December 22, 2022

Proposed MA Rule Responds to Concerns About Access to Care and Marketing

BY Nicole Fallon

CMS issued its annual proposed rule (CMS-4201-P) to update the Medicare Advantage (MA) policies and technical changes that will apply to MA, Special Needs Plans (SNPs), Part D plans, and PACE programs and benefits beginning with Calendar Year 2024. This year’s proposed rule is unusually large (957 pages) and contains some substantive shifts or clarifications of to some of these current policies. Of note for post-acute care providers are proposed changes related to what services plans must cover and efforts to end the repetitive prior authorization cycle for the same course of treatment. Both of these proposals are in response to input from stakeholders such as LeadingAge.

The 957-page proposed rule also seeks to address: placing additional limits on permissible marketing to beneficiaries, revising the MA and SNP Star Rating System including a health equity index reward, improving access to behavioral health; affordability, and access in the Part D drug program, and expanding Part D low-income subsidies and timely access to more beneficiaries.

CMS dedicates a good portion of the proposed rule efforts to ensure MA enrollees have equitable access to basic Medicare Part A and B benefits without unnecessary delays. Some of these changes respond to concerns raised by LeadingAge and its members who have witnessed prior authorization processes denying care that would be approved under Medicare fee-for-service and requiring repetitive prior approvals. CMS notes that plans are required already by regulation to “provide coverage of all basic benefits (that is, services covered under Medicare Parts A and B” with some limited exceptions like hospice), and “MA plans must comply with Traditional Medicare national coverage determinations (NCDs) and local coverage determinations (LCDs) applicable in the MA plan’s service area.”  However, given the feedback from stakeholders and the April 2022 OIG report on these practices, CMS seeks to establish some guardrails to ensure timely access to care.

If the rules are ultimately finalized, they would:

  • Require MA plans coverage criteria to align with Traditional Medicare: Prohibit MA plans from limiting or denying medically necessary coverage to enrollees “where the Traditional Medicare program would cover and pay for the item or service furnished” to ensure minimum coverage requirements are met. This change seeks to clarify that plans must make medical necessity determinations based Traditional Medicare program statutes and regulations that set the scope of coverage for basic benefits. If no coverage criteria are established for an item or service, the plan may establish internal coverage criteria but it must be based upon evidence from widely-used treatment guidelines or clinical literature. Proposed changes also would clarify that MA regulations do not supersede Medicare statutes and regulations, NCDs and LCDs. Plans can, however, still opt to cover services that go beyond Traditional Medicare including utilizing tools such as the 3-day stay waiver for SNF services.  CMS notes that “MA organizations may only deny coverage of the services or setting on the basis of the ordered services failing to meet the criteria.” It offers an example of where SNF care is ordered by a discharging physician based on the patient’s need for daily, institutional skilled care and states that the MA plan cannot deny SNF care and redirect the individual to home health unless coverage criteria aren’t met.
  • Require Prior Authorizations for Limited Purposes and Approvals to Cover Duration of Treatment: CMS proposes to limit prior authorizations to be used to confirm diagnoses or medical criteria that would establish the service is medically necessary, or to determine clinical appropriateness of providing a supplemental benefit. CMS also proposes to prohibit a plan that approved a service or item via prior authorization from later denying the coverage based upon lack of medical necessity unless there is good cause or suspected fraud. CMS reminds plans that they are prohibited from using prior authorization to steer enrollees away from certain types of services. In addition, CMS proposes new language that prior authorizations “must be valid for the duration of the entire approved prescribed or ordered course of treatment or service.” Based upon the definition of “course of treatment”, it is not clear whether an entire SNF stay or home health episode would be covered or if the definition would require further refinement to ensure repeated prior authorization requirements for the same ordered service were truly eliminated by these changes. If these changes are approved, it may result less prior authorization paperwork for SNFs and home health agencies.
  • Provide 90-day Continuity of Care Assurance:  CMS proposes to prohibit MA plans from requiring reauthorization of an active course of treatment for new plan enrollees or those switching MA plans for a period of at least 90 days even when the service under the course of treatment is provided by an out of network provider.
  • Require the Annual Review of Utilization Management (UM) Policies: Plans would be required to establish a Utilization Management Committee led by the plan’s medical director and made up of a majority practicing physicians (one of which who must be independent and conflict-free related to the MA organization and plan). The committee would be responsible for annually reviewing all of the plans’ UM policies and procedures to ensure they are aligned with Medicare coverage decisions and guidelines, including national and local coverage determinations, and revised, as necessary. CMS also proposes to replace current requirements with new language requiring UM guidelines to be based on current widely used treatment guidelines or clinical literature. Based upon related definitions, it is not clear whether certain third-party care management company algorithms would qualify, such as those used by NaviHealth. CMS also proposes to prohibit the use of UM for basic and supplemental benefits on or after January 1, 2024.
  • New Marketing Requirements that Limit Certain Practices:  CMS responded to the findings of the Senate Finance Committee regarding deceptive marketing practices by prohibiting certain types of ads and use of imagery (e.g. Medicare logo, etc.) from being used. In addition, it will require agents to disclose all plans they represent. Agents will also be required to collect certain information from the prospective enrollees using a standardized list of questions prior to enrolling them into a plan and provide the prospect with information on how enrolling in a new plan will impact their current Medicare coverage.

