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December 21, 2015

Acting Administrator Andy Slavitt
Centers for Medicare & Medicaid Services
Department of Health and Human Services
7500 Security Boulevard
Baltimore, MD 21244-8016

RE: Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017 [CMS–9937–P]

Submitted electronically via www.regulations.gov

Dear Acting Administrator Slavitt:

The Center for Medicare Advocacy (Center) greatly appreciates the opportunity to provide comments on the Notice of Benefit and Payment Parameters for 2017.

The Center, founded in 1986, is a national, non-partisan education and advocacy organization that works to ensure fair access to Medicare and to quality healthcare.  We draw upon our direct experience with thousands of individuals and their families to educate policymakers about how their decisions affect the lives of real people.  Additionally, we provide legal representation to ensure that beneficiaries receive the health care benefits to which they are legally entitled, and to the quality health care coverage and services they need.

Medicare Notices (Page 75530)

We applaud CMS for recognizing the current absence, and importance, of providing notification to Exchange enrollees of their possible Medicare eligibility. We appreciate the request for comments on how best to implement such notices, and are eager to participate in this process.

Currently, individuals not automatically enrolled in Social Security receive no notice about nearing Medicare eligibility, and those in the Marketplace receive no notice that their premium tax credit eligibility will end upon Medicare eligibility. No federal agency is currently responsible for notifying people new to Medicare who are not already collecting Social Security benefits about enrollment rules and obligations. These individuals receive no prompt about the need to actively enroll in Medicare and what factors to consider as part of that decision-making process. This void represents a stark information gap for consumers who naturally look to the government for instructions and information about their Social Security and Medicare benefits.

As 10,000 people become Medicare eligible on a daily basis, facilitating seamless transitions to Medicare is vital to protecting the health and economic security of older adults and people with disabilities. Enhanced beneficiary notification and education is essential, including notifications and education transmitted through the Marketplace.

Coupled with this lack of notice, individuals are responsible for taking several proactive steps. These include: enrolling in Medicare in a timely way, canceling the Marketplace plan; and notifying the Marketplace plan about Medicare eligibility. The consequences for delayed action or lack of action in these areas are severe. Individuals may be faced with gaps in coverage, lifetime penalties and higher taxes. Frequently individuals are unaware that they must act, and are unfamiliar with the complicated process of enrolling in Medicare. Due to this information gap, individuals over age 65 may miss their Medicare enrollment window, people with disabilities may mistakenly decline Part B, and people already collecting Social Security retirement may mistakenly decline Part B.

Therefore, it is imperative that all individuals who may become eligible for Medicare, regardless of existing coverage, receive a notice about Medicare eligibility rules and obligations. Though we support notices sent broadly, we appreciate that the transition from the Marketplace to Medicare carries the additional concern regarding the loss of premium tax credits. We therefore strongly support sending notices to these individuals. We believe that these notices are most effective if they come from the Federal or State Marketplace. We encourage CMS to develop a comprehensive system to notify individuals in the Marketplace about nearing Medicare eligibility. Ideally, this system would include multiple types of notification and educational content that is appropriately timed ahead of an individual’s Initial Enrollment Period (IEP) for Medicare.

We also would like to stress the importance of custom notices that clearly alert individuals of actions that they need to take, along with the consequences of action and inaction. Without specific tailoring of notices, many individuals will overlook the importance of the content and remain unaware of the potential health and financial ramifications. Populations targeted for notices should include: individuals already over age 65 enrolled in Marketplace plans (including QHPs & SHOP plans); individuals nearing age 65 in Marketplace plans; and people with disabilities in the Marketplace nearing the end of a their two-year Medicare waiting period. We also believe that the notices should contain educational content for Marketplace enrollees nearing Medicare who are ineligible for premium-free Part A; and for Marketplace enrollees with End Stage Renal Disease (ESRD).

We support CMS in analyzing how best to notify individuals in the Marketplace about nearing Medicare eligibility. Specifically, we support the use of “pop-ups” on Healthcare.gov for those seeking a Marketplace plan. We suggest that this content “pop up” for both those seeking a Marketplace plan who will turn 65 during the plan year and for those who will reach their 25th month of disability coverage in the upcoming year. These “pop-ups” should: inform people that they need to learn more about Medicare; refer to appropriate sources, including SSA.gov and State Health Insurance Assistance Programs (SHIPs); and provide information about how Medicare eligibility affects eligibility for premium tax credits.

