2023-07115.pdf

course of treatment. CMS is finalizing amendments to  422.111(e) that establish specific enrollee notification requirements for no-cause and for-cause provider contract terminations and add specific and more stringent enrollee notification requirements when primary care and behavioral health provider contract terminations occur. CMS is also amending  422.2267(e)(12) to specify the content and additional procedural requirements for the notification to enrollees about a provider contract termination. These requirements will generally increase enrollee protections when MA network changes occur and will raise the standards for the stability of enrollees primary care and behavioral health treatment. 8. Transitional Coverage and Retroactive Medicare Part D Coverage for Certain Low-Income Beneficiaries Through the Limited Income Newly Eligible Transition (LI NET) Program ( 423.2500423.2536) CMS has operated the LI NET demonstration since 2010. The LI NET demonstration provides transitional, point-of-sale coverage for low-income beneficiaries who demonstrate an immediate need for prescriptions, but who have not yet enrolled in a Part D plan, or whose enrollment is not yet effective. LI NET also provides retroactive and/or temporary prospective coverage for beneficiaries determined to be eligible for the Part D low-income subsidy (LIS) by the Social Security Administration (SSA) or a State. In this final rule, we are making the LI NET program a permanent part of Medicare Part D, as required by the Consolidated Appropriations Act, 2021 (CAA). We are finalizing the regulation largely as proposed, with a few minor clarifying modifications. 9. Expanding Eligibility for Low-Income Subsidies (LIS) Under Part D of the Medicare Program ( 423.773 and 423.780) Section 11404 of the IRA amended section 1860D14 of the Act to expand eligibility for the full LIS to individuals with incomes up to 150 percent of the Federal poverty level (FPL) beginning on or after January 1, 2024. In addition, the IRA allows for individuals to qualify for the full subsidy based on the higher resource requirements currently applicable to the partial LIS group. This change will provide the full LIS subsidy for those who currently qualify for the partial subsidy. In this rule, we are finalizing implementing regulations at  423.773 and 423.780 as proposed. C. Summary of Costs and Benefits BILLING CODE 412001P VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222124 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.000</GPH>ddrumheller on DSK120RN23PROD with RULES222125 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.001</GPH>ddrumheller on DSK120RN23PROD with RULES222126 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.002</GPH>ddrumheller on DSK120RN23PROD with RULES222127 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.003</GPH>ddrumheller on DSK120RN23PROD with RULES222128 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4725 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.004</GPH>ddrumheller on DSK120RN23PROD with RULES222129 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations BILLING CODE 412001C D. General Comments on the Proposed Rule Comment: A commenter suggested that CMS had not allowed for a 60-day comment period for the proposed rule because the beginning of the comment period was calculated from the date the proposed rule was made available for public inspection on the Federal Register website rather than the date that it appeared in an issue of the Federal Register. The commenter recommended that CMS provide an additional 60-day comment period on the proposed rule. Response: Section 1871(b) of the Act requires that we provide for notice of the proposed regulation in the Federal Register and a period of not less than 60 days for public comment thereon. The proposed rule was available for public inspection on federalregister.gov (the website for the Office of Federal Register) on December 14, 2022. We believe that beginning the comment period for the proposed rule on the date it became available for public inspection at the Office of the Federal Register fully complied with the statute and provided the required notice to the public and a meaningful opportunity for interested parties to provide input on the provisions of the proposed rule. II. Implementation of Certain Provisions of the Bipartisan Budget Act of 2018, the Consolidated Appropriations Act, 2021, and the Inflation Reduction Act of 2022 A. Applying DSNP Look-Alike Requirements To Plan Benefit Package Segments ( 422.503(e), 422.504, 422.510 and 422.514) In the final rule titled Medicare Program; Contract Year 2021 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, and Medicare Cost Plan Program which appeared in the Federal Register on June 2, 2020 (85 FR 33796) (hereinafter referred to as the June 2020 final rule), CMS finalized the contracting limitations for DSNP look-alikes at  422.514(d) and the associated authority and procedures for transitioning enrollees from a DSNP look-alike at  422.514(e). 