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May 25, 2018

Via Electronic Submission

Seema Verma, Administrator
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, DC 20201

RE: Request for Information on Direct Provider Contracting Models

Dear Administrator Verma:

The Center for Medicare Advocacy (Center) is pleased to provide the Centers for Medicare & Medicaid Services (CMS) with comments on the Request for Information on Direct Provider Contracting (DPC) Models. The Center, founded in 1986, is a national, non-partisan law organization that works to ensure fair access to Medicare and quality healthcare. At the Center, we provide education and advocacy on behalf of older people and people with disabilities to help secure fair access to necessary health care. We draw upon our direct experience with thousands of individuals to help 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 for which they are eligible, and for the quality health care they need.

Overarching Comment re: Proposal’s Lack of Detail

While CMS articulates some of its goals for the DPC models in the RFI, and solicits feedback on many issues relating to such models, the current proposal is so ambiguous that it is difficult to provide meaningful feedback and specific recommendations without more substance offered.  From a consumer perspective, specific details about enrollment, access, cost-sharing and other issues trigger other, specific issues and questions about which consumer advocates can provide thoughtful comments and help troubleshoot.  The Center has significant reservations about this proposal, but should CMS move forward, at the very least, it must provide other, more fleshed out iterations on which to comment before proceeding further.   In the absence of a more clearly formed proposal, we offer the following comments.

Questions Related to Beneficiary Participation

6. CMS asks whether there should be limits under a DPC model on when a beneficiary can enroll or disenroll from a practice.  On the one hand, the question states that the beneficiary will retain freedom of provider or supplier consistent with traditional Medicare; on the other hand, it asks about enrollment and disenrollment limitations.  Without more information about the parameters of this proposal, including whether beneficiaries will be limited to receiving services from one or more physician practice(s), it is unclear how this model would affect beneficiaries. 

CMS also asks under what circumstances a provider or supplier should be able to deny participation to a beneficiary. We can anticipate no circumstances in which a provider or supplier should have the ability to reject a prospective enrollee or disenroll a current enrollee. The ability to refuse or drop enrollees would merely foster cherry picking of profitable enrollees and avoiding or dropping unprofitable ones.  There should not be limitations on how frequently beneficiaries can changes practices, nor should providers and suppliers have the right to refuse to enroll or choice to disenroll beneficiaries.

7. CMS asks about outreach from DPC practices to, and engagement of, potential enrollees. CMS also questions whether beneficiaries who wish to participate should “be required to enter into an agreement with their DPC-participating health care provider.”  We find this language very troubling, as it suggests that beneficiaries might be required to individually assess or bargain with their providers rather than being able to rely on the built-in consumer protections and parameters of coverage and cost-sharing integral to the Medicare program to protect their interests. We do not support any expansion of existing private contracting that will take the place of such Medicare coverage and protections, or could interfere with or diminish such coverage, or otherwise expose the beneficiary to risk or liability beyond that which they face in the current program.

Creating a framework in which providers negotiate with beneficiaries and enter into an agreement for services would open the door to unfair bargaining advantages, and unequal power dynamics between providers and patients.   A system should not be designed for the savviest, best-resourced consumer with the ability to research and process necessary information and negotiate favorable contract terms with provider practices. Many, if not most, beneficiaries will not be in such a position to negotiate contract terms with their provider, or most likely, a skilled provider representative. 

Efforts to allow more private contracting between providers and their patients in the Medicare context are not new.  While meant to be tongue-in-cheek, former Rep. Pete Stark introduced the “No Private Contracts To Be Negotiated When the Patient Is Buck Naked Act of 1997” (H.R. 2784) to highlight, in part, the unequal bargaining power between doctors and their patients.  This bill draws attention to very real and serious deficits in the power dynamic that would be present in such negotiations.  We urge CMS to forgo any expansion of such direct contracting.

8. CMS questions benefit cost-sharing within the DPC model.  As CMS is aware, most people with traditional Medicare have some form of supplemental insurance that covers at least some of their cost-sharing, such as employer-sponsored coverage, Medicaid or Medicare Supplemental Insurance (Medigap).  Cost-sharing for individuals in MA plans must be actuarially equivalent to costs in traditional Medicare.  CMS appropriately raises the issue of how the DPC model would coordinate with supplemental coverage, given it would appear to be based on a capitated payment to a medical practice, similar to managed care.  We assert that any DPC model should not minimize, diminish or negate any supplemental coverage a beneficiary has, both with respect to cost-sharing and access to additional services. 

