Compliance

As plan beneficiaries and lawyers gain access to newly released price transparency data, health plans and plan sponsors must take proactive steps to limit their legal risk of violating health plan fiduciary standards under the Employee Retirement Income Security Act (ERISA), according to experts from the law firm Faegre Drinker. Experienced plaintiffs' attorneys are actively looking for cases that could establish a cottage legal industry around ERISA plan fiduciary suits, the experts say.

“There is an ever-increasing likelihood that some action or omission by health plan fiduciaries will be scrutinized either by the Department of Labor, or in a class action lawsuit brought by plaintiffs lawyers representing plan participants,” said Kendra Roberson, partner at Faegre Drinker, during a Jan. 25 presentation on ERISA health plan fiduciary legal risk. “These lawsuits would be similar to those that have been brought against retirement plan fiduciaries challenging 401(k) and 403(b) plan fees and costs.”

Medicare Advantage plans next year can expect to receive, on average, a 3.70% increase in risk adjusted revenue, according to the 2025 Advance Notice of payment changes for MA and Part D plans, released on Jan. 31. That’s when taking into account a 2.45% revenue decline stemming from CMS’s phased-in risk model revision and fee-for-service (FFS) normalization, an effective growth rate of 2.44% and an average increase in risk scores of 3.86%, according to a CMS fact sheet. CMS this time last year estimated that plans would see a modest rate increase of 1.03%, but revised that projection to 3.32% for 2024 after deciding to phase in changes to the CMS-Hierarchical Condition Categories risk adjustment model starting this year. CMS said it plans to proceed with the phase-in as described in last year’s rate notice and is “proposing updates to the Part D risk adjustment model to reflect the redesign of the Part D benefit as required by the IRA [Inflation Reduction Act].” CMS requested comments on the proposals by March 1; the final rate notice is expected to be released no later than April 1.

Although new policies proposed by CMS aim to protect Medicare beneficiaries by clamping down on fees that promote anticompetitive sales practices, critics of the proposed rule say CMS’s actions inappropriately target agents and brokers who sell Medicare Advantage plans and the field marketing organizations (FMOs) that support them. Further, they warn that CMS’s proposed changes to agent and broker reimbursement could lead to significant industry disruption that would trickle down to beneficiaries.

The proposed rule was issued on Nov. 6 and published in the Nov. 15 Federal Register and contained provisions aimed at improving access to behavioral health, enhancing transparency around supplemental benefits, streamlining enrollment options for dual eligibles, encouraging biosimilar product substitution, and assessing the impact of prior authorization policies on health equity. CMS accepted comments through Jan. 5, and it received hundreds of comment letters addressing the rule’s more controversial proposals seeking to place new limits on agent and broker compensation.

Managed care experts predict that 2024 will see further and deeper adoption of artificial intelligence (AI) across the health care sector despite emerging legal risk. Meanwhile, regulation of AI in health care is already underway, but mostly at the state level, with action in Congress stalled and the Biden administration taking an incremental approach.

Health insurers for years have put big data at the center of significant capital investments and operational changes, as major insurers have portrayed themselves as technology players with vast proprietary data sets. For many insurers, automation and algorithms are already intrinsic to claims processing, prior authorization, revenue cycle management and actuarial work. AI could make those insurance processes faster and cheaper.

With the recent filings of two proposed class action lawsuits against major Medicare Advantage insurers’ use of a computer algorithm to deny patient care, upcoming CMS audits of MA plans’ utilization management (UM) tactics and progressive lawmakers’ push for CMS to collect more data on coverage denials, the MA program is starting the year off under a microscope. And while major new policy developments are unlikely to come out of a split Congress this year, industry experts agree that prior authorization — along with risk adjustment and coding intensity — will continue to garner attention from lawmakers and regulators.

