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Medicare Advantage Predatory Marketing

by Kristin Rowan | Aug 16, 2024 | CMS, Editorial, Marketing, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

Leading Associations Attempt to Curb Medicare Advantage Marketing Practices that Prey on the Unsuspecting

For some time now, we’ve been reporting on the marketing practices that Medicare Advantage uses to lure new members. And, it’s working, as more than 50% of eligible patients are now on Medicare Advantage plans. From federal lawsuits to fraud, to upcoding, Medicare Advantage has made headlines more often than almost any other topic in the industry in the last few years. A joint move last week by two national associations may bring the issue to a head once and for all.

The National PACE Association (NPA) and LeadingAge wrote to the Centers for Medicare and Medicaid Services (CMS) urging them to employ stricter oversight on Medicare Advantage marketing practices. The letter, dated July 25, 2024, cited the impact of these marketing tactics on adults served by Programs for All-Inclusive Care for the Elderly (PACE). They called the marketing “aggressive and misleading” and called upon CMS to protect PACE beneficiaries from harm.

One of the selling points in the marketing of Medicare Advantage is the supplemental benefits. Medicare Advantage plans are allocated nearly $64 billion dollars to pay for dental, vision, gym memberships, and other benefits that are not available with traditional Medicare. However, the government has no idea where this money is going, who is using it, and what it’s for. Limited available data suggests that a very low number of Medicare Advantage enrollees are using these supplemental benefits. The rest of the money just sits with the payers at taxpayer expense.

The false promise of cash benefits draw even more of this population away from traditional Medicare and into Medicare Advantage plans. Cash benefits from MA plans are only available to dual eligible members. What they don’t tell you, though, is that if you are dual eligible and you switch from Medicare to Medicare Advantage, you are subject to prior authorization rules, care denials, and smaller networks, meaning you may lose your physician when you switch plans. Some of those cash benefits are restricted to use in particular stores. For example, Aetna restricts the use of cash benefits to stores owned by CVS Health. If there isn’t a CVS Health near you, the cash benefits can’t be used.

PACE Programs

Programs of All-Inclusive Care for the Elderly (PACE) are typically traditional Medicare and Medicaid joint programs that provide medical and social services in home and community-based care settings. The programs cover prescriptions, dental care, emergency services, home care, meals services, primary care providers, nurses, social workers, and more. The program’s goal is to keep patients at home or in their communities and get the health care they need. There is no out-of-pocket costs to these programs for dual eligible members. Medicare only members have a monthly premium and prescription drug (Part D) premium. There are no additional deductibles or copayments for any service or level of care.

Bait and Switch

The marketing messages from Medicare Advantage are pulling PACE eligible members into dual MA and Medicaid plans, which significantly reduce the level of care, access to care, and continuity of care. The MA/Medicaid programs also have higher out-of-pocket costs to members, despite having no monthly premium. Research shows that Medicare Advantage is targeting healthier individuals who will use the provided benefits less often and that when Medicare Advantage patients become sicker, they switch back to traditional Medicare plans if they can.

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PACE LeadingAge MA Reform The financial and health implications of uninformed disenrollment from PACE to conventional MA plans are significant. The needs of PACE beneficiaries, most of whom have multiple complex medical conditions, cognitive or functional impairments – or all three – are not comprehensively addressed by MA plans. The loss of PACE services is harmful and, in some cases, can be life-threatening.

Katie Smith Sloan

president and CEO, LeadingAge

Dire Need for Change

In their letter to CMS, NPA and LeadingAge called for the following changes to be made:

Require MA plans to explain, clearly and without embellishment, all out-of-pocket costs and network/coverage limitations. using easy to understand terms
When a member disenrolls from a PACE program, additional steps should be taken to ensure the disenrollment is voluntary and that the member is fully informed of the differences in coverage before leaving the PACE program.
Increased leniency in re-enrolling in PACE programs after leaving a Medicare Advantage program by allowing re-enrollment mid-month.
Require MA brokers, when providing comparative benefit information of their current coverage (e.g., PACE) to an alternate MA plan, to also inform them, in plain language, if the new plan does not cover or coordinate their Medicaid benefits; and any benefits the individual would “lose” under the new plan (e.g., transportation to groceries).

Pace LeadingAge MA Reform We share CMS’ stated desire that people have access to accurate and complete information when they make health care choices. We have numerous examples of vulnerable seniors being induced to enroll in MA plans without being fully-informed of what they are giving up when they enroll.

