Accountability: An Unwritten Element

Last year around this time, we were mulling over the Fall Conference and Webcast delivered by the Centers for Medicare & Medicaid Services (CMS). So much has changed in the way we collaborate and interact with each other, both in our professions and personal lives. With all of us keeping our state and local guidelines in mind, we do our best to keep it compliant so we can stay healthy. The likelihood that we will return to the good old days of Ubering to the CMS Woodlawn office soon are slim.

Since we have a public health emergency that requires us to comply with a set of rules in the spirit of slowing or stopping the spread, I’ve been thinking about accountability. When the unexpected happens, who speaks up? Who takes ownership?

I read a recent compliance and ethics report from LRN which noted that when it comes to compliance failures, a poor culture simply deteriorates standing rules. Culture determines whether policies and guidelines will be followed or ignored. The report also showed that in companies with significant compliance failures, key leaders did not take ownership of the problems. Employees raised concerns and reported either being ignored or pressured to look the other way.

For a policy or a code of conduct to be effective, it cannot simply sit on a shelf. The culture within an organization must promote compliance and ethics to demonstrate accountability. Now that many employees are scattered to the wind, is the corporate culture message getting lost in the fray? If so, I recommend making it a priority to communicate a brief message once a week to remind your team about the organization’s mission, commitment to customers, and culture of compliance. Remember, there is no CMS playbook on culture, but you know it when you see it (and when you don’t!).

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.

CMS Enforcement: Recent CMP Notices

Like clockwork, the civil money penalty (CMP) notices issued as a result of 2019 Program Audits are out. CMPs are issued by the Centers for Medicare & Medicaid Services (CMS) when conditions of non-compliance adversely affect or have a substantial likelihood of adversely affecting enrollees. These conditions can be identified in Program Audits, through complaints to CMS, through self-disclosure, and through other means. This year, beneficiaries from Hawaii to Maine are enrolled in plans that received an enforcement notice from the Centers for Medicare & Medicaid Services. 

In 2019, CMS released a memo regarding the posted notices, indicating five parent organizations were issued CMPs for Program Audits at that time. This year’s memo notes six parent organizations were issued CMPs on February 28: five relative to 2019 Program Audits and one as for 2018 Program Audit results. Almost 19% of currently enrolled beneficiaries are in affected Medicare Advantage or Part D contracts in receipt of a CMP. Here is additional information by the numbers:

6 parent organizations issued CMP

82 affected contracts 

$1,190,370 total CMP dollars (ranging from $28,302 to $381,272)

9,435,133 members in affected contracts (February 2020)

Ask any conference presenter for their slide decks and there is bound to be a statistic or chart showing how quickly enrollment is growing in Medicare Advantage. According to the Congressional Budget Office, it is expected by 2029, 47% of all Medicare beneficiaries will be enrolled in the program. 

What to expect

While over the past few years, the agency has issued proposed rules and guidance to refine program administration, and President Trump has issued his Executive Order focused on protecting and improving Medicare, do not expect to rest on laurels when it comes to quality or adherence to regulations. Furthermore, expect continued oversight from the Medicare Parts C and D Oversight and Enforcement Group, or MOEG. In fact, the division is revising audit protocols and is seeking to memorialize the approach to increase minimum penalty amounts in regulation, consistent with the 3-year audit cycle. In addition, expect more to come regarding the 2019 audit results and the future of CMP methodology.

Looking Ahead: Proposed Rule, CBI Conference

CMS-4190-P is scheduled to be published on February 18, 2020. It is published for public inspection now, giving the industry an early start in reviewing and drafting comments prior to the April 6, 2020 submission deadline. There are 895 pages of proposed rulemaking, and although the Centers for Medicare & Medicaid Services (CMS) released a fact sheet about the rule, the summary is just the tip of the iceberg. There are other important aspects of the proposal meriting consideration, not only for operational impact but also beneficiary impact. Think Star Ratings, past performance evaluation, and supplemental benefit eligibility, criteria, and documentation. 

This month I will be speaking with John Wells and Scott Ptacek at the CBI Medicare Pricing and Contracting Congress. This proposed rule could not have come at a better time for presenters. Speakers include representatives of the U.S. Government Accountability Office, Milliman, and NORC at the University of Chicago. If you happen to be in the Alexandria, VA area at the end of the month, this should be an information-packed event, so please join us!

Also approaching is the CMS deadline for Medicare Advantage and Part D new applications and expansions. I wrote about the application process in October. CMS also released their annual calendar of key dates last week. 

For compliance professionals out there, February should be an intense month of reading, partnering with your operational areas, and though it seems unreal, planning for 2021 and 2022. This is especially important for those managing D-SNPs. As always, feel free to contact me to discuss any of these topics.