2023-07115.pdf

provider termination notices at  422.111(e) and 422.2267(e)(12). We also stated that if CMS does exercise its authority under  422.2261(c) to review an MA organizations provider termination notice, per  422.2261(d)(1) and (3), CMS will review the notice to ensure compliance with the applicable regulations and, as a result, may require the MA organization to modify the notice or no longer use it. In summary, CMS proposed to revise: (1)  422.111(e) by establishing specific enrollee notification requirements for no-cause and for-cause provider contract terminations and adding specific and more stringent enrollee notification requirements when primary care and behavioral health provider contract terminations occur; and (2)  422.2267(e)(12) to specify the requirements for the content of the notification to enrollees about a provider contract termination. We solicited comment on these proposals. We thank commenters for their input on CMSs proposed new enrollee notification requirements for MA provider contract terminations. We received the following comments on this proposal, and our response follows: Comment: Comments were mixed, with about half in support of the proposal and half opposed to it. Those VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222183 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations in favor applauded the proposals emphasis on network adequacy, increased communication and transparency to enrollees, and promotion of enrollee choice. A few commenters expressed support specifically for codifying the required content of provider termination notices. Response: We appreciate commenters support for this proposal. We are finalizing this proposal with modification, as discussed in our responses to more specific comments in this section of this rule. Comment: Many commenters expressed support for the proposal to add specific and more stringent enrollee notification requirements when primary care and behavioral health provider contract terminations occur. Some believed that CMS should apply these requirements more broadly to all provider contract terminations regardless of specialty type. A commenter specifically requested that the 45-day enrollee notice requirement apply to all provider contract terminations. Another commenter suggested CMS include hospitals and other facilities contract terminations along with primary care and behavioral health provider contract terminations, in relation to the requirement for the MA organization to notify all enrollees who have ever been patients of the terminating provider or facility. A few commenters expressed support for the telephonic notice to enrollees. Another commenter recommended a 60-day enrollee notice requirement for primary care and behavioral health provider contract terminations. A commenter suggested specific requirements in the case of OTP terminations. Response: We thank commenters for their support and suggestions. We are not extending the requirements for primary care and behavioral health provider contract terminations to any other specialty types because, as discussed in detail in the proposed rule and this final rule, there are special considerations applicable to the services furnished by and relationship of an enrollee with a primary care provider and a behavioral health provider. Also, we are finalizing the 45-day enrollee notice requirement as proposed. We are modifying our proposal for the telephonic notice to enrollees in response to other comments received, as discussed in this section of this rule. Comment: We received many comments regarding CMSs proposed lookback period for identifying impacted enrollees to notify for primary care and behavioral health provider contract terminations. Most of these commenters opposed the infinite lookback period because it would be burdensome and may cause enrollee distress or confusion if they had not seen the terminating provider in a long time. They noted that often enrollees shop around for behavioral health providers and so there may be multiple providers that they saw only once before choosing the right fit. Some commenters believed it might make the enrollee believe there was something wrong with the network status of their current provider. Instead of an infinite lookback period, they requested that CMS specify a limited lookback period. A commenter proposed that CMS work with MA organizations to determine an appropriate lookback period. Other recommendations for a lookback period included retaining CMSs existing requirements regarding which enrollees should be notified, maintaining the existing requirements for primary care provider contract terminations and applying those same requirements to behavioral health provider contract terminations, only notifying enrollees assigned to a terminating primary care provider, performing a six-month lookback period, performing a 12-month lookback period, and only notifying enrollees who had a minimum number of visits with the terminating primary care or behavioral health provider. Response: We appreciate commenters recommendations. After careful consideration of these comments, we have decided to modify our proposal to require MA organizations to notify enrollees who are currently assigned to the terminating primary care provider and enrollees who have been patients of the terminating primary care or behavioral health provider in the past three years. We believe use of a three- year look back period strikes an appropriate middle ground that does not stray too far from our original intent while also taking into consideration the commenters suggestions and reasons for recommending a shorter period. Comment: A significant number of commenters expressed opposition to CMSs proposal to require MA organizations undergoing primary care and behavioral health provider contract terminations to notify enrollees via telephone in addition to the required written notice. Commenters characterized this telephonic notice as overly aggressive, intrusive, unhelpful, unwelcome, unnecessary, and bothersome. They also noted that the calls may potentially be perceived by enrollees as spam. A few commenters pointed out that enrollees already receive too many calls and so there may be some annoyance and complaints regarding privacy. Several commenters stated that more outreach to enrollees in instances of primary care and behavioral health provider contract terminations would be disruptive to enrollees and unnecessary if they are already receiving a written notice of the termination. A commenter recommended CMS allow MA organizations the flexibility to determine the best method of notice based on the facts of the termination and enrollees preferred method of communication. Relatedly, some commenters suggested that enrollees have the right to opt out of telephonic communication from their plan, so requiring this would deliberately violate their request. A few other commenters indicated that increased outreach to enrollees ignores the fact that providers will contact their own patients to let them know that they are leaving the plans network and therefore will no longer accept their insurance, so additional telephonic notice from the plan would be excessive and unnecessary. Another commenter suggested that if this is finalized then it should only be required for terminations initiated by the MA organization, not provider-initiated terminations. Commenters