The number of Medicare Advantage marketing-related complaints submitted to CMS more than doubled between 2020 and 2021, according to a recent report from Axios. Referencing CMS data, the news outlet reported that CMS received approximately 39,600 complaints about the marketing of MA and Part D plans in 2021, compared with about 15,500 in 2020 and an average of 6,000 to 7,000 in prior years. Consumers complained about things like being enrolled without contact from a health plan and misleading information about provider networks. Senate Finance Committee Chair Ron Ryden (D-Ore.) last month wrote to 15 states asking for detailed information about such complaints, while CMS has taken steps to tighten oversight of third-party marketing organizations. “While actions to reign in marketing constructs could affect competitive dynamics within MA, we should continue to see robust growth in this end market in totality, with an emphasis on consumer choice, branding, and benefit constructs affecting the competitive landscape moving forward,” observed Citi Research analyst Jason Cassorla.
The federal government and patient advocates have directed withering criticism regarding behavioral health coverage toward health plans in recent months. AHIP, the health insurance industry’s largest trade group, responded this week with a statement from its board emphasizing its commitment to equitable access to mental health benefits.
In January, the federal agencies that regulate health plans published a biannual report which found that health insurers have systematically failed to document the level of mental health care access they provide to members. That documentation is part of a yearslong federal effort to make plans comply with mental health care parity laws, which stipulate that health plans are not allowed to impose benefit limitations — non-quantitative treatment limits (NQTLs) — on mental health care that are more severe than limits placed on medical and surgical benefits.
As CMS urges Medicare Advantage insurers to tighten up their oversight of third-party marketing organizations (TPMOs) and as state insurance regulators seek to regain authority over MA marketing that was transferred to CMS nearly 20 years ago, Sen. Ron Wyden (D-Ore.) wants answers about “potentially deceptive marketing tactics practiced by Medicare Advantage plans.” His investigation could signal legislative interest in returning MA marketing oversight to states, but some industry experts question whether breaking up the CMS-owned process would be in the best interest of beneficiaries.
In letters sent last month, the Senate Finance Committee chairman wrote to 15 state insurance commissioners and State Health Insurance Assistance Programs (SHIPs) expressing his concern about reports of increased beneficiary complaints regarding MA and Part D plan marketing materials and “alarming reports that MA and Part D health plans and their contractors are engaging in aggressive sales practices that take advantage of vulnerable seniors and people with disabilities.”
In a new enrollment transition memo issued to Medicare Advantage organizations with a significant number of dual eligible enrollees in products that are not Dual Eligible Special Needs Plans, CMS appears to be pushing so-called D-SNP look-alike plans to the brink of extinction. But the two-year transition process, which will wrap up for the 2023 plan year, still allows traditional MA plans to enrollee a limited number of duals. And one trade organization suggests more could be done to incentivize MAOs to set up D-SNPs.
CMS in 2019 first began cracking down on D-SNP look-alikes — MA plans that are marketed to duals but are not D-SNPs or integrated products — when it released draft revisions to the Medicare Communications and Marketing Guidelines that stated look-alikes cannot imply that the plan is for dual eligibles, cannot claim or infer that they have a relationship with the state, and cannot exclusively market to duals. A year prior, the Medicare Payment Advisory Commission (MedPAC) in its June report to Congress had argued that more needed to be done to promote the development of integrated plans and raised the issue of D-SNP look-alikes. At the time, approximately 2.7 million dual eligibles were enrolled in one of four types of managed care plans available to them, yet only 8% of full-benefit duals were in a plan with a high level of Medicare and Medicaid integration. More than 4.1 million individuals are now enrolled in a SNP, of which nearly 3.7 million are in a D-SNP.
Medicare Advantage plan operator MCS Advantage, Inc. agreed to pay $4.2 million to resolve False Claims Act allegations that it violated the federal Anti-Kickback Statute (AKS) by offering kickbacks to health care professionals in the form of gift cards. According to the July 1 press release from the U.S. Dept. of Justice, MCS allegedly implemented a gift card incentive program between November 2019 and December 2020, when it distributed 1,703 gift cards to administrative assistants of providers in the aggregate amount of $42,575 to induce them to refer, recommend or arrange for enrollment of 1,646 new Medicare beneficiaries into an MCS plan. The Puerto Rico insurer did not admit liability as part of the settlement agreement. The company voluntarily closed the gift card program in December 2020, which the DOJ and HHS Office of Inspector General took into consideration, according to the press release. “The Settlement highlights the breadth of the AKS, as well as the flexibility that enforcement authorities have in utilizing the AKS as a vehicle to deter behavior deemed to be problematic” and suggest that remuneration to induce referrals of beneficiaries to specific federal health care program plans, along with to specific item or service, may be within the confines of the AKS, the law firm Holland & Knight suggested in a July 11 blog post.