While we agree that online “pop-ups” are a useful tool, we do not believe “pop-ups” will be sufficient to provide advance notice to individuals about nearing Medicare eligibility given the complexity of the Medicare enrollment process, particularly for those transitioning from the Marketplace to Medicare. Therefore, we urge CMS to develop clear, tailored notices alerting individuals of their possible eligibility and necessary next steps. 

In order for consumers to make the best choice for their specific needs, the notices must be clear, personally tailored, and available in multiple languages. It is also important to note that the more detailed the notice, the better Navigators, SHIPs, and other community-based organizations can assist beneficiaries in making the best choices.

We would also like to stress the importance of providing clarification on coordination of benefit rules. Adequate messaging development requires that CMS clarify how QHPs interact with Medicare. We appreciate the clarifications provided by CMS in the August 2014/June 2015 “Frequently Asked Questions Regarding Medicare and the Marketplaces.” Yet, we continue to press the agency to release guidance on what QHPs are required to pay—or permitted not to pay—when an individual has a QHP and is eligible for or enrolled in some or all parts of Medicare.

Unlike for employer-sponsored health coverage, there is no federal law regarding the order of insurance payments for individual health coverage and applicable state law varies. Specifically, consumers need to know what their QHP will or will not pay if they delay or decline enrollment in Part B. Clear information on this issue is particularly important given that many States have adopted model coordination of benefits rules that allow individual market health plans to pay secondary to Part B for eligible individuals, even if that person is not enrolled in the benefit.

Clarification on how QHPs coordinate with Medicare—specifically concerning what plans are obligated to pay—is critical to ensuring that consumers are adequately informed about how to manage the transition to Medicare. Clear information concerning how QHPs will coordinate payment with Medicare, both for those eligible and for those enrolled, should be incorporated in notices and educational content developed by CMS to promote smooth transitions from the Marketplace to Medicare.

We strongly prefer that any notice related to nearing Medicare eligibility for Marketplace enrollees come from the Federal or State Marketplace. People look to the Marketplaces for information about their health coverage options, and it is vital that information about Medicare obligations come from a trusted, unbiased source. Where necessary, we encourage the CMS to partner with other federal agencies, like the Social Security Administration (SSA), on the development and delivery of advance Medicare enrollment notices for Marketplace enrollees.

For example, we were encouraged by recent action by SSA to send a notice to people with disabilities in their two-year waiting period for Medicare alerting them to the availability of Marketplace coverage. While this notice directs people to the Marketplaces and gives them important information about tax benefits, it does not include any information about an individual’s obligations when they become eligible for Medicare. We encourage CMS to work with SSA to build on this notice and to create other such notices to inform people approaching Medicare eligibility about Medicare enrollment rules and the risks of declining Part B.

Should resource limitations limit the ability of the Federal and State Marketplaces to deliver the needed notification, we may support policies that leverage QHPs to notify Marketplace enrollees about nearing Medicare eligibility. We caution, however, that any such policy must be carefully designed, including both flexible staging and timing to ensure notices are sent when they are likely to be acted upon and careful review by CMS to ensure that notices do not improperly steer enrollees to an issuer’s Medicare Advantage products. In addition to information on Medicare enrollment rules, it is essential that individuals nearing Medicare eligibility receive clear and unbiased information about all of their Medicare coverage options, including Medicare Advantage and Medigap plans, as well as information on how to access low-income assistance programs, including the Medicare Savings Programs and Extra Help.

In order to develop a thoughtful strategy for effective information dissemination, we urge CMS to collect and promote best practices among both health plans and State Marketplaces already doing this education. Importantly, we encourage CMS to actively engage multiple and diverse stakeholders—including consumer advocates, health insurers, and States—as the agency develops policies to notify Marketplace enrollees about nearing Medicare eligibility. We also recommend that any consumer-directed content be appropriately vetted, through input by key partners as well as through robust focus group testing.

In addition to notification, we believe screening can serve a critical role in alleviating transition challenges. We urge CMS to include screening for Medicare eligibility, through both the Federal and State Marketplaces. We believe that through this screening process, the State Marketplaces would be well situated to screen for, and process applications for Medicare Savings Programs (MSPs), the Low Income Subsidy (LIS), and traditional Medicaid. We also urge CMS to ensure that States are completing comprehensive screening and referral programs for all individuals who lose eligibility for expansion Medicaid as a result of Medicare eligibility but who may be eligible for other Medicaid programs, including MSPs. Unfortunately, many individuals who are eligible for MSPs do not enroll in them. This screening process could increase the number of eligible individuals who enroll in these essential programs.

