- CMS Continues to Downplay Medicare Plan Finder Problems and Availability of Special Enrollment Period
- Medicare Advantage Marketing Matters: Case Study
- Center for Medicare Advocacy Supports Supreme Court Review of ACA-Repeal Lawsuit
- ALS Activist Steve Gleason Receives Congressional Gold Medal
The Annual Coordinated Election Period (ACEP) – the period during which individuals with Medicare can make coverage elections for the following year – ended on December 7, 2019. As discussed in previous CMA Alerts, there were a number of factors impacting the 2019 ACEP that made enrollment decisions even more challenging this past fall. Complicating factors included the introduction of a new Medicare Plan Finder (MPF), inaccuracies in data in the MPF, changes in marketing rules, and other significant Medicare policy changes. These well-documented challenges continue in the new year as CMS persists in denying that people experienced MPF problems, and in turn has not adequately promoted a Special Enrollment Period (SEP) right for those who relied upon such inaccuracies to their detriment.
Updated Medicare Plan Finder
As discussed in previous CMA Alerts, on August 27, 2019, the same day that the Centers for Medicare & Medicaid Services (CMS) debuted the updated Medicare Plan Finder (MPF) tool, four beneficiary advocacy organizations – the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging – sent a joint letter to CMS raising concerns about the roll-out of the new MPF. The joint letter is available here, and an accompanying press release here. The groups urged CMS to mitigate any adverse consequences by closely monitoring the roll out and functionality of the new MPF tool, including providing enrollment relief as needed.
In addition to the timing and other MPF challenges identified prior to the ACEP, since the introduction of the updated MPF, there have also been a number of functional problems identified. These problems included: inaccurate information about covered drugs and costs, non-formulary drugs, dosage options, copays for individuals with the Part D Low Income Subsidy (LIS), problems creating a MyMedicare account, and the listing of plan choices by premium rather than total cost.
In early December 2019 a group of Senators sent CMS a letter expressing concerns about inaccurate information on the Plan Finder, and urging CMS to widely publicize the existing Special Enrollment Period (SEP) “for people who were misled by information” in the Plan Finder. The chairs and ranking members of the House Ways & Means and Energy & Commerce Committees also sent CMS a letter in December similarly expressing concerns about inaccuracies in the Plan Finder and asking how CMS plans to advertise the ability for beneficiaries to access an SEP.
CMS Response to Concerns
While CMS addressed some of the problems that arose during the ACEP, challenges persisted, leading many individuals to make coverage decisions based on incomplete or inaccurate information. While those enrolled in MA plans have an additional opportunity to change plans between January and March through the Medicare Advantage Open Enrollment Period, those enrolled in stand-alone Part D plans (PDPs) do not have this option. Further, problems might not arise or be identified by beneficiaries until later in the year.
As discussed below, individuals who rely on bad information to their detriment might be able to obtain a Special Enrollment Period (SEP) to change to a different plan. CMS, however, has failed to publicly acknowledge these MPF problems, which could deter individuals from knowing about and seeking relief through an SEP.
In the November 27, 2019 CMS blog entitled “We’re Heading into the Last Week of Medicare Open Enrollment – Don’t Miss Out on Your Chance to Find Better Coverage,” the agency complained about media reports outlining problems with the Medicare Plan Finder, but failed to acknowledge that there have actually been any problems:
CMS has been distressed to see media coverage talking about “glitches” or “malfunctions” in the Plan Finder. Let’s be clear: the new Plan Finder has experienced no outages since it was launched. It displays the most current and accurate information on premiums, deductibles and cost sharing that Medicare Advantage and Prescription Drug Plans provide.
On December 2, 2019, the Center for Medicare Advocacy issued a statement titled “CMS Not Acknowledging Medicare Plan Finder Problems Could Hurt Beneficiaries” arguing that this lack of acknowledgment on the part of CMS could undermine awareness of, and the ability of people to utilize, an SEP if they relied on misinformation. Even worse than failing to acknowledge errors, in at least one statement CMS blamed “‘user error or confusion’” for problems people were experiencing.
CMS continues to downplay any problems with the Plan Finder during the recent enrollment period. Most recently, on January 10, 2020, CMS issued a blog post entitled “At the End of another Successful Medicare Open Enrollment, CMS is Dedicated to Ensuring Seniors are Confident in their Choices.”
After touting how well things went with the new Plan Finder, CMS noted in the blog post:
Nevertheless, CMS understands that for a variety of reasons, a coverage change may be necessary. For example, a beneficiary might have experienced exceptional conditions that require a new plan choice, such as being provided incorrect or misleading information. So CMS provides “Special Enrollment Periods” (SEPs) and other options to help beneficiaries with any necessary change.
