On February 5, 2020, CMS issued a proposed rule advancing multiple updates and changes to Medicare Advantage (MA) and Medicare prescription drug benefit (Part D) programs (Proposed Rule). Unlike in past years, CMS will not publish a “Call Letter” guidance for MA and Part D programs in 2020. Therefore, the Proposed Rule contains much of the annual guidance and technical changes for contract years 2021 and 2022. Among the proposals in the Proposed Rule, CMS proposes to implement the statutory provisions authorizing plan sponsors to suspend payments to pharmacies based on a credible allegation of fraud and report such suspensions to the Secretary. Comments are due no later than 5:00 p.m. on April 6, 2020. 

Key proposals in the Proposed Rule include the following:

• Implement sections 2008 and 6063 of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) Act, which will: (1) require Part D plan sponsors to notify the Secretary of the imposition of a payment suspension on pharmacies that is based on a credible allegation of fraud, impose such payment suspensions consistent with the manner in which CMS implements payment suspensions in fee-for service Medicare, and report such information using a secure website portal, upon the implementation of the portal (effective January 1, 2020); (2) define inappropriate prescribing with respect to opioids (effective January 1, 2021); (3) require plan sponsors to submit to the Secretary information on investigations and other actions related to inappropriate opioid prescribing (effective January 1, 2021); (4) define “substantiated or suspicious activities” related to fraud, waste, or abuse (no later than October 24, 2020); and (5) establish a secure portal which would enable the sharing of data and referrals of “substantiated or suspicious activities” related to fraud, waste, or abuse among plan sponsors, CMS, and CMS’s program integrity contractors (no later than October 24, 2020).
• Pursuant to section 17006 of the 21st Century Cures Act, (1) remove the prohibition for beneficiaries with end-stage renal disease from enrolling in an MA plan, beginning January 1, 2021; and (2) require that Medicare fee-for-service cover the kidney acquisition costs for MA beneficiaries, also effective January 1, 2021.
• Codify the SUPPORT Act requirement making it mandatory that Part D sponsors implement Drug Management Programs, starting in plan year 2022.
• Allow Part D sponsors to establish second, “preferred,” specialty tiers at a lower cost-sharing threshold than the current specialty tiers.
• With respect to network adequacy rules for MA and cost plans, (1) codify existing network adequacy methodology and standards, with some modifications; (2) allow MA plans to receive a ten percent credit towards the percentage of beneficiaries residing within published time and distance standards when they contract with certain telehealth providers; and (3) reduce the required percentage of beneficiaries residing within maximum time and distance standards in certain county types.
• Discontinue contracting with “look-alike” Dual Eligible Special Needs Plans (D-SNPs), effective January 1, 2021. These plans are defined as any plan that either (1) projects in its bid that 80 percent or more of the plan’s total enrollment are enrollees entitled to Medicaid; or (2) has actual enrollment consisting of 80 percent or more of enrollees who are entitled to Medicaid, unless the MA plan has been active for less than one year and has enrollment of 200 or fewer individuals at the time of such determination. MA plans exceeding this threshold would be able to transition their membership into a D-SNP or another zero-premium plan offered by the MA organization.

The Proposed Rule is available here. CMS’s “fact sheet” on the Proposed Rule is available here.