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March 1, 2019

Via Electronic Submission to (CMS-2018-0154)  

Seema Verma, Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
7500 Security Blvd.
Baltimore, Maryland 21244

Re: Advance Notice of Methodological Changes for Calendar Year (CY) 2020 for Medicare Advantage (MA) Capitation Rates, Part C and Part D Payment Policies, and 2020 Call Letter

Dear Administrator Verma:

The Center for Medicare Advocacy (Center) is pleased to provide the Centers for Medicare & Medicaid Services (CMS) comments on the draft 2020 Call Letter.  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. At the Center, we educate older people and people with disabilities to help secure fair access to necessary health care services. We draw upon our direct experience with thousands of individuals to educate policy makers about how their decisions affect the lives of real people. Additionally, we provide legal representation to ensure that people receive the health care benefits to which they are legally entitled, and to the quality health care they need.

General Comment re: Medicare Advantage Payment

We recognize that the payment methodologies outlined in the Advance 2020 Rate Notice and Call Letter are consistent with applicable law, particularly the Affordable Care Act (ACA) changes to bring Medicare Advantage (MA) plan payments in line with costs under the traditional Medicare program. The Center continues to support this effort to achieve better payment parity, both as a matter of equity between MA and traditional Medicare, and as a means of appropriately safeguarding public funds. Despite much attention given to the annual rate notice concerning MA payment, though, we urge CMS to direct more attention to protecting public funds by ensuring that such payment is accurate.  As noted in a Center Weekly Alert summarizing a New England Journal of Medicine article entitled “Medicare Advantage Checkup” (November 2018)[1], after many years of Medicare payments to MA plans being “considerably higher,” payment to MA plans today are “roughly equal to the per capita costs in traditional Medicare (101% of those costs, on average)” but “some questions remain as to whether the current system is putting sufficient downward pressure on program spending and encouraging plan efficiency” (including incentives that promote, e.g., plan choice and extra benefits at the expense of Medicare savings). The article notes: “[c]urrent methods that are used to compare [MA] payments with traditional Medicare costs may overstate the true costs to plans or provider Medicare benefits” for example, the current risk-adjustment system may allow MA plans to “boost[..] their payments by as much as 2% (on average) in 2018, on the basis of how they code their enrollees’ health conditions.”

Various studies have attempted to document the scale of inappropriate MA coding intensity, or upcoding, and the resultant overcharges by MA plans.  An investigation by the Center for Public Integrity, for example, found that Medicare paid MA plans nearly $70 billion in “improper” payments, mostly from upcoding, from 2008 through 2013 alone.[2] More recently, a 2017 study published in Health Affairs found that coding intensity practices could result in overpayments to MA plans totaling $200 billion over the next decade.[3]

In April 2016, the General Accounting Office (GAO) issued a report entitled “Medicare Advantage: Fundamental Improvements Needed in CMS’s Effort to Recover Substantial Amounts of Improper Payments.”[4] The report states that CMS estimates that about 9.5% of its annual payments to Medicare Advantage (MA) organizations were improper – totaling $14.1 billion in 2013 alone – “primarily stemming from unsupported diagnoses submitted by MA organizations.”  The report also highlights the significant flaws in CMS’ current efforts to address and recoup such payments, including execution of the Risk Adjustment Data Validation (RADV) audit process.

The Center is deeply concerned by these ongoing improper payments to MA plans and CMS’ lack of progress in recouping previous payments and deterring future misconduct.  In order to ensure that the traditional Medicare program is not further disadvantaged by inappropriate overpayments to MA plans, CMS must employ more rigorous oversight of MA payment.

Attachment VI. Draft CY 2020 Call Letter

Section I – Parts C and D

2020 Star Ratings

Categorical Adjustment Index (pg 111)

The Center appreciates CMS’s stated objective of ensuring that the Star Ratings system accurately reflect plan quality and enrollee experience. We would like to emphasize that we support quality ratings that accurately reflect quality of care, and reiterate our concerns about any changes to quality measurement that allow a plan’s quality rating to increase without any changes in the quality of care.  We are concerned that this will mask disparities in care without addressing the poor care that disadvantaged patients disproportionately receive.

We strongly support CMS in seeking to utilize the Star Rating system to encourage continuous quality improvement in the MA and Medicare Prescription Drug programs, providing oversight to ensure accuracy and transparency, and not accepting any changes to performance measurement that would lead to masking disparities and harming disadvantaged patients.

