[Editor’s note: The following is the response to a request for information about Medicare Advantage data gaps by the Centers for Medicare and Medicare Services, from a coalescence of grassroots organizations and others.]
May 29, 2024
The Honorable Chiquita Brooks-LaSure Administrator
Centers for Medicare and Medicaid Services
U.S. Department of Health and Human Services
200 Independence Avenue, SW Washington, DC 20201
The Honorable Xavier Becerra, Secretary
U.S. Department of Health and Human Services
200 Independence Avenue, SW Washington, DC 20201
Re: CMS-4207-NC–Medicare Program; Request for Information on Medicare Advantage Data Submitted electronically via https://www.regulations.gov
Dear Administrator Brooks-LaSure and Secretary Becerra,
Thank you for providing us with the opportunity to share our views on Medicare Advantage (MA) data gaps and needs in order to make critical improvements to MA. Like you, our goal is to promote health equity, protect enrollees, and ensure the fiscal integrity of the Medicare program. Right now, with limited, untimely and incomplete MA data, these goals are a pipe dream.
This response to the MA Data request for information is submitted on behalf of the below signed organizations and individuals representing a wide and diverse swath of stakeholders. We believe that critical data gaps today undermine MA accountability and allow bad actors to gouge taxpayers, erode the Medicare Trust Fund, endanger the lives and well-being of older adults, and discriminate against Black, Hispanic, Pacific Islander, low-income and critically ill older adults and people with disabilities.
We salute CMS for trying to enhance enrollee protections in MA but, without better data, there is no way to protect people from plans that do not honor their obligations to cover Medicare benefits and other contractual obligations. CMS cannot cancel their contracts or penalize them appropriately. CMS cannot warn people about MA plans with unconscionably high denial rates, inadequate networks, or high mortality rates. Unfortunately, the available data suggests there are far too many of them.
We agree with you that we should “have, and make publicly available, MA data commensurate with data available for Traditional Medicare to advance transparency across the Medicare program, and to allow for analysis in the context of other health programs.” Not only is that not the case today, but we know from MedPAC that insurers have never met their obligation to release complete and accurate encounter data. That failure alone indicates either an inability of insurers to effectively manage care, or a blatant disregard for the value of this data for effective oversight, or perhaps a desire to hide the data to avoid appropriate accountability for their bad acts. Whatever the reasons, it is essential that any and all data requirements from insurers be fashioned in ways that ensure their complete, accurate and timely collection and impose appropriate non-discretionary penalties for insurers’ failure to provide the data.
Without complete, accurate and timely plan-level data, adequate resources for oversight and meaningful penalties for noncompliance, the MA program has become an ATM for the health insurers offering MA plans. This makes the MA program a dangerous choice for older adults and people with disabilities who too often wrongly assume what they are told — that they will get the Medicare benefits to which they are entitled. Further, it makes the MA program an administrative nightmare and a financial risk for providers. If Congress and the administration do not have the tools to identify and punish insurers who withhold Medicare-covered services from MA enrollees or otherwise discriminate against them, they should acknowledge the MA program’s vulnerability to corporate crime and serious or deadly enrollee harm — and overhaul or end the program.
Recently CMS chose not to call for more detailed data reporting from MA insurers. Rather, it said that “reporting at the specialty level and service level could be overwhelming because of the volume of information presented.” If CMS cannot manage the collection and analysis of granular data to police the insurers offering MA plans effectively, CMS should publicly disclose those constraints and their dangerous consequences, call upon Congress for the needed resources, and warn enrollees upfront and clearly of its inability to protect them from bad actor insurers who have the ability and the financial incentive to deny them needed care.
We detail below some of the most critical data gaps and needs to prevent the MA program from offering choices to older adults and people with disabilities that no one should have to make, gouging taxpayers and the Medicare Trust Fund, and disrespecting the financial and administrative needs of providers. Before we do, we want to underscore our shared goal with the administration of promoting health equity and the need for a lot more MA data to accomplish this goal.
