2023-07115.pdf

to decide how to proceed with their course of treatment, and provide enrollees with two different means by which they receive the notice from their MA organization. We stated that these strengthened enrollee notification requirements for primary care and behavioral health provider contract terminations would generally increase enrollee protections when MA network changes occur. As discussed earlier, continuity of care is essential, especially for both primary care and behavioral health, and consequently, adequate communication to enrollees is vital when network changes occur so that patients of any terminating primary care or behavioral health providers can decide how to proceed with their course of treatment. By receiving adequate notice of the terminations, enrollees will be able to make an informed decision on how to proceed with their care and have more time to potentially locate and establish a relationship with a new provider. Thus, enrollees are protected from any undue harm that may result from an unexpected provider contract termination involving their primary care or behavioral health provider (for example, sudden lack of medication, psychotic episodes, suicide). We stated in our proposed rule that the proposed enrollee notification requirements are a positive step in the context of our policy for MA provider contact terminations. We proposed that MA organizations would continue to be required to provide written notice at least 30 days before the termination effective date of a termination of a contracted provider that is not a primary care or behavioral health provider to all enrollees who are patients seen on a regular basis by the terminating provider. We also proposed to codify at  422.111(e)(2)(iii) a definition of the phrase enrollees who are patients seen on a regular basis by the provider whose contract is terminating. CMS currently has sub- regulatory guidance in section 110.1.2.3 of Chapter 4 of the MMCM that defines this term as enrollees who are assigned to, currently receiving care from, or have received care within the past three months from a provider or facility being terminated, also called affected enrollees.90As this guidance has been in place since 2016, and based on various MA organization inquiries we have received asking how CMS defines regular basis, we believed the majority of MA organizations have come to adopt this CMS standard and use it routinely as they determine which enrollees to notify when provider contract terminations occur, in order to comply with  422.111(e). Therefore, we proposed to codify this definition at proposed  422.111(e)(2)(iii). We proposed that the requirements for contract terminations that involve specialty types other than primary care or behavioral health (written notice only, at least 30 calendar days before the termination effective date, and to all enrollees who are patients seen on a regular basis by the provider whose contract is terminating) would be set forth at new proposed  422.111(e)(2). This would provide a clear distinction for MA organizations between CMSs enrollee notification requirements for contract terminations that involve a primary care or behavioral health provider (at new proposed paragraph (e)(1)) and all other provider contract terminations. We reiterate that the beginning proposed revised regulatory text at  422.111(e) also distinguished between no-cause and for-cause provider contract terminations, with the former scenario prompting a requirement for MA organizations to provide the enrollee notifications and the latter requiring MA organizations to make a good faith effort to notify enrollees within the required timeframes. Regardless, whenever an MA organization notifies enrollees about a provider contract termination (whether it is with or without cause), CMS proposed that MA organizations must follow these new requirements outlined at proposed paragraphs (e)(1) and (2). Finally, regarding the content of the provider termination notice, CMSs regulation at  422.2267(e)(12) currently provides that the Provider Termination Notice is a required model communications material through which MA organizations must provide the information required under  422.111(e). CMS has provided additional guidance regarding the content of the provider termination notice in section 110.1.2.3 of Chapter 4 of the MMCM.91Similar to the definition of affected enrollees, these best practices have been in our guidance since 2016, thus we believe the majority of MA organizations likely already follow them as they develop the content of their provider termination notices. Therefore, we proposed to codify the best practices for provider termination notices at  422.2267(e)(12). Specifically, we proposed to make these requirements for the content of MA organizations provider termination notices and also require MA organizations to include additional pieces of information in the notice. First, at proposed  422.2267(e)(12)(ii)(A), we proposed that the provider termination notice must inform the enrollee that the provider will no longer be in the network and the date the provider will leave the network. We modeled this proposed regulatory text after the established precedent for the equivalent notice requirement for the Non-renewal Notice model communications material as provided at  422.2267(e)(10)(ii)(A) (we refer readers to section III.I. of this final rule for our amendment to paragraph (e)(10) to make the Non- renewal Notice a standardized communications material). Next, we proposed to codify a requirement to include the information currently described in the best practices guidance in Chapter 4 of the MMCM at proposed  422.2267(e)(12)(ii)(B), (C), and (E), specifically: names and phone numbers of in-network providers that the enrollee may access for continued care (this information may be supplemented with information for accessing a current provider directory, including both online and direct mail options) (at proposed paragraph (e)(12)(ii)(B)); how the enrollee may request a continuation of ongoing medical treatment or therapies with their current provider (at proposed paragraph (e)(12)(ii)(C)); and the MA organizations call center telephone number, TTY number, and hours and days of operation (at proposed paragraph (e)(12)(ii)(E)). For proposed paragraph (e)(12)(ii)(B) and (C), we proposed to use the same description for the relevant content that is currently found in CMSs guidance in Chapter 4 of the MMCM. However, for proposed paragraph (e)(12)(ii)(E), instead of using the existing Chapter 4 language (customer service number(s) where answers to questions about the network changes will be available), we proposed to model the proposed VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222182 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 92https://www.cms.gov/Regulations-and- Guidance/Guidance/Manuals/Downloads/ mc86c04.pdf. regulatory text after the established precedent of a requirement for the Non- renewal Notice at  422.2267(e)(10)(ii)(H). We stated in the proposed rule that we believed that the proposed new language of call center telephone number, TTY number, and hours and days of operation is more inclusive as it encompasses not just the customer service number but also the TTY number and operation times. In addition, at proposed  422.2267(e)(12)(ii)(D), we proposed that the provider termination notice must provide information about the Annual Coordinated Election Period (AEP) and the MA Open Enrollment Period (MAOEP) and must explain that an enrollee who is impacted by the provider termination may contact 1 800MEDICARE to request assistance in identifying and switching to other coverage, or to request consideration for a special election period (SEP), as specified in  422.62(b)(26), based on the individuals unique circumstances and consistent with existing parameters for this SEP. We solicited comment on our proposal to consider an enrollee who is impacted by a provider contract termination to be someone who is experiencing an exceptional condition, as specified in  422.62(b)(26), and therefore eligible for this SEP. We also solicited comment on alternative approaches; specifically, the adoption of a new SEP for this type of provider contract termination, with explicit standards for when termination of a provider from the network should serve as a basis for SEP eligibility. The last proposal we made regarding the provider termination notice requirements at  422.2267(e)(12) concerned CMSs requirements for the telephonic notice that we proposed MA organizations must provide to enrollees at least 45 days in advance of a primary care or behavioral health provider contract termination. Specifically, at proposed  422.2267(e)(12)(iii), we proposed that the telephonic notice of provider termination specified in proposed  422.111(e)(1)(i) must relay the same information as the written provider termination notice as described in paragraph (e)(12)(ii) of  422.2267. We stated in the proposed rule that we believed that requiring the MA organization to communicate the same information on the primary care or behavioral health provider contract termination through two different channelsa written letter and a telephone callwould ensure that affected enrollees receive the information they need to decide how to proceed with their current course of treatment. We stated that the telephonic communication would reiterate the change occurring in the plans network and the options the enrollee has moving forward in the absence of their current provider. The provider termination notice is a model communications material which, per  422.2267(c), is created by CMS as an example of how to convey enrollee information. When drafting this required communications material, MA organizations must: (1) accurately convey the vital information in the required material to the enrollee, although the MA organization is not required to use the CMS model material verbatim; and (2) follow CMSs order of content, when specified (see  422.2267(c)(1) and (2)). While the regulation currently identifies the provider termination notice as a model communications material, CMS has not yet developed the model document for MA organizations to use. Rather, MA organizations have been expected to follow the current guidance in section 110.1.2.3 of Chapter 4 of the MMCM.92 Given that we proposed new regulatory requirements for the content of these provider termination notices (including codifying existing best practices provided in CMSs guidance), CMS stated in the proposed rule that we intend to create a model document for the provider termination notice that contains the requirements at proposed  422.2267(e)(12), if finalized. We stated that we believed this model document would be welcomed by MA organizations as it would provide a useful template that MA organizations may follow when developing their own provider termination notices. Our proposal for  422.2267(e)(12) specified the required information, and the model document that CMS intends to develop would reflect this information as well. In addition, we stated in the proposed rule that when developing provider termination notices, all MA organizations must follow the general communications materials and activities requirements outlined at  422.2262 and the standards for required materials and content at  422.2267(a). Regarding compliance monitoring for the regulatory amendments we proposed, CMS currently monitors MA organization compliance with the existing policies at  422.111(e) and 422.2267(e)(12) through account management activities, complaint tracking and reporting, and auditing activities. These oversight operations alert CMS to any issues with enrollees that did not receive adequate notice of a provider contract termination, and CMS may require MA organizations to address these matters if they arise. We stated in the proposed rule that if finalized, CMS intends to continue these oversight operations to ensure MA organizations compliance with the proposed regulation. We stated that in accordance with  422.2261(c)(2), CMS may require submission or submission and approval of communications materials prior to use if additional oversight is warranted as determined by CMS based on feedback such as complaints or data gathered through reviews. This is to ensure the information being received by enrollees is accurate. Furthermore,  422.2261(d)(1) and (3) establish that CMS reviews materials to ensure compliance with all applicable requirements under  422.2260 through 422.2267 and that CMS may determine, upon review of such materials (either prospective or retrospective), that the materials must be modified, or may no longer be used. Therefore, we stated in the proposed rule that CMS reserves the right to review any MA organizations provider termination notice if we receive complaints or other information signifying that the notice warrants additional oversight to ensure compliance with CMS regulations for 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