On August 1, 2022, the Centers for Medicare & Medicaid Services (CMS) published a Request for Information (RFI) that “seeks input from the public regarding various aspects of the Medicare Advantage program. Responses to this request for information may be used to inform potential future rulemaking or other policy development.” The RFI can be accessed from the Federal Register here. Comments are due August 31, 2022 and can be submitted online at https://www.regulations.gov/document/CMS-2022-0123-0001. The Center for Medicare Advocacy urges beneficiary advocates to do so.
Through the RFI, CMS is “seeking feedback on ways to strengthen Medicare Advantage” with the goal, in part, “to create more opportunities for stakeholders to engage with CMS”. CMS solicits comments from “a wide variety of voices on the questions below, including beneficiary advocates, plans, providers, community-based organizations, researchers, employers and unions, and all other stakeholders.”
As a beneficiary advocacy organization, the Center for Medicare Advocacy is devoted to identifying and addressing barriers to care for Medicare beneficiaries. There are many such barriers in the traditional Medicare program, but in our experience, these problems are almost always exacerbated for enrollees in MA plans – particularly for those who tend to be more sick and have greater care needs than most MA enrollees, including those with chronic conditions.
The Medicare Advantage industry and their champions have tremendous resources to promote their views and visions about how MA works for their enrollees. We urge stakeholders across the board – MA plan enrollees, providers, counselors and others who might not ordinarily take part in federal agency public notice and comment efforts to weigh in with your experiences with Medicare Advantage.
The Center for Medicare Advocacy (CMA) will be submitting separate, extensive comments to this RFI; we offer the following overarching points for commenters to consider. (Note that the comments below are arranged by the categories of comments solicited in the RFI, within which CMS poses more than 45 questions; the responses below address some (but not all) of the questions/issues most relevant to MA plan enrollees.)
In recent testimony before Congress, the General Accounting Office (GAO) noted that “[d]ue to our concerns about the program’s susceptibility to mismanagement and improper payments as well as its size and complexity, we have designated Medicare, including Medicare Advantage, as a high-risk program. We—along with [OIG] and others—have identified significant concerns with CMS’s oversight of the MA program [citations omitted].”
Over the last several years, a number of unimplemented recommendations concerning improving and enhancing various aspects of MA oversight have been issued by the Office of Inspector General (see OIG, 2022), the General Accounting Office (see GAO, 2022) and the Medicare Payment Advisory Commission (see MedPAC, 2022) – as well as consumer advocacy organizations (see, e.g., CMA, 2020).
As a growing number of Medicare beneficiaries enroll in MA plans, CMS must adjust its resources and staff accordingly, and enhance its oversight and enforcement of MA and MA plan sponsors.
Advance Health Equity
CMS seeks feedback, including how it can enhance health equity for all enrollees through MA, focusing on certain populations.
Racial and ethnic disparities persist in Medicare Advantage plans (see, e.g., CMS, 2021; Kaiser Family Foundation, 2021). Those who are more sick tend to disenroll at a disproportionately higher rate from MA plans (see, e.g., Health Affairs, 2021; Health Affairs, 2020; JAMA, 2019; NEJM, 2018). Even higher rates of disenrollment occur within the last year of life which “may indicate potential issues with beneficiary access to care or with the quality of care provided” (GAO, 2021).
CMS must enhance oversight of MA plans to ensure that they are providing required, medically necessary care, including:
- Enforce Current Law
- With respect to individuals with chronic conditions, ensure fair and appropriate, non-discriminatory coverage of home health in both MA and traditional Medicare (CMA, 2021), and adequately enforce the Jimmo v. Sebelius settlement to ensure that Medicare coverage is determined by a beneficiary’s need for skilled care, not on their potential for improvement
- Increase Oversight
- Increase capacity to annually audit plans to ensure compliance with Medicare coverage and appeals rules, particularly as MA captures more beneficiary enrollment, HHS and CMS resources and staff must be allocated accordingly
- This includes allocating staff and resources to carefully review all plan bids and conduct discriminatory impact reviews
- While CMS has begun to analyze MA disenrollments in the last year of life (per GAO’s recommendation), such effort should be expanded beyond the last year of life to monitor disproportionate disenrollment by those in poorer health more generally. Importantly, findings should carry consequences for plan sponsors, including carrying greater weight in quality assessments and corresponding bonus payments, public disclosure of findings and sanctions for plans that are outliers
- Given that MA plans want to maximize Consumer Assessment of Healthcare Providers and Systems (CAHPS) scores re: enrollee satisfaction, they have an incentive to discharge unhappy enrollees, including encouraging Special Enrollment Periods (SEPs) that can help people leave an unwanted plan (not all such SEPs are currently reported to CMS); data regarding all SEPs that are exercised – even about those SEPs granted solely at plan discretion – should be collected and reported to CMS and factored into to CMS’ oversight, including audits and quality ratings
Expand Access: Coverage and Care
CMS seeks feedback, including: effectively choosing between different options for obtaining Medicare coverage, and among different choices for MA plans; beneficiaries who are choosing whether to enroll in an MA plan or traditional Medicare and Medigap; effectiveness or ineffectiveness of MA plans’ marketing efforts; MA plan network adequacy; and MA plans’ use of utilization management techniques, such as prior authorization.
