AHA Comments on CMS’ Proposed Medicare Advantage Policies for 2025

January 5, 2024 

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

Re: CMS 4205-P, Medicare Program; Contract Year 2025 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program and Programs of All-Inclusive Care for the Elderly; Health Information Technology Standards and Implementation Specifications 

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 (CY) 2025. 

INCREASED DATA COLLECTION AND REPORTING FOR PARTS C AND D 

In the proposed rule, CMS affirms its authority to collect detailed information from MA plans under current regulations and proposes to lay the groundwork for new data collection to be established through the Paperwork Reduction Act process, which includes advance notice and public comment periods. We strongly support additional data collection and reporting on plan performance metrics that are meaningful indicators of patient access, including the specific examples CMS provides in the preamble, such as service level data for all initial coverage decisions and plan level appeals; decision rationales for items, services or diagnosis codes; and other possible data to provide CMS greater transparency on MA plan utilization management and prior authorization practices. The AHA has consistently advocated for greater data collection and reporting on plan-level coverage denials, appeals and grievances, as well as delays in care resulting from plan administrative processes, and believes additional data collection in these areas is critical to inform CMS oversight and enforcement activities. Our more detailed recommendations on data collection and reporting are summarized in the subsequent section on enforcement activities below. With this in mind, the AHA strongly supports CMS’ direction with respect to augmenting data collection, reporting and transparency in the Part C program and looks forward to engaging on future rulemaking on this topic. 

ENROLLEES’ RIGHT TO APPEAL AN MA PLAN DECISION TO TERMINATE COVERAGE FOR NON-HOSPITAL PROVIDER SERVICES (§ 422.6) 

CMS is proposing to align the appeal rights of MA beneficiaries more closely with the rights afforded to Traditional Medicare beneficiaries when coverage is being terminated for home health agency (HHA), skilled nursing facility (SNF) and comprehensive outpatient rehabilitation facility (CORF) care. AHA strongly supports these proposed revisions and encourages CMS to finalize them. 

Traditional Medicare and MA enrollees both have expedited, or fast track, appeal options if the patient disagrees with a determination that services are no longer needed. Under both MA and Traditional Medicare, beneficiaries maintain the right to have their timely appeal of termination of HHA, SNF or CORF services heard by a Quality Improvement Organization (QIO).1 In Traditional Medicare, even if the appeal is not filed in a timely manner, the QIO must still review and issue a decision on the appeal. However, in MA, if the beneficiary fails to meet the required deadline for appeal to the QIO, the untimely appeal is then heard by the MA plan rather than the QIO. In addition, under MA, if the beneficiary leaves the facility or otherwise ends services, they forfeit their right to appeal. 

CMS has proposed to modify its regulations so that untimely appeals by MA beneficiaries (those which miss the appeal deadline) would now be heard by the QIO, instead of the MA plan, consistent with the procedure under Traditional Medicare. In addition, CMS is proposing to eliminate the clause that forfeits the ability of an MA beneficiary to have an appeal heard if they leave the facility or otherwise terminate services. 

AHA applauds CMS for this proposal to align MA and Traditional Medicare appeal rights more closely and ensure appropriate access to care for MA beneficiaries. AHA, alongside a chorus of other stakeholders and government agencies, has urged CMS in recent years to address disparities in access to care for MA beneficiaries, including post-acute care services. The CY 2024 MA final rule took important steps to address many of these issues, and we believe creating uniformity in appeal rights for Medicare beneficiaries when HHA, SNF or CORF services are terminated would be a further beneficial step in creating parity between MA and Traditional Medicare as well as ensuring appropriate consumer protections. 

