CMS Issues Proposed Rule on Releasing Medicare Part C and Part D Data and New Medicare Advantage Provider Network Requirements

Under a recently proposed rule, the Centers for Medicare & Medicaid Services (CMS) would release on an annual basis data that Medicare Advantage (MA) organizations and Part D sponsors have typically considered to be proprietary and confidential.¹ The proposed rule would also limit MA organizations to contracting with providers and suppliers that are enrolled in Medicare. This new network requirement could adversely affect some MA organizations’ ability to meet CMS network adequacy requirements. CMS solicits comments on several topics related to the proposed rule. Comments are due September 6, 2016.

Proposed Release of MA Bid Data and MA and Part D Medical Loss Ratio Data

CMS proposes to release to the public MA bid and Part C and Part D medical loss ratio (MLR) data on a specific schedule and subject to certain exclusions. By releasing this information on an annual basis, CMS seeks to “avoid repeating [Freedom of Information Act] analyses and reviews of each request [and] to standardize the disclosure and the procedures for disclosure” and to further goals related to the MA and Part D programs.² According to CMS, releasing the data would promote accountability in the MA and Part D programs, by making MLR information publicly available for use by beneficiaries who are making enrollment choices and by allowing the public to see “whether and how privately-operated MA and Part D plans administer Medicare—and supplemental—benefits in an effective and efficient manner.”³

MA Bid Submission and Pricing Data

CMS proposes to release “MA bid pricing data.” In operational terms, CMS would release all plan-specific data fields in the MA bid pricing tool (BPT). Under the proposed rule, MA bid pricing data also includes: the estimated revenue required by an MA plan for providing original Medicare benefits and mandatory supplemental benefits; the plan pricing of enrollee cost-sharing for original Medicare benefits and mandatory supplemental benefits; actuarial bases for bid amounts; projected enrollment and the beneficiary rebate.

CMS would release MA bid pricing data for bids that were accepted and approved by CMS for a contract year that is five years prior to the upcoming year. According to CMS, five years is an appropriate length of time for the MA bid pricing data to no longer be competitively sensitive.

MA bid pricing data would be released on an annual basis after the first Monday in October. CMS declined to commit to a specific date for the annual release, but indicated that it would provide details on each year’s release schedule through sub-regulatory communications.

The following data would be excluded from the release of MA bid pricing data:

• Part D bid pricing data due to the data protections at section 1860D-15(f) of the Act (42 U.S.C. § 1395w-115(f)).
• Any narrative information in the BPT including narratives related to base period factors, manual rates, cost-sharing methodology and optional supplemental benefits.
• Documentation submitted by MA organizations to support the actuarial bases of each MA plan bid.
• Information identifying Medicare beneficiaries and other individuals (e.g., plan actuary).
• Bid review correspondence between CMS and the MA organization.
• Internal review bid reports.

CMS seeks comments on several issues related to the proposed release of MA bid pricing data including:

• Approaches to release more recent MA bid pricing data.
• CMS’s goals and purposes for the release of MA bid pricing data.
• Proposed five year delay for reducing competitive disadvantages to MA organizations.
• To whom CMS should release more recent MA bid pricing data.

Part C and Part D MLR Data

CMS proposes to release certain MLR data submitted by MA organizations and Part D sponsors in their annual MLR Reports (Part C and Part D MLR Data). In proposing the release of Part C and Part D MLR data, CMS seeks to align with the current disclosures of MLR data by commercial health plans under section 2718 of the Public Health Service Act, which was added by Section 1001 of the Affordable Care Act.

CMS would release Part C and Part D MLR data for each contract for each contract no earlier than 18 months after the applicable contract year. MLR data that would excluded from release includes:

• Narrative information that MA organizations or Part D sponsors submit in support of their MLR Reports, such as descriptions of the methods to allocate expenses.
• Plan-level information submitted in Part C or Part D MLR Reports.
• Information identifying Medicare beneficiaries or other individuals.
• MLR review correspondence between CMS and the MA organization or Part D sponsor.

