CMS rolls back beneficiary protection in the name of reducing “MA plan burden” and making things “easy to read” for eligible beneficiaries
The
most urgent and frequent type of call we receive at the Center for Medicare
Advocacy is from a Medicare beneficiary who is told that the health services
they are currently receiving are about to end and coverage will therefore
terminate. These are typically crisis situations for people who often have no
alternative care and can’t afford to pay for continued care out of pocket. When
a hospital, skilled nursing facility, home health, comprehensive outpatient
rehabilitation facility, or hospice provider decides that Medicare will no
longer cover services being provided to a beneficiary, in both traditional
Medicare and Medicare Advantage (MA), a notice must be issued informing the
beneficiary of their right to an Expedited Appeal, (also called “fast appeal”).
Access
to information regarding a plan sponsor’s number and outcome of expedited
appeals is critical information to have before enrolling in a Medicare
Advantage plan. One could use this information to evaluate and compare Medicare
Advantage plan performance and specifically how they treat their members who
are receiving covered care in various settings. In fact when we speak to a
Medicare beneficiary who is considering enrolling in an MA plan we often advise
them to request information regarding appeals to fully evaluate the plan. If,
for example, a Medicare Advantage plan reports a high number of expedited
appeals and denials per case one might seriously consider not enrolling in that
Medicare Advantage plan.
Currently,
Medicare Advantage plans are required to disclose grievances and appeals
information regarding the number of disputes and their disposition to any MA
plan eligible individual who requests this information.[1] The language in both the Social Security
Act and the Medicare regulations is clear and unambiguous. MA plans must
report all appeals. Both the Social Security Act and the Medicare
regulations specifically require that upon request of a MA eligible individual,
a MA plan must provide to the individual information on the number of
grievances, redeterminations, and appeals and on the disposition in the
aggregate of such matters.[2]
The regulations specifically refer to “Appeals according to §422.578 et. seq.”[3] This includes
expedited and second level appeals.
On
September 24, 2020 the Director of the Medicare Enrollment & Appeals Group
from the Centers for Medicare and Medicaid Services (CMS) issued a memorandum
to plan sponsors regarding “Revised Appeal and Grievance Data Form, Form CMS-R-0282”
that outlined changes to the Appeal and Grievance Data Form. The changes were
made “[i]n an effort to identify opportunities to reduce MA plan burden and
provide a simplified, easy to read report to MA plan eligible
individuals…” (emphasis added). The revised data form specifically
removed the following data elements:
- Expedited appeals
- Disposition of expedited appeals
- IRE (level 2) appeals
- Disposition of IRE (level 2) appeals
- Withdrawals
In
an era of regulatory rollback and general deference to private plans, and
likely some pressure from the MA industry, in essence, CMS decided that it is
o.k. for MA plans to not fully comply with the clear reading of the Social
Security Act and the Medicare regulations by not having to report information
about expedited or second level appeals. CMS expressly states in the
revised Form Instructions CMS-R-0282 that the MA plan will meet the disclosure
requirements set forth in the regulations using the revised form.[4] However, clearly
missing from the revised form is data regarding expedited and second level
appeals which is included in the disclosure requirements of the MA
regulations.
CMS
touts these changes as reducing “MA plan burden” and creating an “easy to read
report” for MA eligible individuals as though it’s a win-win situation for
everyone. Clearly the Medicare beneficiary comes out on the losing end
because they have been stripped of a very important protection – the ability to
fully evaluate an MA plan before enrollment. In general, it is becoming more
difficult to obtain accurate information about MA plans. For example, CMS
continues to paint MA plans in a light most favorable, including downplaying
any drawbacks, as discussed in a recent Center Alert concerning the 2021 Medicare & You handbook,
and the Medicare Payment Advisory Commission (MedPAC) has called into question the accuracy of plan
quality ratings, one of the primary tools that consumers have to compare plans.
More
specifically, information about how a given plan handles appeals is critically
important to determine access to care. The use of prior authorization for items
and services – by virtually all MA plans, as noted by the Kaiser Family Foundation - often serves as a
barrier to accessing care and often the trigger for filing an appeal.
However, a 2018 Dept. of Health and Human Services Office of Inspector General
(OIG) report found “‘widespread and persistent
problems related to denials of care and payment in Medicare Advantage’ plans”.
The report’s findings included: when beneficiaries and providers appealed
preauthorization and payment denials, MA plans “overturned 75 percent of their
own denials”; however, OIG found that “beneficiaries and providers appealed
only 1 percent of denials to the first level of appeal.” In short, the public
needs more – not less – information about MA appeals.
CMS
does not have the authority to allow plans and providers to only partially
comply with the Social Security Act and regulations. CMS should immediately
rescind this memorandum, uphold the Social Security Act and Medicare
regulations, and require that all MA plans fully comply with the law. As more
people enroll in MA plans CMS should be more concerned with beneficiary
protections and less concerned with burdens to major insurance companies that
include MA plans.
___________________
[1] §1852(c)(2)(C) of
the Social Security Act and 42 C.F.R. §422.111(c)(3).
[2] Id.
[3] See 42 C.F.R.
Subpart M – Grievances, Organization Determinations and Appeals.
[4] https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/downloads/AppGrievDataFormINS.pdf.
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