Shawn Bloom

president and CEO, National PACE Association

The Rowan Report reached out to LeadingAge to see if CMS has responded to their letter.

Updates will be provided when we have them.

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Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Sources:

https://prospect.org/health/2024-05-30-medicare-advantage-64-billion-supplemental-benefits/

https://leadingage.org/associations-urge-tougher-enforcement-of-anti-predatory-medicare-advantage-marketing-practices/

Chevron Deference Derailed

by Kristin Rowan | Jul 12, 2024 | Advocacy, CMS, Regulatory

by Kristin Rowan, Editor

Chevron Deference

“A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.”

This statement followed the unanimous (minus the three who did not take part in the decision) U.S. Supreme Court decision in the Chevron U.S.A., Inc. v. National Resources Defense Council. The case is known for establishing the extent to which a federal court should defer to a government agency’s interpretation of an ambiguous statement when constructing statutes.

Breaking Down Chevron Deference

For those of you who don’t have a law degree, here’s what that means:

When a statutory term (required by law) is not explicitly defined and explained by Congress, there is room for interpretation
When a government agency interprets that statutory term, the interpretation may come under question
As long as the interpretation is not arbitrary (random), capricious (impulsive or unpredictable), or contrary to the statute (opposite the intent when put into practice), federal courts should give more weight to the government agency’s interpretation than to any other interpretation

Implications

At the time, the Supreme Court argued that if Congress leaves a term open to interpretation, it is either stated openness to interpretation, or an implied openness to interpretation. If a statute is implicity open, the intent of Congress is to allow a government agency to create provisions and regulations from that statute as they see fit.

No one foresaw the impact this ruling would have on commerce and regulation in the U.S. To date, the Chevron Doctrine has been cited nearly 18,000 times in federal court decisions. The application of a statute based on agency interpretation could no longer be questioned or changed by judicial review.

Chevron Deference in Home Health

Since the advent of the PDGM model, CMS has calculated payment rates based on its interpretation of budget neutrality. The National Association for Home Care and Hospice has disputed the validity of both the interpretation of budget neutrality and the formulas used to calculate it.

Last year’s 2024 CMS Proposed Rule cut payment rates even further with a 2.890% Budget Neutrality permanent payment rate adjustment and a temporary rate adjustment to account for alleged overpayments from 2020-2022.

The lawsuit filed against CMS in response to the 2024 Final Rule was dismissed. NAHC began pursuing an administrative review with CMS. However, CMS has already stated that their final position is that budget neutrality has been calculated within the law.

NAHC Comment: 2023 CMS Rule

“That proposal also fails logically in that it puts care access in severe jeopardy in applying a budget neutrality reconciliation methodology that takes PDGM-induced behavior changes to assess what otherwise would have been expended by Medicare in the absence of PDGM. In doing so, CMS fully fails to meet its obligation to ensure that the transition to a new payment model is budget neutral.”

NAHC Comment Source

Chevron Deference Repealed

In a landmark ruling on Friday, June 28. 2024, the Supreme Court removed the power of federal agencies to interpret laws and ruled that the courts should rely on their own intrepretation of ambiguous laws. Justice Elena Kagan, who dissented the ruling, predicts this change “will cause a massive shock to the legal system.”

Chief Justice John Roberts explained in his opinion that the Chevron Deference is inconsistent with the Administrative Procedure Act (APA). The APA is a federal law which contains instructions for courts to review actions by federal agencies. According to Roberts, the APA directs courts to decide legal questions using their own judgment. Therefore, he noted, agency interpretations of statutes are not entitled to deference. “…it remains the responsibility of the court to decide whether the law means what the agency says,” concluded Roberts.

NAHC to Refile Lawsuit after Chevron Deference Repeal

2024 Final Rule

In April, 2024, the lawsuit filed against CMS regarding the methodology for calculating budget neutrality was dismissed. Now, NAHC can refile the lawsuit and force CMS to justify its decision to enact repeated reimbursement cuts for home health.

In an interview on Wednesday, Bill Dombi told The Rowan Report, “This improves the chances of success for our lawsuit. CMS is going to have to support their regulatory interpretations going forward. Congress is going to have to offer more detail in its legislative language, leaving less to being open to interpretation.” Regarding the PDGM lawsuit, CMS argued that the law was clear and the agency’s interpretation was valid. The overturning of Chevron Deference allows the possibility of arguing that CMS’s interpretation of the law is flawed.

