Key points to know in recently proposed rules for Medicare Advantage and the ACA marketplaces

There’s still time for stakeholders to comment on a pair of 2024 proposed rules that are directed at health plans but have implications for providers. Here’s a sampling of key takeaways from the two sets of regulations.

Medicare Advantage proposed rule

A proposed rule implementing 2024 policies for Medicare Advantage (MA) health plans and Medicare Part D sponsors would affect prior authorization in MA.

Feedback from stakeholders and findings in a 2022 report from the HHS Office of Inspector General have persuaded CMS that “certain guardrails are needed to ensure that utilization management tools are used, and associated coverage decisions are made, in ways that ensure timely and appropriate access to medically necessary care for beneficiaries enrolled in MA plans.”

The rule codifies guidance that MA coordinated care plans such as HMOs and PPOs may use prior authorization only to “confirm the presence of diagnoses or other medical criteria and/or ensure that an item or service is medically necessary.”

Approvals via prior authorization would remain in effect throughout a course of treatment, and for instances when a beneficiary switches to a different MA plan, a minimum 90-day transition period would ensure continuity of care.

MA plans also would have to comply with general coverage and benefit conditions included in analogous Medicare fee-for-service (FFS) directives (e.g., in national coverage determinations) except when MA regulations allow for expansion of such coverage.

“When there is no applicable coverage criteria [in Medicare FFS], MA organizations may create internal coverage criteria that are based on current evidence in widely used treatment guidelines or clinical literature that is made publicly available to CMS, enrollees and providers,” CMS states in the rule.

MA plans would be required to establish a utilization management committee to ensure prior authorization and related policies are consistent with coverage decisions and guidelines in Medicare FFS. And before a plan issues an adverse determination decision, it must ensure the physician or other healthcare professional reviewing the request has expertise in the relevant field of medicine.

In December, CMS issued a sweeping proposed rule on prior authorization and interoperability in Medicare Advantage, Medicaid, the Children’s Health Insurance Program and the Affordable Care Act insurance marketplaces. That rule seeks to update and improve prior authorization across government healthcare programs, with the core provisions taking effect by 2026.

Enhancing provider directories. The 2024 MA rule also includes a proposed requirement to feature information about cultural and linguistic capabilities in provider directories. The requirement mirrors an existing mandate for Medicaid managed care organizations.

“CMS believes this important proposed regulatory change would enhance the quality and usability of provider directories, particularly for non-English speaking enrollees searching for providers who speak their preferred language, for limited English-proficient individuals, and for those enrollees seeking providers who use ASL [American Sign Language] themselves or have an ASL interpreter available in their office,” according to the rule.

CMS clarifies that the proposal does not negate the obligation of all providers “to take reasonable steps to ensure meaningful access to such programs or activities by limited English-proficient individuals and appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in such programs or activities, including the provision of oral language assistance services and/or auxiliary aids and services when required by applicable law [specifically the Affordable Care Act].”

Directories also would be required to identify providers that have received waivers allowing them to furnish medications for opioid use disorder (MOUD).

“MA enrollees may have little insight as to which providers can provide MOUD,” CMS wrote in the proposed rule. “This problem is especially urgent as overdose deaths from opioids have skyrocketed during the COVID-19 pandemic.”

Comments on the MA rule can be made through Feb. 13 at Regulations.gov.

Affordable Care Act (ACA) insurance marketplace proposed rule

Proposed 2024 regulations for health plans participating in the ACA marketplaces are designed to improve health equity and access to behavioral healthcare, meaning a wider array of providers would have a chance to be included in networks.

As of 2023, plans must have 35% of available essential community providers (ECPs) in their network. They must negotiate in good faith to contract with at least one provider in each of the ECP categories (assuming any such provider is in the plan’s service area):

• Hospitals
• Federally qualified health centers
• Ryan White Program providers
• Family planning providers
• Indian health providers
• Other ECP providers

In 2024, that list would expand to include two new categories: mental health facilities and substance use disorder treatment centers. Those facilities previously have been included in the miscellaneous “Other” category, out of which plans must seek to contract with only one provider type to satisfy regulatory requirements.

Rural emergency hospitals (REHs), a designation that began this year in the Medicare program, would be part of the “Other ECP” category, joining rural health clinics, black lung clinics, hemophilia treatment centers, sexually transmitted disease clinics and tuberculosis clinics.

“HHS believes that the inclusion of REHs on the ECP list may increase access to needed care for low-income and medically underserved consumers in rural communities,” according to the proposed rule.

In addition, the 35% ECP participation threshold would be expanded to apply specifically to both FQHCs and family planning providers.

“Applying an additional 35% threshold to these two categories could increase consumer access in low-income areas that could benefit from the additional access to the broad range of healthcare services that these particular providers offer,” the proposed rule states.

Additional requirements for network standards. The payment rule for 2023 set time-and-distance standards for provider networks, ensuring enrollees a certain level of care access. The ’23 rule also established that beginning in 2024, ACA plans would have to attest to their compliance with wait-time standards. Plans are supposed to work with their contracted providers starting this year to assess appointment wait times and determine whether network changes are necessary to meet the standards.

As established going into 2023, maximum wait times for appointments will be 10 business days for behavioral health, 15 for routine primary care and 30 for non-urgent specialty care. Wait times must fall under these limits in at least 90% of instances when a plan’s member makes an appointment.

The published version of the rule in the Federal Register says comments can be made through Jan. 30, although the posted version at Regulations.gov gives Feb. 13 as the due date.