As the Center for Medicare Advocacy has long noted, the Medicare Advantage (MA) program is in significant need of heighted regulation and oversight, not just for the sake of the Medicare program’s financial footing, but for the sake of the beneficiaries enrolled in MA plans. The Centers for Medicare & Medicaid Services (CMS) has recently issued proposed rules that would address some of the harmful barriers to care currently facing MA enrollees. While we are still reviewing the rules, we note that there are provisions – particularly with respect to marketing and plan prior authorization – that address many of the concerns that we and others have raised. We welcome this movement towards increased oversight and thank CMS for being responsive to many such concerns. We also look forward to continuing to work with CMS and other stakeholder to address issues that are not reflected in the proposed rules.
Proposed Part C & D Rule for 2024
On December 14, 2022, the Centers for Medicare & Medicaid Services (CMS) released a proposed rule for Medicare Advantage and Part D for 2024 (the rule will be published in the Federal Register on December 27, 2022). CMS also published a press release and accompanying fact sheet addressing the proposed rule. The Center for Medicare Advocacy is reviewing the rule and will submit comments. Comments are due February 13, 2023.
Provisions of the proposed rule include (but are not limited to) the following:
- Marketing
- Prohibition of ads that don’t mention a specific plan by name;
- Prohibition of ads that market MA plans with confusing words, imagery, logos;
- Requirement that agents explain the effect of an enrollee’s enrollment choice on their current coverage whenever the enrollee makes an enrollment decision;
- Requirement that agents ask a standardized list of questions that address a beneficiary’s health care needs, current providers, and prescriptions, prior to enrolling a beneficiary into a plan;
- Prohibition on sales presentations that immediately follow an educational event;
- Requirement that agents inform beneficiaries that they can obtain complete Medicare options/information from 1-800-MEDICARE, SHIPs, or Medicare.gov;
- Modification of certain disclaimers by third party marketing organizations (TPMOs) to add SHIPs as an option for beneficiaries to obtain additional help;
- Requirement that plans notify individuals of the ability to opt out of phone calls regarding MA and Part D plan business; and
- Requirement that agents disclose to beneficiaries all the plans the agent sells.
- Prior Authorization
- Prohibition on MA plans denying coverage of a Medicare covered item or service based on internal, proprietary, or external clinical criteria not found in traditional Medicare coverage policies;
- In situations when no applicable Medicare statute, regulation, National Coverage Determinations (NCD), or Local Coverage Determinations (LCD) establishes when an item or service must be covered, requirement that MA organizations include current evidence in widely used treatment guidelines or clinical literature made publicly available to CMS, enrollees, and providers when creating internal clinical coverage criteria;
- Requirement that the physician or other health care professional used by the MA plan have expertise in the field of medicine that is appropriate for the service be involved before the MA plan can deny coverage;
- Requirement that an approval granted through prior authorization processes must be valid for the duration of the approved course of treatment and that plans provide a minimum 90-day transition period when an enrollee who is currently undergoing treatment switches to a new MA plan; and
- Requirement that MA plans comply with national coverage determinations (NCD), local coverage determinations (LCD), and general coverage and benefit conditions included in Traditional Medicare statutes and regulations as interpreted by CMS.
- Access to Behavioral Health Services
- Addition of Clinical Psychologists, Licensed Clinical Social Workers, and Prescribers of Medication for Opioid Use Disorder as specialty types for which CMS sets specific minimum standards and on which the agency evaluates MA networks;
- Amendment of general access to services standards to explicitly include behavioral health services;
- Codification of standards for appointment wait times for both primary care and behavioral health services;
- Clarification that emergency medical services that must not be subject to prior authorization include behavioral health services to evaluate and stabilize an emergency medical condition; and
- Requirement that MA organizations notify enrollees when the enrollee’s behavioral health or primary care provider(s) are dropped midyear from networks.
Prior Authorization
In addition to the prior authorization provisions in the proposed Part C & D rule outlined above, both Congress and CMS have taken additional steps recently to address MA prior authorization problems.
On September 14, 2022, the U.S. House of Representatives unanimously passed the “Improving Seniors’ Timely Access to Care Act” (H.R. 3173) which would streamline certain aspects of the Medicare Advantage prior authorization process. Among other things, the bill would establish an electronic “real-time” approval process for prior authorization requests concerning routinely approved items and services. In addition, the bill would accelerate MA organization determination deadlines (up to 24 hours for expedited appeals, 7 days for standard appeals), boost MA plan’s data collection requirements, and in turn require the Medicare program to publish much of this data.
Around the time that the bill passed the House, the Congressional Budget Office (CBO) released an estimate that the bill would cost more than $16 billion over 10 years. As noted by Inside Health Policy (Sept. 14, 2022), “CBO says it expects Medicare Advantage plans would increase their bids to include the cost of additional services, which would result in higher payments to plans.” The Senate has not yet taken up the bill, in large part due to the projected cost.
This month, CMS published a proposed rule (87 Fed Reg 76238, December 13, 2022) that, among other things, would streamline prior authorization in Medicare Advantage, exchange, Medicaid and CHIP managed care plans. CMS also issued a press release and a fact sheet relating to the proposed rule. Comments are due March 13, 2023.
According to Inside Health Policy (Dec. 6, 2022), CMS says the proposed rule would save $15 billion over 10 years across all providers, and by some estimates “could significantly decrease the projected cost of the bipartisan MA prior authorization reform bill” (Improving Seniors’ Timely Access to Care Act”) – according to certain lobbyists, the rule could cut down the projected $16 billion cost of the bill by as much as half. The article notes that “[s]everal components of the related legislation – including implementation dates and certain timing requirements – align closely with CMS’ proposed rule, which one lobbyist said is part of a two-pronged approach to ensure the process of revamping prior authorization is thorough.” “Other aspects, however, are complementary.”
As noted in the CMS press release and fact sheet announcing the proposed rule, most of the provisions would be effective in 2026, and include:
- Requirement that MA plans issue “decisions within 72 hours for expedited (i.e., urgent) requests and seven calendar days for standard (i.e., non-urgent) requests, which is twice as fast as the existing Medicare Advantage response time limit.” CMS notes that they are “also seeking comment on alternative time frames with shorter turnaround times, for example, 48 hours for expedited requests and five calendar days for standard requests”;
- Requirement that plans “include [a] specific reason when they deny a prior authorization request, regardless of the method used to send the prior authorization decision, to both facilitate better communication and understanding between the provider and payer and, if necessary, a successful resubmission of the prior authorization request”; and
- Requirement to “automate the process for providers to determine whether a prior authorization is required, identify prior authorization information and documentation requirements, as well as facilitate the exchange of prior authorization requests and decisions from their electronic health records (EHRs) or practice management system.”