Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert | July 7, 2022

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In this Issue
  1. Voices of Medicare | Medicare Advantage Network Inadequacy
  2. Oral Health Advocacy Update
  3. CMS Acts to Implement Revised Nursing Home Standards of Care
  4. Free Webinar | Medicare Enrollment Matters
  5. Discover How We Can Protect & Improve Medicare Together

Voices of Medicare | Medicare Advantage Network Inadequacy

We recently heard from a Medicare Advantage (MA) enrollee from the Dallas-Forth Worth metropolitan area who went several months without seeing a gastroenterologist due to Cigna’s failure to contract with such specialists. She received no prior notice that her old provider would go out-of-network. She tried for months to schedule an appointment with a different provider, but was misled by Cigna’s materials, which falsely continued to list out-of-network providers as being in-network. Cigna denied her requests for out-of-network coverage. This network adequacy issue likely affected hundreds, if not thousands of Cigna enrollees within the same area over the past year.   

This enrollee had Cigna’s Preferred Medicare PPO plan. She had been seeing the same gastroenterologist for about 5 years. She has a complicated medical history including Crohn’s disease, resulting in multiple surgeries, and now receives medicine and nutrition through a central venous catheter. She learned that Cigna’s network had changed from the gastroenterologist’s office only after their contract with Cigna terminated on September 1, 2021. Her gastroenterologist belonged to a large group, who all cared for Cigna enrollees under the same contract. Cigna’s directories continued to list these out-of-network providers as being in-network after that date. Cigna finally entered a new contract with a different group of providers in March of 2022. Despite multiple complaints from this enrollee and the gastroenterologist’s office directly, Cigna only removed the out-of-network providers upon securing contracts with new providers.

Cigna’s shortcomings violated network adequacy requirements, general MA disclosure requirements, and changes to provider network notification requirements:

  • All MA organization offering coordinated care plans (HMOs, PSOs, and PPOs), network-based private fee-for service (PFFS) plans, and network-based medical saving account (MSA) plans are required to maintain a network of appropriate providers that is sufficient to provide adequate access to covered services to meet the needs of the population served. See 42 C.F.R. § 422.116. Regulations specify the network must be one of contracted providers for 27 different specialty types (including gastroenterology) and 13 different facility types. See 42 C.F.R. § 422.116(b).
  • Each MA organization must post an online provider directory on its website and maintain a written directory.  See 42 C.F.R. §§ 422.111(a) and 422.111(h). CMS instruction specifies that only currently contracted and credentialed providers should be listed in these directories.
  • MA organizations “must make a good faith effort to provide written notice of a termination of a contracted provider at least 30 calendar days before the termination effective date to all enrollees who are patients seen on a regular basis by the provider.” See 42 C.F.R. § 422.111(e).

Despite violations of these provisions, when this enrollee contacted both Cigna and CMS, they were unable to get any relief and were unable to determine how to get her medically necessary gastroenterology care covered.

Here at the Center for Medicare Advocacy, we are concerned with this type of network inadequacy, the lack of oversight of network adequacy requirements, and the lack of available relief to enrollees who are unable to get needed care due to MA organizations failing to properly contract with providers. Enrollees should be assured that all MA plans have adequate provider networks, as is the case with traditional Medicare. Further, when MA organizations make changes to their provider networks, enrollees need to be made aware. Without transparency of provider networks, enrollees are unable to make informed decisions about their coverage and care, which is a fundamental component of the MA program.

Oral Health Advocacy Update

The Center for Medicare Advocacy continues our years-long efforts for medically necessary oral health care to be covered by Medicare, as authorized under current law.

Along with a coalition of beneficiary advocates, disease organizations, industry groups, oral health and medical health professionals the Center has been gathering experts to present at listening sessions with CMS staff. The second of the three-part series took place in June.

Additionally, we are delighted to share Dear Colleague letters from both the House and Senate that were sent to CMS supporting medically necessary dental. The Senate letter was signed by 22 Senators and the House letter had over 100 Representatives join!

The Center for Medicare Advocacy would like to thank CareQuest Institute for Oral Health for generous funding that allows us to continue our commitment to recognizing the importance of oral health care for Medicare beneficiaries.

CMS Acts to Implement Revised Nursing Home Standards of Care

After delays due to the coronavirus pandemic, the Centers for Medicare & Medicaid Services (CMS) has now issued guidance to implement standards of care for nursing homes that were promulgated in 2016 and were originally scheduled for implementation in 2017 and 2019.[1]  On October 4, 2016, CMS published final regulations revising the Requirements of Participation for nursing facilities.[2]  The revisions to the standards of care were implemented in three phases.  Phase 1 reflected the vast majority of the regulatory requirements, which were identical, or very similar, to existing care standards.  These regulations went into effect in 30 days, November 2016.  Phases 2 and 3, with effective dates of October 2017 and October 2019, respectively, reflected more significant changes to the Requirements.  After COVID-19 delays, CMS has now issued guidance for the Phase 2 and 3 Requirements, with a new effective date of October 24, 2022.  Nursing facilities have had nearly six years, since October 2016, to prepare for these changes.  A CMS Fact Sheet summarizes key changes.[3]  Justice in Aging has prepared a detailed summary of the new guidance, by topic.[4]

Appendix PP to the State Operations Manual, Guidance to Surveyors for Long-Term Care Facilities, provides CMS’s explanation of what regulatory requirements mean, procedures for determining noncompliance, and directions in how to categorize the severity of noncompliance.  The lengthy revisions to the 847-page Appendix PP include multiple changes, which are printed in red italics.  Pages are unnumbered. 