Beneficiaries that have concerns about their coverage at any time during the year can call 1-800- MEDICARE, and the weeks following Open Enrollment are no exception. Call center representatives are trained to listen to concerns and help resolve the issue based on individual situations. Sometimes, that might involve using an SEP that would allow a change in plans. Other times, the issue might be resolved in some other way, such as working with the beneficiary’s current plan to institute coverage exceptions. Regardless, CMS is ready to help in any way possible to address concerns.
While these CMS blog posts – which are unlikely to be read by many Medicare beneficiaries – do reference the availability of an SEP, CMS continues to both downplay problems with the Plan Finder and largely fails to directly connect such problems with an SEP right. The Center asserts that this may serve as a deterrent to seek an SEP for those who are unsure about, don’t recall or don’t have evidence about the inaccurate information they obtained through the Plan Finder.
Without more concrete acknowledgement that Plan Finder inaccuracies occurred (and as a result people made enrollment decisions based on such inaccuracies) vaguely touting the availability of an SEP hides the ball. A blog post referencing the availability of an SEP when someone “might have experienced exceptional conditions that require a new plan choice, such as being provided incorrect or misleading information” without clearly articulating that the Plan Finder itself could be the source of such bad information, is a disservice to the public. As noted in the Senate letter referenced above, “the absence of wide-ranging outreach and educational efforts on the SEP puts people with Medicare at risk.”
Instead of vague generalities about SEP rights, CMS should widely distribute notices to the public that include language similar to the language added on the medicare.gov website, as discussed below.
Special Enrollment Period (SEP)
Sometime towards the end of (or after) the ACEP, the Medicare.gov website was updated to include reference to an SEP for Special Circumstance: see the language here. The website notes:
You can make changes to your Medicare Advantage and Medicare prescription drug coverage when certain events happen in your life, like if you move or you lose other insurance coverage. These chances to make changes are called Special Enrollment Periods (SEPs). Rules about when you can make changes and the type of changes you can make are different for each SEP.
Note: If you believe you made the wrong plan choice because of inaccurate or misleading information, including using Plan Finder, call 1-800-MEDICARE and explain your situation. Call center representatives can help you throughout the year with options for making changes.
Although it is early in the year, the Center for Medicare Advocacy has already heard mixed results for individuals seeking an SEP relating to Medicare Plan Finder problems via 1-800-MEDICARE. We urge CMS to further promote the availability of the SEP – including specifically referencing inaccuracies in the Plan Finder – and ensuring that customer service representatives at 1-800-MEDICARE and CMS staff are adequately trained to process and grant such requests.
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Mr. G, a retired professional, is a Medicare beneficiary in his 80s with advanced Parkinson’s disease who experienced a bad fall at home. He was hospitalized and then went to a skilled nursing facility for rehabilitation. Mr. G has always had original Medicare along with a stand-alone Part D plan and a Medicare supplemental (“Medigap”) plan. This coverage has worked well for him, allowing him to see any provider he needed for his serious medical conditions.
In December 2019, while he was in the nursing home recovering from his fall, Mr. G saw a TV commercial for a Medicare Advantage plan promising “zero payment.” He called the plan and spoke to a representative who assured him that he would save money by enrolling. Mr. G enrolled with an effective date of January 1, 2020. However, he did not understand that the Medicare Advantage plan was an HMO with a restricted network, and that many of his providers were not in the network. On January 2, the day Mr. G was being discharged from the nursing facility, his family was told that he was “no longer in fee-for-service Medicare” and that the home health agency they had worked so hard to find to help with the transition back to living at home was not in his MA network and could not be paid by Medicare for Mr. G’s care. His family also determined that other important providers, such as his primary-care physician, were not in the network of the Medicare Advantage HMO. They were in a panic about what to do.
The Center for Medicare Advocacy informed Mr. G’s family that because of the Medicare Advantage Open Enrollment Period, which runs every year from January 1 to March 31, Mr. G could disenroll from the Medicare Advantage plan, and go back to original Medicare with a stand-alone Part D plan. There was a potential problem, however, with his Medigap plan: Mr. G lives in a state that restricts enrollment for Medigap plans to certain times of year and allows those plans to consider pre-existing medical conditions (“medical underwriting”) in issuing policies. With advanced Parkinson’s, it was unlikely that any Medigap plan would accept him, and even if a plan did accept him, it would not be until later in the year. Fortunately, Mr. G’s family had already paid several months’ worth of premiums for his Medigap plan. As long as Mr. G remained current with the premiums, he would stay in that supplemental plan, even though he could not use it while he was in a Medicare Advantage plan. When he was out of the Medicare Advantage plan, he would be able to use the Medigap plan again.