That said, if the government simply requires more MA data without robust oversight and non-discretionary penalties on insurers for non-compliance, the requirements would be of little value. The government must use the data to oversee the MA insurers and hold the bad actors accountable for their bad acts in meaningful ways.
Moreover, if the government simply expects beneficiaries to make sense of volumes of Medicare data to protect themselves against bad actor MA plans or to appeal systemic inappropriate denials of care in order to get the Medicare benefits to which they are entitled, it is promoting health inequities. If the government allows MA plans to hide the data revealing that lower-income enrollees and communities of color are going without needed care because of administrative and financial burdens and inappropriate denials, it is promoting health inequities. CMS must keep bad actor MA plans out of the program and reform the MA program to minimize harm to enrollees.
In a sadly apt comparison, the Boeing aerospace corporation was allowed to continue its money-saving profit-centric business model that led to the needless deaths of many people before Boeing was forced to suffer material consequences. We have mounting evidence that the worst performing MA plans are behaving similarly, with arguably far more horrific consequences both for their tens of thousands of enrollees and for the Medicare program writ large. And no one is yet identifying these bad actors, let alone stopping them.
Inadequate provider networks and misleading directories cause harm
The government cannot protect people enrolled in MA if it cannot block MA plans with inadequate networks or prevent sales agents from misleading people about networks. Today, it cannot do either, even though CMS “requires” insurers to offer adequate networks and restricts the activities of MA sales agents. Consequently, people sign up for MA plans thinking they will get the care they need from the physicians and hospitals they want or need to use and too often find they are not covered for their care from those providers. The network provider directories are inaccurate. They often can’t use a cancer center of excellence. Or, they can’t see a physician at a convenient location. Or, all of the nursing homes in their network are of poor quality. As you know, the plight of enrollees who need costly care is all the worse for Black and Hispanic people, low-income people and people in rural communities—promoting grave and unconscionable health inequities.
CMS allows insurers to offer MA plans with different networks in a contract and only collects network information at the contract level, preventing it from ensuring network adequacy. CMS likely lacks the resources to oversee more than 4,000 MA plans effectively. To protect enrollees, this cannot continue.
CMS could require insurers to offer the same provider network to all MA plans in a contract. That requirement would simplify oversight of network adequacy and provider directories. It also would help promote health equity, prevent provider network discrimination, and allow for more meaningful plan choice.
The simplest way for CMS to collect accurate provider network data would be to create a central web portal on which all providers are required to list their MA plan affiliations. Insurers would then be responsible for ensuring accuracy and could penalize network providers who were not listed. People could far more easily compare MA plan networks.
The best solution would be for CMS to require all MA plans to eliminate their networks and cover all willing Medicare providers at the Medicare rate.
Again, whatever CMS chooses to do, it is of no use if the insurers do not have adequate networks. It is of no use if the insurers are not accountable for failing to provide accurate provider information less than 95 percent of the time or failing to have adequate networks. CMS should impose a non-discretionary meaningful penalty on these insurers in the form of a lower star rating, an X or other warning about the plan on its web site or a requirement to stop all marketing. Insurers should be held strictly liable for their errors. Enrollees should not be their victims.
Additionally, as the Center for American Progress recommends, “CMS should ensure there are explicit protections that would allow for an enrollee to change MA plans or return to TM without being subject to medical underwriting for supplemental Medigap policies if their MA plan directory was inaccurate at their time of enrollment. For example, CMS can clarify that if an enrollee makes such a discovery, it should be considered a misleading MA practice and accordingly trigger a Special Enrollment Period (SEP) for supplemental benefits.”
Proprietary and non-evidence-based prior authorization rules cause harm
If MA prior authorization rules have health benefits, insurers should share them openly and freely use them. If not, insurers should be penalized heavily for using them, especially in cases where people’s lives and health are at serious risk, such as for cancer patients. Otherwise, Congress and the administration cannot protect Medicare Advantage enrollees from grave harm.
