A federal judge on Friday provided a big win for the health insurance industry, ruling that a Centers for Medicare & Medicaid Services final rule on overpayments was fundamentally unfair.
In a 30-page ruling that vacated the Medicare Advantage 2014 Overpayment Rule, U.S. District Judge Rosemary Collyer sided with UnitedHealth Group and said the final rule "will inevitably fail to satisfy the statutory mandate of actuarial equivalence."
Stephanie Trunk, healthcare cractice co-leader at Arent Fox, based in Washington, D.C., explained the ramifications of the ruling in an email exchange with HealthLeaders.
1. How will this ruling change the way health insurers do business?
Trunk: The ruling essentially invalidates CMS's 2014 final rule implementing the 60-day overpayment return requirement in the Affordable Care Act. Medicare Advantage Plan sponsors—such as UnitedHealth—still must comply with the ACA requirement to report and return any overpayment "after reconciliation" within 60 days after the date on which the overpayment was identified.
2. What were the factors that led to a favorable ruling for UnitedHealth?
Trunk: The court concluded that CMS's 2014 final rule implementing the 60-day overpayment requirement violated the Administrative Procedures Act because (1) it was contrary to the statutory requirement of actuarial equivalence between traditional Medicare and Medicare Advantage, and (2) the intent standard associated with "identifying" an overpayment in the final rule—when it has determined or should determine through reasonable diligence—adopted in the final rule was not as proposed in the proposed rule and heightened in comparison to the statute—actual knowledge of the existence of the overpayment or acts in reckless disregard or ignorance of the overpayment.
3. How could the government respond to this ruling?
Trunk: One can only speculate. CMS can appeal or they could initiate new notice and comment rulemaking with a new proposed rule to implement the a 60-day overpayment requirement.
4. How could the federal government adjust the final rule to make it comply with statute?
Trunk: CMS needs to move away from tying overpayments to Medicare Advantage plans to diagnosis codes, which is not the basis for overpayments in traditional Medicare. In addition, CMS needs to align the definition of "identify" in the rulemaking to the statute and ensure what is included in the proposed rule is not altered in the final rule.
5. What other effects do you see this ruling having?
Trunk: The ruling could have a direct impact on the intervened False Claim Act case United States ex rel. Benjamin Poehling v. UnitedHealth Group, Inc et al., Case No. CV 16-08697 (USDC, CD CA) pending in California.
The basis for the case is that UnitedHealth failed to return identified overpayments as required by the ACA, as it failed to delete invalidate diagnosis codes and return the risk adjustments associated with higher value, invalid diagnosis codes. This is based on the interpretation of the ACA overpayment obligation in the 2014 final rule, which the court invalidated.
Starting in 2019, Medicare Advantage plans will have the flexibility to target non-medical health-related services to members who have chronic care conditions. MA insurers will be able to target supplemental services such as minor home modifications to help accommodate walkers or wheelchairs, or home-delivered meals that are lower in salt or sugar for those with diabetes or chronic heart failure. How the supplemental benefits are implemented depends on policies issued by the Centers for Medicare and Medicaid Services.
This is expected around December, when CMS sets rates for MA plans, according to the Bipartisan Policy Center, which has issued its own recommendations. The supplemental benefits for chronic care conditions are part of the Bipartisan Budget Act of 2018, which was signed into law by President Trump in February. It allows Medicare Advantage plans to provide additional or supplemental services to those with complex care needs and to provide access to non-medical health-related benefits, including those that have proved successful in keeping patients in their homes. Medicare does not support these non-medical benefits, said Bill Hoagland, senior vice president, BPC.
About a third of all Medicare beneficiaries are in a MA plan. These plans are popular with both those who sign up due to the additional benefits they offer, and with insurers that have realized profits and decreased costs through narrow networks and aligned incentives. MA insurers recently got a boost from CMS when the agency said it would allow these plans to cross negotiate between Part B and D drugs to choose the least expensive alternative.
MA also outperforms traditional Medicare for the chronically ill, a study shows.
The Bipartisan Policy Center is concentrating on three areas in recommendations to CMS to implement the chronic care provisions of the law. The first is in striking a balance of flexibility for plans to offer supplemental benefits such as transportation, meals and minor home modifications, and guidelines so plans feel comfortable offering the services without fear of audits or sanctions. The second is in the implementation of new requirements to integrate Medicare and Medicaid dual eligibles. The third is around the grievances and appeals procedures. CMS has already begun gathering input for the implementation of a unified grievance and appeals process, the BPC said.
In MA plans, claims are paid while they are in dispute but this is not the case in traditional Medicare, according to Katherine Hayes, director of Health Policy for BPC.
New York and Minnesota have already integrated appeals process, she said. The law allows a shift from what is covered to what patients and their families need, Hayes said. Barriers to adoption include the current requirement that MA plans offer existing uniform benefits to all enrollees. CMS should allow plans the flexibility to determine supplemental benefits, BPC said.
Also, CMS needs to ensure insurers will not use supplemental benefits to avoid high risk members through plan marketing.
Medicare beneficiaries with four or more chronic conditions account for 90 percent of Medicare hospital readmissions and 74 percent of overall Medicare spending, according to the BPC. The number of older Americans will double by 2050. Recent Health Affairs study shows connection between meal supports and lower healthcare costs, from $843 per month compared to $1,413 for those without receiving meals specialized to meet needs of diabetes, hypertension, and other conditions. The study also showed fewer hospital admissions and trips to the ER.
Walmart is establishing closer ties with seniors covered by Medicare Advantage plans, an increasingly popular health plan choice for millions of U.S. seniors and where Amazon isn’t yet a player.
The latest example of Walmart’s interest in the MA market came this week with the announcement of a program with Anthem, operator of Blue Cross and Blue Shield plans in 14 states. Effective in January 2019, Anthem’s Medicare Advantage plan enrollees can use the insurer’s “over-the-counter plan allowances” to buy OTC medications and personal healthcare items like “first aid supplies, support braces and pain relievers.”
Medicare Advantage plans tend to offer cheaper medical care and related healthcare products than someone would pay a retailer or out-of-pocket. Seniors will also be inundated with information from the health plan about products and services from Walmart, which operates more than 4,700 stores and the walmart.com website.
“For Walmart, the partnership extends its move upstream to influence where drugs and medical supplies are purchased,” L.E.K Consulting’s Andrew Kadar said of the retailer's program with Anthem. “Roughly 40% of OTC drugs are used by people older than 65 years of age (and) 35% of those seniors are currently enrolled in a Medicare Advantage plan and another 42% have a stand-alone Medicare Part D plan.”
Alphabet invests $375 million in Oscaraxios.comOscar is jumping into Medicare Advantage in 2020.
Google's parent company, Alphabet, is investing $375 million in health insurance startup Oscar just months after Oscar raised a separate $165 million cash injection. The new round leaves Oscar at a rough $3 billion valuation, per Wired.
The big picture: Oscar will use the money on technology and to expand into Medicare Advantage, which the company previewed with a job posting last year. But entering a new line of health insurance likely means losses will continue for the foreseeable future.
By the numbers: Oscar sells health plans in the Affordable Care Act marketplaces (for people who don't get insurance through a job) and for small employers. So far, the company has lost a lot of money:
The intrigue: Oscar entering Medicare Advantage in 2020. It's the profitable, growing, privatized version of traditional Medicare. It also has closed, narrow networks of hospitals and doctors instead of traditional Medicare's open network.