2023-07115.pdf

are outside of the scope of our proposed amendments. We continue to monitor the level of dually eligible enrollment among non-SNP MA plans and will consider these comments for future rulemaking. We note that the D SNP look-alike contracting limitations at  422.514(d) only apply in a State where there is a DSNP or any other plan authorized by CMS to exclusively enroll individuals entitled to Medicaid, which includes Medicare-Medicaid Plans. Comment: Some commenters suggested that CMS exclude or reconsider excluding partial-benefit dually eligible individuals when calculating the 80 percent threshold at  422.514(d). Several commenters recommended that we exclude partial- benefit dually eligible individuals from the 80 percent threshold calculation in States that limit DSNP enrollment to VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222132 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations full-benefit dually eligible individuals. A few of these commenters noted that including partial-benefit dually eligible individuals in the 80 percent threshold calculation may limit managed care options for dually eligible individuals in these States. These commenters stated that the lack of access to medical benefits through some Medicaid programs and differences in the level of premium support and cost-sharing protections available to partial-benefit dually eligible individuals warrants separate plan benefit design from plans that are offered to full-benefit dually eligible individuals in order to optimize benefits to support functional and social needs and limit cost-sharing for partial- benefit dually eligible individuals. These commenters listed States like Massachusetts and New Jersey that limit DSNP enrollment to full-benefit dually eligible individuals and explained that non-SNP MA plans in these States may be incentivized not to enroll partial- benefit dually eligible individuals due to the 80 percent threshold for determining DSNP look-alikes. Another commenter noted that, in 2025, this concern would apply to all States with FIDE SNPs. Additionally, a commenter emphasized the importance of balancing the challenge many D SNPs have with State procurements, which can result in increased numbers of dually eligible individuals enrolling in general MA plans. A commenter expressed concern that CMS current policy for calculating the 80 percent threshold may fail to maximize advances in health equity, as partial-benefit dually eligible individuals who are harmed are more likely than the overall Medicare population to be Black or Hispanic/ Latino, under age 65, experience isolation and food insecurity, have a mental illness, and have a multiple chronic condition diagnosis. This commenter further stated that MA plans have the ability to offer unique, targeted benefits that are tailored to low-income populations (for example, groceries, health meals, transportation, and over- the-counter benefits) that directly address social determinants of health and drive higher quality and believed that, where plans are forced to offer less targeted benefits to avoid triggering the 80 percent threshold, partial-benefit dually eligible individuals are harmed. This commenter noted that at least eight States currently prohibit partial-benefit dually eligible individuals from enrolling in DSNPs. Without a solution, according to the commenter, plans in these States will need to take benefits and resources away from this complex low-income population to instead use them to reduce Part D cost- sharing to attract enough non-dually eligible enrollees to avoid the 80 percent threshold. A few commenters emphasized the value of allowing partial-benefit dually eligible individuals to enroll into D SNPs. These commenters stated that D SNPs provide supplemental benefits and care coordination provided through individualized care plans. A commenter noted that although partial-benefit dually eligible individuals are ineligible for most Medicaid services, these individuals have similar clinical, functional, and social needs as full- benefit dually eligible individuals and can benefit from access to stronger care management models available in D SNPs. Recognizing that States decide whether or not to allow DSNPs to enroll partial-benefit dually eligible individuals, a commenter recommended that CMS exclude these individuals from the calculation of the 80 percent threshold. A commenter suggested that CMS consider alternative approaches, such as working with Congress to require States that limit DSNP enrollment to full- benefit dually eligible individuals to, in turn, require their DSNPs to have a separate PBP for partial-benefit dually eligible individuals, as Pennsylvania and Virginia have already done. A commenter stated that excluding partial-benefit dually eligible individuals from the 80 percent threshold calculation would allow CMS to enforce DSNP look-alike contracting restrictions in States where dually eligible individuals have DSNPs they can move to, while not penalizing States that have not yet adopted the DSNP model for all partial- and full-benefit dually eligible individuals. Response: We thank the commenters for their perspectives. The recommendations to revise the definition of the enrollment threshold at  422.514(d) are outside of the scope of our proposed amendments; we believe that policy making on this issue would benefit from further study and engagement with interested parties. We will consider these comments for future rulemaking. For contract year 2023, D SNPs limited to partial-benefit dually eligible individuals exist in 11 States (that is, Connecticut, Delaware, Florida, Idaho, Michigan, Mississippi, New York, Ohio, Virginia, Washington, and Wisconsin) and the District of Columbia. We continue to believe that allowing non-SNP MA plans to enroll partial-benefit dually eligible individuals with no limit would discourage States from taking this approach. We believe the commenter noting that limitations on DSNPs enrolling only full-benefit dually eligible individuals would apply to all States with FIDE SNPs in 2025 is referencing an amendment we made to the FIDE SNP definition in the Medicare Program; Contract Year 2023 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Programs; Policy and Regulatory Revisions in Response to the COVID19 Public Health Emergency; Additional Policy and Regulatory Revisions in Response to the COVID19 Public Health Emergency, which appeared in the Federal Register on May 9, 2022 (85 CFR 22704). Per the amendment to the FIDE SNP definition at 422.2 paragraph (5), for plan years 2025 and subsequent years, FIDE SNPs must have exclusively aligned enrollment. Starting for plan year 2025, FIDE SNPs will no longer be permitted to enroll any partial-benefit dually eligible individuals, because the definition of aligned enrollment is limited to full-benefit dually eligible individuals. However, the