COVID-19 Permissible Activities and CMS Enforcement

On May 22 of this year, the Centers for Medicare & Medicaid Services (CMS) informed the industry via memo they will exercise its enforcement discretion and adopt a temporary policy of relaxed enforcement with the prohibition on mid-year benefit enhancements, such as expanded or additional benefits, or more generous cost-sharing, as the enhancements are provided in connection with the COVID-19 outbreak. These enhancements must be beneficial to enrollees and provided uniformly to all similarly situated enrollees. They will do this until is determined that the exercise of this discretion is no longer necessary in conjunction with the COVID-19 outbreak.

What is a mid-year benefit enhancement? Back in the old days, these were permissible changes to a plan benefit. An excerpt from revision 87 of the Medicare Managed Care Manual Chapter 4, dated June 8, 2007 reads:

Excerpt from CMS MMCM manual Chapter 4 defining mid year benefit enhancements

As a result of the public health emergency, many Medicare Advantage Organizations (MAOs) have made the decision to enhance benefits through the end of the year. You see this communicated on plan websites, taking the form of enhanced benefits or waived cost-sharing. However, these permissible activities may only be provided in connection with the COVID-19 outbreak. As it stands now, the current public health emergency has been extended a second time, set to expire on October 23, or earlier if terminated by Secretary Azar.

Mid-year benefit enhancements prior to their prohibition were typically put into effect for the remainder of a contract year. So, the question is if the public health emergency is not renewed after October, will the agency still exercise enforcement discretion relative to a mid-year benefit enhancement put into place through the end of this contract year? Or, will the expectation be that MAOs reconfigure their systems to return back to their original benefit design?

I recently posed this question during CMS office hours. Mr. Demetrios Kouzoukas, Principal Deputy Administrator of CMS and Director of the Center for Medicare, acknowledged this is a question that has been received in the past and the agency is working to develop a response. Without additional commitment or clarity, MAOs should prepare to flip the switch back as the permissible activities are currently only permissible while the public health emergency is in place. Keep your eyes open for additional guidance released by the agency.

You Don’t Need to Drink the Sea: 2021 Program Audit Protocols 30-day Comment

On June 4, 2020, the Centers for Medicare & Medicaid Services released 95 ever-loving pages of industry comments received for the draft 2021 Program Audit protocol. The document includes their responses and actions taken, including what edits they have made to the 60-day package released a few months ago. In my opinion, there is a general feeling of streamlining and simplification to focus on the agency’s areas of priority. 

As I was pulling out clarifications that I am unsure will end up in any FAQ, methodology, or audit process document, I realized the entire responses document should have a proper place on the shelf along with the finalized protocols. Why? Because not all clarifications provided resulted in changes to instructions or data request information. This document can be helpful in communicating expectations to employees and first tier entities alike. 

While it seems like a lot to digest, there was no sign of eliminating an entire review area, or creating a new care delivery branch of review, which is the current focus at the moment due to the public health emergency. If you reviewed the 60-day package thoroughly, the 74-page crosswalk posted with the 30-day package could be your best friend. Therefore, take the comments, hold a meeting, divide and conquer to make sure your business partners and colleagues understand the changes. Comments on this collection must be received by July 6, 2020.

PRA Listing: 2021 ANOCs and EOCs and Network Adequacy

Over the past month or so, we’ve seen a number of items posted in the Paperwork Reduction Act, or PRA, listing. Today I’m focusing on a couple and provide some thoughts.  

On April 6, the Centers for Medicare & Medicaid Services (CMS) posted the Annual Notice of Change (ANOC) and Evidence of Coverage (EOC) models along with their summary of changes based on the 60-day Federal Register public comments. The supporting statement packaged with the ANOCs outlined the standard information, including estimates of labor burden. The agency estimates 732 Medicare Advantage (MA) Organizations and 63 Part D sponsor contracts will be responsible for producing ANOCs and EOCs. Hours and wage estimates and total burden of hours are also included. They estimate it will take an average of 12 hours to develop and submit the required information to CMS. This estimate has to include different factors, such as number of plan benefit packages a sponsor has, and the fact that ANOCs are much smaller than EOCs. They again anticipate the average EOC will be 238 pages. 

In recent years, these documents have been posted as final, but are followed by supplemental memoranda with additional corrections. If you notice anything substantively amiss in these documents, alert the agency now, as it may save you time and corrections later. 

Also, on April 6, CMS posted CMS-10636 regarding the triennial network adequacy review. CMS reviews MA provider networks on a 3-year cycle, unless there is an event that triggers an intermediate full network review. According to the agency, when selecting contracts for the triennial review period, they will pull a random sample from the list of active contracts, including contracts that have never undergone a full network review and other active contracts, regardless of when the contract’s last full network review occurred in the Health Plan Management System (HPMS). CMS will review all contracts that have never undergone a full network review in HPMS. In the posted package, CMS removed some references to procedural changes, and they note there are no changes to network adequacy requirements. 

This will be an interesting one to follow, looking at the numbers. As part of the network reviews, they expect to review 140 of an estimated 633 contracts in the first year of the triennial review cycle. Keep in mind, between June 2018 and June 2019, CMS performed full network reviews on 438 of the active contracts at that time. 