LeadingAge highlighted several of these issues earlier this year in meetings with CMS and are pleased to see CMS proposing changes to protect beneficiaries. We will be reviewing the proposed rules further to determine if our comments should include additional suggestions to strengthen the proposed language to ensure enough teeth that the goals of timely access to care is achieved.

Other areas of the proposed rule include:

  • New Notice Requirements for Provider Network Terminations of Primary Care and Behavioral Health: CMS would increase the notice– written and telephonic –plans must give enrollees to at least 45 calendar days’ if a plan is terminating their contract with the enrollee’s primary care or behavioral health provider who they see on a regular basis. This adds 15 days’ notice to the current requirement, while retaining the same 30-day written notice standard for all other “specialty type” providers. This latter requirement applies to SNFs but there appears to be no comparable notice requirement for home health agencies.
  • Updates to the MA Star Rating System: One area of concern for LeadingAge is that CMS seeks to reduce the weight of patient experience/complaints and access measures, which currently are weighted 4, to a weight of 2 as part of its revisions to the MA Star Rating System for 2026 and beyond (2024 measurement period). This seems ill-advised at a time where the Senate Finance committee report notes that marketing complaints have more than doubled in the past year, let alone complaints for inappropriate denials of care. CMS also proposes to add a new health equity index (HEI), which will consider plan performance across multiple measures for those with specified social risk factors and roll it up into a single score. The proposed HEI reward would replace the current reward factor starting in 2027. CMS is also changing some of the measures it will hold plans accountable for including adding back in a Care for Older Adults – Functional Status Assessment for Special Needs Plans (SNPs) in 2026. This proposed measure looks at three indicators – Medication Review, Functional Status Assessment and Pain Assessment. This might be an area where post-acute care providers can assist plans with achieving their quality goals.
  • Expanding populations for which plans must provide culturally competent care: CMS is expanding the populations for which plans must provide services in a culturally competent manner including the following populations: limited English proficiency or reading skills; people of ethnic, cultural ,racial or religious minorities; LGBTQ+ ; transgender/nonbinary; individuals who live in rural areas; and those adversely affected by persistent poverty or inequality. This expanded focus may place higher value on partnerships with SNFs or home health agencies that offer services that address the unique needs and preferences of these populations.
  • Improving Access to Behavioral health by strengthening network adequacy requirements including standards for appointment wait times, and reinforcing that there can be no prior authorization for behavioral health services when needed related to an emergency medical condition.
  • Improving Part D Drug Affordability and Access:  There are a number of provisions here but of particular note is the expansion of the low-income subsidies for Part D to individuals with incomes up to 150 percent of federal poverty beginning January 1, 2024 and making the Limited Income Newly Eligible Transition Program permanent.
  • Updates to the PACE program (which will be summarized separately).

Comments on the MA proposed rule (CMS-4201-P) are due no later than 5 p.m. ET on February 13. LeadingAge will be submitting comments on the areas of the proposed rule that would directly impact the care and services provided by our members to MA/SNP enrollees. LeadingAge will be pulling together tips for commenting on the rule for members in the coming weeks and soliciting member feedback via Nursing Home Network and Home Health Network meetings in the new year. Members can also submit their comments on the proposed rule directly to Nicole Fallon for inclusion in the LeadingAge comment submission.

For those who want to review the proposed rule in its entirety, it can be found here and the fact sheet is available here for more details about other sections of the proposed rule.