wp horizontal dark

CMS’ Crackdown on Medicare Advantage – A Legal Perspective

February 26, 2024

By: Lindsay Burrows

As seen in Healthcare Business News

Over the years, Medicare Advantage (MA) managed care plan violations have made national headlines for lack of transparency in reporting, access to care issues, and questionable financial practices. MA plan accountability is especially important as MA accounts for over 50% of the Medicare enrollment, and the federal government is anticipating an expenditure in excess of 7 trillion dollars in the next decade.

Despite legal, financial, and ethical ramifications, MA plans have largely failed to provide payment and coverage for the intended benefits offered to beneficiaries. MA plans are intended to cover all Medicare services plus additional benefits that may include pharmacy, dental, vision, hearing care, transportation, and fitness memberships, yet the Office of Inspector General (OIG) recently raised concerns about MA plan transparency and beneficiary access to care.

MA plans were cited for denials of service and payment, as identified:

  • Inappropriate denials: OIG reports have found instances where MA plans denied medically necessary services or payments to providers, even when the Medicare coverage rules were met. This raises concerns about beneficiaries’ access to care and potential financial gain for plans.
  • Lack of transparency: The current system for tracking denied claims is inadequate, making it difficult to identify and address inappropriate denials effectively.
  • Prior authorization burdens: OIG has found that some plans request unnecessary or duplicative documentation for prior authorization, creating delays in the provision of medically necessary care for beneficiaries.

MA plans were also cited for plan costs and benefit concerns, as further explained:

  • High medical loss ratios (MLRs):Some plans have MLRs (percentage of premium spent on medical care) lower than industry standards, raising questions about whether beneficiaries are receiving adequate value for their premiums.
  • Limited transparency on supplemental benefits: The current reporting requirements for supplemental benefits like dental and vision care lack detail, making it difficult for beneficiaries to compare plans effectively.

Bipartisan leaders have also raised concerns about the inappropriate marketing practices and impact of prior authorization processes on access to care for MA beneficiaries. Senator Cortez Masto may have said it best, “American taxpayers are paying hundreds of billions of dollars for seniors to use Medicare Advantage plans, but the federal government still doesn’t know how much these plans are paying for patient services and how much patients are being forced to pay out-of-pocket.”

MA plans must be held accountable for paying and covering services that they are legally and contractually required to provide to providers and beneficiaries.

What is the federal government doing about MA Plan Violations?

The Centers for Medicare & Medicaid Services (CMS) has been pushing for greater transparency from MA plans. On January 25, 2024, CMS released its Request for Information (RFI) to solicit feedback from the general public on how to best enhance the MA program’s data capabilities and increase transparency.

CMS is seeking data-related input regarding all aspects of the MA program, including access to care, prior authorization, provider directories, and networks; supplemental benefits; marketing; care quality and outcomes; value-based care arrangements and equity; and healthy competition in the market, including the effects of vertical integration and how that affects payment. CMS has also requested comments surrounding the improvement of MA data collection and release methods.

MA plans are already required to provide CMS with certain requested information including financial, quality, enrollment, and other data. CMS has launched previous efforts to obtain additional data as there have been gaps in the information provided by MA plans.

CMS Administrator Chiquita Brooks-LaSure explained that “This Request for Information builds on our existing Medicare Advantage data transparency efforts to further align with Traditional Medicare and provide the data we need to ensure the growing Medicare Advantage program best meets the needs of enrollees.” HHS Secretary Xavier Becerra also added that “The lack of transparency in Medicare Advantage managed care plans deprives patients of important information that helps them make informed decisions. It deprives researchers and doctors of critical data to evaluate problems and trends in patient care. Transparency is key to the Biden-Harris Administration’s effort to increase competitiveness and ensure that Medicare dollars are spent on first-rate health care.”

There is a 120-day comment period for response to CMS’ RFI, with comments due on May 29, 2024. The American Hospital Association (AHA) and other stakeholders strongly support CMS’ efforts to improve MA transparency and are encouraging public comment in response to this RFI.

Are there legal considerations about the RFI comment period and the expected outcomes?

Considering the age of transparency, with heightened standards for hospital price transparency, it is only fitting for CMS to seek total transparency regarding how MA plans are using federal funding.

There are always HIPAA privacy and security concerns when it comes to sharing potentially protected health information and data regarding health outcomes. CMS has outlined several measures to ensure compliance and protect individual privacy, including but not limited to collecting aggregate and de-identified data, and implementing robust data security measures, limiting data access to authorized personnel, and maintaining clear data use agreements with involved stakeholders.

CMS’ RFI data collection is expected to have various implications, including improved transparency, better oversight, and potential policy changes affecting MA plans and beneficiaries. Some projected outcomes for MA plans include:

  • Increased accountability for MA plans, potentially driving improvements in areas like care delivery, cost efficiency, and marketing practices;
  • Increased administrative burden for plans surrounding data collection and reporting, requiring adjustments and potentially impacting costs; and
  • More accurate risk adjustment reporting, potentially impacting plan payments and premiums.

Ultimately, the final implications will depend on the quality of the public feedback and CMS’ decisions on how to use the RFI data collection. With that said, CMS must also enforce MA plan compliance with federal laws and regulations, otherwise the RFI efforts will prove to be futile, providers will continue to go out-of-network with MA plans, resulting in additional access to care issues for beneficiaries.

For now, the comment period is still open and public feedback is welcomed – https://www.federalregister.gov/documents/2024/01/30/2024-01832/medicare-program-request-for-information-on-medicare-advantage-data