On January 6, 2022, CMS released CY 2023 Medicare Advantage and Part D Proposed Rule (CMS-4192-P) and an accompanying Press Release describing the overall rule, and a separate Press Release focusing on Part D prescription drug costs. The proposed rule was published in the Federal Register on January 12, 2022, available here (87 Fed Reg 1842, CMS-4192-P). Comments are due March 7, 2022.
On the whole, this proposed rule signals a renewed dedication to providing needed oversight of Medicare Advantage (MA) and Part D plans – a welcome development. As discussed below, there are a number of provisions that will considerably help consumers, but, in other ways, the proposed rule falls short of providing needed consumer protections. This CMA Alert provides brief summaries of some of the provisions in the proposed rule. The Center will be submitting more detailed comments to CMS, and encourages others to do so as well. We will post our comments on our website prior to the deadline.
Provisions of Proposed Rule
The following are short summaries of some, but not all, of the provisions of the proposed rule, with our added comments where relevant:
- Marketing and Communications – CMS proposes to strengthen oversight of marketing and communications re: MA and Part D plans based, in part, on an increase in beneficiary complaints concerned about (and an increase in TV and print ads related to) the marketing practices of third-party marketing organizations (TPMOs) who sell multiple MA and Part D products; in response, CMS proposes to:
- Make plan issuers responsible for the activities of TPMOs in the same way that they are now responsible for the activities of agents, brokers and other “first tier, downstream or related entities.”
- Require a TPMO to use the following standard disclaimer “prominently displayed on the TPMO’s website and marketing materials, including all print materials and television advertising that meet the definition of marketing [as well as] provided verbally, electronically, or in writing, depending on how the TPMO is interacting with the beneficiary.” (p. 1901):
- “We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1-800-MEDICARE to get information on all of your options.”
- CMS also proposes, among other things, to reinstate inclusion of multi-language inserts in top 15 languages used in the U.S. in specified materials re: availability of translation services (when beneficiaries are provided CMS-required materials, such as the Evidence of Coverage, enrollment form, Annual Notice of Change, and Summary of Benefits)
- Comment: we applaud CMS for this long-overdue enhancement of oversight of TPMOs; further, we appreciate that CMS reinstated the requirements concerning multi-language inserts. We are disappointed, however, that CMS did not roll back other recent revisions to marketing guidelines that, among other things, weaken the distinction between education and marketing events (see, e.g., this CMA Alert discussing the January 2021 final rule)
- MA Network adequacy requirements for new or expanding plans – CMS proposes to require plan sponsor applicants to demonstrate (rather than just attest) that they meet network adequacy requirements for a pending service area at application “and to adopt a time-limited 10-percentage point credit toward meeting the applicable network adequacy standards for the application evaluation.”
- Comment: we support this proposal and agree that it will strengthen CMS’ “oversight of an organization’s ability to provide an adequate network of providers to deliver care to MA enrollees.” (p. 1844). CMS does not, however, reverse recent policy changes that have generally weakened MA network adequacy requirements (for further discussion, see this CMA Alert discussing a June 2020 final rule)
- Past Performance Methodology to Better Hold Plans Accountable for Violating CMS Rules – CMS proposes to include additional criteria in their methodology to determine if it should permit an organization to enter into or expand an existing contract; specifically, CMS proposes to include Star Ratings, bankruptcy issues, and compliance actions
- Comment: We strongly support this enhanced oversight of plan sponsors, but note that MA plan Star Ratings are, by some accounts, unreliable (see, e.g., discussion in an October 2021 CMA Special Report)
- Greater Transparency re: MA Medical Loss Ratio – CMS proposes to reinstate previous requirements (and add some new ones) concerning greater transparency and reporting rules surrounding the medical loss ratio (MLR, or the “percentage, generally representing the percentage of revenue used for patient care rather than for such other items as administrative expenses or profit.” (p. 1902))
- Comment: we support this effort to enhance oversight and reporting of plans’ profit and spending
- Special MA Requirements During a Disaster or Emergency – CMS proposes to clarify the period of time during which MA organizations must comply with special requirements to ensure access for enrollees to covered services
- Calculation of Star Ratings for Certain Measures for 2023 Given Impacts of Pandemic – [star ratings flawed]
- Dual-Eligible Special Needs Plans (D-SNPs):CMS proposes several changes to dual eligible special needs plans (D-SNPs), with the stated aim of improving integration of Medicare and Medicaid programs for those enrolled in the plans. The proposed changes include, among others, the following:
