On November 6, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule regarding Contract Year 2025 Policy and Technical Changes to the Medicare Advantage (MA) and Medicare Prescription Drug Benefit Programs. Among other proposals, CMS proposed significant changes to longstanding rules on permissible payment structures for agents and brokers. Some of the proposed changes would likely go into effect in 2024 (once the final rule is effective), while others would not be effective until the 2025 contract year.
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The proposed rule seeks to address CMS concerns that agent and broker compensation may incentivize agents and brokers to enroll individuals in certain MA plans that CMS alleges can result in steering beneficiaries to some MA plans over others rather than recommending plans based on the prospective enrollee’s best interests.
CMS proposes to: (1) broaden the scope of “compensation” so that it includes activities associated with the sales to and enrollment of a beneficiary into an MA plan or Part D plan; (2) set a national fixed compensation amount that agents and brokers receive from MA organizations for new MA enrollments at $642 (compared to the existing national compensation which is a cap of no more than $611); and (3) prohibit contract terms that result in volume-based bonuses for enrollment.
Additionally, the proposed rule seeks to help make consumers aware of their plan benefits by proposing an annual “Mid-Year Enrollee Notification of Unused Supplemental Benefits,” personalized to each enrollee, that includes a list of any supplemental benefits the enrollee has not accessed during the first six months of the year. Supplemental benefits are extra benefits offered by MA plans that go beyond regular Medicare Parts A and B benefits. The notification would include the scope of the benefit, cost-sharing, instructions on accessing the benefit, any network application information, and a customer service number.
Furthermore, the proposal seeks to strengthen network adequacy requirements and improve access to behavioral health care services for MA enrollees by adding a range of behavioral health providers under one category called “Outpatient Behavioral Health” as a facility specialty for which CMS sets MA plan network adequacy standards. Specialists under this category include marriage and family therapists, mental health counselors, addiction medicine physicians, Opioid Treatment Program providers, Community Mental Health Centers, and other providers who provide addiction medicine and behavioral health counseling or therapy services.
CMS proposes adding this Outpatient Behavioral Health facility specialty to the list of the specialty types that will receive a 10% credit if the MA organization’s contracted network of providers includes one or more telehealth providers of that specialty type who provide additional telehealth benefits for covered services.
The proposed rule also aims to increase the percentage of dually eligible MA plan enrollees who are in plans that also cover Medicaid by offering more opportunities to enroll in plans that integrate Medicare and Medicaid and more opportunities to switch to traditional Medicare, as opposed to MA plans that differ from the enrollee’s Medicaid plan. The Proposed Rule would revise the current quarterly special enrollment period (SEP) for dually eligible and other Part D low-income subsidy (LIS) enrolled individuals to a once-per-month SEP to enroll in a standalone prescription drug plan and create a new integrated care SEP, to allow dually eligible individuals to elect an integrated dual eligible special needs plan (D-SNP) on a monthly basis.
Additionally, the proposed rule aims to promote access to affordable biosimilar and generic products by permitting Part D sponsors to treat formulary substitutions of biosimilar biological products other than interchangeable biological products for their reference products as “maintenance changes” that would not require prior approval by CMS. CMS currently requires plans to obtain explicit approval from CMS before substituting with biosimilar biological products other than interchangeable biological products, and such substitutions apply only to enrollees who begin therapy after the effective date of the change, which would delay access to lower cost options. Treating such substitutions as maintenance changes would mean that any substitutions would apply to all enrollees following a 30-day notice, and enrollees would have earlier access to equally effective and potentially more affordable options.