CMS Focuses On Provider Steering Of Medicare- And Medicaid-Eligible People To Marketplaces

Aetna’s August 15 announcement that is reducing its marketplace participation from 778 to 242 counties has further focused attention on the need to stabilize marketplace risk pools. The Centers for Medicare and Medicaid Services (CMS) have already taken a number of steps toward this end this year, such as tightening up special enrollment periods, improving data matching procedures, and proposing regulatory changes to discourage the sale of short-term or fixed indemnity policies, which siphon off healthy individuals from ACA-compliant comprehensive coverage.

On August 18, CMS took a further step, addressing a concern expressed by insurers that providers and provider-affiliated organizations are steering people eligible for Medicare and/or Medicaid coverage to individual marketplace plans to obtain higher provider payment rates. CMS issued a “request for information,” asking for comments on the extent and nature of this practice and on what can or should be done about it. CMS also sent letters to all Medicare-enrolled dialysis facilities expressing the concerns found in the information request.

Background

Individuals who are eligible for Medicare or Medicaid are not required to enroll in these programs (although individuals eligible for Medicare Part A institutional care benefits must enroll in Part A if they receive Social Security). Medicare- or Medicaid-eligible individuals are, however, generally ineligible for marketplace premium tax credits or cost-sharing reduction payments and insurers may not knowingly enroll in individual coverage a person known to be eligible for Medicare Part A or enrolled in Medicare Part B or Medicaid.

CMS is concerned that health care providers are nonetheless steering individuals eligible for Medicare or Medicaid coverage to individual market coverage by paying their premiums or waiving cost-sharing. The payment rates offered by private plans are allegedly sufficiently higher than Medicare or Medicaid rates that providers can cover enrollees premiums and waive cost-sharing obligations and still do better than they could relying on Medicare or Medicaid payment. Insurers believe, however, that the effect of this behavior is to introduce very high-cost enrollees into the individual market risk pool, raising claims costs for insurers and ultimately premium rates for other enrollees. Indeed, United sued a dialysis provider in federal court in early July challenging this practice.

Individuals may prefer to enroll in private plans rather than in Medicare or Medicaid to gain access to broader provider networks and drug formularies and to benefits that they may not receive under Medicare. Private foundation assistance to purchase private coverage for patients with serious medical conditions long antedates the marketplaces. CMS is concerned, however, that individuals who are steered inappropriately to private plans may experience a disruption in care, be required to repay advance premium tax credits (APTC) that they receive but are not eligible for, or be subject to late enrollment penalties if they delay enrollment in Part B after they become eligible. Individuals who are steered into an individual plan for renal dialysis services and have a kidney transplant while enrolled in the plan will not be eligible for Part B coverage for immunosuppressant drugs if they enroll in Medicare later.

Federal law does not generally prohibit third party payment for premiums or cost-sharing. Regulations and guidance issued earlier by CMS require insurers to accept third party payments from Ryan White HIV/AIDS programs; Indian tribes, tribal organizations, and urban Indian organizations; and local, state, or federal government programs or their grantees. Insurers are not required to accept third party payments from other parties, however, including providers or provider-affiliated organizations, and many do not accept them.

The Request For Information

The August 18 request for information poses a number of questions about provider payments for individual market premiums and cost sharing. Specifically, it seeks information regarding:

• The extent to which providers and provider-affiliated organizations are in fact involved in steering enrollees to individual market plans;
• The impact this practice is having on the individual market risk pool and on rates in the individual market;
• In what ways individuals eligible for Medicare and Medicaid are vulnerable to steering practices and whether providers that are excluded from Medicare or terminated from Medicaid steering their patients to the individual market;
• Whether providers are in fact paying premiums or waiving cost-sharing to steer patients to individual market plans and whether insurers can tell when this is happening;
• How enrollees are adversely affected by steering practices when they were previously or concurrently enrolled in Medicare or Medicaid;
• How enrollees are affected by steering when individuals who are eligible for Medicare or Medicaid delay enrollment because they have been steered to the individual market, and how can these effects can be measured;
• What remedies could deter steering by providers or provider-affiliated organizations;
• What steps entities that provide premium assistance take to screen individuals for Medicare or Medicaid eligibility and to help those individuals understand the potential effects of their enrolling in private coverage;
• How providers interact with individuals to determine proper enrollment, to pay their premiums, or to connect them with foundations for assistance;
• What policies CMS could pursue to prohibit providers from offering assistance or waiving cost-sharing to steer patients to individual market plans;
• How Medicare or Medicaid provider enrollment requirements or conditions of participation could be changed to discourage steering;
• Whether steering associated with other inappropriate behavior or quality of care concerns;
• Whether Medicare or Medicaid should require providers to report premium assistance or cost-sharing waivers;
• Whether individual market insurers have considered limiting their payments to health care providers to Medicare-based amounts for particular items or services to discourage steering;
• Whether individual market insurers should be allowed to make retroactive payment adjustments when providers are found to have steered Medicare or Medicaid beneficiaries to enroll in individual market plans.

Looking Forward

CMS is not at this time proposing to take specific actions in response to steering practices. The agency does note, however, that it can revise provider conditions of participation and enrollment rules and can also impose civil penalties on individuals who provide false information to the marketplaces when enrolling. CMS states that it is working with law enforcement authorities and private plans to investigate possible fraud and abuse and is considering using existing authorities to impose penalties on providers whose steering of enrollees results in late enrollment penalties.

The tone of the request strongly suggests that CMS disapproves of these practices and may take further action in the near future to discourage them. Indeed, the request for information is so strongly and negatively worded that it, together with the letters sent to dialysis facilities, is likely to have a distinct deterrent effect regardless of any further actions that CMS takes.

from Health Affairs BlogHealth Affairs Blog http://ift.tt/2bPDWb3