In addition, we support CMS’ provision to eliminate current rules that require automatic forfeiture of appeal rights for MA enrollees upon leaving a facility or ending services. There are many complicated steps involved in fighting an inappropriate termination of services, and patients can be faced with an unknown financial liability if their insurer refuses to pay for their care, prompting some patients to leave a facility or otherwise discontinue services before they are medically ready. This is an impossible situation for many patients and families when their medical team has indicated it is not safe for the patient to be discharged home yet (or home without HHA services), but the patient’s insurer has indicated they will not continue paying for covered services in a facility or provide support at home through an HHA. Patients should not be penalized in these circumstances and should maintain access to their full set of appeal rights whether they opted to remain or not in a post-acute care facility when faced with a coverage termination notice from their insurer. This is especially important given reports from the U.S. Department of Health and Human Services Office of Inspector General (HHS OIG) highlighting “high overturn rates of appealed denials, and widespread and persistent CMS audit findings about inappropriate denials, [which] raise concerns that some Medicare Advantage beneficiaries and providers were denied services and payments that should have been provided.”² Accordingly, we strongly support CMS’ proposed updates to strengthen member appeal rights and ensure that patients do not forfeit certain rights in the wake of an insurer termination of services.

Lastly, we encourage CMS to consider applying the same protections and appeal rights described above more broadly than HHA, SNF and CORFs, and extend these protections to hospital provider types including short-term acute, inpatient rehabilitation and long-term care hospitals. The same rationale for the above provisions for non-hospital providers also applies for appeals of inpatient hospital services. Specifically, both Traditional Medicare and MA beneficiaries have a right to appeal to a QIO when a hospital or MA plan, respectively, determine that inpatient hospital care is no longer necessary.3 However, while a Traditional Medicare beneficiary can have a QIO review an untimely appeal, an MA beneficiary who has their hospital services terminated by the MA plan can only have the untimely appeal heard by the MA plan.4,5 This is the specific issue that CMS seeks to correct in creating parity in appeal rights between Traditional Medicare and MA for SNF, HHA and CORF services, and we believe the same rationale would apply to inpatient hospital services, including short-term acute, inpatient rehabilitation and long-term care hospital care. Therefore, AHA encourages CMS to take an analogous step for appealing terminations of inpatient hospital services to ensure MA beneficiaries have the same appeal rights as Traditional Medicare beneficiaries where coverage of inpatient hospital care is terminated by an MA plan. Specifically, AHA recommends that CMS modify its regulations to ensure that QIOs also review untimely appeals of MA notices of termination of coverage of inpatient hospital services.

IMPROVING ACCESS TO BEHAVIORAL HEALTH CARE PROVIDERS 

The AHA applauds CMS’ attention to gaps in access to behavioral health services, including its consideration of more rigorous network adequacy standards as one tool to improve MA patients’ access to these critical services. Coupled with other efforts — notably those to increase the behavioral health workforce — stronger network adequacy standards likely will reduce the volume of delays and denials for behavioral health care coverage under MA. 

We support CMS’ proposal to add a range of behavioral health providers under a category of “Outpatient Behavioral Health” as a facility specialty for which CMS sets MA plan network adequacy standards. Specifically, this proposal would include marriage and family therapists (MFTs), mental health counselors (MHCs), Opioid Treatment Program providers, Community Mental Health Centers, addiction medicine physicians, and others who furnish addiction medicine and behavioral health counseling or therapy as specialty types for which there are specific minimum network standards. These would be in addition to the current requirements to demonstrate adequate contracts with psychiatry and inpatient psychiatric facilities. This proposal is consistent with other recent rulemaking, specifically the calendar year 2024 Physician Fee Schedule final rule and FY 2024 Outpatient Prospective Payment System final rule, which establish new coverage and payment provisions for MFTs and MHCs. Further, in the CY 2024 final rule on Policy and Technical Changes to the MA Plan Program, CMS added clinical psychologists, licensed clinical social workers and prescribers of medication for opioid use disorder to the types of practitioners to be included in network adequacy standards. Behavioral health care services involve a wide continuum of providers, facilities and settings that cannot necessarily be substituted one for the other and sufficiently meet patient and community needs. Hence, these proposals would, if finalized, help ensure access to a more comprehensive spectrum of medically necessary behavioral health care and provide CMS with more detailed information to evaluate whether MA plans are meeting the precise needs of their beneficiaries.

