DREDF Comments on HHS’s Proposed Rule for Medicare Parts C and D 2021/22

April 6, 2020

via Electronic Submission to regulations.gov

Ms. Seema Verma
Administrator
Centers for Medicare & Medicaid Services
7500 Security Boulevard
Baltimore, MD 21244

RE: Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly (CMS-4190-P; RIN: 0938-AT97)

Dear Administrator Verma:

The Disability Rights Education and Defense Fund (“DREDF”) appreciates the opportunity to provide comment on the Centers for Medicare and Medicaid Services’ (CMS) proposed rule, Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly (the Proposed Rule). DREDF is a national cross-disability law and policy center that protects and advances the civil and human rights of people with disabilities through legal advocacy, training, education, and development of legislation and public policy. We are committed to increasing accessible and equally effective healthcare for people with disabilities and eliminating persistent health disparities that affect the length and quality of their lives. DREDF’s work is based on the knowledge that people with disabilities of varying racial and ethnic backgrounds, ages, genders, and sexual orientations are fully capable of achieving self-sufficiency and contributing to their communities with access to needed services and supports and the reasonable accommodations and modifications enshrined in U.S. law.

DREDF recognizes the significant number of people with disabilities who are Medicare enrollees, some of whom are also dually eligible for Medicaid. Our comments below do not address the full breadth of the proposed rule, focusing primarily on revisions to supplemental benefits for beneficiaries with chronic conditions, network adequacy, Real-Time Benefit Tools, and D-SNP Look-Alike Plans.

DREDF appreciates CMS introducing the concept of “supplemental benefits” as something that MA plans may offer to their enrollees. Both SB and SSBCI offer the potential to provide plan benefits to enrollees with disabilities that will increase their ability to remain in their communities and lead productive lives. In particular, SB that acts “to ameliorate the functional or psychological impact of injuries or health conditions, or reduce avoidable emergency and health care utilization,” as specified in § 422.100(c)(2)(ii)(A) gives plans license to provide health-related services to enrollees with disabilities that are tailored to the enrollees needs and circumstances, and that could conceivably range from support for service animals to the assistance with the costs of maintaining needed temperatures or other conditions in a home so that an enrollee’s pain levels are ameliorated. The even greater flexibility inherent in the non-primarily health-related services and supports of SSBCI could range from home modifications that increase accessibility in an enrollee’s home to transportation that helps an enrollee maintain psychological health and critical social connections. We further appreciate the incorporation of a proposed ability for MA plans to consider Social Determinants of Health (SDoH) when considering the provision of SSBCI, as detailed in § 422.102(f), though we would advocate for that same flexibility to apply to SB. In particular, SB measures that can take account of SDoH could help individuals with chronic conditions that do yet reach the level of “chronic conditions” as defined under the regulations to maintain a greater degree of functional capacity in light of their specific living conditions and the past health inequalities which they have experienced.

DREDF recommends that CMS consider adding three additional aspects to SB and SSBCI.  First, the additional needs of Medicare beneficiaries that can be met through MA plans offering SB and SSBCI are not limited to MA enrollees.  Fee-for-Service (FFS) Medicare beneficiaries may equally benefit from non-primarily health related supplemental benefits as well as benefits that are responsive to the SDoH experienced by beneficiaries. Those beneficiaries who opt for FFS Medicare, and especially beneficiaries with disabilities whether they qualify as “chronically ill” or not, may have very good reasons for choosing traditional Medicare, including the desire to remain with long-time healthcare providers who choose not to work with MA plans. These individuals should not be deprived of the supplemental benefits that can help them remain more functional and independent. We strongly urge CMS to offer SB and SSBCI within traditional Medicare.

Second, where MA plans are offering SB and SSBCI, they should also be held accountable for documenting who receives supplemental benefits, how they are offered, and their outcomes.  This will serve two purposes. First, the data can be made publicly available and will offer a way of holding plans accountable for offering SB and SSBCI that matches whatever is promised or offered in plan marketing material. Second, data concerning the efficiency of innovative ideas in both the short, mid, and long-term could begin to generate bests practices that will eventually lead to greater preventive care and transformative health maintenance among Medicare beneficiaries with disabilities and chronic conditions; this cannot even begin to occur if plans are encouraged to simply experiment with short term supplemental practices that can change at the whim of plan officers. Finally, we recommend that CMS encourage generosity among plans in the offering of supplemental benefits with an eye to mid and longer-term care benefits for Medicare beneficiaries, including an explicit clarification that CMS’s uniform definition of chronic conditions that meet SSBCI establishes only a floor, and not a ceiling, for enrollees that may meet plan criteria for receiving SSBCI.

