Hidden gems in the CMS 2024 Medicare Advantage proposed rule

The Centers for Medicare and Medicaid Services (CMS) has proposed several significant changes to the Medicare Advantage (MA) program and invited comments from the industry in a recent proposed rule released on December 27, 2022 (proposed rule). Changes to the MA program can have wide-ranging implications for the healthcare industry, as it often sets a standard that is applied throughout government programs and the healthcare industry-at-large. Medicare Advantage is expected to soon cover more than half of Medicare beneficiaries, and so changes to this program, including some of the hidden gems discussed below, can have particular impact on beneficiaries and providers.

Identifying overpayments

Since the passage of the Affordable Care Act, the industry has grappled with the requirement that any "person" "receiving" an overpayment must report and return the overpayment within 60 days. The question surrounding the term "identified overpayment" has been debated and discussed since 2010. In the proposed rule, CMS seeks to clarify the definition by modifying the regulations for Medicare Parts A, B, C and D to change the standard for "identified overpayment." Most notably, it would eliminate the current requirement that gives providers time to identify an overpayment "through the exercise of reasonable diligence." Under the proposed standard, "a provider or supplier has identified an overpayment if it has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the overpayment." The term "knowingly" would have the same meaning as set forth under the False Claims Act at 31 U.S.C. 3729(b)(1)(A). 

Additionally, the proposed rule identifies, for the first time, a lookback period and a timeframe to complete overpayments and underpayment notices, as well as a de minimis threshold for refunds and recoveries. CMS specifically requests comments on the concept of a lookback period. For providers, the inclusion of a timeline for underpayments and overpayment notices would be welcome presumably, as providers struggle to ensure appropriate payment practices.

Prior authorization

The proposed rule would make significant changes to prior authorization, a process that requires a beneficiary to receive approval prior to accessing a covered service. CMS proposes requiring that MA plans follow the policies of traditional Medicare, which would prohibit the use of alternative criteria to make a medical necessity determination when that item or service would be approved under traditional Medicare. This has been a common complaint from providers and MA beneficiaries. CMS would require that plans provide more information to providers concerning the medical basis for issuing a denial. MA plans would also be required to utilize specialists with relevant expertise in making certain prior authorization determinations – another common complaint – as unqualified professionals often deny care for services outside their specialty, requiring providers and beneficiaries to use significant time and resources to fight for appropriate and much-needed care.

To further address this, the proposed rule calls for the creation of a Utilization Management Committee to be led by the MA plan's medical director. CMS proposes to require that prior authorization approvals remain valid throughout the full course of an enrollee's treatment. Earlier this year, the HHS OIG released a report finding that care had been inappropriately denied in 13 percent of prior authorization denials.

Marketing

The tactics imposed by brokers and marketers of MA plans targeted by this proposed rule are part of a continuing focus by federal authorities on inappropriate marketing to Medicare beneficiaries. In a final rule released last spring, CMS introduced standards for third-party marketing organizations and placed greater responsibility on MA plans to oversee them. More recently, the Majority Staff of the US Senate Committee on Finance released a report on deceptive marketing practices that "flourish in Medicare Advantage." 

The focus of CMS is to further ensure that any marketing of MA plans is not confusing, inaccurate or misleading. To that end, the proposed rule goes as far as prohibiting the use of certain superlatives in advertising, and focuses on how and when marketers can and should present materials to beneficiaries. MA plans would also be prohibited from using the Medicare logo.

The proposed rule identifies limitations for how a beneficiary may be contacted by a plan. Sales presentations would no longer be permitted immediately following an educational event. Additional requirements would be placed on MA sales agents, such as disclosures about all plans that are sold by the agents. Beneficiaries would also be allowed to opt out of MA marketing calls.

This section of the proposed rule is lengthy and interested parties should review it in its entirety if they wish to provide comments. Our prediction is that much of this proposed rule will be adopted, as the issues identified have been a focus of the agency for many years.

Behavioral health

CMS seeks to "reaffirm MA organizations' responsibilities to provide behavioral health services" through proposals such as including clinical psychologists, licensed clinical social workers (LCSWS) and prescribers of medication for opioid use disorder, as provider types that would be included in network adequacy reviews. The proposed rule seeks to codify standards for wait times that apply to both primary care and behavioral health services, and clarify that some behavioral health services may be emergency services, and not subject to prior authorization requirements.

As behavioral health remains a key area of focus for the Medicare and Medicaid programs, and as more people continue to suffer from mental health conditions, the call for expanding the spectrum of licensed health professionals that can be utilized is a practice we can expect across-the-board in both government and commercial coverage of healthcare.

Comments to the proposed rule are due no later than 5 p.m. ET on February 13, 2023.

The submission of comments is an important way to develop a regulatory record as the proposed rule moves through the regulatory process in the coming year. We would be pleased to help you with the submission of comments, should you desire, or ensure that you have any additional information needed.