We continue to express concerns regarding the Categorical Adjustment Index (CAI) used as a method of risk adjustment for within-contract disparity in performance based on LIS/dual eligible status, precisely because it may result in masking disparities in care. We understand that there are real differences in care for harder to reach populations — we agree that disparities in care exist. However, we do not support adjusting Star Ratings for care that continues to be subpar. If a Star Rating is inflated because of the population being served, without making any changes to the care that population is receiving, then the Star Ratings become meaningless.

We urge CMS to examine the beneficiary impact of any changes to Star Ratings, and develop a plan to ensure disparities will not be masked or exacerbated. CMS should also closely monitor whether high performing plans with high enrollment of individuals with low socioeconomic status witness drop-off or changes in performance on quality measures after adjustment.

Our detailed comments regarding risk adjustment in Star Ratings are available:

Appeals Auto-Forward (Part D), Appeals Upheld (Part D)

We believe that there should be a mechanism to rate the effectiveness of processing determinations and redeterminations. The current appeals process is already far too opaque, so limiting information even further is a disservice to beneficiaries. Therefore, we recommend that CMS maintain these measures on the display page so that beneficiaries may still view plan performance on these measures. Additionally, we urge CMS to partner with quality organizations to determine the most appropriate measures to evaluate plan effectiveness regarding the appeals process.

Section II – Part C

Special Supplemental Benefits for the Chronically Ill (SSBCI) (p. 161)

As CMS noted in its press release concerning the Call Letter, beginning with the 2019 plan year, “Medicare Advantage plans can offer targeted supplemental benefits, including reductions from FFS Medicare-equivalent cost sharing, for specific enrollee populations based on health status or disease state in a manner that ensures that similarly situated individuals are treated uniformly.” In addition, the Bipartisan Budget Act of 2018 (Public Law No. 115-123) amended the statute to allow MA plans, beginning CY2020, to offer non-primarily health related supplemental benefits to chronically ill enrollees.

While SSBCI has the potential to benefit those who have access to it, at discretion of their individual MA plan, it is incumbent upon CMS to make every effort to similarly expand such services in traditional Medicare.  While the Administration clearly cannot pass legislation to do so, it can and should use every opportunity to promote such expansion for the majority of Medicare beneficiaries who choose to remain in traditional Medicare.


In the Call Letter, CMS notes “items and services may not be offered to induce enrollment” and later states that “MA plans are responsible for clearly identifying in the plan’s Evidence of Coverage (EOC) what will and will not be covered. Any limitations on coverage should be clearly noted in the EOC, including the process and/or criteria for determining eligibility to receive a SSBCI under the new authority beginning CY 2020. We expect MA plans will establish reasonable safeguards to ensure enrollees are appropriately directed to care.”

We urge CMS to provide more guidance concerning how both the targeted benefits and SSBCI are marketed and explained to current and prospective enrollees.  As we have noted elsewhere, CMS’ 2019 marketing guidelines, renamed Communications & Marketing Guidelines, made no mention of new MA flexibilities in 2019. There is no guidance to plans about how such benefits can be described, nor are there any rules for agents and brokers concerning how such benefits will be marketed.  We are concerned that CMS will also forego providing guidance concerning SSBCI.

In our comments to the draft 2019 marketing guidelines[5], the Center highlighted that it is critical to ensure that information about these changes, and resulting plan-specific benefits, are presented in a manner that is not unduly confusing and does not deter enrollment by individuals based upon their health conditions or other factors. These consumer protections require firm oversight from CMS, not a relaxation of standards and restrictions.

As discussed in our Special Report: Recent Changes in Law, Regulations and Guidance Relating to Medicare Advantage and the Prescription Drug Benefit Program (September 2018),[6]the Center has called on CMS to issue new restrictions on agents and brokers, specifically to include a prohibition on those marketing plans from engaging or soliciting information about an individual’s health condition. As we stated in our comments to the marketing guidelines:

These new flexibilities, including additional benefits and/or reduced cost-sharing for individuals with certain conditions, as chosen by individual plans, is extremely ripe for confusion, misunderstanding, and susceptibility to be misled, intentional or otherwise. CMS must act to minimize confusion and potential misconduct relating to the sale and marketing of such benefits.