For this reason, CMS must require insurers to disclose all prior authorization requirements they intend to use, and CMS must pre-approve them based on evidence. Penalties for non-compliance should be severe and non-discretionary. Insurers should be stopped from making people with Medicare their victims.
To truly protect people, CMS should dictate the prior authorization rules that MA plans are permitted to use. Specifically, CMS should create a standardized prior authorization system that applies to all MA plans. Only a standardized system will promote health equity and allow people to make an informed MA choice.
For now, in its insurer contracts, CMS should prohibit insurers from using different prior authorization rules for enrollees depending upon the MA plan they are enrolled in. There is no good rationale for allowing an insurer to discriminate against people in some MA plans through use of more prior authorization rules than other MA plans. Either prior authorization is beneficial and clinically sound or it is not.
Recent CMS prior authorization rules are a good first step. But, without more details and non-discretionary penalties for plans that apply PA inappropriately, history and experience suggest that insurers will ignore such rules. To repeat, the only way for CMS to ensure MA enrollees get the same Medicare benefits as people in TM — and protect MA enrollees from deadly delays and denials of care as a result of PA — is for CMS to set standardized PA rules. To ensure and promote health equity, CMS should require insurers report PA denial and delay data by type of service and enrollee characteristic at the plan level.
Insurers should also report MA plan level denials both pre and post treatment and in and out of network. CMS needs the information to ensure insurer compliance with Medicare coverage rules. Individuals need this information to avoid plans with high denial rates. Providers need this information to make informed choices about which networks to be a part of.
Supplemental benefits are a gift to insurers who wrongly and excessively deny care
Based on the existing evidence, it is all but certain that insurers are able to offer extra benefits and still profit handsomely because of the money they save from denying care inappropriately, keeping enrollees from seeing high quality providers, attracting a disproportionate share of healthy enrollees and creating incentives for enrollees with costly conditions to disenroll.
CMS should automatically forbid plans with denial rates above 10 percent in the prior year from offering supplemental benefits. While this would likely mean fewer supplemental benefit offerings, as the Center for American Progress says, “The little research that is available suggests that MA plan coverage for dental, vision, and hearing services has not resulted in improved access for beneficiaries.”
Immediately, along with the Center for American Progress, “We recommend that CMS collect and publish utilization and OOP spending data for all supplemental benefits, disaggregated by enrollee race, ethnicity, gender, income level, and other important demographic characteristics, at both the plan and beneficiary level. This information should be stratifiable by benefit transaction/service type. We also recommend that complete data on the use of prior authorization for supplemental benefits, including rates of denials on PA requests, be reported to CMS and made publicly available.”
High disenrollment or mortality rates should disqualify an insurer from offering an MA plan
CMS should require insurers to report MA plan-level disenrollment and mortality rates. The data should be broken down across demographic and health characteristics of the people who disenroll or die and should be publicly reported. Disproportionately high rates automatically should trigger cancellation of MA contracts. High rates should also trigger lower MA star ratings. Given that some plans have excessively high denial and mortality rates, people choosing an MA plan can only make a meaningful choice with this information. Star ratings that do not meaningfully reflect excessive mortality rates are a cynical perversion of quality methodologies.
Out-of-pocket costs force people into debt and to forgo care
CMS should collect and report plan level data on the number of people forgoing critical care based on cost or care denials. How many people in MA are forgoing critical care as a result of high out-of-pocket costs that their MA plan imposes? How many of them are low income, in poor health or are Black or Hispanic? How can CMS promote health equity without this information?
CMS should collect and report plan level out-of-pocket costs by health condition. What are people’s out-of-pocket costs if they have cancer, suffer a stroke, or need rehab? How can people make an informed choice of an MA plan without this information?
CMS should collect MA plan-level data to promote health equity
CMS needs MA plan-level data to promote health equity or it needs to forbid insurers from offering more than one MA plan in a contract area.
To echo the Center for American Progress, “CMS should consider including some dimension of equity as part of the MA star ratings program, which at the very least could be a reflection of whether MA plans are collecting adequate and stratifiable data.” And, “CMS should prioritize making any necessary adjustments to its race and ethnicity data collection processes given how central accurate underlying data is to the validity of monitoring for inequities.”