HealthScape Advisors Principal Cary Badger and Managing Director Alexis Seeder Levy point to three possible scenarios to watch for in 2024:

For our annual series of outlook stories on the year ahead in Medicare Advantage, AIS Health, a division of MMIT, spoke with more than a dozen industry experts on the challenges facing MA insurers and the potential strategies to stay ahead of them. One running theme from this year’s conversations is the sheer level of uncertainty MA organizations are facing in 2024 and beyond, from revenue headwinds driven by changes in risk scoring and the Star Ratings to yet-to-be-finalized proposals around broker compensation and supplemental benefits. And that’s all while managing an overhaul of the Medicare Part D benefit, thanks to the Inflation Reduction Act (IRA) of 2022. And many of these changes “could have substantial impacts on revenue, which impacts benefit design, supplemental benefits, and so on,” says Steve Arbaugh, managing principal and CEO with ATTAC Consulting Group.

Here, in no particular order, are the major challenges and unknowns facing MAOs in 2024 and beyond:

The Dept. of Justice on Dec. 15 filed a motion to transfer or dismiss Humana Inc.’s case against the federal government and its use of extrapolation in Risk Adjustment Data Validation (RADV) audits of Medicare Advantage insurers. After CMS in January finalized plans to begin extrapolating RADV audit findings in recovering improper payments starting with payment year 2018, Humana on Sept. 1 filed a lawsuit asking the U.S. District Court for the Northern District of Texas to vacate the rule and therefore stop CMS from applying its new audit policy. By excluding a “fee-for-service adjuster” that the agency had once promised would be used in the audits, the RADV audits “do not observe any actuarial standards at all,” the MA insurer argued in Humana Inc. et al v. Becerra et al (No. 4:23-cv-909-O). In its response filed in the Fort Worth division of the District Court, HHS argued that Humana hasn’t been harmed because CMS has not begun any audits under the challenged rule. Moreover, there is no certainty that Humana will be subject to audits under the new rule because CMS hasn’t “chosen the contracts to be audited under the rule for any payment year, nor selected a statistical sampling and extrapolation methodology for any such audits,” stated the response, which was obtained and posted by STAT.

With the filing of a proposed class action lawsuit this month, Humana Inc. became the third major insurer in recent history to be accused of using artificial intelligence to wrongfully deny patients’ care and the second insurer to face allegations specific to Medicare Advantage members. While industry experts agree that AI holds promise for improving the patient experience, it also comes with risks, and lawsuits and other regulatory actions offer a warning to insurers of all types to come up with a proper risk mitigation strategy as they increasingly deploy AI to streamline certain operations.

In the Dec. 12 complaint, which was filed in the U.S. District Court for the Western District of Kentucky, Humana MA members accuse the insurer of relying on the nH Predict AI model to make “rigid and unrealistic” projections for how long a patient will require post-acute care after an inpatient hospital stay. The AI model was developed by naviHealth, a subsidiary of UnitedHealth Group, and was the subject of a highly critical investigation published by STAT in November and subsequent lawsuit filed against UnitedHealth by the estates of two deceased MA members.

Recognizing the “promise and peril” of artificial intelligence, President Joe Biden in October issued an executive order advancing a coordinated approach to ensuring the safe and responsible use of AI across multiple sectors. While HHS puts together a task force aimed at developing a regulatory action plan regarding the use of AI in health care, the White House on Dec. 14 unveiled the names of 28 payer and provider organizations committed to ensuring the safe and appropriate use of AI. Those included Medicare Advantage plan operators, such as CVS Health Corp., Allina Health (which has a cobranded PPO with CVS Health’s Aetna), Devoted Health, Geisinger, Health First (Florida), Oscar Health, Inc. and Premera Blue Cross.

The outpatient prices Medicaid managed care insurers pay to hospitals vary considerably based on geography and type of service, according to a cross-sectional study published on Nov. 28 in JAMA Network Open. The authors examined publicly available data and noted the results suggest the prices could affect government health expenditures and access to care for Medicaid members.

However, Jeffrey Marr, a Ph.D. candidate at Johns Hopkins University and the study’s lead author, acknowledges the analysis “raises more questions than it answers” in part because the researchers could not determine the reasons for the variation. Two health care insiders tell AIS Health, a division of MMIT, that the study reinforces there are still questions related to the usefulness of the hospital price transparency rule that went into effect in 2021 and the various definitions for prices.