CMS Finalizes Necessary Changes to Medicare Advantage Organizations

The Centers for Medicare and Medicaid Services (CMS) finalized and published the Medicare Program; Contract Year (CY) 2024 Policy and Technical Changes to the Medicare Advantage (MA) Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly. Changes in the MA final rule began impacting Medicare beneficiaries in nursing homes on June 5, 2023.

A 2022 report (OEI-09-18-00260) by the U.S. Department of Health and Human Services’ Office of the Inspector General (OIG) captured issues long observed by leaders in the long-term care (LTC) industry. These issues include:

• Medicare Advantage Organization (MAO) case managers requiring skilled nursing facility (SNF) MDS coordinators to falsify the MDS assessment; and
• MAO case managers misinterpreting resident assessment instrument (RAI) manual guidelines to deny coding, assessment types, assessment reference dates (ARDs), completion dates, and submission dates.

The agency also recognized that findings from CMS’s annual audits of MAOs “highlighted widespread and persistent problems related to inappropriate denials of services and payment.” The OIG reviewed denials of prior authorization requests and payment denials from one week in June 2019 and determined “MAOs also denied payments to providers for some services that met both Medicare coverage rules and MAO billing rules.”

The MA final rule makes significant progress in addressing and correcting concerns identified in the OIG’s report. The final rule details constraints on MAOs designed to protect beneficiary access to care, align coverage more closely to traditional Medicare, and strengthen beneficiary protections related to MAO marketing.

MA Final Rule: Updates for Providers

1. MA plans must follow traditional Medicare coverage guidelines when making medical necessity determinations. When coverage criteria are not fully defined by traditional Medicare statute, regulation, national coverage determination (NCD), or local coverage determination (LCD), MAOs may create publicly accessible internal coverage criteria. This coverage criteria must be based on current evidence in widely used treatment guidelines or clinical literature.
2. MA plans will be required to post internal coverage criteria publicly. Further, MA plans will need to provide a public summary of the evidence considered during the development of the internal coverage criteria used to make medical necessity determinations.
3. MA plans must establish a utilization management committee, led by the medical director, to annually review all utilization management policies, including prior authorization. This review must ensure MAO policies are consistent with current coverage requirements, including traditional Medicare’s national and local coverage decisions and guidelines. The utilization review committee must ensure the MAO’s policies remain current with changing requirements and regulations. These changes will help ensure MA beneficiaries have consistent access to medically necessary care without unreasonable barriers or interruptions. This is qualitatively beneficial for enrollees and is not expected to have an economic impact on the Medicare trust fund.
4. Prior authorization policies for coordinated care plans may only be used to confirm the presence of diagnoses or other medical criteria, and/or ensure an item or service is medically necessary.
5. Approval granted through prior authorization processes must be valid for as long as medically necessary to avoid disruptions in care, in accordance with applicable coverage criteria, the beneficiary’s medical history, and the treating provider’s recommendation. When a beneficiary undergoing an active course of treatment enrolls in a new MA plan, the MAO must provide coverage for a minimum 90-day transition period. This is not expected to have an economic impact on the Medicare trust fund.

MA Final Rule: Changes for Beneficiary Protections and Improved MA Marketing

1. MAOs will be required to notify enrollees in writing annually of the ability to opt out of plan business contacts from their plan.
2. MA agents will be required to explain how the beneficiary’s enrollment choice will impact their current coverage.
3. MAOs will need to clarify that the contact is unsolicited unless an appointment at the beneficiary’s home was previously scheduled.
4. MAOs will be prohibited from marketing benefits in a service area where those benefits are not available.
5. Use of the Medicare name, logo, and Medicare card image in MAO marketing materials will be limited.
6. MAOs will be prohibited from using superlatives in marketing materials unless the material provides documentation to support the statement.

Closing Thoughts

Applauded by healthcare professionals nationwide, the MA final rule was acknowledged as a resounding win for providers. It will be easier for providers to accept beneficiaries waiting in the hospital for placement, provide clearer coverage guidelines for providers of all types, and entitle beneficiaries to a full episode of care without fear of interruption or termination of skilled services. Ultimately, providers should feel empowered to hold MAOs accountable to this new set of rules.

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