As Medicare Advantage plans and their providers operate under a new normal two-and-a-half years into the COVID-19 public health emergency (PHE), CMS is resuming its regular pace of auditing MA organizations as another program audit cycle gets underway, according to compliance experts. During a June 21 session of AHIP 2022, held in Las Vegas, panelists observed that CMS continues to be focused on ensuring seniors’ smooth access to prescription drugs and emphasized the importance of audit readiness.
CMS’s audit activity was limited during the previous cycle, especially in 2020, and its latest audit report reflected that. Released in June, the 2021 Part C and Part D Program Audit and Enforcement Report said CMS imposed 16 civil monetary penalties amounting to roughly $1 million and, between 2019 and 2021, it audited about 20% of currently active sponsors representing approximately 89% of Parts C and D enrollment — which is lower than CMS’s typical goal of 95%.
CMS in a recent bulletin unveiled a “suite of new resources” aimed at guiding states and CMS in their oversight of Medicaid and CHIP programs, including managed care programs. Two items of particular interest to managed care organizations in a July 6 Center for Medicaid and CHIP Services Informational Bulletin (CIB) are templates that provide a standard format for states to report managed care medical loss ratios and network adequacy to determine how well a plan actually delivers its benefits. As plans struggle to meet network adequacy standards, the new template could lead to more intense oversight of network adequacy within managed care, industry experts suggest.
During a recent hearing held by the House Energy and Commerce (E&C) Committee’s Subcommittee on Oversight and Investigations, lawmakers heard testimony from three federal watchdog agencies on ways CMS can achieve efficiencies in the Medicare Advantage program and improve oversight of MA organizations. But while CMS’s actions were the subject of intense discussion, the agency itself wasn’t present — a point that several lawmakers felt worth repeating, even though CMS claims it was not properly invited.
E&C Chairman Frank Pallone, Jr. (D-N.J.) on June 28 convened the hearing, “Protecting America’s Seniors: Oversight of Private Sector Medicare Advantage Plans,” to “examine the quality of care that America’s seniors are receiving through Medicare Advantage plans and the fiscal sustainability of the Medicare Advantage program,” according to a June 24 memorandum issued to the subcommittee.
In CMS’s latest audit report, the agency confirms what an earlier AIS Health analysis of compliance notices indicated: the agency imposed approximately $1 million in civil money penalties (CMPs) based on 2021 referrals, and nearly half of that stemmed from one-third financial audit findings. CMS, meanwhile, cautioned the industry not to read too much into the latest audit results as they relate to 2020, when CMS audited a relatively small number of plans due to the COVID-19 public health emergency (PHE).
In the 2021 Part C and Part D Program Audit and Enforcement Report, published on June 7, CMS said it imposed 16 CMPs amounting to $1,043,953, or an average of $65,247 per CMP. Sponsors audited in 2021 covered 26% of enrollment.
As Medicare Advantage insurers face increasing scrutiny from lawmakers over coding practices and a pending pay boost of 8.5% next year, a new HHS Office of Inspector General report on rates of prior authorization and payment denials in MA doesn’t do much to help their case. Although it was based on just a weeklong sample of denial cases, the report adds to a growing body of evidence that the prior authorization process in MA is ripe for improvement and in need of either more guidance from CMS and/or stronger oversight.
Receiving widespread coverage at press time, starting with a New York Times article summarizing it as “saying that insurers deny tens of thousands of authorization requests annually,” OIG on April 28 released a report titled, “Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care.” The report immediately drew praise from providers, such as the American Medical Association (AMA), which issued a statement agreeing with federal investigators’ recommendations on reining in inappropriate denials. But AMA argued that more needs to be done, such as passing a bipartisan bill that aims to establish new electronic prior authorization (PA) requirements on MA insurers.