CMS rolls back beneficiary protection in the name of reducing “MA plan burden” and making things “easy to read” for eligible beneficiaries
The most urgent and frequent type of call we receive at the Center for Medicare Advocacy is from a Medicare beneficiary who is told that the health services they are currently receiving are about to end and coverage will therefore terminate. These are typically crisis situations for people who often have no alternative care and can’t afford to pay for continued care out of pocket. When a hospital, skilled nursing facility, home health, comprehensive outpatient rehabilitation facility, or hospice provider decides that Medicare will no longer cover services being provided to a beneficiary, in both traditional Medicare and Medicare Advantage (MA), a notice must be issued informing the beneficiary of their right to an Expedited Appeal, (also called “fast appeal”).
Access to information regarding a plan sponsor’s number and outcome of expedited appeals is critical information to have before enrolling in a Medicare Advantage plan. One could use this information to evaluate and compare Medicare Advantage plan performance and specifically how they treat their members who are receiving covered care in various settings. In fact when we speak to a Medicare beneficiary who is considering enrolling in an MA plan we often advise them to request information regarding appeals to fully evaluate the plan. If, for example, a Medicare Advantage plan reports a high number of expedited appeals and denials per case one might seriously consider not enrolling in that Medicare Advantage plan.
Currently, Medicare Advantage plans are required to disclose grievances and appeals information regarding the number of disputes and their disposition to any MA plan eligible individual who requests this information.[1] The language in both the Social Security Act and the Medicare regulations is clear and unambiguous. MA plans must report all appeals. Both the Social Security Act and the Medicare regulations specifically require that upon request of a MA eligible individual, a MA plan must provide to the individual information on the number of grievances, redeterminations, and appeals and on the disposition in the aggregate of such matters.[2] The regulations specifically refer to “Appeals according to §422.578 et. seq.”[3] This includes expedited and second level appeals.
On September 24, 2020 the Director of the Medicare Enrollment & Appeals Group from the Centers for Medicare and Medicaid Services (CMS) issued a memorandum to plan sponsors regarding “Revised Appeal and Grievance Data Form, Form CMS-R-0282” that outlined changes to the Appeal and Grievance Data Form. The changes were made “[i]n an effort to identify opportunities to reduce MA plan burden and provide a simplified, easy to read report to MA plan eligible individuals…” (emphasis added). The revised data form specifically removed the following data elements:
- Expedited appeals
- Disposition of expedited appeals
- IRE (level 2) appeals
- Disposition of IRE (level 2) appeals
- Withdrawals
In an era of regulatory rollback and general deference to private plans, and likely some pressure from the MA industry, in essence, CMS decided that it is o.k. for MA plans to not fully comply with the clear reading of the Social Security Act and the Medicare regulations by not having to report information about expedited or second level appeals. CMS expressly states in the revised Form Instructions CMS-R-0282 that the MA plan will meet the disclosure requirements set forth in the regulations using the revised form.[4] However, clearly missing from the revised form is data regarding expedited and second level appeals which is included in the disclosure requirements of the MA regulations.
CMS touts these changes as reducing “MA plan burden” and creating an “easy to read report” for MA eligible individuals as though it’s a win-win situation for everyone. Clearly the Medicare beneficiary comes out on the losing end because they have been stripped of a very important protection – the ability to fully evaluate an MA plan before enrollment. In general, it is becoming more difficult to obtain accurate information about MA plans. For example, CMS continues to paint MA plans in a light most favorable, including downplaying any drawbacks, as discussed in a recent Center Alert concerning the 2021 Medicare & You handbook, and the Medicare Payment Advisory Commission (MedPAC) has called into question the accuracy of plan quality ratings, one of the primary tools that consumers have to compare plans.
More specifically, information about how a given plan handles appeals is critically important to determine access to care. The use of prior authorization for items and services – by virtually all MA plans, as noted by the Kaiser Family Foundation – often serves as a barrier to accessing care and often the trigger for filing an appeal. However, a 2018 Dept. of Health and Human Services Office of Inspector General (OIG) report found “‘widespread and persistent problems related to denials of care and payment in Medicare Advantage’ plans”. The report’s findings included: when beneficiaries and providers appealed preauthorization and payment denials, MA plans “overturned 75 percent of their own denials”; however, OIG found that “beneficiaries and providers appealed only 1 percent of denials to the first level of appeal.” In short, the public needs more – not less – information about MA appeals.
CMS does not have the authority to allow plans and providers to only partially comply with the Social Security Act and regulations. CMS should immediately rescind this memorandum, uphold the Social Security Act and Medicare regulations, and require that all MA plans fully comply with the law. As more people enroll in MA plans CMS should be more concerned with beneficiary protections and less concerned with burdens to major insurance companies that include MA plans.
October 1, 2020 – M. Ashkar
[1] §1852(c)(2)(C) of the Social Security Act and 42 C.F.R. §422.111(c)(3).
[2] Id.
[3] See 42 C.F.R. Subpart M – Grievances, Organization Determinations and Appeals.
[4] https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/downloads/AppGrievDataFormINS.pdf.