Network Adequacy Standards (page 75549)

In general, we strongly support HHS’s intent to strengthen network adequacy standards for QHPs.  Given that HHS is considering using standards similar to those used in Medicare Advantage (MA), we offer the following comments based upon our experience working with MA plan enrollees.   

We strongly support requiring an affirmative review of QHP network adequacy, using a set of minimum quantitative standards.  An annual, affirmative review would improve upon the current, largely passive review of MA plan networks by the CMS.  We assert that the final rule should be revised to require all states, including those with state based exchanges, to conduct network adequacy reviews of QHPs using a minimum set of quantitative standards.  As demonstrated in the MA arena (discussed below), even a centralized single entity responsible for oversight – CMS – can fall far short in ensuring that plan networks are indeed “adequate.” 

In September 2015, the General Accounting Office (GAO) released a report entitled “Medicare Advantage: Actions Needed to Enhance CMS Oversight of Provider Network Adequacy” (August 2015, publicly released September 28, 2015).  This report reviews how CMS ensures adequate access to care for Medicare Advantage (MA) enrollees.

The report was requested by Connecticut’s House Representatives, along with Senators Richard Blumenthal (CT), Sherrod Brown (OH) and Sheldon Whitehouse (RI), spurred largely by MA plan sponsor United Healthcare’s termination of contracts with providers in 24 states in 2014, including over 1,440 providers in Connecticut alone.  

GAO examined several factors relating to CMS’ criteria used to establish network adequacy along with its oversight of MA organizations, and found various shortcomings.  For purposes of criteria used to define network adequacy, GAO found:

… the MA criteria do not reflect aspects of provider availability, such as how often a provider practices at a given location. In contrast, other network-based health programs use provider availability measures to assess network adequacy. For example, federal Medicaid managed care rules address providers' ability to accept new patients and TRICARE criteria address appointment wait times for active duty service members. Without taking availability into account, as is done in some other programs, MA provider networks may appear to CMS and beneficiaries as more robust than they actually are.

GAO also found significant flaws in how and when CMS applies its network adequacy criteria and the extent to which it conducts ongoing monitoring of MA plan networks.  These shortcomings – evident in the oversight conducted by the single federal agency responsible for regulating MA plans – will likely be exacerbated by the marketplace structure that relies on either federal or state oversight.

In addition, GAO found flaws in CMS’ oversight of notice provided to MA enrollees affected by network terminations or discontinuations.  We note that HHS proposes to use a standard similar to MA plans concerning notice to enrollees – plans must make a “good faith effort” to provide written notice of discontinued providers 30 days prior to the effective date of the change or otherwise as soon as practicable, to certain affected enrollees.   In the MA context, GAO concluded that:

While CMS requires that MAOs give enrollees advance notice when a provider contract is terminated, the agency has not established information requirements for those notices and does not review sample notices sent to enrollees. This lack of scrutiny appears inconsistent with the agency's oversight of other Medicare beneficiary communications and with internal controls. Without a minimum set of required information elements and a check on adherence to them, the agency cannot ensure that MAO communications are clear, accurate, and consistent.

In our experience, the current MA standard for notifying affected enrollees is woefully inadequate.  We urge HHS to impose a more stringent requirement on QHPs with more advance notice to enrollees, along with an opportunity to act if an individual’s provider(s) no longer contracts with the plan.

In the MA context, we are deeply disappointed that CMS has taken no further action to strengthen consumer protections surrounding MA plan mid-year provider network terminations. The most effective way to protect consumers from being trapped in their plans after their own doctors are involuntarily terminated is to prohibit MA plans – and for purposes of these comments, QHPs – from terminating network providers mid-year without cause.  While CMS has established a limited special enrollment period (SEP) right available only to beneficiaries affected by “significant” MA network terminations (see Medicare Managed Care Manual, Ch. 2, §30.4.6), this right is meaningless to individuals who have lost their provider unless an unknown additional number of individuals have been similarly affected.

While HHS has proposed some consumer protections for QHP enrollees that go beyond current MA rules, such as minimum continuity of care transition periods when patients lose access to a participating provider – which we support – we urge HHS to be cautious in applying MA standards when looking to establish QHP network adequacy standards.  In order to avoid some of flaws of MA network adequacy standards and oversight, HHS should look to current MA rules as a floor upon which to build instead of a ceiling.

The Center greatly appreciates the opportunity to provide comments. For further information please contact Senior Policy Attorney David Lipschutz at DLipschutz@medicareadvocacy.org or Policy Attorney Kata Kertesz at KKertesz@medicareadvocacy.org.

Sincerely,

David Lipschutz
Senior Policy Attorney

Kata Kertesz
Policy Attorney

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