Choosing Medicare Options – As noted in a Commonwealth Fund blog (2022) exploring Medicare Advantage plans and choice, health economists and Medicare experts “said choosing among plans can be difficult, even for the savviest consumers” and such experts “agreed that most beneficiaries aren’t making informed or active decisions. Instead, many choose plans based on advertising, word-of-mouth, or brand loyalty, then stay with those plans year after year, even if another plan would better serve their interests.”
When deciding how they want to access their Medicare coverage, Medicare beneficiaries face myriad, complicated choices among unequal options. These choices include disparate enrollment rights and opportunities between Medicare Advantage and Medigap plans (for example, while people can get in and out of an MA plan on an annual basis, most people have limited opportunities to purchase a Medigap plan – a fact many people discover too late). Most people do not compare MA plans (KFF, 2021), and for those who do, there are barriers standing in the way of informed decision-making, such as flawed Star Ratings (discussed below) and increased complexity in MA benefits due to recent policy changes that, among other things, allow plans to target supplemental benefits to some, but not all, of their enrollees (for further discussions of limitations on consumer choice, see, e.g., CMA here, here and here; also see Commonwealth Fund (2022)).
In order to help promote informed and unbiased decision-making among Medicare beneficiaries, CMS should:
- As a primary source of information about coverage options, CMS must provide balanced and neutral information about both the advantages and disadvantages of MA plans (see, e.g., this CMA report on the 2022 Medicare & You Handbook noting improvement in this regard, but lingering deficiencies in explaining, e.g., MA out-of-pocket costs and prior authorization)
- More actively promote and advocate for increased funding and capacity for State Health Insurance Assistance Programs (SHIPs) and Senior Medicare Patrol (SMP)
- Urge Congress to expand federal Medigap guarantee issue rights in order to make Medicare coverage options between MA and traditional Medicare more equal
- As discussed below, while MA Star Ratings are promoted as tool for consumer comparison of plans, they do not adequately do so and must be overhauled in a manner that strengthens public reporting on plan quality and variation
- As discussed below, CMS must further strengthen consumer protections surrounding plan marketing, including further oversight of plan advertising and addressing agent/broker compensation issues
MA Marketing – As noted in a Commonwealth Fund blog (2021), “[m]uch of the information available to beneficiaries shopping for Medicare Advantage, Medicare Supplement (Medigap), or Part D plans comes from agents (brokers) or health insurers.” MA plan payment rates, agent and broker compensation structures favoring MA enrollment, and ubiquitous MA plan advertising all drive a marketplace geared towards favoring MA enrollment above other options. For example, a different Commonwealth Fund blog (2021) analyzing agent commissions for Medicare products states that “[d]iffering commission rates could force agents to choose between their earning potential and helping beneficiaries choose coverage that meets their needs.”
In the preamble to CMS’ proposed 2023 Part C & D rule, the agency noted that it “has seen an increase in beneficiary complaints associated with and has received feedback from beneficiary advocates and stakeholders concerned about the marketing practices of third-party marketing organizations (TPMOs) who sell multiple MA and Part D products” and highlighted that a review of sales calls showed significant beneficiary confusion, including “that the beneficiary may be unaware that they are enrolling into a new plan during these phone conversations”. Unfortunately, marketing misconduct, particularly surrounding the sale of MA plans, is not uncommon. A more aggressive regulatory response by CMS is required.