Issues on which CMS requests comments include:

• Whether the Part C MLR data and Part D MLR data proposed to be released contain proprietary information and, if so, what safeguards might be appropriate to protect those data.
• Whether MLR data that are associated with single-plan contracts is more commercially sensitive than MLR data that is associated with contracts that include multiple plans and, if so, whether CMS should take any protective measures when releasing the MLR data for single plan contracts.

Proposed Medicare Advantage Provider Enrollment Requirement

Under current program requirements, MA organizations may include in their networks providers and suppliers that are not enrolled in Medicare.⁴ For example, physicians that participate in an MA organization’s network need only be state licensed, practicing within the scope of their license, and not be an opt-out provider or excluded from Medicare. The proposed rule would require providers or suppliers⁵ that participate in a MA organization’s network be enrolled in Medicare and be in an “approved status.” Out-of network or non-contracted providers and suppliers would not be required to be enrolled.

“Approved status” refers to a provider or supplier being enrolled in (i.e., have an approved enrollment application), and not revoked from, the Medicare program. This would exclude a provider or supplier that has submitted an application, but has not completed the enrollment process with the Medicare Administrative Contractor. In addition, a provider or supplier that is currently revoked from Medicare is not in an approved status.

According to CMS, the proposal would create consistency with the provider and supplier enrollment requirements for Medicare Part A, Part B and Part D. In addition, CMS believes the proposal will assist in its efforts to prevent fraud, waste, and abuse and to “protect Medicare enrollees by carefully screening all providers and suppliers, especially those that potentially pose an elevated risk to Medicare, to ensure that they are qualified to furnish Medicare items and services.”⁶

CMS notes that initial data show a large percent of MA providers and suppliers are already enrolled in Medicare so the proposed rule would not have a significant impact on MA organizations’ ability to establish networks of contracted providers that meet CMS’ MA network requirements. However, CMS requests industry comment on the potential impact of the requirement on MA organizations’ ability to establish or maintain adequate networks of providers.

The proposed rule would require MA organizations to verify that they are compliant with the provider and supplier enrollment requirements. MA organizations that do not ensure that providers and suppliers comply with the provider and supplier enrollment requirements may be subject to sanctions and contract termination.

CMS also proposes to create a new regulation at 42 C.F.R. § 422.224 that would prohibit MA organizations from paying, directly or indirectly, for items and services (other than emergency or urgently needed services) furnished to an MA enrollee by an individual or entity that is excluded by the Department of Health and Human Services Office of Inspector General or revoked from the Medicare program. Federal law already prohibits such payments. The proposed regulation provides for a first time allowance for payment and the MA organization would be required to notify the provider or supplier and the enrollee that no future payment shall be made to, or on behalf of, the revoked or excluded provider or supplier.

The Medicare enrollment requirement would be effective the first day of the next plan year that begins 2 years from the date of publication of the CY 2017 Medicare Physician Fee Schedule (PFS) final rule with comment period. (The PFS proposed rule was issued July 6, 2016.) CMS believes this will give all stakeholders sufficient time to prepare for the requirements, but seeks public comment on the proposed effective date.

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¹ 81 Fed. Reg. 46162 (July 15, 2016).

² 81 Fed. Reg. at 46396.

³ Id. at 46396-46397.

⁴ CMS’s current requirements for providers and suppliers that provide Medicare-covered basic benefits can be found in the Medicare Managed Care Manual at Ch. 6 § 70 available here.

⁵ Under Medicare, the term “provider” means a hospital, a critical access hospital, a skilled nursing facility, a comprehensive outpatient rehabilitation facility, a home health agency, or a hospice. A “supplier” is a physician or other practitioner, facility or other entity (other than a provider of services).

⁶ 81 Fed. Reg. at 46411.

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