The AHA urges caution, however, with the agency’s proposal for the additional facility specialty to be eligible to count as part of the 10% “credit” towards meeting time and distance standards when offering telehealth services. CMS should apply similar capacity standards to telehealth providers as is done with in-person providers — that is, to consider a provider to be part of the network, that provider must be accepting new patients and offer specified services within a certain number of days. Without caution, this credit method runs the risk of allowing issuers to dilute their market with virtual providers who may not actually have the ability to take on patients while simultaneously reducing their in-person footprint.

Finally, we recognize the substantial challenge these proposals may pose to plans given the inadequate nature of the behavioral health workforce. In some communities, plans may not be able to meet these heightened standards in 2025. While we believe it is still important to finalize these proposals, as we expect they will contribute to a more favorable environment for behavioral health care providers to participate in plan networks, we urge CMS to develop mechanisms to waive or otherwise make exceptions to these rules in markets where plans acting in good faith still cannot contract with the full spectrum of providers. 

UTILIZATION MANAGEMENT COMMITTEES AND HEALTH EQUITY ANALYSIS 

CMS proposes to require MA plans to conduct an annual health equity analysis of utilization management (UM) policies through the newly established UM committees, which were created by the CY 2024 MA final rule. The UM committees are internal committees convened by health plans that are responsible for reviewing annually all utilization management policies, including prior authorization, and ensuring policies and procedures are consistent with Medicare coverage requirements. Specifically, the proposed rule would require MA UM committees to: (1) have a committee member with expertise in health equity, (2) conduct an annual health equity analysis of prior authorization policies and procedures used by the plan, and (3) make the results of the analysis publicly available on their website. 

The AHA supports CMS’ efforts to ensure that MA plans meet the access needs of underserved populations, who may be disproportionately impacted by prior authorization policies that have the potential to create additional barriers to care. Half of all Medicare-eligible beneficiaries are now receiving coverage through an MA plan, and enrollees from historically marginalized communities account for a disproportionate share of overall MA enrollment. According to a 2023 Kaiser Family Foundation analysis, “Medicare Advantage enrollees were more likely to be Black or Hispanic, have incomes below $20,000 per person, live in urban areas, and have lower levels of education” than those in Traditional Medicare.6 With this in mind, it is especially critical to ensure that UM programs and other MA plan business practices do not create barriers for patients that could contribute to inequities in access to care or health outcomes. At the same time, we recognize that an analysis of UM practices alone may not be sufficient to identify gaps in health equity due to unmet need, and we encourage CMS to continue advancing broader policy efforts to advance health equity goals. We also encourage CMS to take additional steps to strengthen the role of the UM committees and conduct sufficient oversight to ensure meaningful review of policies with active engagement from contracted providers. Our specific recommendations include:

• Expanding the duties of the UM committees to include oversight of all internal coverage criteria used by the MA plan in addition to UM policies.
• Requiring that applicable UM policies and procedures are developed in consultation with contracted providers, including requiring a seat on the UM committee be filled by a clinician from a contracted provider organization.
• Requiring that the UM committee include representation from specific types of providers with expertise in relevant medical disciplines with a history of inappropriate denials, such as behavioral health and rehabilitation services.
• Requiring that the UM committee solicit input from enrollees, including enrollees from historically marginalized communities, on the development of UM policies and their impact on patient access to care.
• Requiring that the UM committee have an active and ongoing role throughout the year as opposed to only reviewing policies on an annual basis.
• Mandating that UM committee reports and findings be publicly available, or at a minimum, available upon request to enrollees and contracted providers.
• Conducting regular audits of UM committee activities, such as quarterly or bi-annual reviews, to ensure that plan policies are clinically valid and adequately reviewed with appropriate oversight. CMS may also want to consider the effects of UM committee findings or deliberations on the rate and validity of organizational determinations to determine if the presence of a UM committee is improving patient access to care as intended. 