Another interesting factor is that CMS has proposed in CMS-4190-P to codify network adequacy methodology for MA plans, including proposing to reduce the required percentage of beneficiaries that must reside within the maximum time and distance standards from 90% to 85%. It is unclear if CMS has data showing if this slight adjustment would help sponsors meet the adequacy requirements, as each rural area tells its own story. We shall see if this provision is finalized.

Compliance is the Conscience

I’ve been struggling to consider what might be helpful, applicable information to apply during this health crisis. The questions abound: Should we still do credentialing? Do I need to send written appeal responses? When will program audits start up again? How long do waivers last?

After weeks of reading updates, guidance, the new law signed on Friday, and emails from just about every retail store I’ve patronized, I’ve returned to the foundation to offer advice for my buried audience. It is the first principle as outlined in the Code of Ethics for Health Care Compliance Professionals published by the Health Care Compliance Association

Principle I, Obligations to the Public: “Health care compliance professionals should embrace the spirit and the letter of the law governing their employing organization’s conduct and exemplify the highest ethical standards in their conduct in order to contribute to the public good.”

It is incredibly difficult for even the most astute to read through the CMS Current Emergencies guidance. Who is keeping track of the changes and business decisions your organization and vendors are considering? As CMS said on a recent industry call for PACE and states, they understand the desire for everyone to get more guidance for every specific scenario, but this is a rapidly evolving circumstance. The bottom line: you need to evaluate how to meet your obligations with consideration to health and safety needs. 

The compliance officer is the conscience of the organization. And right now, public health is paramount like I’ve never seen, and like our parents have never seen. Therefore, when reviewing memos, waivers, and fact sheets, please let your obligations to the public, now more than ever, drive your decision-making. The public includes not only your members, but also your employees, contractors, and your surrounding community. Document any modifications and rationale with start and end dates. This is not the time to stop the presses: CMS reminded us on March 10 that business continuity plan requirements are codified. This is the time to get creative. 

Proposed Rule CMS-4190-P: Past Performance

Today I want to focus on another aspect of the Centers for Medicare & Medicaid Services (CMS) proposed rule 4190-P, which deals with the review of past performance. This is covered in Title 42 of the Code of Federal Regulations, in Section 422.502 for Medicare Advantage (MA) and 423.503 for Part D. 

In 2005, CMS established that they may deny an application submitted by an organization seeking an MA or Part D contract if the organization had failed to comply with the requirements of a previous MA or Part D contract – meaning, their past performance could influence the decision of CMS to approve a submission, including new applications and expansion requests. About nine years ago, CMS established a rule to place a limit on the time period CMS would review, which ended up being a 14-month window.

2011 was quite a busy year for the agency (when is it not busy!); they released some plans from intermediate sanctions, they provided detailed trainings and clarification on marketing guidelines and expectations, and as a boon for enrollees and well-performing organizations, it was the first year a beneficiary could use a special election to join a 5-star plan. How far we have come!

More recently, CMS reduced the look-back period for past performance to 12 months. The most recent review methodology published on January 25, 2019 for the 2020 application cycle consists of 11 performance categories: compliance letters; star ratings; multiple ad-hoc corrective action plans (CAPs); ad hoc CAPs with beneficiary impact; failure to maintain a fiscally sound operation; one-third financial audits; program audits; exclusions; enforcement actions, terminations and non-renewals, and documented significant compliance issues awaiting formal CMS clearance. 

In the proposed rule, CMS suggests adopting three categories: imposition of Civil Money Penalties (CMPs); low star ratings scores, and the failure to maintain a fiscally sound operation. If finalized, they propose to add these three items to their already codified authority. (They state they “decline to consider” an application from an organization still covered by the 2-year prohibition period they agreed to as part of a mutual termination agreement entered into CMS, though the 2021 MA application still includes a waiver request an applicant may complete.)

What would this finalized provision mean for a beneficiary? Medicare beneficiaries should arguably not feel the impact of this change should it be finalized as written. CMS may be narrowing down the categories but the spirit of the past performance review remains the same. As a former colleague once told me about plan expansions, “if you don’t treat your current members right, you do not deserve to grow.” The agency has talked about the importance of beneficiary choice in conferences, and this change, in theory, should only eliminate the possibility of a beneficiary choosing a plan that still needs to get its house in order.

What would this finalized provision mean for a plan? New applicants and existing contract-holders take note: application reviewers are looking at corporate structure and ownership. They ask if any covered person (defined in regulations) served as a covered person for an entity that non-renewed or terminated within the past 2 years. They request organizational charts of the legal entity’s parent organization, affiliates, subsidiaries, and related entities. This is not anticipated to change, and past performance will be applied to applicants that have ties to plans with performance issues.

If finalized with no modifications, I still expect sub-regulatory guidance to be published to provide the industry clarification on whose past performance may be evaluated as part of the application review. Current guidance makes it clear the agency is not intending to be punitive in this process, allowing legal entities with good performance to continue to expand even if the parent organization holds another poor performing contract.