new requirement for exclusively aligned enrollment does not directly affect partial-benefit dually eligible individuals because no FIDE SNPs currently enroll partial-benefit dually eligible individuals. With respect to the comment regarding the ability of MA plans to offer benefits tailored to low- income populations such as groceries, transportation, and over-the-counter benefits, we note that these benefits may be offered when consistent with  422.100(c)(2) and 422.102. Comment: A commenter suggested that CMS impose DSNP look-alike restrictions only on MA plans and plan segments that have a minimum number of enrollees. The commenter indicated that creating an enrollment floor would prevent a small number of dually eligible enrollees from having an outsized impact on the plans percentage of dually eligible enrollment due to low enrollment and recommended establishing this floor at 200 enrollees per plan for both new and existing plans to create a statistically significant sample size. Response: We thank the commenter for this perspective but disagree with the recommendation. The recommendations to revise the enrollment threshold at  422.514(d) are outside of the scope of our proposed amendments. We will consider these comments for future rulemaking. Currently,  422.514(d)(2)(ii) already exempts from the DSNP look-alike contracting limitations non-SNP MA VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222133 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations plans that have been active for less than one year and have enrollment of 200 or fewer individuals based on January enrollment of the current year. The commenter is recommending that we adopt a minimum enrollment floor alone, without the requirement that the non-SNP MA plan be a new plan. As discussed in the June 2020 final rule at 85 FR 33813, we adopted the exemption at  422.514(d)(2)(ii) to allow for some additional flexibility for initial enrollment patterns that may not be representative of the longer term enrollment pattern for the plan. Once the initial enrollment period has passed or the number of enrollees during that first year of operation exceeds 200 enrollees, we believe the enrollment profile accurately reflects whether or not the plan was designed to exclusively enroll dually eligible individuals. Comment: A commenter suggested that CMS couple the proposed amendments to the DSNP look-alike policy with additional efforts to mitigate targeting of dually eligible individuals by non-integrated models, such as by considering the application of the D SNP look-alike policy to other types of SNPs including chronic condition SNPs (CSNPs). Another commenter noted that the proposed rule did not specify whether the proposed standards would apply to CSNPs and requested that CMS provide more detail and transparency regarding the application of the proposal. Response: We welcome the commenters perspectives but clarify that the proposed amendments would not apply the DSNP look alike contract limitations to other types of SNPs. For plan year 2022 and subsequent years, as provided in  422.514(d)(1), CMS will not enter into a contract for a new non- SNP MA plan that projects, in its bid submitted under  422.254, that 80 percent or more of the plans total enrollment are enrollees who are dually eligible. For plan year 2023 and subsequent years, as provided in  422.514(d)(2), CMS will not renew a contract with a non-SNP MA plan that has actual enrollment, as determined by CMS using the January enrollment of the current year, consisting of 80 percent or more of enrollees are dually eligible, unless the MA plan has been active for less than 1 year and has enrollment of 200 or fewer individuals at the time of such determination. We proposed adding a new paragraph at  422.514(g) to provide that  422.514(d) through (f) apply to segments of the MA plan in the same way that those provisions apply to MA plans. The recommendation to extend the contracting limitations at 422.514(d) to CSNPs and ISNPs is outside of the scope of our proposed amendments. We stated in the February 2020 proposed rule (85 FR 9021) and June 2020 final rule (85 FR 33813) that we proposed applying the requirement at  422.514(d) only to non-SNP plans to allow for the predominant dually eligible enrollment that characterizes DSNPs, ISNPs, and some CSNPs by virtue of the populations that the statute expressly permits each type of SNP to exclusively enroll. At this time, we are not aware of any non-SNP MA plans with features similar to CSNPs and ISNPs that do not meet the CSNP or ISNP requirements. Nonetheless, we will monitor evolution in enrollment patterns. Comment: Several commenters raised concerns or requested greater clarity about CMS authority to terminate an MA contract. A commenter opposed CMS terminating an entire H contract number if CMS determined that a PBP of a health plan is a DSNP look-alike due to having dually eligible enrollment greater than 80 percent of total enrollment and requested more detail regarding CMS application of the proposal. Another commenter expressed concerns about CMS terminating a full MA contract when a plan segment rises above the DSNP look-alike enrollment threshold since it would likely lead to significant disruptions in coverage and care coordination for impacted enrollees. This commenter suggested that CMS permit plans to crosswalk enrollees from MA plans that are at the 80 percent threshold or at risk of reaching the 80 percent threshold for dually eligible enrollment in a non-SNP plan, as well as add a corrective action period before the termination of an MA plan if the threshold is crossed. The commenter explained that providing such plans with the ability to crosswalk enrollees and a six-month window for corrective action may prevent CMS from needing to terminate the full MA contract and would prevent negative impacts for enrollees. Another commenter recommended that CMS provide details regarding the circumstances under which it would use the proposed authority to terminate an MA contract instead of taking more incremental measures to achieve compliance with the proposal. Response: We appreciate these comments and the requests for clarification. As stated in the June 2020 final rule at 85 FR 33812 and reiterated in the preamble to the proposed rule at 87 CFR 79466, we implement the contracting prohibition in  422.514 at the plan level. We will similarly implement the contracting prohibition at the segment level if enrollment in the segment exceeds the DSNP look-alike threshold. Where an MA plan is one of several offered under a single MA contract and the MA organization does not voluntarily non-renew the DSNP look- alike, CMS will sever the DSNP look- alike from the overall contract using its authority under  422.503(e) to sever a specific MA plan from a contract, and then terminate the deemed contract for the DSNP look-alike. The other, non-