans interpret and implement its current guidance and whether stakeholders believe that more specific guidance on permissible gift card reward items is necessary.
https://www.natlawreview.com/articl...e-advantage-organizations-and-part-d-sponsors
We’ve summarized some of the key changes in the Proposed Rule. Comments are due February 13, 2023.
1. Star Ratings
- Addition of a Health Equity Index Reward
In 2022, MA and Part D marketing was the subject of a Congressional investigation, CMS rulemaking and CMS subregulatory guidance. Please refer to our blog posts of November 4, 2022, October 31, 2022, and May 16, 2022. The Proposed Rule includes additional changes to the Part C and Part D marketing requirements including:
- Requiring enrollees to be notified annually, in writing, of the ability to opt out of phone calls regarding MA and Part D plan business;
- Requiring agents to explain the effect of an enrollee’s enrollment choice on their current coverage whenever the enrollee makes an enrollment decision;
- Requiring agents to share key pre-enrollment information with potential enrollees when processing telephonic enrollments;
- Simplifying plan comparisons by requiring medical benefits be in a specific order and listed at the top of a plan’s Summary of Benefits;
- Limiting the time that a sales agent can call a potential enrollee to no more than six months following the date that the enrollee first asked for information;
- Limiting the requirement to record calls between third-party marketing organizations (“TPMOs”) and beneficiaries to marketing (sales) and enrollment calls;
- Clarifying that the prohibition on door-to-door contact without a prior appointment still applies after collection of a business reply card or scope of appointment;
- Prohibiting marketing of benefits in a service area where those benefits are not available;
- Prohibiting the marketing of information about savings available to potential enrollees that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary;
- Requiring TPMOs to list or mention all of the MAOs or Part D sponsors that they sell;
- Requiring MAOs and Part D sponsors to have an oversight plan that monitors agent/broker activities and reports agent/broker non-compliance to CMS;
- Modifying the TPMO disclaimer to add SHIPs as an option for beneficiaries to obtain additional help;
- Placing discrete limits around the use of the Medicare name, logo, and Medicare card;
- Prohibiting the use of superlatives (e.g., “best” or “most”) in marketing unless the material provides documentation to support the statement, and the documentation is for the current or prior year; and
- Clarifying that the requirement to record calls between TPMOs and beneficiaries includes virtual connections such as video conferencing and other virtual telepresence methods.
On March 1, 2022, President Biden announced a national strategy regarding behavioral health to strengthen system capacity and connect more individuals to care by ensuring that the nation’s health and social services infrastructure addresses mental health holistically and equitably. The 2022 CMS Strategic Framework also describes CMS’s broad goals to expand coverage and enhance access to equitable health care services for those covered under CMS programs. To support these goals, the Proposed Rule would make various changes that focus on access to behavioral health for MA enrollees, including:
- Strengthening network adequacy requirements for MA plans as they relate to behavioral health such as:
- adding clinical psychology, clinical social work, and prescribers of Medication for Opioid Use Disorder (“MOUD”) to the list at § 422.116(b)(1) of specialty types subject to network adequacy evaluation;proposing base time and distance standards and minimum number of in-person providers in each county type for each new specialty type;adding all the new behavioral health specialty types to the list at § 422.116(d)(5) of the specialty types that that will receive the 10% credit towards the percentage of beneficiaries residing within published and distance standards if the MAO’s contracted network of providers includes one or more telehealth providers of that specialty type that provide additional telehealth benefits, as defined in § 422.135; and
- amending the list of health care providers in the existing access to services standards at § 422.112(a)(1)(i) to include that the network must also include providers that specialize in behavioral health services.
- Revising the continuity of care and integration of services requirements at § 422.112(b)(3) to include behavioral health services to ensure access to care coordination and specific types of behavioral health providers;
- Amending the definition of “emergency medical condition” at § 422.113(b)(1)(i) to mean a “mental or physical condition,” to ensure that enrollees have access to emergency behavioral health services in parity with access to other medical emergency services; and
- Codifying appointment wait time standards for primary care and behavioral health services that correspond with the Medicare Managed Care Manual. These new minimum appointment wait time standards would be added to the existing requirement that MAOs establish written policies for the timeliness of access to care and member services so that MAOs must have appointment wait times that meet or exceed the standards that CMS proposes.
