Letter Opposing Medicare Advantage Terminations

November 6, 2013

Marilyn B. Tavenner
Administrator
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 445-G
200 Independence Avenue, SW
Washington, DC  20201  

Re: Medicare Advantage Program—Systematic Failure to Provide Patients Adequate, Accurate, and Reliable Information on Modifications to Network and Lack of Transparency on Network Adequacy and Physician Due Process

Dear Administrator Tavenner: 

On behalf of the undersigned physician organizations, we urge the Centers for Medicare & Medicaid Services (CMS) to take immediate action to ensure that Medicare beneficiaries participating in Medicare Advantage (MA) plans have accurate and reliable information to make health insurance elections during the 2014 Open Enrollment period, and to address a lack of MA sponsor transparency on network adequacy.  The American Medical Association (AMA) and a number of state medical associations and national medical specialty societies have been contacted by hundreds of physicians indicating that they have been terminated from 2014 MA plan networks of UnitedHealthcare (United) and other insurers in select markets.  The terminations are “without cause” and have been timed in a manner that undermines the accuracy and reliability of the information Medicare beneficiaries are relying upon in order to make important health care decisions for 2014 health insurance coverage.  The timing and process used to communicate the terminations and modifications to the networks are not consistent with CMS guidance and regulations.  

Background

MA sponsors in certain markets have reduced physician networks in effort reportedly to “optimize” the network.  To our knowledge in at least 11 states, MA sponsors have sent mass letters to physicians informing them that they have been dropped from one or more of the insurer’s MA products.  While there are different versions of the notifications, in general the letters state that the network terminations are effective in early 2014, after the close of the 2014 open enrollment period which concludes in December 2013.  

Patient Rights Undermined and Access Denied

The timing of the network modifications, the lack of accurate and reliable information, and lack of network transparency has significant negative ramifications for the Administration’s goal of reducing fragmentation of patient care.  Indeed, there is widespread evidence that the proposed modification will disrupt long-established patient-physician relationships, interfere with existing physician referral networks, and undermine emergency department coverage in many hospitals.  Both the continuity and coordination of care will be negatively affected and treatment for certain types of care commonly provided by a very limited number of sub-specialists may no longer be available within the network.

The MA plan sponsors have not provided adequate notice in advance of the Open Enrollment period to patients that their physician(s) will no longer be a part of the plan’s network next year.  Notices to many patients apparently were sent by bulk mail only weeks before Open Enrollment began and in at least one state, it appears that beneficiaries have yet to receive any direct notice that their physician is being dropped from their plan.  Those who called help lines to find out if and when their physician was being terminated report that they received incomplete and conflicting information.  The lack of notice appears to be an ongoing failure as there is no indication that during the Open Enrollment period, plans have undertaken any additional initiatives to ensure that patients are aware of the changes in their network and rules.  We also understand that plan websites have contained information on physician participation that has been inaccurate for part of the Open Enrollment period and it is still not clear that plans have informed beneficiaries who made an election based on inaccurate information on the public websites.  In a few short months—after Open Enrollment has ended—many patients in MA plans will learn that they are unable to receive medical care from a physician with whom they have an established relationship.  

Unfortunately, it appears that patients—intentionally or unintentionally—are being misled about whether their physicians have been terminated and what options are available if they wish to retain their current physician.   Initially, some plans ceased identifying physicians as being in the network in public materials, but then subsequently added them back only to again delete the physicians from the public materials all during the ongoing Open Enrollment period.  Some materials also imply that patients will be forced to pay the full charge of any physician dropped when in fact the patient could continue with that physician on an out-of-network basis with a higher co-payment.  There is widespread confusion among physicians and patients where MA plan sponsors have waited to transmit these notifications in the period just prior to and during 2014 Open Enrollment. 

Furthermore, there are reports that some MA plan sponsors issued the terminations effective February 1, 2014, which would reportedly relieve the plans of certain requirements designed to protect the rights of patients to make elections based on whether or not their treating physician(s) are part of a MA plan as of January 1, 2014.  While these MA plans may maintain that they have complied with federal MA regulations and guidance, it remains to be seen whether these decisions were made in order to purposefully mislead Medicare beneficiaries into believing their physician would remain in the plan.  At a minimum, to the extent CMS concludes that terminations were set for February 1, 2014 instead of January 1, 2014, this raises serious questions that CMS and state regulators should address.     

Finally, the above issues and concerns have taken on an added dimension for underserved and minority populations who will be disparately impacted.  Specifically, the size of the networks has been reduced to the point that, despite MA requirements, beneficiaries may not be able to access culturally competent care including care for those with limited English proficiency and diverse and cultural and ethnic backgrounds.  In addition, beneficiaries with disabilities are likely to be adversely impacted based on the geographic distances that they will need to travel to obtain physician services.  This has similar implications for beneficiaries with limited incomes.  Because the patient and physician notification has not been handled in a way that ensures patients are aware of their treating physician’s participation status, the adequacy of the network becomes an extremely important matter with regard to patient access and continuity of care.   