80/20 Rule

Dombi also explained that the Ensuring Access to Medicaid Services rule, also known as the 80/20 rule, was “drawn out of a whole cloth.” Previously, there were limited avenues available to challenge this rule. The repeal of Chevron Deference significantly improves the ability to challenge the 80/20 rule. The argument now, Dombi told The Rowan Report, is “Does CMS even have the authority to do this?”

More to Come

The Rowan Report anticipates more news coming out of Washington D.C. and the NAHC office regarding the 2024 pay cuts and the 80/20 rule. We will provide ongoing updates and information as it becomes available.

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Use of Preferred Provider Agreements

by Elizabeth E. Hogue, Esq. | May 23, 2024 | Clinical, Regulatory

by Elizabeth E. Hogue, Esq.

Preferred Provider Agreements as Referral Source

In a highly competitive marketplace, home care providers of all types, including home health agencies, hospices, private duty/home care companies and home medical equipment (HME) suppliers are looking for a “leg up,” especially for patients with certain types of payors. Providers may be able to cement important referral sources using Preferred Provider Agreements. For example, a provider may wish to approach an assisted living facility (ALF) to see if it is interested in a preferred provider relationship. If so, then management of the ALF may want to sign a Preferred Provider Agreement in order to further a relationship with this provider.

Problems with Preferred Provider Agreements

The anti-kickback statute may apply if providers involved in referral arrangements receive any type of federal or state funds, including, but not limited to, payments for services provided from Medicaid waiver programs, managed Medicaid programs, the Tri-Care Program, the VA, or any other state or federal programs. The anti-kickback statute generally says that anyone who either offers to give or actually gives anyone anything in order to induce referrals has engaged in criminal conduct. There are, however, several exceptions to this statute that may be applicable.

How to Assess Your Preferred Provider Agreements

Providers should ask two crucial questions about the application of the anti-kickback statute to referral arrangements:

Is there a kickback or rebate?
If so, is there an exception or “safe harbor” that permits the arrangement even though it would otherwise violate the statute?

kickback or rebate occurs when a provider receives referrals from another provider and something flows back to the referral source from the provider who received referrals. If there is a kickback or rebate, providers must automatically ask the second question listed above. If they fail to utilize applicable exceptions, they may miss out on useful marketing strategies that are likely to result in numerous referrals.

With regard to Preferred Provider Agreements, however, it is important to note that they can be structured so that no money or anything of value changes hands between providers and the other party involved. If so, there is no kickback or rebate.

Patient Choice

The parties to Preferred Provider Agreements must also make certain that they honor patients’ choices of providers. There are a number of sources of patients’ right to freedom of choice of providers applicable to preferred provider arrangements, including:

Court decisions or the common law says that all patients – regardless of payor source, type of care rendered, or types of providers involved – have the right to control the care they receive and who provides it.

A federal statute that guarantees all Medicare and Medicaid patients the right to freedom of choice of providers. This statute may be applicable if either party receives reimbursement from the Medicare or Medicaid Programs.

When patients express preferences for certain providers, however, their choices must be honored despite the existence of Preferred Provider Agreements. The agreement of the parties to honor patients’ choices should be included in Preferred Provider Agreements.

Final Thoughts

The market to provide services to patients in their homes is expanding, but the competition for referrals among providers seems to be extremely fierce. Providers are well advised to utilize Preferred Provider Agreements to help them to increase and/or maintain referrals in order to help ensure profitability.

No portion of this material may be reproduced in any form without the advance written permission of the author.

HHAeXchange Makes Leadership Changes

by Kristin Rowan | Apr 18, 2024 | Vendor Watch

by Kristin Rowan, Editor

On February 21, 2024, HHAeXchange announced a change in leadership for the homecare management solutions company. Former Chief Revenue Officer Scott Schwartz was named Chief Operating Officer and new hire Lori Harrington came on board as the Senior Vice President of Product. You can read the press release from HHAeXchange here.

HHAeXchange provides management solutions for providers, MCOs, and state Medicaid agencies. The software was designed specifically for home and community-based services (HCBS) and connects state agences, MCOs, providers, and caregivers through its web-based platform. According to HHAeXchange, the personnel changes show the company’s “commitment to providing innovative solutions that some homecare industry challenges.

