In order to manage costs, Medicare Advantage (MA) plans are able to restrict their enrollees to a contracted network of health care providers that is “sufficient to provide access to covered services to meet the needs of the population served.”* Some plans, like most HMOs, exclusively use a contracted network for non-emergency or urgent services. Other plans, like PPOs, have a contracted network, but allow enrollees to see providers outside of the network, usually subject to higher cost-sharing. The adequacy of a given network is critical to an MA enrollee’s ability to access appropriate care.
Amid recent reports of hospitals, physician practices and other providers refusing to contract with MA plans (discussed in CMA Alerts, e.g., here and here), along with reports from beneficiaries that they cannot obtain the care they need from their plan’s network, the adequacy of a given plan’s contracted network is sometimes in question.
An existing regulation, recently strengthened by the Centers for Medicare & Medicaid Service (CMS), requires an MA plan to cover care outside of the plan’s network in certain scenarios (in addition to urgent or emergency services):
*Title 42, Code of Federal Regulations, Section 422.112(a)(1)(iii) states that an MA plan must:
Arrange for and cover any medically necessary covered benefit outside of the plan provider network, but at in-network cost sharing, when an in-network provider or benefit is unavailable or inadequate to meet an enrollee’s medical needs.
Also see the Medicare Managed Care Manual, Chapter 4, §110.1.1, which states that an MA plan must:
Regardless of the MA plan type being offered, arrange for medically necessary care outside of the network, but at in-network cost-sharing, in order to provide all Medicare Part A and Part B benefits. That is, if an enrollee requires a medically necessary covered service that is not provided by the providers in the network, the plan must arrange for that service to be provided by a qualified non-contracted provider;
CMS revised §422.112 in a final rule issued in April 2023 (88 Fed Reg 22120, April 12, 2023). The previous language at §422.112 required that an MA organization provide or arrange for necessary specialty care and arrange for specialty care outside of the plan’s provider network when network providers are unavailable or inadequate to meet an enrollee’s medical needs (emphasis added).
In the final rule, CMS explained that “[h]istorically, CMS has interpreted these statutory and regulatory requirements to mean that in the event an in-network provider or service is unavailable or inadequate to meet an enrollee’s medical needs, the MA organization must arrange for any medically necessary covered benefit outside of the plan provider network at in-network cost sharing for the enrollee” (p. 22175). In other words, such requirement is not limited to specialists, and “[e]nrollees should not bear a financial burden because of the inadequacy of the MA plan’s network” (p. 22175). In order to ensure that regulatory language is consistent with “current, longstanding sub-regulatory policy” and implementation of the Medicare Act (p. 22176), CMS has revised §422.112 accordingly to “ensure adequate access to medically necessary covered benefits for enrollees when the plan network is not sufficient by both arranging or covering the out-of-network benefits and only charging in-network cost sharing for those out-of-network benefits.” (p. 22175)
Although the Center for Medicare Advocacy regularly hears from MA enrollees and those who assist them that they are unable to obtain medically necessary care from an in-network provider, CMS states in the final rule that the agency “has not been made aware of any issues of MA organization non-compliance with this policy and, as such, believes that MA organizations have been complying with this longstanding guidance” (p. 22176). The Center is aware such issues exist but are likely not regularly reported to the regulator.
CMS has recently provided definitive time periods for prior authorization. There should be similar consideration given to the length of time that is reasonable to wait for services upon which the prior authorization is based. But, in the meantime, we urge beneficiaries to advocate for timely services, in or out of network, that are safe and necessary in order to protect their own health
We urge MA enrollees and their advocates to make use of this important consumer protection, and report to CMS when they encounter difficulty obtaining medically necessary care in the network. Further, we urge CMS to widely publicize and enforce this right and educate stakeholders, including MA enrollees, plans and providers.
January 18, 2024 – D. Lipschutz