AHA Comments Re: CMS Proposed Rule for Policy and Technical Changes to Medicare Advantage Program in CY 2024

February 13, 2022

The Honorable Chiquita Brooks-LaSure
Administrator Centers for Medicare & Medicaid Services
7500 Security Blvd
Baltimore, MD 21244

Re: CMS 4201-P, Medicare Program; Contract Year 2024 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Program

Dear Administrator Brooks-LaSure:

On behalf of our nearly 5,000 member hospitals, health systems and other health care organizations and our clinician partners — including more than 270,000 affiliated physicians, two million nurses and other caregivers — and the 43,000 health care leaders who belong to our professional membership groups, the American Hospital Association (AHA) appreciates the opportunity to comment on the Centers for Medicare & Medicaid Services’ (CMS) proposed rule for policy and technical changes to the Medicare Advantage (MA) program in contract year 2024.

The proposed rule includes important protections for MA beneficiaries and clarifications for Medicare Advantage Organizations (MAOs) that will improve how coverage works for enrollees, promote more timely access to care, strengthen behavioral health provider networks, help patients understand their Medicare coverage options and reduce the administrative burden of health plan requirements on health care providers. The AHA strongly supports the proposed changes intended to strengthen consumer protections and oversight of MAOs, which are critical and urgently needed, and we encourage the agency to expeditiously finalize these important program updates. We also share CMS’ strong commitment to advancing health equity and improving access to behavioral health services, and thus support the proposals designed to better address social determinants of health, ensure culturally competent care and ensure MAOs maintain adequate behavioral health provider networks.

Hospitals and health systems nationwide are increasingly concerned about certain MAO policies that restrict or delay patient access to care, while adding cost and burden to the system. These include misuse of utilization management programs, inappropriate denial of medically necessary services that would be covered by Traditional Medicare, requirements for unreasonable levels of documentation to demonstrate clinical appropriateness, inadequate provider networks to ensure patient access and unilateral restrictions in health plan coverage in the middle of a contract year, among others. These practices harm the health of Medicare beneficiaries and are a major driver of health care worker burnout, while also adding billions of wasted dollars to the health care system.¹ In response to these persistent challenges, we commend CMS for its proposals designed to increase oversight and accountability of health plans and protect patients, and we urge these changes be finalized.

We especially appreciate CMS’ proposals and clarifications to align and ensure greater equity between Traditional Medicare and the MA program and to explicitly codify that MAOs cannot indiscriminately deny services that would have been covered under Traditional Medicare. We believe the proposed changes will go a long way in ensuring that Medicare beneficiaries have equal access to medically necessary care and consumer protections and that those enrolled in MA will not continue to be unfairly subjected to more restrictive rules and requirements.

While these proposals are all critical steps forward in advancing patient access and holding MAOs accountable for adhering to federal rules, we believe a heightened level of enforcement and oversight is needed to facilitate meaningful change. Accordingly, once finalized, we urge the agency to conduct rigorous oversight to enforce the policies and safeguards included in the rule and to ensure that appropriate action is taken in response to violations of CMS rules.

In the following sections we enumerate our support for the health plan oversight provisions included in the proposed rule, underscoring the importance of these changes for patients and providers and the need for deliberate enforcement. We also discuss several opportunities to expand oversight and strengthen key provisions and protections. Finally, we offer concerns regarding the proposed changes to the rules governing overpayments, and specifically, the elimination of the six-month investigation period that providers currently have to quantify overpayments before the obligation to repay is triggered. We urge the agency to not impose an unrealistically strict 60-day deadline on hospitals and health systems to return overpayments once they are on notice of an overpayment.

Finally, although we recognize that the proposed provisions are applicable to MAOs that contract for the 2024 calendar year, we encourage CMS to explore use of existing authority to mitigate negative impacts associated with the end of the COVID-19 public health emergency (PHE) on May 11th and the expiration of several key waiver flexibilities intended to alleviate capacity strains on hospitals. As hospitals and health systems prepare for a new post-PHE normal, while also weathering chronic and persistent workforce shortages, we believe these proposed health plan oversight provisions will be important in providing both short-term and long-term relief to the health care delivery system. In this context, we encourage the agency to expeditiously finalize the proposed rule and explore opportunities to provide immediate, short-term relief to coincide with the PHE expiration and unwinding.

Our comprehensive comments follow, along with an appendix of patient case examples (Appendix A), illustrating the impact of inappropriate delays and denials on MA beneficiaries and underscoring the need to finalize the proposed patient protections.

View the details below.