- Further strengthen consumer protections regarding plan marketing
- Build upon improvements made in the final 2023 Part C & D rule by further strengthening disclosures required by third party marketing organizations (TPMOs), including a reference to SHIPs (see, e.g., CMA comments)
- Rescind changes made in 2019 to the Medicare Communications & Marketing Guidelines (MCMG), that blurred the lines between marketing and educational events provided by those selling MA and Part D products (see, e.g., CMA here and here)
- Increase oversight of agents and brokers, including:
- Overhaul agent/broker compensation to counteract the significant pecuniary advantage in selling MA plans vs. products in traditional Medicare – a Commonwealth Fund blog (2021) highlights that CMS has set the maximum national commission for initial enrollment in MA plans in 2022 at $573 per beneficiary in most parts of the country, whereas the maximum national commission for first-time Part D plan enrollment, for those in traditional Medicare, is $87 (the blog post also notes that while MA commissions are increasing, those for Medigaps are decreasing).
- Impose stronger standards for enforcement, discipline and punishment relating to the sale of Medicare products – this should include more transparency surrounding how complaints against agents, brokers, or TPMO’s are received and processed, what enforcement process exists, or what actions if any are taken by a MA plan or by CMS as the result of a complaint
- CMS should also explore requiring signed attestations that whatever product is sold by an agent/broker (MA, Part D) is appropriate for that beneficiary; such an attestation is currently required for the sale of a Medigap
- Tighten oversight of MA plans and their downstream marketing and sales entities, including a clear administrative process for complaints, and that process should include coordination with state regulators and the National Association of Insurance Commissioners (NAIC)
- As noted above, more actively promote and advocate for increased funding and capacity for State Health Insurance Assistance Programs (SHIPs) and Senior Medicare Patrol (SMP) programs
Network Adequacy – MA plans can limit the providers available to enrollees by using a contracted provider network. In 2015, GAO released a report finding “that CMS’s oversight did not ensure that MAO networks were adequate to meet the care needs of MA enrollees. For example, we found that CMS did not adequately verify the accuracy of provider network information submitted by MAOs, and accordingly could not verify whether MAO networks were in compliance with the agency’s provider network criteria.” In June 2022, GAO claimed that its recommendations to address these issues “had not yet been fully implemented.”
Further, in a May 2020 final rule, CMS weakened network adequacy requirements by reducing the percentage of beneficiaries that must reside within the maximum time and distance standards in non-urban counties from 90 percent to 85 percent, along with an additional 10-percentage point credit when plans contract with telehealth providers in certain specialties, as well as an additional 10-percentage point credit for affected providers in states that have certificate of need laws or certain other restrictions.
In order to ensure that MA networks are indeed adequate, CMS should:
- Fully Implement GAO’s 2015 recommendations that CMS “augment oversight of MA networks to address provider availability, verify provider information submitted by MAOs, conduct more periodic reviews of MAO network information, and set minimum information requirements for MAO enrollee notification letters”
- Rescind the May 2020 network adequacy changes and strengthen the requirements – If a plan does not have enough providers to realistically serve enrollees in an area, then CMS should not permit the plan to operate in that area. The solution is not for CMS to lower requirements for the plans.
- Strengthen protections for beneficiaries re: mid-year provider network terminations, including prohibit MA plans from terminating providers mid-year without cause, and strengthening the currently limited Special Enrollment Period (SEP) only for “significant” network terminations
- Strengthen network adequacy standards by requiring that Long Term Care Hospitals (LTCH) be included among mandatory facility specialty types in a plan network, and include essential community providers among the types of providers, similar to the requirements for qualified health plans under the Affordable Care Act (ACA) – see, e.g., 45 CFR §156.230(a)(2)
- Adequately enforce requirements concerning plan provider directories – there have been long-standing problems regarding the accuracy of these directories, which can present significant challenges for enrollees (this is even more critical as CMS plans to make provider directories available through the Medicare Plan Finder in the coming years)
Prior Authorization – The Kaiser Family Foundation reports that virtually all Medicare Advantage enrollees are in plans that require prior authorization for some services, “most often required for relatively expensive services”. A 2018 report by the Office of Inspector General found “‘widespread and persistent problems related to denials of care and payment in Medicare Advantage’ plans” and highlighted that when beneficiaries and providers appealed preauthorization and payment denials, MA plans “overturned 75 percent of their own denials” but at the same time, “beneficiaries and providers appealed only 1 percent of denials to the first level of appeal.” A follow up OIG report in 2022 found, among other things, that among the prior authorization requests denied by MA plans, 13 percent met Medicare coverage rules – “in other words, these services likely would have been approved for these beneficiaries under original Medicare.” These reports reinforce consumer advocates’ experience that all too often, MA plans deny or, even more frequently, prematurely terminate care that would otherwise be covered through traditional Medicare.