I had the opportunity to reach out to Scott and Lori to get, in their own words, their visions for the future of HHAeXchange and the industry.

The Rowan Report: Thank you, Scott and Lori for taking some time to talk with The Rowan Report. First, congratulations to you both on your new roles. Can you each share a little about your background and career?

Scott Schwartz: For over 20 years, I’ve focused on system of record, vertical SaaS software and technology, with experience leading sales, marketing, client success and operations. I started my career as a process engineer and have held leadership positions at several SaaS companies, including as the founder and general manager of CampSite. I joined HHAeXchange in 2017 as vice president and have also served as senior vice president and chief revenue officer before stepping into my current role. As chief operating officer, my aim is to galvanize the organization around a shared vision of operational efficiency, innovative service delivery, and customer satisfaction.

Lori Harrington: I have enjoyed a career of over 20 years in healthcare with a background in product strategy and informatics. In my most recent role as vice president of product management at Teledoc, I led product strategy for value-based care initiatives. My passion for digital transformation in B2B2C markets has driven successful healthcare initiatives from ideation to commercialization. I believe that success in healthcare is really understanding your users and building solutions to solve their everyday problems in a seamless, understandable way.

RR: Scott, as part of your new responsibilities at HHAeXchange, how will you ensure effective communication and collaboration between internal departments to better serve customers?

Scott: We’re focused on enhancing our platform, which connects state agencies, managed care organizations, providers and caregivers, so cross-departmental communication and collaboration are vital. With shared services such as implementation, revenue cycle operations, integrations, technical customer care, training, and customer education under my purview, I plan to streamline communication pathways and ensure all teams are aligned with and working toward our common goals.
We want to leverage our teams’ diverse talents to drive transformation. My approach includes fostering an integrated work environment where interdepartmental meetings, clear information channels, and shared objectives are the norm. Regular check-ins and transparent leadership are key to ensuring every department understands how their work directly benefits our clients, the members they serve, and the company’s broader goals.

RR: And how will you ensure HHAeXchange’s solutions and product enhancements meet the needs of all homecare stakeholders – caregivers, provider agencies, members, and payers?

Scott: Engaging with stakeholders is critical. We involve provider agencies, caregivers, payers and others in our development process to ensure that our platform addresses real-world needs effectively. Our comprehensive engagement strategies support this with initiatives like periodic customer summits, road shows, and information sessions to capture a wide array of insights and feedback.
We monitor industry trends, regulatory changes, and technological advancements, which are factored into planned enhancements and solution updates. And with a team of reputable industry experts, we’re working to ensure that our products exceed the evolving needs of all homecare stakeholders.

Lori: We understand that stakeholders in the homecare space have diverse and critical needs. We keep a pulse on industry trends and challenges such as issues with caregiver turnover, regulatory & compliance changes, increasing volume of live-in caregivers, and an increase in diversification in home care utilization. With these observations, we aim to provide products that support healthcare agencies and caregivers as these trends evolve. Our solutions must be built with a nimbleness that accounts for a continuous change in regulations, EVV compliance requirements, and stakeholder expectations. Frequently engaging with stakeholders, conducting thorough market research, and incorporating feedback loops are integral to our product development processes.

RR: Lori, you mentioned the diverse needs of your stakeholders. What are the greatest problems your clients and prospects say they are looking to solve with improved homecare management software solutions and EVV platforms?

Lori: Our clients are prioritizing caregiver retention and looking for comprehensive solutions to streamline operational processes like billing, HR, and payroll while ensuring regulatory compliance and providing high-quality member care. They need tools to manage the diverse locations of members’ and workers’ schedules, foster strong member-caregiver matches, and enable transparent communications among provider teams.

Taking those challenges into consideration, HHAeXchange aims to equip our solutions with time-saving, stress-reducing features. Operational worklists, for example, alert agencies to important dates and actions their teams need to take regarding caregiver compliance and client authorizations. Our appointment module and case broadcasting feature reduce hassles associated with scheduling visits and quickly filling unexpectedly open shifts.

RR: Two questions, Lori. What trends are you seeing that are transforming homecare delivery models and, in addition to technology, are there any other trends shaping the homecare industry in 2024?