The Proposed Rule would revise the disclosure requirements at § 422.111(e) by establishing specific enrollee notification requirements for no-cause and for-cause provider contract terminations and adding specific and more stringent enrollee notification requirements when primary care and behavioral health provider contract terminations occur, in order to raise the standards for the stability of enrollees’ primary care and behavioral health treatment. These proposals include:
- Preserving the “good faith effort” to notify enrollees of for-cause provider contract terminations but removing it for no-cause provider contract terminations,
- Adding behavioral health providers to the current requirement at § 422.111(e) that all enrollees who are patients of a terminating primary care provider must be notified (not just those enrollees who are patients seen on a regular basis by the terminating provider, which is the case for all other specialty types), and expand the scope of this requirement to refer to all enrollees who have ever been as patients of these terminating primary care or behavioral health providers (not just current patients),
- Requiring MAOs to provide notice to enrollees at least 45 calendar days before the termination effective date for contract terminations that involve a primary care or behavioral health provider, which is longer than the 30-day standard for all other specialty types, and
- Requiring both written and telephonic notice for contract terminations that involve a primary care or behavioral health provider, while only written notice is required for all other specialty types.
- that the provider termination notice informs the enrollee that the provider will no longer be in the network and the date the provider will leave the network,
- inclusion of information currently described in the best practices guidance such as: names and phone numbers of in-network providers that the enrollee may access for continued care, how the enrollee may request a continuation of ongoing medical treatment or therapies with their current provider, and the MAO’s call center telephone number, TTY number, and hours and days of operation,
- that MAOs provide information about the Annual Coordinated Election Period and the MA Open Enrollment Period and explain that an enrollee who is impacted by the provider termination may contact 1– 800–MEDICARE to request assistance in identifying and switching to other coverage, or to request consideration for a special election period, as specified in § 422.62(b)(26), based on the individual’s unique circumstances and consistent with existing parameters for this SEP, and
- that the telephonic notice of provider termination specified in proposed § 422.111(e)(1)(i) must relay the same information as the written provider termination notice.
- Clarifying prohibitions on Part C and Part D midyear benefit changes and Part D sponsors’ obligations with respect to incorrect collections of premiums and cost-sharing amounts
Finally, within a 3-year lookback period, Part D sponsors would be required to: (1) refund incorrect collections of premiums and cost sharing, and (2) recover underpayments of premiums and cost sharing within 45 days of the Part D sponsor’s receipt of such information. The Proposed Rule specifies the applicable refund methods (e.g., lump sum, premium reduction, etc.) and a de minimis amount for applicable refunds and recoveries to remove administrative burdens on plan sponsors and the government.
- Clarifying CMS’s authority related to application submissions
- An MA application that failed to upload either a State license or documentation that the State received a licensure application from the applicant before the CMS application due date.
- An MA application that failed to upload network adequacy materials, including failing to submit network lists for designated provider types, submitting fictitious providers, or submitting a list that contained so few providers that CMS could only conclude that no good faith effort had been made to create a complete network.
- A SNP application that failed to upload a model of care that would allow CMS to determine whether or not it met MOC element requirements. This would include failure to submit MOC documents at all or submitting incomplete documents that did not contain all of the required MOC elements.
Under § 422.134’s Reward and Incentive (“R&I”) Programs, MA plans have the option to uniformly offer enrollees rewards in exchange for participating in health related activities which either promote improved health, prevent injury and illness, or promote efficient use of health care resources. In January 2021, CMS finalized a provision permitting R&I programs to offer a gift card “that can be redeemed only at specific retailers or retail chains or for a specific category of items or services.” Since then, CMS has received suggestions to revise and clarify the definition of “cash equivalent” in the MA plan R&I context due to varying guidance on big-box store gift cards in several other contexts, including a 2020 OIG rule and a CMS final rule for a separate R&I program in connection with a Part D real time benefit tool requirement at § 423.128(d)(4) and (5).
In response, CMS is soliciting comments on whether it should further clarify the definition of “cash equivalent” as that term is used in § 422.134. CMS is particularly interested in stakeholder feedback on whether it should include parameters for permissible gift cards being offered as MA reward items. CMS also seeks information on how MA plans interpret and implement its current guidance and whether stakeholders believe that more specific guidance on permissible gift card reward items is necessary.
https://www.natlawreview.com/articl...e-advantage-organizations-and-part-d-sponsors
