Helaine Fingold Quoted in “Updated CMP Methodology Still Provides CMS Latitude”

Radar On Medicare Advantage

Helaine I. Fingold, Senior Counsel in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in Radar On Medicare Advantage, in “Updated CMP Methodology Still Provides CMS Latitude,” by Lauren Flynn Kelly.

Following is an excerpt:

CMS is considering making several changes to the way it calculates civil monetary penalties (CMPs) imposed on Medicare Advantage and Part D organizations that violate program requirements, including the proposed addition of an aggravating factor associated with Part C/Part D denials. But experts say the proposed methodology till doesn’t provide sponsors with enough clarity or granularity to accurately predict how much they’ll end up paying in instances of noncompliance. …

CMP Update Would Raise Base Penalties

On top of either calculation, CMS charges an aggravating penalty, which it also multiplies by the number of enrollees or, in the case of a per determination basis, by the number of contracts. CMS proposed to increase those penalties by nominal amounts (e.g., $200 to $212 for the standard penalty, $100 to $106 for the aggravating factor). The agency also said it could adjust the standard penalty amount using a cost-of-living multiplier that it would update no more than once during the three-year audit cycle, and proposed removing the aggravating factor for violations that appear in the top “common conditions” listed by CMS in its annual audit report.

Meanwhile, CMS proposed to add an aggravating factor when there is an inappropriate denial of a Part C medical service or a Part D medication and the enrollee never received the care or medication. “Enrollees who never receive their services or medications are at a much greater risk for adverse harm compared to enrollees whose access was delayed,” explained CMS, which for years has been citing this issue in noncompliance notices and its annual Part C and D Program Audit and Enforcement Report.

This is arguably the most significant change in the document, experts agree. “This would certainly result in higher penalties for many plans as the current methodology already imposes penalties for the inappropriate delay or denial but does not increase those penalties based on whether the services or prescription drugs were not ultimately received or on what timeline,” remarks Helaine Fingold, senior counsel in the Health Care and Life Sciences practice at the law firm Epstein Becker Green.

“Moreover, CMS does not currently consider the ultimate receipt of the inappropriately delayed or denied services or prescription drugs to be a mitigating factor in the CMP analysis, and with this proposal, seems less likely to move in that direction,” adds Fingold. “Only through the appeals process would CMS be able to take such factors into consideration.”