Lori: The ongoing caregiver shortage remains a concern, driving a shift toward more strategic technology investments and training opportunities. Homecare delivery is becoming more person-centered, suggesting the industry has adjusted to EVV and is using the technology to incorporate collaboration with families as caregiver participants. Additionally, there’s a growing emphasis on self-direction, with clients seeking more choice, flexibility and control in their care. Compliance is gaining more attention, with increased scrutiny to ensure standards of care are met across the board. Data and analytics will continue to be a primary enabler for how healthcare is shaped. We account for all of this in our product strategy and development plans.

RR: Final questions for you, Scott. How does HHAeXchange envision the homecare industry evolving in 2024 and, more specifically, how do you see the company’s innovations playing a role in that transformation?

Scott: The homecare industry is at a critical juncture. As Lori said, we’ve noted significant shifts toward value-based care, self-directed care, and person-centered approaches. At the same time, the fundamentals of homecare are as important as ever. HHAeXchange’s role is to stay ahead of trends while improving product offerings and customer experiences. We strive to balance innovative thought leadership with steady progress, continually enhancing the functionality of our foundational platforms to meet clients’ needs.
We’re investing in scalable technology, service improvements, customer education, and strategic integrations to accommodate the industry’s evolution. Our leadership is committed to empowering providers and payers alike with tools to improve caregivers’ efficiency and address fraud, waste and abuse in the industry. Through these efforts and plans, we aim to facilitate a more sustainable, higher-quality, and accessible homecare ecosystem for all involved, ensuring members have the option to receive care and treatment in the comfort of their own homes.

RR: Thank you both, again, for your time. I wish you both great success in your new roles.

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©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

CMS Announces Multi-Pronged Effort to Strengthen Direct Care Workforce

by Elizabeth E. Hogue, Esq. | Mar 6, 2024 | Admin, CMS, Regulatory

by Elizabeth E. Hogue, Esq.,

CMS recently issued guidance about how to build and maintain worker registries, i.e., management platforms, that make qualified health workers easy to find so that more individuals who receive Medicaid-covered home and community-based services (HCBS) can receive care in settings of their choice. Worker registries are designed to answer these questions: Who is qualified to provide HCBS in each state and how can Medicaid recipients find them?

On February 27, 2024, CMS announced several new initiatives and Resources from the Administration for Community Living’s (ACL) Direct Care Workforce (DCW) Strategies Center to address the shortage of workers who provide direct care to elderly and disabled clients. New initiatives include several types of assistance that are intended to help states strengthen their systems for recruiting, retaining, and developing direct care workers; and a national hub to connect states, stakeholders, and communities to best practices and other resources related to the direct care workforce.

Specifically, DCW Intensive Technical Assistance will facilitate collaboration among state agencies and with stakeholders to improve recruitment, retention, training, and professional development of direct care workers. The DCW Strategies Center will provide up to two hundred fifty hours of individualized technical assistance on a variety of issues for up to six teams involving multi-agency state teams.

A coach will be assigned to each team and have access to subject matter experts to support them in addressing states’ unique needs. Support provided through this initiative will be coordinated by a consortium led by ADvancing States in partnership with the National Association of State Directors of Developmental Disability Services and the National Association of State Medicaid Directors.

The DCW Peer-Learning Collaborative will bring representatives of four to six states into working groups focused on a particular topic. The DCW Strategies Center will host monthly virtual meetings focused on group learning to facilitate information sharing on best practices, innovative strategies, and demonstrated models for growing the direct care workforce. In addition, each participating state will receive up to seventy hours of individual technical assistance on a topic or issue important to each state. Each participating state is expected to accomplish at least one policy or program-related milestone as a result of participation in this initiative.

CMS also announced the official launch of the DCW Strategies Center website at https://acl.gov/dcwcenter. This website is intended to serve as the national hub for resources about best practices, promising strategies, upcoming events, webinars, and technical assistance opportunities to strengthen and expand local direct care workforces.

CMS acknowledges in the announcement that low wages, lack of benefits, limited opportunities for career growth, and other factors have resulted in a continuing shortage of critical workers. The shortage reached crisis levels, says CMS, during the COVID-19 pandemic and currently continues, with more than three-fourths of service providers that decline new clients and more than half of providers cutting services.

According to CMS, the problem described above must be addressed in order to help ensure that people who need assistance have options other than moving to a nursing home or other institutional setting.

Now is the time for providers of private duty or home care services and the associations that represent them to work intensively with state programs, especially Medicaid Programs, to maximize available assistance as described above.

No portion of this material may be reproduced in any form without the advance written permission of the author.

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