Enhanced protections for beneficiaries enrolled in Medicare Advantage (MA) health plans and Part D prescription drug plans have been proposed by CMS. The proposed rule would modify existing regulatory provisions and incorporate into regulations a number of requirements that CMS previously imposed through operational guidance.
Changes affecting MA program only
The proposed changes to the MA program include new regulatory provisions regarding special needs plans (SNPs) and medical savings accounts (MSA) plans. In order to ensure that existing and future SNPs maintain a primary focus on individuals with specials needs, the proposed rule would require: (1) 90 percent of new enrollees in SNPs be special needs individuals; (2) MA organizations to employ a CMS approved process to obtain information from a State verifying eligibility under Medicaid or special needs status prior to enrollment; (3) MA organizations to have a model of care plan specifying how the plan will coordinate and deliver care designed for special needs enrollees; (4) MA organizations offering SNPs to dual eligibles to have a documented relationship with the State Medicaid agency, including a means to verify dual eligibility, identify and share information on Medicaid provider participation, and identify Medicaid benefits not covered by Medicare; and (5) all MA organizations, including SNPs, with dual eligible enrollees to specify in their contracts with providers that enrollees will not be held liable for Part A and B cost-sharing when State Medicaid is liable for the cost-sharing.
To ensure that Medicare savings account (MSA) plans provide plan enrollees the information to compare specific service costs and compare providers based on cost and quality, the proposed rule would require MA organizations offering MSA plans to provide enrollee’s available information on the cost and quality of services in their service area.
Changes affecting Part D program only
The proposed changes to the Part D regulations include an exception to default auto-enrollment, clarification of the Part D plan’s role in determining the late enrollment penalty (LEP), a new timeline for providing a written explanation of benefits (EOB), the use of best available evidence (BAE) to determine low-income subsidy (LIS) eligibility status, and clarification of the change of ownership provisions. Specifically the proposed rule would: (1) establish a process by which full benefit dual eligible individuals known by CMS to be enrolled in a qualifying employer group plan would be deemed to decline Part D coverage if, after notice of their options, they do not indicate that they wish to receive it; (2) clarify a Part D plan’s role in determining the late enrollment penalty by requiring plans to obtain information on prior creditable coverage from all enrolled or enrolling beneficiaries; (3) require sponsors to provide an EOB no later than the end of the month following the month in which an enrollee uses his or her Part D benefits; (4) codify existing guidance by requiring that sponsors: (i) use best available evidence (BAE) to substantiate eligibility for reduction in premiums and cost-sharing, (ii) provide information to CMS on the amount of these reductions, (iii) track the application of the subsidies to the out-of-pocket threshold, and (iv) update the subsidy eligible individual’s LIS status in accordance with a process and timeframe established by CMS; and (5) clarify that prescription drug plan sponsors may not sell or transfer individual beneficiaries or groups of beneficiaries enrolled in any of their plan benefits packages.
Changes affecting both MA and Part D plans
The proposed changes that would affect both the MA and Part D plans include the amendment or expansion of the regulatory provisions governing automatic enrollment, involuntary disenrollment, reconsiderations, civil money penalties (CMPs), and marketing materials and marketing requirements. Specifically, the proposed changes would: (1) incorporate CMS’ current “passive” enrollment policy in both the MA and prescription drug plan regulations, authorizing plans to enrollee beneficiaries without action in situations involving immediate plan terminations or other situations in which CMS determines that remaining in a plan poses potential harm to the beneficiary ; (2) prohibit plans from disenrolling individuals for failure to pay premiums when the individual has requested premium withholding from their Social Security benefits or is already having premiums withheld; (3) change the MA regulations to permit an enrollee’s treating physician to request a standard plan reconsideration of a pre-service request without having been appointed by the enrollee as his or her representative; (4) Change the Part D regulations to allow non-physician prescribers (i.e., a nurse practitioner) to perform the same functions as physicians in the coverage determination and appeals process; and (5) clarify the regulations to allow CMS to impose a penalty of up to $25,000 for each enrollee directly adversely affected by a deficiency. This will make it clear that one action affecting numerous enrollees could result in CMPs levied for the adverse affect on each enrollee individually.
In addition, to ensure “fair marketing” practices and to ensure that beneficiaries receive the information necessary to make informed choices during the annual election period, CMS wants to amend and expand its MA and Part D marketing regulations. The CMS proposal would remove the marketing regulations in Subpart B, which provide the definitions of marketing materials and the requirements for approval of marketing materials and election forms, and include these regulations in a new Subpart V in 42 C.F.R. Part 422 and Part 423. Specifically, the new proposed marketing materials and marketing requirements would: (1) eliminate the “file and use” practice based on an organizations track record, and implement a uniform policy of applying the “file and use” policy to materials that either use model language or are identified by CMS as not containing content warranting review; (2) clarify that the prohibition on door-to-door solicitation includes other unsolicited instances of direct contact, such as outbound calling without the beneficiary initiating contact; (3) clarify that plans may not engage in sales activities, including the distribution or collection of plan applications, at educational events; and (4) limit any marketing appointment with a beneficiary involving health care related products to the scope agreed upon by the beneficiary, prohibit the cross-selling of any non-health care related product, limit the use of names and logos of co-branded network providers on plan membership and marketing materials, and limit the types and value of promotional items offered to potential enrollees and prohibit providing meals regardless of value.
New marketing rules governing the commission structure for brokers and agents and guidelines for agent training and testing would also be required under the proposed rule. MA organizations and Part D sponsors would be required to adopt a commission structure in which the commission to an agent in the first year does not exceed the commission the agent would receive for servicing the policy in all subsequent years, and the commission is the same for all plans and all plan product types offered by the organization’s or sponsor’s parent. Proposed guidelines for agent training and testing would require organizations and sponsors to: (1) train and test all agents on Medicare rules, regulations, compliance, and the plans they sell; (2) provide CMS with the information CMS deems necessary to conduct marketing oversight; and (3) comply with State requests for information about the performance of State licensed agents.
Source: CCH Chicago Bureau, May 16, 2008.
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