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 entitled to medical assistance under a State plan under Title XIX. 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 who are entitled to medical assistance under a State plan under Title XIX, 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 established these contract limitations to address the proliferation and growth of DSNP look-alikes, which raised concerns related to effective implementation of requirements for D SNPs established by section 1859 of the Act (including amendments made by the Medicare Improvements for Patients and Providers Act of 2008 (Pub. L. 110 275) and the Bipartisan Budget Act of 2018 (Pub. L. 115123)). We adopted the regulation to ensure full implementation of requirements for DSNPs, such as contracts with State Medicaid agencies; a minimum integration of Medicare and Medicaid benefits; care coordination through health risk assessments (HRAs); and evidence-based models of care. In addition, we noted how limiting these DSNP look-alikes would address beneficiary confusion stemming from misleading marketing practices by brokers and agents that misrepresent to dually eligible individuals the characteristics of DSNP look-alikes. For a more detailed discussion of D SNP look-alikes and their impact on the implementation of DSNP Medicare and Medicaid integration, we direct readers to the June 2020 final rule (85 FR 33805 VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ER12AP23.005</GPH>ddrumheller on DSK120RN23PROD with RULES222130 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations through 33820) and the Medicare and Medicaid Programs; Contract Year 2021 and 2022 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All- Inclusive Care for the Elderly (85 FR 9018 through 9021) (also known as the February 2020 proposed rule). We proposed amendments to close unforeseen loopholes in the scope of the regulation adopted to prohibit DSNP look-alikes. 1. Applying Contracting Limitations for DSNP Look-Alikes to MA Plan Segments As written at  422.514(d) and (e), the contracting limitations for DSNP look- alikes are based on analysis at the MA plan level. Section 1854(h) of the Act authorizes MA organizations to segment an MA plan and apply the uniformity requirements for MA plans at the segment level, provided that the segments are comprised of one or more MA payment areas. As implemented in  422.2 (defining MA plan), 422.100(d), 422.254, and 422.262, MA plans may include multiple segments in an MA plan in which different benefit designs, cost-sharing, and premiums are available; bids are submitted at the segment level if an MA plan is segmented, and evaluation of compliance with MA requirements is done at the segment level where appropriate. For more information on MA plan segments, see 87 FR 79465 of the proposed rule. Since adopting  422.514(d), we have seen MA plans where a specific segment looks like a D SNP look-alike and would be subject to the contracting prohibitions in  422.514(d) if the segment were treated as an MA plan. Currently,  422.514(d) does not clearly apply to a segment within an MA plan. However, we believe that by applying the DSNP look-alike contracting limitations only at the MA plan level without applying it to segments of plans, our existing regulation has an unintended and unforeseen loophole through which D SNP look-alikes could persist, contrary to the stated objectives in our prior rulemaking. In the proposed rule (87 FR 79465), we described examples of non-SNP MA plan segments that would be identified as DSNP look-alikes if we were to apply the  422.514(d)(2) criteria at the MA plan segment level. The segments in those three plans collectively have approximately 3,000 enrollees. While the number of non-SNP MA plans at the segment level is currently small, this number could grow in the future and provide an opportunity for MA organizations to circumvent the DSNP look-alike contracting limitations at  422.514(d). We proposed adding a new paragraph at 42 CFR 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. Under the proposal, CMS would not contract with or renew a contract with a plan segment where the MA plan or segment is not a DSNP and the enrollment thresholds in paragraph (d)(1) or (d)(2) are met. This proposal, to treat a segment of an MA plan as an MA plan, is consistent with CMS annual review of MA plan bids and Medicare cost-sharing, in which each MA plan segment submits a separate bid pricing tool and plan benefit package (PBP) like an unsegmented MA plan and CMS separately evaluates these submissions for compliance with MA requirements. As discussed in the June 2020 final rule, CMS implements the contracting prohibition in  422.514 at the plan level. Where an MA plan is one of several offered under a single MA contract and the MA organization does not voluntarily non-renew the