Mr. G’s family called 1-800-Medicare and requested that he be disenrolled from the Medicare Advantage plan and placed back into original Medicare with a stand-alone Part D plan. Normally, this type of disenrollment would take effect the first day of the following month (in this case, February 1). However, based on information from the Center, Mr. G’s family also filed a “complaint” with 1-800-Medicare, explaining the circumstances and requesting retroactive disenrollment from the Medicare Advantage plan so that he would have coverage from original Medicare in the month of January. It was important to use the word “complaint” so that the request would be placed in the “complaint tracking module” and sent to the proper decision-maker. Mr. G’s family insisted on filing the “complaint” despite discouragement by two representatives at 1-800-Medicare, who stated that retroactive disenrollment could not occur under these circumstances. The call took close to 90 minutes. (Persistence is important!) The day after making the call to 1-800-Medicare, Mr. G’s son received a call from a CMS Regional Office stating that Mr. G’s request had been granted. He is back in original Medicare and a Part D plan retroactive to January 1. Now his providers can bill original Medicare, and his Medigap plan is still in place.
Mr. G’s story shows how easy it is to be misled by Medicare advantage marketing, and the consequences that can potentially result for Medicare beneficiaries and their families. Check out the Center for Medicare Advocacy’s Fully-Informed Project for more objective information to consider when choosing between original Medicare and Medicare Advantage.
 Only four states allow either continuous or annual enrollment in Medigap plans without medical underwriting: Connecticut, Massachusetts, New York, and Maine. In all other states, people who switch from a Medicare Advantage plan to original Medicare may be denied a Medigap policy due to pre-existing conditions, with few exceptions. https://www.kff.org/medicare/issue-brief/medigap-enrollment-and-consumer-protections-vary-across-states/.
 See https://cahealthadvocates.org/medigap/guaranteed-issue/.
 Importantly, they called with Mr. G on the line so that he could authorize Medicare to speak to his family members.
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On January 15, 2020, the Center for Medicare Advocacy joined AARP and Justice in Aging in filing an amicus brief that urges the U.S. Supreme Court to grant immediate review of the health care repeal lawsuit, Texas v. U.S. The case, which seeks to dismantle the entire Affordable Care Act (ACA), is being pursued by several states with the support of the Trump administration.
In December, a divided panel of the Fifth Circuit Court of Appeals ruled that the ACA’s individual mandate is unconstitutional because Congress reduced the penalty for not having health insurance to $0. Then, although it was clear that Congress did not intend to strike down the entire ACA when it eliminated the penalty (most obviously because it left the rest of the law intact), the Fifth Circuit concluded that many of the ACA’s provisions may not be “severable” from the mandate. While keeping the ACA in place for now, it ordered the same lower-court judge who struck down the entire law last year to parse through all of the hundreds of the ACA’s provisions with a “finer-toothed comb” to determine which, if any, can survive. This puts the entire law at risk, including protections for pre-existing conditions, the expansion of Medicaid, and all of the provisions that improved the Medicare program, such closing the Part D Donut Hole, eliminating copayments for preventive services, and extending the solvency of the Medicare Trust Fund.
The amicus brief of the Center and its partners supports California and the other states defending the ACA in requesting that the Supreme Court review the case right away, rather than wait for it to be sent back to the lower court and appealed again. Our brief highlights the ACA’s key protections for older adults and the devastating consequences of nullifying the law. It also emphasizes that the Court should grant review now, rather than allow months or years of additional litigation in the lower courts, because prolonged uncertainty will harm millions of older Americans and people with disabilities who rely on the ACA. The Center supports the immediate grant of Supreme Court review and a decision that the ACA remains constitutional, which would finally put this attempt at judicial repeal to rest.
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On January 15, 2020, Steve Gleason was awarded a Congressional Gold Medal, the highest civilian honor bestowed by Congress. Mr. Gleason was honored for his work on behalf of individuals with ALS and other debilitating conditions, including through his organization Team Gleason. Center for Medicare Advocacy Executive Director Judy Stein and Associate Director Kathy Holt, who sits on the board of Team Gleason, were honored to attend the ceremony. The Center is proud to partner with Team Gleason on several initiatives, including legislation advancing Medicare’s coverage of Speech Generating Devices through the 2015 Steve Gleason Act and the 2018 Steve Gleason Enduring Voices Act.
- A video of the award ceremony is available here.
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