Medicare Advantage (“MA” or “Medicare Part C”) is a managed care program that Medicare beneficiaries can elect in lieu of Parts A and B benefits. The program currently provides coverage to one out of every three Medicare beneficiaries in the United States (more than 20 million people). According to government projections, MA participation will continue to grow significantly for the foreseeable future. The MA program is forging value-driven coordinated care partnerships among plans, providers, and community partners that are needed to reduce costs and improve outcomes for Medicare beneficiaries.
Epstein Becker Green provides comprehensive representation to the MA industry, including MA plans, MA vendors, and innovative and established providers (such as hospitals and health systems, medical service organizations (“MSOs”), physician organizations, and specialty providers). Our team has extensive MA experience and fully understands the nuances and intricacies of this highly complicated program. We are especially well versed in conducting internal investigations; responding to government investigations; handling government disclosures; developing and implementing effective compliance programs; preparing for, and responding to, program audits and sanctions; providing regulatory counseling; and advising on the overall navigation of the MA environment, including the risk adjustment payment methodology, Medicare Marketing rules, bid development, payor and provider contract negotiations, network development, and transactions involving MA providers.
Our team includes Epstein Becker Green attorneys and consultants from EBG Advisors who were former senior leaders, managers, and key staff at the Centers for Medicare & Medicaid Services (“CMS”) involved in creating and executing national policies on Medicare Parts C and D—the MA program and the outpatient prescription drug benefit. Our professionals have more than a decade of experience advising the nation’s most innovative MA plans and providers and guiding them through the constantly evolving MA program and its challenging transactional terrain. We have worked with health plans, providers, and others on building, buying, and improving programs targeting the Medicare-eligible populations. We also have extensive experience working on mergers and acquisitions for providers and private equity investors in the MA plan, provider/MSO, and related vendor space.
Risk Adjustment Guidance
The importance of understanding the interplay among the ever-changing requirements of CMS’s risk adjustment (“RA”) submission process, the accurate and comprehensive capture of appropriate diagnosis codes, and the potential implications of non-compliance on an MA plan cannot be overstated. Epstein Becker Green provides clients with comprehensive guidance on all types of issues related to the RA payment program.
Services provided by our team of attorneys and professionals with clinical, coding, and RA business experience include:
- Assisting plans and providers in RA program development and compliance
- Providing guidance on encounter and Risk Adjustment Payment System ( “RAPS”) submission processes, coding, and the implementation of RA policies
- Guiding clients through the identification and disclosure of an overpayment
- Keeping clients abreast of the changes in RA program requirements and enforcement trends, including those resulting in false claims act litigation
Risk Adjustment Enforcement, Litigation, and Disclosures
In 2017, the Office of Inspector General of the U.S. Department of Health and Human Services identified MA as a key area for government review and enforcement. Since that time, the MA industry has seen an increase in private qui tam and enforcement efforts by the U.S. Department of Justice against MA plans, providers, and vendors. Epstein Becker Green has represented numerous clients in both False Claims Act litigation and government investigations related to RA. Litigation and investigation matters handled by our attorneys include issues such as: in-home assessments, ICD guidance, accuracy of coding, so-called “coding both ways” issues, data submission errors, vendor and downstream payment, and other evolving RA theories of liability. Epstein Becker Green has also successfully handled internal investigations resulting in voluntary disclosures related to RA.
Star and Quality Ratings
The CMS Star Ratings have a significant impact on MA plans and providers, as to both financial performance and public perception. We assist our clients in gaining a nuanced understanding of the details assessed under the Star Ratings, the specific impact that these ratings have on plan sponsor bids and reimbursement, and best practices in managing the underlying factors to improve a plan’s Star Ratings. Epstein Becker Green’s advice and counsel for maximizing Star Ratings derives from our experience working with high-performing plans as well as our team members’ intimate understanding of CMS’s ratings measures and measurement process across the range of assessed criteria.
CMS oversees plan compliance through both standardized and ad hoc processes. These processes include (i) annual audits in defined program areas (including Part C/D appeals and grievance processing, formulary and benefits administration, and compliance program effectiveness), (ii) data driven monitoring (the review of plan reported data—e.g., the timeliness and accuracy of beneficiary communications on annual plan changes and network adequacy), (iii) the monitoring of marketing activities with “secret shoppers,” and (iv) impromptu methods based on complaints or ad hoc monitoring. If non-compliance is discovered, CMS may issue a notice of non-compliance, warning letter, or ad-hoc corrective action plan, or commence an enforcement action.
Epstein Becker Green attorneys have assisted MA plan sponsors, providers, and vendors in compliance concerns both big and small, from developing and implementing broad compliance programs to addressing specific operational or policy issues. We assist entities seeking to enter the MA market with understanding the range of requirements imposed on the MA contract holder and passed down to its downstream and related entities. Our services include the following:
- Developing and providing compliance training for senior level managers or the board of directors
- Creating and/or reviewing policies and procedures and downstream provider and vendor contracts for compliance with Medicare rules, or strategizing with clients on how best to address an issue needing CMS attention
- Advising and supporting entities that have been subject to CMS compliance or enforcement actions, from those responding to a warning letter or notice of non-compliance, to those who have been subject to civil money penalties or marketing and enrollment sanctions
Epstein Becker Green has an intimate knowledge of the context within which CMS takes compliance actions and has deep experience in identifying the best approach for responding to—and, if needed, defending against—the agency’s oversight and enforcement efforts.