We assert that anyone marketing MA plans – including first-tier, downstream and related entities – should be prohibited from asking prospective enrollees about their health condition(s). For various reasons, an individual’s health condition should not drive marketing conversations or materials; among other things, such disclosures can lead to risk selection, or inappropriate steering either to or away from a given plan. Further, an individual’s health condition(s)/status is a sensitive topic for many consumers, and they should not be made to believe that they need to or should disclose their health status. Under such conditions, people may easily be either led to believe that a particular plan is the best for them based upon what extra benefits might be available for them, or particularly ill-suited for them because it does not offer anything extra for people with their particular condition(s).

Since these extra benefits are contingent upon a plan’s diagnosis (or confirmation) of conditions for which the extra benefits are tailored, an agent/broker or other representative marketing the plan is in no position to make clinical judgements, proclamations about health conditions, or promises or inducements based on such information.

While description of SSBCI in plan EOCs is critical, without more guidance from CMS, there remains much uncertainty about how the new targeted benefits currently available are being marketed, and how SSBCI will marketed and explained going forward.

Jimmo Concerns – Must Include and Expand “Maintenance”

We recognize that SSBCI, as noted in the Call Letter, “include supplemental benefits that are not primarily health related and/or offered non-uniformly to eligible chronically ill enrollees.”  While SSBCI are not otherwise Medicare covered services, we assert that the same standards for covered items and services should apply.  As discussed below, “maintenance” of an individual’s health or overall function should be included in all definitions of eligibility for SSBCI, and should be defined broadly.

Partially citing language from the Bipartisan Budget Act, CMS notes that “MA plans will have the ability to offer a “non-primarily health related” item or service to chronically ill enrollees if the SSBCI has a reasonable expectation of improving or maintaining the health or overall function of the enrollee as it relates to the chronic disease” [emphasis in original].

Although not directly in the statutory language, “maintenance” should be defined broadly to include preventing and/or slowing deterioration in an individual’s condition, as is found elsewhere in Medicare rules.  For example, the settlement in the Jimmo v. Sebelius litigation brought by the Center and Vermont Legal Aid (No. 11-cv-17 (D.VT), filed January 18, 2011) stands for the proposition that “[s]killed care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.”[7]

We note that later in the SSBCI section, CMS states “SSBCI under this waiver may not be provided to a chronically ill enrollee if that benefit does not have a reasonable likelihood of improving that specific enrollee’s health or overall function as related to the specific chronic illness.”  CMS omits the statutory language concerning maintenance of health or overall function of an individual.   In order to ensure that the broad eligibility criteria for SSBCI apply, “maintenance” language must always be used alongside “improvement” language.

As CMS has noted in the context of the Jimmo settlement, “Medicare has never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves.”[8]

Provider Directories (p. 164)

Last year, CMS announced the agency’s findings from a review of 54 MA organizations, showing widespread inaccuracies in MA provider directories.[9] In response, the agency released additional guidance reiterating the rules MA organizations must follow for provider directories and took appropriate compliance actions. The Call Letter notes that “there has been a lack of improvement in the accuracy of provider directories over the past three years.”[10] Directory inaccuracies can present significant challenges for enrollees—up to and including a potential lack of access to care and significant out of pocket costs.

As such, we encourage the agency to be vigilant in its continued inquiries, oversight, and policymaking on this issue. We note that both MA plans and health care providers have important roles and responsibilities to facilitate directory accuracy, and CMS should actively engage both parties as the agency seeks improvements. In the Call Letter, CMS reflects on the “common struggle expressed by the industry… that there is no… ‘source of truth.’ As a consequence, the current process of verifying the accuracy of provider information can present an undue burden on providers…”

We urge CMS to focus its attention on the undue burden that inaccurate, hard-to-access, and non-searchable provider directories place on beneficiaries. We urge CMS to consider ways to adequately incentivize plans and providers to provide accurate and up-to-date directories—perhaps by establishing special enrollment periods or indemnification for beneficiaries who relied on an inaccurate directory.

D-SNP “Look-alikes” (pg 166)

We have very serious concerns about D-SNP look-alikes.  We believe that CMS should do all that it can to stop marketing of these products that do not genuinely serve the needs of duals and also interfere with the development of truly integrated products that are subject to specific rules and oversight.

We urge CMS to work to eliminate look-alikes or curtail them as much as possible. Dual eligible beneficiaries need clear, non-misleading choices that offer genuine benefits.  D-SNP look-alikes instead confuse and can draw beneficiaries away from other options that may better meet their needs.

We incorporate the thorough comments by our colleagues at Justice in Aging on this issue.

