CMS is putting health care providers on notice that it considers it “inappropriate” for providers to offer premium or cost-sharing assistance to Medicare or Medicaid beneficiaries in order to “steer” the patient to an individual market plan “for a provider’s financial gain.”  In a request for information to be published on August 23, 2016, CMS cites anecdotal reports that some health care providers have determined that private plan rates are sufficiently high compared to Medicare or Medicaid reimbursement to allow a provider to pay a Medicare- or Medicaid-eligible patient’s private insurance premiums and still benefit financially.

CMS has identified a series of potential problems with such arrangements, such as increased overall health system costs, harm to patient care and service coordination because of changes to provider networks and drug formularies, higher enrollee out-of-pocket costs, and negative impact on individual market risk pools.  More specifically, CMS warns that individuals who are steered into an individual market plan for renal dialysis services and have a kidney transplant while enrolled in the private plan will not be eligible for Medicare Part B coverage of their immunosuppressant drugs if they later enroll in Medicare; in a sign of the agency’s particular concern about this patient population, CMS has sent letters to all Medicare-enrolled dialysis facilities and centers informing them of the CMS notice.

CMS therefore is “strongly encouraging any provider or provider-affiliated organization that may be currently engaged in such a practice to end the practice.”  CMS also asserts that issuers are not required to accept such payments from health care providers or provider-affiliated organizations (e.g., provider-affiliated non-profits).  Furthermore, the agency notes that is has “several regulatory and operational tools” it could use to discourage providers from making premium payments or routinely waiving cost-sharing for individual market plans, including:  revisions to Medicare and Medicaid provider conditions of participation and enrollment rules; and imposition of civil monetary penalties (CMPs) for individuals who failed to provide correct information to the Marketplace/Exchange when enrolling consumers into qualified health plan.  In addition, CMS is exploring its authority to impose CMPs on providers if their actions result in late enrollment penalties for Medicare-eligible individuals who delayed Medicare enrollment because they were steered to an individual market plan. CMS is also working closely with federal, state and local law enforcement to investigate instances of potential fraud and abuse, as well as collaborating with private and public health plans on provider fraud in the Healthcare Fraud Prevention Partnership.

In the notice, CMS invites feedback on specific questions related to the frequency of patient steering and options to limit this practice, including (among many others):

  • How, and to what extent, are health care providers actively engaged in steering?
  • How are issuers accounting for people entering the single risk pool who would normally be covered under another government program when setting rates?
  • Are there examples of steering practices that specifically target people eligible for or receiving Medicare and/or Medicaid benefits to enroll in individual market plans?
  • Are providers steering people eligible for Medicare and/or Medicaid to individual market plans because they are excluded from Medicare and Medicaid or their enrollment has been terminated or billing privileges revoked?
  • What actions could CMS consider to add transparency to third party payments?
  • In what ways are Medicare- and Medicaid- eligible individuals impacted by steering?
  • What remedies could effectively deter health care providers or provider-affiliated organizations from steering people eligible for or enrolled in Medicare and/or Medicaid to individual market plans and paying premiums for the provider’s financial gain?
  • What steps do third party payers take to effectively screen for Medicare and/or Medicaid eligibility before offering premium assistance?
  • For providers that offer premium assistance, how are they interacting with beneficiaries to determine proper enrollment, and how are consumers connected to foundations or others who are in the position to provide premium assistance?
  • To what extent is steering associated with other inappropriate behavior, such as billing for services not provided, or quality of care?

CMS also seeks more open-ended comments on:

  • Policies prohibiting providers from offering premium assistance and routine cost-sharing waivers for individual market plans when a beneficiary is currently enrolled or could become enrolled in Medicare.
  • Federal policy changes related to premium assistance programs in the individual market to prevent negative impact to beneficiaries and the single risk pool.
  • Changes to Medicare and Medicaid provider enrollment requirements and conditions of participation that would potentially restrict health care providers from manipulating patient enrollment in various health plans for their own benefit.
  • The advisability of such restrictions, as well as considerations of how such restrictions would affect health care providers and beneficiaries.
  • Policies to require Medicare and Medicaid-enrolled providers to report premium assistance and cost-sharing waivers for individual market enrollees to CMS or issuers.
  • Approaches that would allow individual market plans to limit their payment to health care providers to Medicare-based amounts for particular services and items of care.
  • Policies that would allow individual market plans to make retroactive payment adjustments to providers, when health care providers are found to have steered Medicare or Medicaid beneficiaries and enrollees to enroll in an individual market plan for the provider’s financial gain.

Comments will be accepted until September 22, 2016.