CMP Methodology Comments Due April 15

If you are like most people I encounter these days, you don’t have a free moment to catch up on items which do not have a deadline of “TODAY”. Understandable, because there is a lot going on this quarter from financial audits to program audits to timeliness monitoring to everything else on your plate.

On March 15, the Centers for Medicare & Medicaid Services (CMS) released their revised Civil Money Penalty calculation methodology for comment (bottom of this page). The proposed changes include:

  • Clarifying how per determination standard penalties are calculated for Program of All-Inclusive Care for the Elderly organizations (which is “consistent with our statutory and regulatory authority”)
  • Proposing to add an aggravating factor for enrollees who never received their Part C services or Part D medications due to violation of program requirements
    • The section used to refer to delay/denial of drugs, but now includes reference to enrollee never receiving their Part C service or Part D medication. It makes sense as it steps up the severity of access to Part C services.
  • Changes to existing aggravating factors
    • Proposing to remove aggravating factors previously identified as common conditions in audit and enforcement reports
    • Proposing to remove the reference to Evidence of Coverage from an aggravating factor
    • Proposing to change reference from 24 hours to one day relative to the aggravating factor for delay/denial of prescription drugs for acute conditions
  • Proposing a method for increasing penalty amounts, whereby the agency tracks the accrual of penalty amounts each year, but updates the standard penalty amount no more often than every three years.

Additional nuanced changes not included in the introductory memo include:

  • A note confirming the agency is also applying this new methodology to Medicare Medicaid Plans, Cost Plans, and PACE organizations and inclusion of regulatory authority references
  • A note reserving the right to use different methodology as permitted by law depending on various circumstances
  • A change in reference to regulation for “a complete list of the reasons that may lead to a determination” to “examples of bases that may lead to a determination”
  • Clarification that CMS may calculate a per determination penalty if the per enrollee impact cannot be analyzed (meaning, you provided the Impact Analysis but CMS cannot analyze it)
  • Reference to access to enrollee rights under Beneficiary Impact, namely the appeals process, has been included in examples of a sponsor’s deficiency which could adversely affect the enrollee physically
    • This could be seen as a significant change, or as further clarification of what is meant by Beneficiary Impact. The section includes the more direct examples of not receiving a medication or service. However, if a beneficiary is not aware a service has been denied, in general, the provider simply does not provide or order the service. In the case of a claim denial, the member may be inappropriately billed. Appeal rights are warranted in both cases, and plans should be prepared to demonstrate delivery of these rights come audit time.
  • A proposal to take into account whether sponsor substantially mitigated adverse impact to beneficiaries; in those cases, CMS may remove those where impact was substantially mitigated
    • An example is provided, when the beneficiary receives medication within one day of initial rejection.
  • Per enrollee aggravating factors now includes reference to inappropriate delay/denial of “appeal rights”
    • Think about how multiple aggravating factors will be taken into account using the example provided in the document. For example: if there was a delay in completing a Part D coverage determination, appeal rights were not communicated, but the drug does not generally require access within one day, yet this was a prior offense… if it is not clear to you, then request additional examples or further clarification.

If your organization plans on providing feedback, asking clarifying questions, or providing general comment, make sure you do so in an organized fashion. Don’t have three different people emailing CMS  – collaborate, collect, and submit to part_c_part_d_audit@cms.hhs.gov with the subject line 2019 CMP Methodology Comments. The due date/time is April 15, 2019 at 11:59PM Eastern.

Download: Prescription for Compliance Wellness

The Health Care Compliance Association (HCCA) held their annual Managed Care Compliance Conference from January 27-30, 2019.

From my sea of notes, I provide you key soundbites along with follow-up questions to help you spark internal discussion. Consider this your prescription for compliance wellness to help you see your compliance program through a different lens and make improvements using best practices and innovation. And don’t worry, you don’t need an OTC benefit to download – just a willingness to get healthy:

Send me a download link


Materials from sessions are made available by HCCA here. Thanks to all presenters for their preparation and delivery and for helping the industry kick off the new year with relevant content.

Compliance Today Article on Risk Assessment

Recently I penned an article for Compliance Today about the obligation to perform a risk assessment as part of Medicare Advantage and Part D operations. Compliance Today is the monthly, members-only publication of the Health Care Compliance Association. As the content author, I am permitted to provide access the full article on this platform.

Those new to a compliance role will learn how this requirement came to be. For the experienced compliance professional, I provide factors, questions, and techniques to consider for incorporation into a compliance program.

February 2019 Compliance Today, Regan Pennypacker

Copyright 2019 Compliance Today, a publication of the Health Care Compliance Association (HCCA).

Compliance Controls in Spotlight

As Oscar season approaches, who can forget the very serious face on Jordan Horowitz as he held up the correct winner for Best Picture for the 89th Academy Awards? Despite powerhouse accountancy firm PricewaterhouseCoopers (PwC) at the helm, things took a wrong turn.

Jordan Horowitz Moonlight

So what happened? News outlets and social media were quick to focus on presenters Warren Beatty and Faye Dunaway. However, as the layers of onion were peeled, the public learned about the root causes: prohibited social media use, mistaken envelope delivery, and a significant delay in addressing the issue, which allowed the wrong producers about two minutes to give thanks in a bubble of blissful ignorance.

PwC had been the firm of choice of the Academy for over 80 years when this happened, and though this issue had only occurred one other time, it proves even established, reputable systems can break down. From the outside looking in, you might think handing the right envelope to the right person at the right time is a seemingly simple task. You would think the same about driving close to home, which according to many surveys and insurance data, is where most accidents occur. How are these two situations connected? Because we are most comfortable in roads we’ve traveled over and over, and therefore might be more susceptible to distraction.

So often, corrective action plans (CAPs) do not address the true root causes. In this example, the public was made aware of a few factors, but PwC may have identified even more. Was there a relaxed culture around adherence to protocol? Were there outside factors that distracted the two PwC partners onsite? Whatever was found, PwC took full responsibility for the issue and created a CAP, outlining a multi-step plan to avoid this type of issue from recurring. In addition, the Academy took ownership and will regularly review PwC’s policies and procedures to make sure something like this never happens again.

Compliance professionals will see correction, detection, and prevention controls all over this. If any Tinseltown executives are reading, I am happy to provide my services to do some CAP validation during the big day.

Past Performance: There is Still Time to Get it Wrong

Applying for a 2020 Part C, Part D, or Cost plan? CMS will post final past performance methodology soon, most likely early February, but one thing that is final is the past performance review period is down from 14 months to 12. There is reason not to rest easy.

Applicants had complained that 14 months was unfair, stating non-compliance that occurs during January and February of a given year is counted against them in 2 consecutive past performance review cycles, while non-compliance occurring in all other months is counted in only one review cycle. The agency previously believed a full contract year was necessary to capture all relevant aspects of an organization’s performance, but they have determined there is little value on counting a true contract year.

Starting with the 2020 applications, CMS will review the previous 12 months, counting the application deadline month (February) in its entirety; therefore, the review period will be March 1 of previous year to end of February when application is due.

For those applicants who have already counted your points, do not rest on laurels this month or next month. If your organization incurs additional points while you are working so hard on your application (think program audit CMPs and ad-hoc CAPs), it could derail your efforts for another year.