Risk Adjustment

A new report from the CMS Innovation Center identified redesigning financial benchmarks and risk adjustment to improve model test effectiveness as a priority going forward. In its annual report to Congress, the Innovation Center noted that “[m]any financial benchmarks and risk adjustment methodologies have created opportunities for potential gaming and upcoding among participants — and have therefore reduced savings for Medicare.” The Innovation Center largely tests models serving fee-for-service Medicare beneficiaries and has relied on risk adjustment as a critical component of its models, including all accountable care organization (ACO) based models. The agency added that it has launched “an examination of its benchmarking and risk adjustment approaches to provide incentives to encourage participation, especially among providers caring for underserved beneficiaries and ACOs with varying levels of experience, as well as ensure payment accuracy.” The report also highlighted health equity as an ongoing focus and observed ways to improve communications with potential hospice benefit enrollees, referring to one component of the ongoing Medicare Advantage Value-Based Insurance Design model, to ensure that hospice and palliative care are accessible to all beneficiaries.

In a sweeping proposed rule issued Dec. 14, CMS addresses a variety of hot-button aspects of the Medicare Advantage and Part D programs, including Medicare marketing, prior authorization and overpayments. The 957-page proposed rule, scheduled for publication in the Dec. 27 Federal Register, seeks to protect MA and Part D enrollees from misleading marketing by banning the use of advertisements that “do not mention a specific plan name as well as ads that use words and imagery, such as the Medicare name or logo, that may confuse beneficiaries in a way that is misleading, confusing, or misrepresents the plan,” according to a fact sheet. It also proposes to adopt the False Claims Act definition of “knowing” and “knowingly” regarding when an MA or Part D sponsor identifies an overpayment, thereby removing the “reasonable diligence” standard. In addition, CMS proposes new requirements to ensure continuity of care, such as requiring that an approved prior authorization remain in place for a beneficiary’s full course of treatment and that all MA plans annually review their utilization management policies to maintain consistency with traditional Medicare’s coverage guidelines. Moreover, the rule proposes the creation of a health equity index in the Star Ratings program that would encourage plans to improve care for enrollees with certain social risk factors, starting with measurement data from 2024. In a statement on the proposed rule, Better Medicare Alliance President and CEO Mary Beth Donahue called it a “thoughtful, comprehensive proposed rule” and said BMA “appreciates the agency’s engagement with stakeholders across the health care spectrum ahead of the rulemaking process.” CMS on Aug. 1 published a request for information seeking input on how to address various aspects of the MA program; it received nearly 4,000 comments.

After settling a three-year Freedom of Information Act (FOIA) lawsuit, Kaiser Health News (KHN) last month finally made public the results of multiple CMS audits of Medicare Advantage plans — which showed the federal government intends to collect an estimated $12 million for overpayments identified over a three-year period. KHN said it filed the lawsuit against CMS in September 2019, after the agency failed to respond to a FOIA request for the audits pertaining to care delivered between 2011 and 2013.

Those years represent the latest Risk Adjustment Data Validation (RADV) audits to be completed, referring to contract-level audits conducted by CMS to verify the accuracy of payments made to MA organizations and recover improper payments. Industry experts say the results obtained by KHN may not be representative of insurer practices today, and that they highlight the overarching question of whether the audit methodology that CMS may soon finalize aligns with the current payment and bidding system that’s in place for MA.

As the Medicare Advantage industry draws attention for millions of net overpayments identified in a recent Kaiser Health News report on audits conducted by CMS, the HHS Office of Inspector General in two new reports seeks to recover estimated MA overpayments for inaccurate diagnosis codes. Separate from the contract-level Risk Adjustment Data Validation (RADV) audits used by CMS to verify the accuracy of MA organizations’ risk adjusted payments, the OIG audits may further support the notion that MA plans are overpaid. They also exemplify insurers’ fierce opposition to the use of sampling to approximate a plan’s true payment error rate.

