AHA RFI Response to CMS on Medicare Advantage Data and Oversight

May 29, 2024

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

Re: CMS 4207-NC, Medicare Program; Request for Information on Medicare Advantage Data

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 provide comments in response to the Centers for Medicare & Medicaid Services’ (CMS) Request for Information (RFI) regarding Medicare Advantage (MA) data.

The AHA appreciates CMS’ interest in improving MA data capabilities and increasing transparency and oversight of the program as it continues to grow. We applaud the agency’s recent rulemaking designed to improve consumer and beneficiary protections for MA enrollees and believe efforts to increase data collection, reporting and transparency in the program will further advance these important aims. Indeed, as enrollment in the MA program has for the first time reached more than half of all people enrolled in Medicare, it is more important than ever to establish and implement stronger data-driven oversight capabilities. Timely and accurate information on MA plan performance and compliance with existing CMS regulations is critical to ensuring that those enrolled in MA plans are not unfairly subjected to more restrictive rules and requirements than Traditional Medicare, which are contrary to the intent of the MA program and run afoul of federal rules.

The AHA has written extensively to CMS and other federal agencies in recent years, including in our response to CMS’ August 2022 RFI, articulating serious concerns about the negative effects of certain Medicare Advantage Organization (MAO) practices and policies. These include abuse of utilization management programs, inappropriate denial of medically necessary services that would be covered by Traditional Medicare, use of overly restrictive proprietary medical necessity criteria that are not transparent to patients or providers, requirements for unreasonable levels of documentation to demonstrate clinical appropriateness, inadequate provider networks to ensure patient access and unilateral restrictions in health plan coverage applied in the middle of a plan year, among others. These practices unequivocally impede patient access to health care services, create inequities in coverage between Medicare beneficiaries enrolled in MA versus those enrolled in Traditional Medicare, and in some cases directly harm Medicare beneficiaries through unnecessary delays in care or outright denial of covered services. They also add billions of wasted dollars to the health care system and are a major driver of health care worker burnout.¹

Since the August 2022 RFI, CMS has taken important steps to advance and finalize critical rulemaking to address some of these issues, increasing oversight of MA plans and seeking to better align coverage offered by MA plans with Traditional Medicare. We applaud the important beneficiary protections included in the CY 2024 MA final rule, which went into effect in January, and subsequent frequently asked questions (FAQ) guidance issued in February 2024; however, it is clear that more robust enforcement and transparency is needed to ensure compliance with these important coverage protections. Hospitals and health systems across the country continue to report non-compliance with the new rules, including failure to adhere to the two-midnight benchmark, application of more restrictive criteria than Traditional Medicare and medical necessity denials for services that received prior authorization, among others. More troubling, health care providers have limited mechanisms to seek resolution of these violations and are routinely referred back to the plan to address them through contractual dispute resolution mechanisms — even when the issue at hand is a violation of federal law or regulation.

In response, the AHA continues to urge CMS to increase enforcement of existing MA regulations to protect Medicare beneficiaries from inappropriate delays and denials of Medicare-covered services. We believe data collection and reporting on plan performance metrics that are meaningful indicators of patient access are a critical component of an effective enforcement strategy and strongly support CMS efforts to require MA plans to submit additional information necessary to conduct appropriate oversight. This should include public and transparent reporting on plan-level coverage denials, appeals and grievances — along with decision rationales — as well as information on delays in care resulting from plan administrative processes.

Along these lines, we appreciate provisions included in CMS’ recent final CY 2025 rule, which lay the groundwork for requiring such important information to be collected to improve program oversight and transparency, including service-level data for all initial coverage decisions and plan level appeals; decision rationales for items, services or diagnoses; and greater transparency on MA plan utilization management and prior authorization procedures. We strongly support data collection in the aforementioned areas CMS has identified and look forward to engaging with the agency on related future rulemaking. Proactive, rigorous and data-driven enforcement is imperative to address persistent problems plaguing the MA program and impeding patient access to care.

In evaluating potential or new data collection and reporting requirements for the MA program, we recommend CMS consider the following:

• Administrative Simplification: New data collection and reporting requirements should be designed to minimize the administrative burden on the health care delivery system and stakeholders.
• Data Utility: CMS should propose a specific plan for how any data it plans to collect will be used, including how certain measures are intended to drive additional program oversight or improvements.
• Public Transparency: Data collection and reporting on the MA program should be made publicly available to increase transparency of the MA program for patients, providers, beneficiary advocates and other stakeholders, and should lend appropriate consideration to preventing disclosure of proprietary information where possible.

Additionally, we urge CMS to consider the unique ways that integrated delivery systems collect and maintain data. The data collected and maintained by integrated delivery systems and other integrated payer-provider organizations may be structured differently from traditional health insurance carriers and thus may require additional information to ensure correct interpretation. For example, integrated health systems may structure prior authorization processes differently from traditional insurers or may have more complete clinical data from providers due to having access to the electronic medical record, which may present nuances in how data from integrated health systems are reported or the extent to which they can be compared to other plans. Any new reporting requirements should accommodate such structural differences for integrated health plans.

Our specific concerns and recommendations around enforcement of CMS rules, gaps in compliance, and data or policy changes needed to conduct appropriate oversight are enumerated in the following sections. In addition, we provide further commentary and recommendations on other aspects of the MA program where additional data or analysis may be needed, such as oversight of prior authorization, access to post-acute care services, vertical integration of insurers, artificial intelligence, timeliness of insurer payment for covered services, and appeals procedures. We also raise special considerations for rural and critical access hospitals that are uniquely affected by the growing MA penetration in rural areas. Finally, we discuss implications for the continued rapid growth in the MA program and how it may affect Traditional Medicare, as well as considerations for the future structure and sustainability of the Medicare program.

We thank you for the opportunity to comment on these important topics. Please contact me if you have any questions, or feel free to have a member of your team contact Michelle Kielty Millerick, AHA’s director for health insurance and coverage policy, at mmillerick@aha.org.

Sincerely,

/s/

Ashley B. Thompson
Senior Vice President
Public Policy Analysis and Development

Detailed Comments on the CMS Medicare Advantage Request for Information

Contents

Enforcement and compliance with existing MA program rules

• Data collection and reporting on plan performance
• Routine auditing
• Pathways to report suspected violations
• Enforcement penalties

Areas of opportunity for additional scrutiny

• Two-midnight benchmark
• Use of internal coverage criteria
• Standards for public accessibility, high-quality evidence and clinical benefit
• Retrospective medical necessity denials for services with authorization
• Relevant medical expertise of clinical reviewers
• Sepsis denials
• Clinical validation audits

Prior authorization

• Inclusion of drugs covered under the medical benefit
• Reducing turnaround time for prior authorization requests
• Enforcement

Access to post-acute care services

• MA plan compliance with CMS requirements for post-acute care
• Network adequacy for post-acute care providers

Vertical integration of insurers

• Medical loss ratios and vertical integration in the health care market

Insurer use of artificial intelligence tools in the MA program

Timeliness of insurer payment

Appeals procedures

Implications of increasing Medicare Advantage enrollment 

• Medicare quality measurement programs
• Prospective payment system accuracy and stability
• Payment adequacy
• Alternative payment models

Download the complete letter and detailed comments on the CMS Medicare Advantage Request for Information.

1. Addressing Health Worker Burnout: The U.S. Surgeon General’s Advisory on Building a Thriving Health Workforce. 2022. https://www.hhs.gov/sites/default/files/health-worker-wellbeing-advisory.pdf