Medicare Compliance & Reimbursement

Hint: CMS continues to push telehealth services.

With pandemic worries dominating the news, you may have missed the feds’ Medicare Advantage and Part D proposed rule last month. But several of the policies on the table are surprising, and you may want to submit your opinion on the rule while you still can.

Context: On Feb. 18, the Centers for Medicare & Medicaid Service (CMS) published a Medicare Advantage (MA) and Part D proposed rule for the 2021 and 2022 contract years in the Federal Register. The proposals codify provisions, infuse 21st Century Cures Act mandates, and update end-stage renal disease (ESRD) policies — all the while pushing more risk onto providers. Interestingly, CMS nixed its annual MA call letter, suggesting instead that its proposals offered the necessary provider guidance — a move that is surprising and could have repercussions during the bid submission process.

“Much of the proposed rule serves to codify subregulatory guidance that is already in place today,” says attorney Melissa Wong, a partner with Holland & Knight LLP in Boston. “I do think it is interesting though that CMS announced that, for the first time, they are not issuing a call letter at all this year.”

Wong continues, “Even in past years with the issuance of major proposed rules, CMS has always issued a call letter as scheduled. Plans will need to prepare a bid submission this year and potentially future years without this guidance from CMS.”

Consider These 6 Takeaways from the Proposed Rule

Over the last year, many of CMS’ releases follow patterns similar to ones in the MA and Part D proposals. The feds offer rules that aim to save consumers money with a combination of regulatory rollbacks and technology advancements — however, the policies often prove challenging for Medicare providers to implement.

Read on for six things to know in the proposed rule:

1. Growth Rate: MA providers can expect a minimal pay raise in 2021, which translates to less than this year’s growth rate. “CMS proposes a growth rate that is 2 percent lower than the growth rate estimated in the CMS preview released two months earlier,” notes attorney James Roosevelt, Jr. with Verrill Dana LLP in Boston. “In December, CMS released an early preview that estimated a 4.46 percent growth rate. The advanced notice calls for only a 2.5 percent growth rate in the county benchmark rates.”

This growth rate reduction could translate to MA plans requiring higher premiums or reduced benefits, Roosevelt suggests. “Reduced benefits could include higher copays and deductibles. Higher premiums could mean the beneficiaries will choose plans that lower premiums by increasing copays and deductibles. Hospitals should be prepared for reduced utilization or increased bad debt if this occurs,” he acknowledges.

2. ESRD: CMS proposes to allow ESRD patients to enroll in MA on Jan. 1, 2021 to align with a Cures Act requirement. This “is a major shift that will require plans, providers, and patients to sort out many issues related to provider network coverage, contracting, and reimbursement as well as how plans will factor in the additional needs and cost of insuring this population,” Wong warns.

“This proposed rule also implements related MA and Medicare [fee-for-service] FFS payment changes made by the Cures Act — FFS coverage of kidney acquisition costs for MA beneficiaries and exclusion of such costs from MA benchmarks,” the advance notice fact sheet relates.

3. Telehealth: With a nod to Bipartisan Budget Act of 2018 (BBA 2018) mandates, CMS aims to bolster network adequacy by authorizing more telehealth benefits for MA providers.

“CMS proposes to give MA plans a 10 percent credit towards meeting network adequacy for certain specialties through the use of telehealth providers,” explains Washington D.C.-based attorney Christine M. Clements, a partner at Sheppard, Mullin, Richter & Hampton LLP.

Plus, the agency “also proposes to give MA plans another 10 percent credit if the plan’s ability to meet CMS network adequacy requirements is impacted by a state certificate of need law or other ‘anti-competitive’ state restriction that limits the number of providers permitted to provide a particular type of service in the state,” Clements continues.

Though the telehealth proposals offer incentives and allow MA plans to reach more patients, traditional Medicare FFS providers may feel forced into going the MA route. “In one sense, this proposal could be successful in drawing in more specialty providers with telehealth capabilities,” Wong says. “On the other hand, providers may feel more pressure to contract with MA plans, even on less favorable terms than desired, in light of potential increased competition from providers practicing farther away.”

4. Star ratings: In the spirit of heightened transparency, CMS plans to change the measure weights for MA plans under its Star Ratings system. According to the proposed rule, the agency will bump up weights for patient complaints, experience, and access measures.

In an effort to clarify and consolidate, the agency plans to “remove the Rheumatoid Arthritis Management (Part C) measure from the Star Ratings,” update the “specifications of the Health Outcomes Survey (HOS)” measures, and add two new MA measures to the Star Ratings program, the rule notes.

CMS also proposes “to codify additional existing rules for calculating MA Quality Bonus Payment (QBP) ratings,” stresses the rule.

5. Opioid prescribing: The proposed rule offers more guidance on opioid abuse treatment. As part of its drug management programs under Part D, “providers may need to more closely manage patients identified as ‘at risk’ for drug abuse, namely opioid drug abuse,” Wong advises.

For example: “If a patient shows a history of a past opioid-related overdose … the sponsor may limit that patient’s access to opioids to a specific prescriber or network pharmacy, which in turn may require a prescribing provider’s involvement in rounds of prior authorizations and appeals to obtain access even for legitimately prescribed and dispensed medications,” says Wong.

6. Real-Time Benefit Tool: Back in May 2019, CMS required Part D plans to have a real-time benefit tool (RTBT) available to prescribers on Jan. 1, 2021, “with complete, accurate, timely, and clinically appropriate patient-specific real-time formulary and benefit information,” reminds the rule.

Now: CMS proposes that Part D plans have a RTBT available for beneficiaries by Jan. 1, 2022, the rule says.

“This tool fits into the current administration’s emphasis on transparency and information, although I think that the success of this tool in achieving those goals will depend on whether the seniors enrolled in Part D plans will be tech-savvy and motivated enough to access the full range of information in real time,” Wong says.

“The proposed January 1, 2022 timeframe for launching this tool is aggressive, and the information that may be shared in a real-time benefit tool could be confusing to patients unless carefully and accurately presented,” she cautions.

What Impact Will the MA Changes Have on FFS Providers?

Over the last few years, CMS has subtly promoted Medicare Advantage — and this has not necessarily been a positive for mainstream Medicare FFS providers, who may have trepidation about moving into the managed care realm. However, as more and more beneficiaries move toward MA, these practitioners may feel compelled to enter into contracts with MA plans to reach more patients.

“This administration has worked to make MA plans more appealing to consumers, and whether or not in direct response to these changes, enrollment in Medicare Advantage has reached all-time highs and continues to grow,” Wong points out.

MA plans are continually touted as cost-saving alternatives to traditional Medicare as well. “Value-based payments are very popular with the Trump Administration, so regular Medicare providers should expect more value-based proposals from CMS even with CMS’ increased focus on MA,” says Clement. For the time being, however, “regular Medicare is still very popular with beneficiaries,” she adds.

Risk factor: In the past, Medicare providers may have played it safe with FFS Medicare. But as MA enrollment continues to spike, clinicians may be willing to take on the added fiscal perils. “Many MA plans share risk with providers. Some providers have been reluctant to join the MA networks because of reluctance to take on risk,” explains Roosevelt. “However, the increase in the MA enrollment may force them to reconsider. Providers will need to become more efficient and coordinated care better to have a favorable experience with risk-sharing.”

Deadline: CMS will accept comments on the proposals until April 6 at 5 p.m. EST.

Resource: Review the proposed rule at www.govinfo.gov/content/pkg/FR-2020-02-18/pdf/2020-02085.pdf.