Without oversight and enforcement, data requirements are virtually useless
We know that tens of thousands of people each year in MA, if not hundreds of thousands, are dying needlessly or suffering greatly because Congress created a program that is impossible to oversee and the insurers have become so big and powerful, both legally and politically, that they can design their MA plans to maximize profits and violate contracts with near impunity.
The data on health insurance violations reported on violationtracker.org speaks volumes.
No other wealthy nation allows health insurers to behave as they will to deny and delay care or otherwise restrict care access as MA insurers are able to do. No other wealthy nation provides insurers with an incentive to maximize profits on the backs of their enrollees. Rather, they dictate when, how and where care is covered—and the price. That’s the way to ensure insurers do their job appropriately and protect people.
A lot more data is urgently needed for adequate oversight. But, without tens of billions of dollars more, CMS will not be able to conduct effective oversight and enforcement. Insurer abuses will persist and vulnerable older adults and people with disabilities will suffer. Only much tighter regulation and non-discretionary automatic penalties for non-compliance will promote health equity and ensure MA enrollees get the care to which they are entitled.
Conclusion
This year alone, the government is projected to overpay insurers offering Medicare Advantage plans between $83 and $127 billion, wasting taxpayer dollars and driving up Medicare premiums, indicating serious design defects in the government’s capitated payment structure. Moreover, notwithstanding critical missing data, mounting evidence reveals serious deficiencies in MA’s coverage design, resulting in untold harm to a significant number of enrollees who need critical care.
Rules and regulations, limited resources, and corporate health insurer power have kept CMS from collecting critical data, auditing plans adequately, and enforcing penalties. Rather, MA is growing quickly, and few people enrolled appreciate that they are taking a big gamble with their health. Medicare Advantage saves money for healthy people, but comes with serious costs and major limitations for the most vulnerable. Instead of pooling and spreading risk, the MA model allows insurers to fragment risk, burdening the sickest; the opposite of a proper insurance design.
Traditional Medicare is far from perfect and needs improvements, including an out-of-pocket cap. But, it is far more cost-effective than MA. In sharp contrast to MA, Traditional Medicare pools and spreads risk. It is designed to ensure that the 10 percent of enrollees responsible for 70 percent of Medicare spending have quick and easy access to needed care. Traditional Medicare does not create obstacles to care, or second-guess enrollees’ treating physicians in order to maximize profits, much less withhold data in order to prevent appropriate oversight.
We know that political pressures can prevent dramatic action, often when it is most necessary. We hold Congress largely responsible for refusing to act in meaningful ways to reform MA. And, we thank CMS for calling on the public to bring attention to MA’s limitations, as well as for improving MA as best it can, given so many constraints.
We hear the nightmare Medicare “Disadvantage” and “Take Advantage” stories on the ground and struggle to sleep at night, concerned for the millions of vulnerable Americans who can’t afford supplemental insurance in TM and have no clue of the challenges they are likely to face in MA when they most need care. We will continue to highlight MA’s inequities and defects and advocate for major reforms to the program, alongside the Office of the Inspector General, the Government Accountability Office, the MedPAC, the Committee for a Responsible Federal Budget, the American Hospital Association, a growing number of Congresspeople and myriad others. We promise that we will not stop speaking out until the day our representatives in Congress unite to pass legislation that will protect MA enrollees and the fiscal integrity of the Medicare program.
In the meantime, we appreciate your consideration of our comments. For any questions regarding this comment letter, please contact Diane Archer at [email protected].
American Economic Liberties Project
Be A Hero
Center for Economic and Policy Research Center for Health and Democracy
Center for Medicare Advocacy
Just Care USA
People’s Action
Physicians for a National Health Program
Public Citizen
Puget Sound Advocates for Retirement Action
Social Security Works
Dr. Don Berwick, Former Administrator of the Centers for Medicare and Medicaid Services (CMS)