Medicare Advantage Organizations
Generally, Medicare Advantage Organizations (MAOs) maintain provider networks and either limit an enrollee’s ability to obtain Medicare-covered services from out-of-network providers or charge enrollees more when they receive services from out-of-network providers. On March 10, 2020, CMS released guidance for MAOs (as well as for Part D sponsors) regarding certain obligations as well as permitted flexabilities related to disasters and emergencies resulting from COVID-19.
1. Special Requirements: The following requirements are imposed on MAOs from the time the Governor of a state or territory makes a public health emergency declaration until the end date stated in the declaration or 30 days, if no end date is contained in the declaration. The National Association of Governors (NAG) has compiled the states and territories that have made such a declaration (which appear to be all states and territories, as well as the District of Columbia). Once a declaration has been made, MAOs are required to:
i. Cover Medicare Part A and B services and supplemental Part C plan benefits furnished at non-contracted facilities subject to §422.204(b)(3), which requires that facilities that furnish covered Medicare Part A/B benefits have participation agreements with Medicare;
ii. Waive, in full, requirements for gatekeeper referrals, where applicable;
iii. Provide the same cost-sharing for the enrollees as if the services or benefits had been furnished at a plan-contracted facility; and
iv. Make changes that benefit the enrollee effective immediately without the required 30-day notification (§422.111(d)(3)), including potential changes such as waiving prior authorizations, as set forth below under “Permitted Actions.”
CMS notes that these changes must be made uniformly to similarly situated enrollees who are affected by the disaster or emergency.
2. Permitted Actions: In addition to the noted requirements, CMS is allowing MAOs to:
i. Waive or reduce enrollee cost-sharing for COVID-19 lab tests, telehealth benefits or other services to address the epidemic if the MAO waives or reduces cost-sharing for all similarly situated plan enrollees on a uniform basis;
ii. Provide all similarly situated enrollees impacted by the outbreak of COVID-19 access to Medicare Part B services via telehealth in any geographic area and from a number of places, including the beneficiary’s home; and/or
iii. Waive plan prior authorization requirements that otherwise would apply to tests or services related to COVID-19.
Importantly, CMS has consulted with the OIG who indicated that (i) if the MAO voluntarily waives or reduces cost-sharing as approved by CMS (option (i) above), and/or (ii) expands coverage of telehealth benefits (option (ii) above), then the waivers or reductions and/or the additional telehealth coverage would each satisfy the safe harbor to the federal Anti-Kickback Statute (42 CFR 1001.952(l)).
Important Disclaimer: The information in this blog post is provided for general informational purposes only, and may not reflect the current law in a particular jurisdiction. The information is provided as of the date noted, and the law or interpretations thereof may change over time. While we make efforts to ensure the information is current and accurate, due to the ever-changing nature of the law, we can make no guarantees or promises. No information contained in this post shall be construed as legal advice from Barrett Law or the individual author. The blog neither creates an attorney-client relationship nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in this post. Appropriate legal or other professional advice regarding the particular facts and circumstances at issue should be obtained from a lawyer licensed in the appropriate state, country or other appropriate licensing jurisdiction.