- a requirement that any MA organization offering a D-SNP must establish one or more enrollee advisory committees, which includes enrollees in the plans, in each state in order to solicit direct input on enrollee experiences, such as coordination of services, and health equity for underserved populations
- changes to definitions for fully integrated dual eligible special needs plan (FIDE SNP) and highly integrated dual eligible special needs plan (HIDE SNP)
- Establishing D-SNP-specific contracts
- a requirement that all SNPs include one or more standardized questions on the topics of housing stability, food security, and access to transportation as part of their Health Risk Assessments
- Attainment of Maximum Out-of-Pocket (MOOP) limit – CMS proposes to count accrual of all cost-sharing, regardless of whether it is paid by the beneficiary, Medicaid, other secondary insurance or is unpaid towards the MOOP; the current policy “results in increased State payments of Medicare cost-sharing and disadvantages providers serving dually eligible individuals in MA plans” (p. 1843-4)
- Comment: we support this provision, including for the reasons articulated by CMS that include the negative impact of current policy on access to Medicare providers for dually eligible enrollees
- Part D Price Concessions at the Point of Sale – According to a CMS press release, the agency is “proposing a policy that would require Part D plans to apply all price concessions they receive from network pharmacies to the point of sale, so that the beneficiary can also share in the savings. Specifically, CMS is proposing to redefine the negotiated price as the baseline, or lowest possible, payment to a pharmacy, effective January 1, 2023. This policy would reduce beneficiary out-of-pocket costs and improve price transparency and market competition in the Part D program”.
What’s Missing
For many years, the Center for Medicare Advocacy has pushed for legislative and administrative efforts to address the growing inequities between Medicare Advantage (MA) and traditional Medicare that favor MA, and thus the growing privatization of the Medicare program. These inequities include payment/spending, coverage of services, enrollment opportunities, and education/promotion of MA over other coverage options.
As discussed in our September 2021 CMA Special Report concerning the 2022 Medicare & You handbook, we appreciate the steps that the current administration has taken to reverse the bias in favor of MA plans in recent additions, and we outlined where further work is necessary. As noted above, we also recognize that the proposed 2023 Part C and D rule is a welcome departure from recent de-regulatory efforts and hands-off oversight of the MA program, and strongly support many of the provisions proposed.
Through this propose rule, however, CMS does not make every effort within their authority to address the imbalance between MA and traditional Medicare, nor does it impose the greater level of oversight of private Medicare plans that is required to ensure both adequate consumer protections and safeguarding of program spending.
In December 2020, the Center issued a Transition Memorandum for the incoming administration outlining a range of proposed administrative actions that would improve access to coverage and quality of care for all people who rely on Medicare. This included a number of MA and Part D related proposals. Many of these suggestions, which were developed in response to our and others’ experience assisting Medicare beneficiaries, remain unaddressed in this proposed rule. In addition to issues of payment equity (which may be addressed in other pending rules), we urge CMS to take further action in these areas (addressed in the Transition Memo), including the following:
- Oversight of MA Coverage and Care Denials, including restricting rampant use of prior authorization (PA) (the proposed rule only contains a request for information concerning PA for hospital transfers to post-acute care settings during a public health emergency – we assert that the problems created by PA are much more widespread and must be addressed more broadly)
- Revising MA flexibilities re: uniformity standards, meaningful differences that make it more difficult for beneficiaries to make informed decisions
- MA network adequacy – as noted above, the proposal re: tighter restrictions for new entrants is welcome, but the overall thresholds were weakened in recent years
- No new rights for beneficiaries re: Special Enrollment Periods (e.g. for mid-year provider terminations by plans)
- No rescission of allowance of MA plans to apply step-therapy to Part B drugs
- No reinstating of reporting requirements re: appeals
- No expansion of services that limit cost-sharing to traditional Medicare levels
- Marketing Communications Guidelines – while the proposed changes noted above are both welcome and necessary, CMS should reverse the significant changes to the guidelines that have weakened protections in recent years, and add new requirements; for example, as noted above, CMS should:
- Rescind rules weakening marketing v. educational events
- Impose requirements re: MA descriptions of supplemental benefits for the chronically-ill (SSBCI)
Conclusion
As a whole, this proposed rule is an important step in the right direction with respect to imposing greater oversight of Medicare Advantage plans. More is needed, however, in order to adequately protect plan enrollees and the Medicare program.
January 13, 2022 – D. Lipschutz, K. Kertesz