AMARILLO, TX – We are writing a series of Medtrade Monday articles addressing federal law pertaining to Medicare Advantage Plans (MAPs) and Medicaid Managed Care Plans (MMCPs). The previous two articles (i) presented an overview of federal laws governing MAPs and MMCPs and (ii) discussed the minimum level of service that must be provided by MAPs and MMCPs. This article addresses access to care requirements that federal law imposes on MAPs.
42 C.F.R. § 422.2 states that a MAP provides health benefits coverage pursuant to a contract with a Medicare Advantage Organization (“MAO”). The coverage includes a specific set of health benefits offered at a uniform premium and uniform level of cost-sharing to all Medicare beneficiaries residing in the service area of the MAP. 42 C.F.R. § 422.2.
Federal law requires MAPs to provide enrollees with coverage of all services that are covered by Medicare Parts A and B (“traditional Medicare”). Additional benefits may be offered beyond those covered by traditional Medicare. Additional benefits may be (i) a reduction in the premiums, deductibles and coinsurance payments ordinarily required or (ii) health care services not covered by traditional Medicare such as dental and vision care or certain preventative services. Many MAPs also include Part D prescription drug coverage.
An MAO that offers an MAP may be specific as to what network providers enrollees may use, but to do so they must ensure that all covered services are available and covered under the MAP. 42 C.F.R. § 422.112. There are 10 requirements that must met by the MAP in establishing a provider network. First, the MAP must maintain and monitor a network of appropriate providers that is (i) supported by written agreements and (ii) sufficient to provide adequate access to covered services to meet the needs of the population served. 42 C.F.R. § 422.112(a)(1). Methods other than written agreements are allowed to be used but they must be pre-approved by CMS. The network adequacy standards can be found in 42 C.F.R. § 422.116.
Second, the MAP must establish a panel of primary care providers (“PCP”) from which an enrollee may select a PCP. 42 C.F.R. § 422.112(a)(2). In the event an enrollee is required to obtain a referral before receiving services from a specialist, the MAP must either assign a PCP for purposes of making the needed referral or make other arrangements to ensure access to medically necessary medical care.
Third, the MAP must provide or arrange for necessary specialty care. As a basic benefit, the MAP must give women enrollees the option of direct access to a women’s health specialist (within the network) for women’s routine and preventative health care service. 42 C.F.R. § 422.112(a)(3). Basic benefits mean all Medicare-covered benefits. 42 C.F.R. § 422.2. In the event the network providers are unavailable or inadequate to meet an enrollee’s medical needs, the MAP must arrange for specialty care outside of the MAP provider network. 42 C.F.R. § 422.112(a)(3).
Fourth, if the MAP seeks to expand the service area of the MAP, it must demonstrate that the number and type of providers available to plan enrollees are sufficient to meet projected needs of the population to be served. 42 C.F.R. § 422.112(a)(4).
Fifth, the MAO must demonstrate to CMS that the providers in the MAP are credentialed through the process set forth at 42 C.F.R. § 422.204(a). 42 C.F.R. § 422.112(a)(5).
Sixth, the MAP must have written standards that (i) establish the timeliness of access to care and (ii) require and member services that meet or exceed the standards established by CMS in 42 C.F.R. §42.116. 42 C.F.R. § 422.112(a)(6). The MAP must continuously monitor the timely access to care within its provider network and take corrective action as necessary. 42 C.F.R. § 422.112(a)(6)(i). The MAP must have policies and procedures that (i) allow for individual medical necessity determinations and (ii) have provider consideration of beneficiary input into the provider’s proposed treatment. 42 C.F.R. § 422.112(a)(6)(i)-(ii). According to the Medicare Managed Care Manual, Chapter 4, Section 110.1., a MAP is required to employ written standards for timeliness of access to care and member services that meet or exceed the standards as may be established by CMS. The Manual further states that the MAP must ensure that, when medically necessary, services are available 24 hours a day, 7 days a week. This includes requiring PCPs to have appropriate backup for absences. The standards should consider the member’s need and common waiting times for comparable services in the community.
Seventh, the MAP must ensure that (i) its providers have convenient hours of operation for the population served, (ii) it does not discriminate against Medicare enrollees and (iii) the plan services must be available 24 hours a day, 7 days a week, when medically necessary. 42 C.F.R. § 422.112(a)(7).
Eighth, the MAP must ensure that services are provided in a culturally competent manner to all enrollees, including those with limited English proficiency or reading skills, and diverse cultural and ethnic backgrounds. 42 C.F.R. § 422.112(a)(8).
Ninth, the MAP must provide coverage for ambulance services, emergency and urgently needed services, and post-stabilization care services in accordance with 42 C.F.R. § 422.113. 42 C.F.R. §422.112(a)(9). 42 C.F.R. § 422.113 establishes special rules for ambulance services, emergency and urgently needed services, and maintenance and post-stabilization services. It defines what constitutes an emergency as well as what the MAP is financially responsible for.
Finally, the MAP that meets Medicare access and availability requirements through direct contracting with network providers must do so consistently with the prevailing community pattern of health care delivery in the areas where the network is being offered. The factors that make up the community patterns of health care delivery that CMS will use as a benchmark in evaluating the MAP include but are not limited to: (i) the number and geographic distribution of eligible health care providers available to contract with the MAP to provide plan covered services within the service area of the MAP, (ii) the prevailing market conditions in the service area of the MAP, (iii) whether the service area is made up of rural or urban areas or a combination of the two, (iv) whether the MAP’s proposed provider network will meet the Medicare time and distance standards for member access to health care providers, and (v) other factors that CMS determine are relevant in setting a standard for an acceptable health care delivery network in a particular service area. The Maximum time and distance standards are in 42 C.F.R. § 422.116(d)(2).
The network adequacy standards are established in 42 C.F.R. § 422.116. CMS only requires an attestation by the MAP regarding compliance with this provision. The MAP must meet the maximum time and distance standards and contract with a specific minimum number of each provider and facility-specialty type. 42 C.F.R. § 422.116(a)(2). Each contract provider type must be within the maximum time and distance of at least one beneficiary in order to count toward the minimum number, and the minimum number criteria and the time and distance criteria vary by county type. 42 C.F.R. § 422.116(a)(2)(i)-(ii). CMS annually updates and makes a health service delivery reference file that identifies all minimum provider and facility number requirements, all provider and facility time and distance standards and the ratios that are established in paragraph (e) of the section in advance of network reviews of the applicable year. Paragraph (e) of 42 C.F.R. § 422.116 establishes the minimum number standard for each provider and facility specialty type.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or email@example.com.
Cara C. Bachenheimer, JD, is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas, where she heads up the firm’s Government Affairs Practice. Ms. Bachenheimer’s practice focuses on federal lobbying activities with Congress, the Administration, and federal regulatory agencies, such as CMS, FDA, IRS, and FAA. She can be reached at (806) 345-6321 or firstname.lastname@example.org.