Parts A and B Cost-Sharing for Individuals Enrolled in the Qualified Medicare Beneficiary (QMB) Program (p. 168)

We appreciate that CMS continues its efforts to obtain full plan compliance with requirements to protect QMBs from improper billing. We also particularly thank CMS for the steps it has taken to make identification of QMBs easier for providers through the HETS system.

The reports from on-the-ground advocates indicate that CMS’s efforts have brought broader understanding of QMB protections and more responsiveness by plans when problems arise. The situation is improving but challenges persist. For example, we continue to hear about plan providers who do not understand the protections or are unwilling to honor them, and about plan representatives who do not understand or fulfill their obligations to protect members. Thus, CMS’s continued emphasis in this call letter on plan obligations to educate providers and to continue to develop tools to better effectuate QMB protections is fully warranted. Further, we ask that CMS monitor Complaint Tracking Module (CTM) entries to identify plans and plan sponsors that have repeated complaints in order to focus education and enforcement.

Issues Unaddressed in Draft 2020 Call Letter

In addition to the issues discussed above, the Center raises the following topics that are not addressed in the draft Call Letter, about which we provide comment, below.

MA Network Adequacy

In 2015 the General Accounting Office (GAO) released a report entitled “Medicare Advantage: Actions Needed to Enhance CMS Oversight of Provider Network Adequacy”. GAO examined several factors relating to CMS’ oversight of MA organization (MAO) network adequacy, and made corresponding findings, including: how CMS defines network adequacy and how its criteria compares with other programs; how and when CMS applies its network adequacy criteria; the extent to which CMS conducts ongoing monitoring of MA organization networks; and how CMS ensures that MA organizations inform beneficiaries about terminations.

While CMS has made efforts to address some of the deficiencies highlighted by GAO, so far such efforts appear to be primarily directed at provider directories alone.  CMS noted in the draft 2016 Call Letter that “[t]he data collected through our monitoring activities could drive additional reviews of network adequacy, as well as future monitoring and/or audit-based activities” [emphasis added].  We urge CMS to more broadly expand its oversight and definition of network adequacy, as suggested by GAO.

Provider Network Terminations

We remain disappointed that CMS has taken no further action, either in Call Letters or in rulemaking, 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 from terminating network providers mid-year without cause.  Not only did CMS retreat from this option in the final 2015 Call Letter, but there has been no attempt to extend the current 30-day advance notice to affected beneficiaries, as also suggested in the 2015’s Draft Call Letter.  Further, CMS has failed to strengthen or otherwise expand the limited special enrollment period (SEP) right available only to beneficiaries affected by “significant” network terminations.  In addition, the availability of this limited SEP right is not adequately expressed in beneficiary-oriented materials, including those issued by plan sponsors (e.g. the Annual Notice of Change) or by CMS (e.g. Medicare & You and the website).  More accurate provider directories, while a welcome improvement in consumer information, is not a solution to this problem.


We appreciate the opportunity to submit these comments. For additional information, please contact David Lipschutz, Senior Policy Attorney,, and Kata Kertesz, Policy Attorney, both at 202-293-5760.

David A. Lipschutz                                                        Kata Kertesz
Associate Director/Senior Policy Attorney              Policy Attorney
Licensed in CA and CT                                                Licensed in MD and DC


[1] CMA Weekly Alert, “Important Health Policy Article Published In New England Journal of Medicine: ‘Medicare Advantage Checkup’” (11/19/18):
[2] See, e.g., Center for Public Integrity, “Why Medicare Advantage costs taxpayers billions more than it should” (June 2014), available at:  See, also, Center for Public Integrity, “Medicare Advantage audits reveal pervasive overcharges” (August 2016), available at:
[3] Kronick, R., “Projected Coding Intensity In Medicare Advantage Could Increase Medicare Spending By $200 Billion Over Ten Years,” (Health Affairs: February 2017), available at:
[4]GAO, “Medicare Advantage: Fundamental Improvements Needed in CMS’s Effort to Recover Substantial Amounts of Improper Payments” (April 2016), available at:
[5] CMA Comments to 2019 Marketing Guidelines (April 2018):; also see discussion in CMA’s Special Report: Recent Changes in Law, Regulations and Guidance Relating to Medicare Advantage and the Prescription Drug Benefit Program (September 2018):
[6] Available at:
[7] CMS Fact Sheet, available at:; see, generally, CMS website at:
[8] CMS MLN Article, available at:
[9] CMS, “Online Provider Directory Review Report” (January 2017),
[10] Call Letter at 164.

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