In order to ensure that MA enrollees have adequate access to medically necessary care, CMS should:
- Implement the OIG’s recommendations from 2018 and 2022 reports to better protect beneficiaries and providers from inappropriate denials (for an updated list of recommendations, see OIG’s June 2022 Congressional testimony), including:
- Issue new guidance on the appropriate use of MAO clinical criteria in medical necessity reviews to ensure the use of appropriate coverage criteria, in accord with Medicare law
- Incorporate the issues identified by OIG in their evaluation into CMS’ audits of MA plans
- Direct MA plans to take additional steps to identify and address vulnerabilities that can lead to manual review errors and system errors
- Direct MA plans to abide by and implement the Jimmo v. Sebelius settlement
- Enhance its oversight of MA contracts, including those with extremely high overturn rates and/or low appeal rates, and take corrective action as appropriate, and
- Provide beneficiaries with clear, easily accessible information about serious violations by MAOs
- Revise regulations, manual provisions and other CMS guidance to require plans to provide both providers and enrollees with the Medicare criteria upon which coverage denials/terminations are made, along with relevant citations, (“proprietary” should not be a blanket defense to an MAO’s obligation to provide criteria upon which decisions are made)
- In order to address frequent and repeated denials/terminations following reversals by external reviewers (e.g., Independent Review Entity, or IRE), revise guidelines to require a minimum number of days between notices of termination/discharge and/or some type of presumption of coverage
- Ensure that CMS-created materials, and MA plan materials, fully explain prior authorization, including the scope of its use (how widespread it is) and the limitations on access to services it imposes (see discussion of Medicare & You above)
- See the comments above re: Advancing Health Equity concerning enforcing current law and enhancing oversight of plans
Drive Innovation to Promote Person-Centered Care
CMS seeks feedback concerning value-based contracting, MA Star Ratings; service delivery models CMMI could test; and Employer Group Waiver Plans (EGWPs).
MA Star Ratings – A June 2022 House Energy & Commerce Committee briefing memorandum for a hearing concerning MA oversight summarizes issues relating to the MA Star Ratings and quality bonus program:
The quality bonus program with its star rating system is intended to be a source of information about the quality of MA plans for beneficiaries. However, MedPAC has found that the program, which cost $6 billion in 2019 and is projected to cost $94 billion over 10 years, is flawed. MedPAC found that the way that measures are examined and reported are not particularly useful as an indicator of quality of care provided in a beneficiary’s local area. Additional studies also suggest that the MA quality bonus program has not improved plan quality [citations omitted].
Currently, 9 out of 10 MA members are in plans that achieve 4 or 5 stars (Axios, 2021). With so many plans achieving ratings high enough to earn bonus payments, using star ratings as a means of comparison between plans does not actually help consumers make informed decisions. As OIG (2018) has noted, audit violations are no longer reflected in Star Ratings, which diminishes the ability of consumers measure plan performance. Further, MedPAC has documented the “continuing erosion of the reliability of data on the quality of MA plans” and declared that “[t]he current state of quality reporting is such that the Commission’s yearly updates can no longer provide an accurate description of the quality of care in MA.”
- Overhaul and/or replace the Star Ratings system and corresponding bonus payments
- Follow MedPAC’s recommendations for replacing the current program with an MA value incentive program (see, e.g., MedPAC’s June 2022 Congressional testimony)
- Eliminate double bonuses, that by some measures, drive racial disparity in payments (see Health Affairs, 2021)
- Align Star Ratings and Enforcement Actions – Implement OIG’s 2018 suggestion that CMS “also revisit policy options for adjusting Star Ratings in response to audits and enforcement actions, such as adding a new Star Ratings measure that takes enforcement actions into account, or by directly adjusting an MAO’s overall and summary Star Ratings in response to enforcement actions.”
- Account for coverage denials that are overturned on appeal
Employer Group Waiver Plans (EGWPs) – Increasingly, employers and unions that offer retirement health benefits are contracting with private insurance carriers to provide group Medicare Advantage benefits instead of traditional retiree health benefits, with little or no other options provided to such individuals (see, e.g., CMA, 2021). In light of this trend, CMS should enhance oversight of such plans in order to ensure adequate consumer protections, including both a review of how employers and unions effectuate enrollment as well as a review of waivers currently given to such plans, including more lax network adequacy requirements and plan customization of enrollee materials. Further, CMS should monitor the practical ability of retirees to choose traditional Medicare and ensure that option is fully available.