responding to CMSs request for comment on how many telephonic attempts are reasonable, recommended between one and three attempts but only for enrollees who agree to receive telephonic communication. Response: We thank commenters for offering their ideas based on experience to help inform how we finalize our proposal. We understand the concern that an additional telephonic notice with multiple attempts may potentially be problematic, and we agree with commenters that enrollees should not be contacted by telephone if they have opted out of this type of communication with their plan. This is helpful information, and we appreciate commenters bringing it to our attention. Given the extent of these comments and our concurrence, we are modifying our proposal by requiring only one telephone call to impacted enrollees who have not opted out of receiving telephonic communication with the MA organization. Specifically, we are identifying these enrollees as those who have not opted out of calls regarding plan business as described in  422.2264(b). We believe this is another middle ground solution that is responsive to comments on this issue and still preserves the spirit of the proposal. Comment: Several commenters remarked on the proposed timeframes for written notice of the provider VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222184 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 93https://www.cms.gov/Regulations-and- Guidance/Guidance/Manuals/Downloads/ mc86c04.pdf. contract termination. A few encouraged CMS to retain the good faith effort standard for provider-initiated terminations, while others requested that CMS maintain the existing 30-day standard for all specialty type terminations, except when the provider does not notify the MA organization in time or when the two parties are in active negotiations. Some commenters opposed the 45-day standard for primary care and behavioral health provider contract terminations, stating that the change from 30 to 45 days would trigger both enrollee and provider abrasion. A commenter suggested that CMS require timeframes only when there is 60 days notice of the termination or longer, while retaining the good faith effort standard for all other circumstances. Some commenters discussed the impact of contract negotiations and stated that in some cases, re-notification to enrollees may be required if the termination does not end up happening, which again raises concerns with burden and enrollee confusion or distress. Another commenter requested CMS provide flexibility in these requirements particularly for quick for-cause provider contract terminations. Response: We appreciate commenters input on the timeframes we proposed for notifying enrollees that a provider is leaving their network. While commenters expressed valid concerns, we are finalizing the timeframes as proposed. We believe that more notice (45 days instead of 30 days) is necessary for primary care and behavioral health specialty types, as stated in the proposed rule, because of the importance of a trusting, continuous patient-provider relationship for behavioral health and the foundational role that primary care plays in an individuals overall health. Therefore, affected enrollees need ample time to make decisions that may determine the trajectory of their treatment. Comment: Several commenters either sought guidance on certain aspects of our proposal or posed questions. For example, a commenter requested CMS clarify whether MA organizations would only be required to notify those impacted enrollees for whom they have a record of their entire health history in order to determine previous provider relationships. Another commenter requested that CMS clarify whether the MA organization must provide continuity of coverage for care an enrollee is receiving if their provider is leaving the network. And another commenter commented on the use of the term palliative care as a component of primary care in the proposed rule, stating that the way it is listed implies that palliative care comes at the end of a serious illness and not along with any other treatment or rehabilitation, which evidence shows is an incorrect misconception because palliative care is appropriate at any age or stage of a serious illness. The commenter therefore requested that CMS clarify that in the final rule by changing palliative care to end-of-life care if that is what CMS meant. Response: To address the question of MA organizations who may not have a record of new enrollees entire health history, we would like to clarify that when identifying which enrollees to notify in accordance with  422.111(e), MA organizations must use all information that is available to them, including claims data, and if they have any reason to believe that they do not have an enrollees entire health history, then they may need to reach out to the terminating provider to determine whether the enrollee saw that provider within CMSs required lookback period. Regarding the question on providing continuity of care, yes, if necessary in order to meet immediate access needs, the MA organization must provide continuity of coverage for care an enrollee is receiving if their provider is leaving the network. Per  422.112(a)(1)(iii), as finalized in this rule, the MA organization must arrange for any medically necessary covered benefit outside of the plan provider network, but at in-network cost sharing, when an in-network provider or benefit is unavailable or inadequate to meet an enrollees medical needs (see section III.C. of this final rule). Furthermore, it may be necessary for MA organizations to allow care to continue to be furnished on an interim, transitional basis, by providers who have been terminated from the network in order to adequately address continuity of care needs for affected enrollees. This is longstanding CMS guidance from section 110.1.2.2 of Chapter 4 of the MMCM, therefore, we expect MA organizations to be complying with this interpretation and application of the obligations on the MA organization to ensure that its provider network is adequate to furnish medically necessary covered benefits to enrollees.93Lastly, we agree with the commenters concerns that palliative care is appropriate at any age or stage of a serious illness, so our references to the scope of primary care in this final rule include both palliative care and end-of-life care because we believe that both are key elements of primary care. Comment: We received several comments on our proposed changes to  422.2267(e)(12). A commenter opposed requiring MA organizations to include a list of names and phone numbers of alternative in-network providers instead of just a link to the MA organizations current provider directory. Another commenter believed CMS should allow for electronic delivery for written notices if the enrollee opted into electronic communication. Response: We respectfully disagree with these comments on  422.2267(e)(12). We strongly believe that enrollees whose providers are leaving their network unexpectedly should be provided a list of other providers that they may access for continued care. As paragraph (e)(12)(ii)(B) states, MA organizations have the option to supplement this list with a link to their provider directory as well. Regarding the method of delivery of the provider termination notice, we did not propose any changes to our current requirement at