CMS is buying itself more time to make a final determination about its use of extrapolation in Risk Adjustment Data Validation (RADV) audits. In a Federal Register notice, the agency pushed its Nov. 1 deadline to issue a final RADV rule to Feb. 1, 2023, saying it was unable to meet the already extended deadline “because of ongoing exceptional circumstances.” The Trump administration in a November 2018 proposed rule (83 Fed. Reg. 54982, Nov. 1, 2018) said its plans to recoup improper payments starting with payment year 2020 would not involve a “fee-for-service adjuster” and that it may apply this extrapolation methodology when finalizing audits dating back to payment year 2011. That rule received pushback from insurers for its potential to inflate audit recoveries, skew the MA bidding process and impact beneficiary cost-sharing and MA product offerings. The provision was not finalized by the Trump administration. CMS in October 2021 extended the statutory three-year timeline for completing the rulemaking, explaining that it received extensive public comments on the proposal and the FFS adjuster study that it released just prior to publishing the November 2018 proposed rule.

With a few midterm races unresolved as of mid-November, Democrats are projected to narrowly retain control of the Senate while Republicans will take back the House in the next Congress. That raises numerous questions about the future of health care policy, but D.C. insiders say House Republicans are likely to pursue achievable items rather than reach for the stars. Regardless of who controls each chamber, however, the experts suggested that more accountability and oversight is expected in Medicare Advantage.

“For once, repeal and replace isn’t the defining backbone of Republican health policy in Congress,” said Tarplin, Downs & Young Partner Jennifer Young, referring to multiple GOP efforts to scrap the Affordable Care Act, during a Nov. 4 webinar hosted by Kaiser Family Foundation (KFF). “It took us years, but I think we have learned that repeal and replace was not a winning issue and I think there’s been an acknowledgment that a Democratic president…isn’t likely to sign repeal and replace into law,” said Young, who served as assistant secretary for legislation at HHS and senior counselor to then-Secretary Mike Leavitt during the George W. Bush administration.

Settling a lawsuit filed by Kaiser Health News, CMS has agreed to release the results of 90 Risk Adjustment Data Validation (RADV) audits of Medicare Advantage plans for payment years 2011 through 2013, KHN reported. The news outlet in September 2019 filed the suit under the Freedom of Information Act in an effort to make public “vital information” about the estimated $600 million in overpayments the government aims to collect from plans through those completed RADV audits, said KHN. Under the settlement, CMS will share audit spreadsheets showing which medical diagnoses could not be confirmed but will redact the payment amounts. The agency has already sent the first round of records, according to KHN.

Signaling what some say is an unusual move, CMS late last month released a request for information (RFI) in which it encouraged a variety of stakeholders to submit responses to questions related to nearly every aspect of the Medicare Advantage program, from supplemental benefits and social determinants of health (SDOH) to risk adjustment and other payment-related policies. And while that could mean CMS is looking to change multiple aspects of the program, industry experts say the agency is asking the right questions, and they are encouraged that it signals a willingness to understand the potential impact of program changes on MA organizations.

Although previous administrations have issued more general RFIs on Medicare and the Biden administration in February released an RFI specific to Medicaid and CHIP coverage and access, Avalere Senior Consultant Tom Kornfield says he can’t recall seeing one that was so explicitly focused on MA. When asked whether he thinks the request was prompted by a recent hearing on Capitol Hill regarding MA oversight and beneficiary access, Kornfield suggests it’s more likely that CMS is seeking information as it works on a proposed MA and Part D rule that would come out in the fall and contain policies for plan year 2024. “They could be using this opportunity to collect information that could then help them determine what types of policies to put into that proposed rule,” he tells AIS Health, a division of MMIT. And the RFI could generate a lot of feedback, he says.

Amid mounting attention to Medicare Advantage organizations’ risk adjustment and prior authorization practices — which were the subjects of intense discussion during a recent House Energy & Commerce Committee hearing — the U.S. Supreme Court last month declined to take up a case brought by UnitedHealthcare (UHC) challenging CMS’s 2014 Overpayment Rule. Industry experts tell AIS Health, a division of MMIT, that this decision means CMS can begin enforcing its rule and may soon finalize its long-awaited extrapolation methodology for conducting Risk Adjustment Data Validation (RADV) audits.

“I think given the makeup of the court, on the one hand it was a bit surprising that they declined to take the case and that the denial of cert was issued without a comment. But on the other hand, given the general political landscape and issues that the court is considering, this is fundamentally an issue of administrative law and they’ve considered some other administrative law cases this term and I can understand why they decided not to take this case,” remarks Lindsey Brown Fetzer, member with Bass Berry & Sims and chair of the firm’s managed care practice.

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.