Support Affordability and Sustainability
CMS seeks feedback concerning plan payment and risk adjustment; impact of growing MA enrollment on Medicare “writ large”; and medical loss ratio (MLR).
MA Payment/Risk Adjustment – There is consistent, and growing evidence that the Medicare Advantage program is paid more than traditional Medicare would spend on the same beneficiary, and such spending is growing per person, with significant implications for Medicare programmatic spending. As noted by MedPAC in their March 2022 report, Medicare spends 4 percent more on MA than it would spend on traditional Medicare (an estimated $12 billion in excess payments this year alone) and “private plans in the aggregate have never produced savings for Medicare, due to policies governing payment rates to MA plans that the Commission has found to be deeply flawed.” MedPAC continues: “continu[ing] to overpay MA plans […] will further worsen Medicare’s fiscal sustainability [emphasis added].” Among other things, these overpayments allow MA plans to offer supplemental benefits, which in turn drives up enrollment in MA plans, exacerbating the strain on Medicare’s finances.
These overpayments occur, in part, due to manipulation of the risk-adjusted payment system and quality bonus payments based on a flawed quality ratings system (see MA Star Ratings above). While we recognize that CMS doesn’t have complete authority over MA payment rates and formulas, we urge CMS to use the tools at its disposal to rein in excessive MA payment, primarily its discretion to increase the statutory minimum coding intensity adjustment, meant to adjust for differences in patterns of coding between MA and traditional Medicare.
As noted by OIG in testimony before Congress, MedPAC, GAO, OIG and CMS have all raised concerns about the current risk-adjusted payment system, including health risk assessments (HRAs) and chart reviews being used to submit more diagnoses to increase payment rather than to improve plan enrollee care.
- Use all tools at its disposal to achieve payment parity between MA and traditional Medicare; in other words, ensure that MA plans are paid no more per enrollee than is spent on average for traditional Medicare beneficiaries
- Implement GAO’s recommendations re: the validity of encounter data, audits and recovery of improper payments to MA plans
- Validate encounter data (including completing medical record reviews)
- In June 2022, GAO noted that “In 2014, GAO recommended that CMS validate MA encounter data for completeness and accuracy. However, as of June 2022, CMS had completed some, but not all, of the necessary steps. For example, CMS has not reviewed beneficiaries’ medical records to verify the accuracy of the diagnosis information CMS uses in its risk adjustments. By using encounter data that have not been fully validated for completeness and accuracy, the soundness of adjustments to MA organization payments remains unsubstantiated.”
- Improve Timeliness of MA Audits and Appeals to Recover Improper Payments, including through risk adjustment data validation (RADV) audits
- GAO notes: “Although CMS has taken some steps to improve audit timeliness, contract-level audits continue to be delayed significantly. For example, as of June 2022, CMS has not yet issued final contract-level audit findings for payments made in 2011 through 2014. In contrast, CMS uses a specific timetable that allows the agency to complete national-level RADV audits on an annual basis to calculate estimated improper payments for MA. Until CMS improves the timeliness of its contract-level RADV audits, the agency may miss out on recovering hundreds of millions of dollars in improper payments annually [citation omitted].”
- Validate encounter data (including completing medical record reviews)
- Implement OIG’s recommendations re: chart reviews and health risk assessments (HRAs) (see OIG’s June 2022 Congressional testimony)
- Conduct targeted oversight of MAOs that are driving a high or disproportionate share of payments from chart reviews and/or health risk assessments,
- Reassess the risks and benefits of allowing unlinked chart reviews and in-home health risk assessments to be used as sources of diagnoses for risk-adjustment payments, and
- Require MAOs to implement best practices for care coordination for beneficiaries who receive health risk assessments.
- Implement MedPAC’s recommendations (see June 2022 Congressional testimony), including:
- Increase coding pattern adjustment above the statutory minimum (see MedPAC Comments to CMS, March 2022)
- Eliminate health risk assessments as a source of diagnoses for risk-adjusted payments (a recommendation since 2016)
- Establish thresholds for the completeness and accuracy of MA encounter data (upon which payment, in part, is based)
In order to achieve greater parity between Medicare Advantage and traditional Medicare, and to ensure that MA plan enrollees have adequate consumer protections, we urge CMS to take the steps outlined above. Those individuals and organizations able to provide comments to the Medicare program, including these or other recommendations, should do so by August 31, 2022, as outlined above.