On the one hand, any model must be affordable and accessible.  Low-income individuals should not be priced out of any demonstration due to inability to afford cost-sharing. Dual eligibles must retain coverage of cost-sharing and additional services, as well as important protections such as the prohibition of balance billing Qualified Medicare Beneficiaries (QMBs).  Allowing such balance billing could be a back door means to excluding dual eligibles from participation.   

On the other hand, the DPC model should not be a means to merely expand options for more wealthy beneficiaries – e.g. establish boutique medicine practices, or provide a means to allow coordination with Health Savings Accounts (HSAs).  This or any other model should not serve as a subsidy to higher income beneficiaries or an expansion of the current private contracting provisions in Medicare.

Questions Related to Payment

9., 10., 11., 12.  CMS solicits feedback on payment mechanisms in DPC models, including risk adjusted PMPM payment and financial risk for providers and practices, and scope of covered items and services.  With respect to risk adjusted payment, CMS would likely face many of the same problems surrounding Medicare Advantage upcoding, including diagnoses made for which subsequent care is not rendered.  How would CMS address such challenges in a DPC model? 

If only certain currently covered Medicare items are to be included in the PBPM payment, how will services, supplies, tests, or procedures that are not included be covered?  With respect to provider risk, if a practice is only receiving capitated payment for limited set of primary care services, and is not at risk for more, where is the actual risk to the provider?

Questions Related to General Model Design

13. CMS reiterates that one of its “guiding principles” in considering a new model is its commitment to “reducing burdensome requirements.” As the Center has stated in previous comments to CMS and CMMI, we stress that CMS’ focus should not be on rolling back regulations, reducing oversight or minimizing plan sponsor or provider burdens.  We anticipate that many providers will vigorously push for reduction in regulations and oversight in response to this RFI.  We think granting such requests would be a dangerous path to tread.  Rather, we urge CMS to focus squarely on ensuring that Medicare beneficiaries have access to and receive timely, quality health care. 

Questions Related to Program Integrity and Beneficiary Protections

16., 17., 18., 19., 20. CMS appropriately states that it “wants to ensure that beneficiaries receive necessary care of high quality in a DPC and that stinting on needed care does not occur.”  We appreciate this sentiment, but it does not necessarily mesh with the above-referenced guiding principle of “reducing regulatory burden.”  Often, what providers view as burdens, including notice, reporting and other requirements, serve as important oversight tools for the regulator and protections for consumers.  This or other models should not start from a premise of erasing existing rules in an effort to ensure maximum provider flexibility, then seek ways to potentially back-fill vital consumer protections by guessing about what safeguards should be put in place in an undefined model. 

Many existing safeguards in Medicare are designed specifically for the type of coverage (e.g., MA v. traditional Medicare), care setting, service, item, etc.  As noted above, the lack of details of this proposal make it difficult to provide thoughtful comments and adequately troubleshoot problems Medicare beneficiaries might face.  For example, what would be the recourse for a beneficiary who is denied a requested service from a provider or practice – would it constitute an organization determination similar to a Medicare Advantage decision?  Would Advance Beneficiary Notices (ABNs) be required as they are in traditional Medicare in certain scenarios?  If the DPC models were, as contemplated, integrated with Medicaid and/or MA plans, how would the scope of services be determined, and what notice and appeal rights would apply in which situation?  In addition to questions about coordination with other insurance, would providers be bound by such consumer protections as QMB balance billing, or the limiting charge applicable to current participating Medicare providers? 

Whom would this model attract, and would it be available to beneficiaries across geography and demographics, or only meaningfully available to certain segments of the population? Would a two-tier system be created – one in which there are those who can afford higher costs, and those who cannot?  How might this segment the risk pool of traditional Medicare, or otherwise undermine the program?   These, and other questions that would be triggered by more details about a proposed model, would need to be addressed before proceeding any further with this proposal.


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.

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