CMS Proposes Wide-Ranging Medicare Advantage Rule

On Dec. 14, 2022, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule revising regulations governing Medicare Advantage (MA), the Medicare Prescription Drug Benefit (Part D), Medicare cost plans, and Programs of All-Inclusive Care for the Elderly (PACE). The stated goal of CMS is to improve beneficiary protections and shore up guardrails for beneficiaries while increasing access and promoting equity in coverage and care.

While the Rule (CMS-4201-P) will be formally published on Dec. 27, 2022, an advance, 950-page PDF version of the document is available here. The CMS press release is available here, and a fact sheet is here. Comments will be accepted until Feb. 13, 2023, with the submission options outlined at the beginning of the Rule.

The proposed rule aims to increase protections for those enrolled in MA plans through improvements to prior authorization processes, coverage guidelines, and plan marketing requirements. It aims to ensure that the coverage criteria and utilization management policies MA plans develop result in MA enrollees receiving the same access to medically necessary care as in traditional Medicare.

Additionally, the proposed rule would help protect individuals from confusing and potentially misleading marketing while also ensuring access to accurate and necessary information to make coverage choices.

On the Utilization Review front, it would:

• require that a granted prior authorization approval remain valid for an enrollee’s full course of treatment and provide a minimum 90-day transition period when an enrollee currently undergoing treatment switches to a new MA plan;
• require MA plans to annually review utilization management policies;
• require that coverage determinations be reviewed by professionals with relevant expertise;
• require that in situations when no applicable Medicare statute, regulation, National Coverage Determination (NCD), or Local Coverage Determination (LCD) establishes when an item or service must be covered, MA organizations must include current evidence in widely used treatment guidelines or clinical literature made publicly available to CMS, enrollees, and providers when creating internal clinical coverage criteria; and
• prohibit MA plans from denying coverage of a Medicare-covered item or service based on internal, proprietary, or external clinical criteria not found in traditional Medicare coverage policies.

The Rule’s Marketing provisions include:

• prohibiting ads that do not mention a specific plan name as well as ads that use words and imagery that may be confusing, or use language or logos in a way that is misleading, confusing, or misrepresents the plan;
• codifying guidance protecting people with Medicare or exploring Medicare coverage from misleading marketing and ensure that they are not pressured into enrolling into plans that may not best meet their needs; and
• strengthening the role of plans in monitoring agent and broker activity.

CMS proposes to also add a health equity index (HEI) reward to the Five-Star Rating System, beginning with the 2027 Ratings, to further encourage MA and Part D plans to improve care for enrollees with certain social risk factors (dual eligibility, low-income subsidies, and disability). CMS also proposes to reduce the weight of patient experience/complaints and access measures by half (from four to two) to further align with other CMS quality programs.

In addition, the proposed rule would expand and clarify the list of populations that MA organizations must provide services to in a culturally competent manner, include policies to strengthen network adequacy requirements and reaffirm MA organizations’ responsibilities to provide behavioral health services, and give Part D sponsors additional tools to manage drug costs through greater formulary flexibility for certain biological products and authorized generics.

Note that this proposed rule comes on the heels of a July 2022 CMS request for information on the MA program that elicited approximately 4,000 responses from various stakeholders. It also follows a separate proposal released by CMS earlier in December aimed at improving the electronic exchange of health care data and also at streamlining processes related to prior authorization for both MA organizations and state Medicaid fee-for-service and Medicaid managed care plans (CMS-0057-P).

LeadingAge NY Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841