Some key revisions to surveyor guidance for longstanding quality of care and residents’ rights issues include:

  • Visitors, §483.10(f)(4), F563 (pp. 27-30) (CMS describes “reasonable clinical and safety restrictions” that may limit visitors during a communicable disease outbreak as well as visitation and illegal substance use)
  • Transfer/discharge of residents, §483.15(c), F622 (pp. 176-184) (CMS discusses facility-initiated transfers, resident’s right to remain after Medicare coverage ends, prohibiting discharge for nonpayment while a Medicaid application is pending, emergency transfers to hospitals and resident’s right to return, among other issues)
  • Accuracy of resident assessments, §483.20(g), F641 (pp. 211-212) (CMS acknowledges facilities have “potentially misdiagnosed residents with a condition for which antipsychotics are an approved use (e.g., new diagnosis of schizophrenia) which would then exclude the resident from the long-stay antipsychotic quality measure;” directs surveys to determine if the resident assessment is accurate.)
  • Supervision/assistance devices, §483.25(d)(2), F689 (pp. 325-327) (CMS addresses safety issues for residents with substance use disorder)
  • Nursing services, sufficient staff, §483.35, F725 (pp. 456-461) (CMS confirms that compliance with a state’s minimum staffing requirements may not be sufficient for purposes of the federal requirement; directs surveyors to use payroll-based journal (PBJ) staffing data “to identify concerns with staffing;” confirms that licensed nurses must monitor the aides they supervise; includes interview questions for direct care staff, director of nursing, administrator; directs surveyors to conduct “a thorough investigation” if PBJ data demonstrate the absence of licensed nurses on four days in the previous quarter)

Some key additions to surveyor guidance for new regulatory requirements, added by the 2016 regulations, include

  • Reporting reasonable suspicions of a crime, 42 C.F.R. §483.12(b)(5), and responding to allegations of abuse, neglect, exploitation, or mistreatment, §483.12(c), F609 (pp. 144-165)
  • Trauma-informed care, §483.25(m), F699 (pp. 418-427)
  • Behavioral health services, §483.40, F740 (pp. 481-490) (CMS permits use of behavioral contracts as part of a care plan for residents who can understand them who have an assessed history of mental disorder or substance use disorder, but cautions against abuse and confirms that non-adherence to a behavioral contract “cannot be the sole basis for a denial of admission, a transfer or discharge”)
  • Pharmacy services, unnecessary drugs, §483.45(d)( F757), psychotropic drugs, §483.45(c)(3), F758 (pp. 542-572) (CMS confirms that use of psychotropic drugs and other drugs affecting brain activity should not increase when antipsychotic drugs are decreased; suggests referrals about inappropriate prescribing of psychotropic drugs to State Medical Boards or Boards of Nursing)  
  • Binding arbitration agreements, §483.70(n), F847, F848 (pp. 680-696) (CMS confirms that facilities must not require resident or representative to sign pre-dispute binding arbitration agreement as a condition of admission of continued stay; stresses the importance of transparency; includes questions for residents, representatives, resident council, family council, staff, state long-term care ombudsman)
  • Quality assurance and performance improvement (QAPI) program, §483.75(a)-(g), F865, F866, F867, F868 (pp. 713-733) (CMS authorizes disclosure of QAPI documents under certain circumstances)
  • Infection preventionist, §483.80(b), F882 (pp. 774-779) (CMS requires specialized training in infection control required for a facility’s infection preventionist, who is responsible for implementing a facility’s infection prevention and control program)

CMS also revises complaint procedures (Chapter 5, State Operations Manual)[5] and the Psychosocial Outcome Severity Guide.[6]

___________________

[1] CMS, “Revised Long-Term Care Surveyor Guidance: Revisions to Surveyor Guidance for Phases 2 & 3, Arbitration Agreement Requirements, Investigating Complaints & Facility Reported Incidents, and the Psychosocial Outcome Severity Guide,” QSO-22-19-NH (Jun. 29, 2022), https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-long-term-care-surveyor-guidance-revisions-surveyor-guidance-phases-2-3-arbitration 
[2] Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688 (Oct. 4, 2016), https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/2016-23503.pdf 
[3] CMS, “Updated Guidance for Nursing Home Resident Health and Safety” (Fact Sheet, Jun. 29, 2022), https://www.cms.gov/newsroom/fact-sheets/updated-guidance-nursing-home-resident-health-and-safety  
[4] Eric Carlson, Justice in Aging, “Understanding CMS’s New Nursing Facility Guidance” (Jul. 2022), https://justiceinaging.org/wp-content/uploads/2022/07/Understanding-CMSs-New-NF-Guidance-Issue-Brief.pdf 
[5] https://www.cms.gov/files/document/som-chapter-5-complaint-procedures.pdf 
[6] https://www.cms.gov/files/document/psychosocial-outcome-severity-guide.pdf

Free Webinar | Medicare Enrollment Matters

Thursday October 13, 2022 | 2;30 PM – 4:00 PM EDT

This webinar will discuss the 2023 Annual Coordinated Election Period (ACEP), including outreach and education materials issued by the Medicare program, common enrollment pitfalls, options when you miss your Initial Enrollment Period, and other considerations for Medicare beneficiaries and those who assist them. Policy changes and other updates for 2023 will also be discussed.

Register now at https://medicareadvocacy.org/webinars/

Discover How We Can Protect & Improve Medicare Together

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