Lack of Transparency

Some of the MA plans that have reduced their networks have failed to provide a timely, transparent and clear means for physicians to challenge their terminations from the network.  The MA terminations are “without cause.”  Many physicians have been provided limited, if any, information on how to appeal the decision.  Some have received perfunctory denials of their appeal to remain in the network.  Others are still waiting for a response, thereby leaving their status in limbo and creating a quandary for patients facing an Open Enrollment deadline.  

Physician termination notices also were sent in unmarked envelopes as bulk mail and, in many instances, were mistakenly disregarded by busy practices.  As a result, many physicians do not know and have not been able to determine whether they are still in plans.  Also, although required by its contract with Medicare, there are reports that some MA plan sponsors are not providing the affected physicians with written notice of the reasons for the action that includes, among other things, the standards and profiling data used to evaluate the physician and the numbers and mix of physicians needed by the MA organization.  Efforts to obtain the standards and profiling data as well as the mix of physicians needed by these MA plan have not been successful despite repeated requests by state medical societies.   

Physicians, as a result, have been denied the opportunity to appeal the action because the basis for the determination is not clear.  The deadlines for the appeals will run without physicians having adequate information on which to file the appeal.  The MA plans, in some instances, have indicated that these appeals are a mere formality.  Furthermore, it is also not clear that these appeals will be heard by a panel of peers as required by Medicare.   

Recommendations   

The undersigned organizations strongly urge CMS to extend the MA open enrollment period and to require MA plan sponsors that have reduced their networks to immediately:  

  1. Provide and document that patients received actual and accurate notice of whether their current physicians will be in the 2014 network; 
  2. Ensure that patients know that they can retain their physician by choosing fee for service or by choosing a product with an out-of-network benefit if their plan provides one.
  3. Provide physicians information needed to challenge network adequacy based on CMS regulations and extend the appeals deadline until physicians receive such information; 
  4. Provide information on how many patients have been impacted and which physicians to state medical societies and the AMA; and,
  5. Direct plans to hold all terminations initiated just prior to or during Open Enrollment in abeyance for cost year 2014.   

Finally, the undersigned organizations are requesting that CMS provide information on the extent to which the agency evaluated MA plan sponsor compliance with the Title VI of the Civil Rights Acts and Section 504 of the Rehabilitation Act when evaluating the network modifications.  We are also interested in the extent to which consideration was given to the impact on low and moderate income beneficiaries of the network modifications.  

American Medical Association
American Academy of Allergy, Asthma and Immunology
American Academy of Dermatology Association
American Academy of Facial Plastic and Reconstructive Surgery
American Academy of Neurology
American Academy of Ophthalmology
American Academy of Otolaryngology-Head and Neck Surgery
American Academy of Sleep Medicine
American Association for Geriatric Psychiatry
American Association of Oral and Maxillofacial Surgeons
American Association of Orthopaedic Surgeons
American Association of Neuromuscular & Electrodiagnostic Medicine
American College of Allergy, Asthma and Immunology
American College of Cardiology
American College of Mohs Surgery
American College of Occupational and Environmental Medicine
American College of Osteopathic Surgeons
American College of Phlebology
American College of Physicians
American Society of Retina Specialists
American College of Rheumatology
American College of Surgeons
American Congress of Obstetricians and Gynecologists
American Osteopathic Association
American Psychiatric Association
American Society for Dermatologic Surgery
American Society for Gastrointestinal Endoscopy
American Society of Anesthesiologists
American Society of Cataract and Refractive Surgery
American Society of Dermatopathology
American Society of Echocardiography
American Society of Hematology
American Society of Nuclear Cardiology
American Society of Plastic Surgeons
American Society of Transplant Surgeons
American Urological Association
Heart Rhythm Society
Infectious Diseases Society of America
Joint Council of Allergy, Asthma and Immunology
Medical Group Management Association
National Medical Association
Renal Physicians Association
Society Cardiovascular Angiography and Interventions 

Medical Association of the State of Alabama
Arkansas Medical Society
California Medical Association
Connecticut State Medical Society
Medical Society of the District of Columbia
Florida Medical Association Inc
Medical Association of Georgia
Hawaii Medical Association
Indiana State Medical Association
Kentucky Medical Association
Louisiana State Medical Society
Maine Medical Association
MedChi, The Maryland State Medical Society
Massachusetts Medical Society
Michigan State Medical Society
Minnesota Medical Association
Mississippi State Medical Association
Missouri State Medical Association
Montana Medical Association
Nebraska Medical Association
Nevada State Medical Association
New Hampshire Medical Society
Medical Society of New Jersey
New Mexico Medical Society
Medical Society of the State of New York
North Dakota Medical Association
Ohio State Medical Association
Oklahoma State Medical Association
Oregon Medical Association
Pennsylvania Medical Society
Rhode Island Medical Society
South Dakota State Medical Association
Tennessee Medical Association
Texas Medical Association
Utah Medical Association
Medical Society of Virginia
Washington State Medical Association
West Virginia State Medical Association
Wyoming Medical Society

 

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