DREDF has long recognized that a plan’s provider network is of particular and deep concern to people with disabilities. For various reasons, ranging from a specialist’s particular expertise to physical and equipment accessibility to the rapport achieved with a particular mental health provider, Medicare providers are not fungible to people with different or multiple disabilities and conditions. This also holds true for providers who can be considered “ancillary” such as Durable Medical Equipment (DME) providers. We continue to be concerned with the absence of DME providers, as well as inpatient rehabilitation facilities (IRFs), from CMS’s codified list of provider and facility specialty types that are subject to network adequacy reviews. For DME providers, MA plans may simply attest that their networks have enough of such providers. Our concern is exacerbated by the fact that, as far as we are aware, complaints from enrollees about network adequacy are not necessarily categorized in sufficiently granular fashion to allow for a search of “not enough DME providers in network” or “insufficient space at IRFs in network.” Systemic problems with enrollee ability to gain access to such highly personalized equipment as wheelchairs and CPAP or BiPAP units, or critical time-sensitive therapies as intensive inpatient rehabilitation, are not easily discoverable. In particular, those who experience health events later in life that result in a need for DME, complex or otherwise, or a stay in an IRF, can all too easily be diverted for a time to nursing homes where they experience a level of “learned helplessness” due to insufficient therapy services or DME that fails to recognize the capacity for the enrollee’s ongoing independence. DREDF recommends that DME providers and IRFs be included within CMS’ list of network specialists.

DREDF also appreciates the proposal to establish maximum time and distance standards for network adequacy.  We strongly encourage CMS to set standards that recognize the barriers that many Medicare enrollees with disabilities experience when it comes to transportation to needed healthcare services. Telehealth is an important option for some, but not all beneficiaries, and requires that plans apply sufficient internet access and equipment standards, as well as provider quality control.

DREDF welcomes CMS’ proposed regulation of D-SNP look-alike plans as we recognize the significant potential for such plans to undermine the benefits of truly integrated medical care and long-term services and supports (LTSS), not only through what is offered, but through influence Medicare beneficiary perception of integrated care. We strongly recommend that the proposed regulations should apply uniformly across all states to discourage enrollment by Medicare and Medicaid dually-eligible beneficiaries in plans that are not truly integrated and tat offer limited or no care coordination. This recommendation necessarily encompasses a lowering of the very high 80% threshold enrollment of dual eligible that is currently in the proposed rule for what would count as a look-alike plan, to a 50% threshold.  The lower threshold already constitutes a significant doubling of the proportion that dual eligible generally constitute among MA enrollment, and could not be simply a “coincidence” within a given plan. Finally, DREDF recommends, given the above discussion about the importance of a plan’s provider network to Medicare beneficiaries with disabilities, that the Annual Notice of Change requirements proposed in the plan include a specific disclosure of those providers that are not included in a receiving plan’s provider network when a crosswalk is proposed. This requirement, in conjunction with a robust requirement for a 90% provider overlap between look-alike and receiving plans, will help beneficiaries to achieve a better plan transition and help receiving plans to achieve higher retention rates after crosswalking occurs.

Finally, DREDF wishes to express appreciation for the proposed rule’s explicit reminder that RTBTs must be fully accessible to Medicare beneficiaries who do not have smart phones or other technologies such as iPads or computers, and must be fully accessible to people with communication disabilities whether the benefit information is provided online through a portal or otherwise. In addition, we recommend that MA plans be advised that, when contacted by enrollees with disabilities who wish to have a hard copy of information provided through RTBTs, in an accessible desired format to review at their leisure, MA plans must comply with the request.

Thank you again for the opportunity to comment on the proposed rule. Please do not hesitate to contact us if you have any questions about the above.

Sincerely,

Silvia Yee
Senior Staff Attorney