DATA INTEGRITY FOR APPEAL MEASURES AND STAR RATING CALCULATION 

The AHA appreciates the agency’s proposals to ensure the completeness and accuracy of complaint and appeals data reported to CMS contractors and used in the calculation of MA plan star ratings. Specifically, CMS proposes to ensure that MA plans are adequately sending all partially favorable or unfavorable reconsideration data to Independent Review Entities (IREs), in accordance with Part C appeals protocol and corresponding star ratings metrics. The rule would require that plans failing to submit complete and total data to the IRE automatically receive a 1-star rating for measures scoring the MA plan’s timely review and consideration of appeals. The AHA strongly supports this proposal, which would help to make certain that CMS has the information necessary to ensure that plans are appropriately considering appeals and that MA enrollees receive timely and appropriate access to medically necessary services under the Medicare program.

AHA members have reported concerns with how certain MA plans handle member appeals in a manner that appears designed to shield denials from IRE review and CMS oversight, which underscores the importance of the proposed provisions for consumer protection and insurer accountability. For example, members have shared examples with us of several large national MA plans unilaterally deeming member appeals invalid or converting medical necessity appeals filed on behalf of patients into provider disputes, thereby circumventing plan obligations to report these appeals to CMS and blocking IRE access to essential data on plan appeals that impact the calculation of plan star ratings.

Additionally, certain MA plans are consistently failing to issue the required Notice of Dismissal to parties requesting reconsideration, despite clear CMS rules requiring them to do so. Instead, a plan unilaterally determining that an appeal is invalid or converting a member appeal to a provider dispute evades public reporting requirements, making member appeals invisible to CMS and its contractors — and ensuring a subset of member appeals do not count against a plan for the purpose of its star rating calculation. This inappropriately skews MA plan star ratings on appeals measures, which we believe leads to most of the largest national plans receiving star ratings scores of 97-100%, despite potential inaccuracies or omissions in the data being used to calculate these measures. More importantly, these plan processes collectively deprive MA enrollees from exercising the regulatory protections available to them under federal rules, which are designed to ensure access to medically necessary care and equity with services that would be covered under Traditional Medicare. As a result, the AHA urges CMS to finalize these proposed revisions and encourages the agency to monitor plan compliance with the reporting of appeals measures to ensure accurate reporting and calculation of star ratings for these important measures.
 

NEW GUARDRAILS FOR PLAN COMPENSATION TO AGENTS AND BROKERS

CMS proposes new guardrails for plan compensation to agents and brokers in response to the agency’s concerns about consumers being steered to plans that may benefit an agent or broker financially but may not be the best option to meet the beneficiary’s coverage needs. We strongly support CMS’ efforts to advance consumer protections and ensure that seniors have access to accurate and complete information about their Medicare options to enable informed decision-making about coverage.

Hospitals and health systems nationwide regularly encounter Medicare beneficiaries who do not understand their coverage or benefits or who may have been enrolled in an MA plan without fully appreciating their options or the potential implications of opting out of Traditional Medicare coverage. We also have heard from some members that they occasionally work with patients who report being unaware that their coverage was switched from Traditional Medicare to coverage through a private MA plan and believe this was done without their consent.

With this in mind, we fully agree that more oversight is needed during the plan selection and enrollment process to ensure prospective Medicare beneficiaries are receiving accurate and comprehensive information about their Medicare coverage options. Seniors should be able to trust that information or counseling provided to them about plan options is not perversely linked to financial incentives or bonus structures. The proposed provisions to standardize compensation structures and prohibit commission or volume-based payment incentives that may result in efforts to improperly sway enrollment are an important step forward to protect consumers.

View the detailed letter below.