2023-07115.pdf

data on functional limitations in the HEI reward, we would need national data at the beneficiary level, which the MCBS does not provide. Comment: A few commenters stated that there were many changes proposed to the Star Ratings and recommended more incremental change. A commenter requested that CMS consider distributing the implementation of the proposed changes to the Star Ratings over the next three years. Response: As discussed in section I.B.1. of this final rule, not all of the proposed changes to the Star Ratings regulations in the December 2022 proposed rule are being finalized at this time. Also, as proposed and finalized, the HEI reward will be implemented beginning with the 2027 Star Ratings, whereas most of the other Star Ratings changes finalized in this rule will be implemented beginning with the 2026 Star Ratings. Comment: Some commenters raised concerns about the possibility that some plans may more heavily market to dually eligible enrollees in order to have them enroll in non-DSNP products, so that such plans may meet the threshold of having enough members to be eligible for the HEI reward, or that the HEI reward would discourage enrollment in DSNPs and Chronic Condition SNPs. Another commenter stated the HEI VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00174 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222293 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations reward would create an incentive for gaming contract enrollment where plans could target or avoid cohorts of beneficiaries, particularly dually eligible beneficiaries and beneficiaries with chronic conditions, because CMS is not proposing any corrections (similar to risk adjustment) that would ensure contracts are fairly scored relative to the different populations in each contract. Response: There are already existing adjustments in the Star Ratings program to account for contracts serving enrollees with SRFs. Some Star Ratings measures are case-mix adjusted, and this is accounted for in the HEI reward methodology. As discussed earlier in this preamble, the CAI also accounts for within-contract disparities in performance associated with SRFs in Star Ratings measures that are not already adjusted according to the measure specifications developed by measure stewards. CMS does not believe contracts will avoid enrolling dually eligible beneficiaries, as enrolling duals would lead to a greater likelihood of meeting the percentage enrollment thresholds for contracts to be eligible for the HEI reward. If contracts increase their enrollment of LIS/DE and disabled enrollees, they must also do well serving this population to receive the HEI reward. Comment: A commenter expressed concern that the HEI reward could conceal overall quality shortcomings and noted that implementation of the HEI reward must be carefully monitored. Another commenter encouraged CMS to study the use of the HEI reward and modify it based on experience. Response: CMS does not believe the HEI reward will conceal overall quality shortcomings, as overall quality will continue to be assessed by the measure- level Star Ratings and contracts will not be able to receive high overall Star Ratings without performing well overall. CMS will evaluate the HEI reward over time as it does with the entire Star Ratings methodology and would propose any potential modifications through notice-and-comment rulemaking. Comment: A commenter recommended CMS consider allowing plans to rely upon one year of data to encourage earlier adoption of HEI reward and in order to avoid penalizing new contracts from earning HEI rewards. Response: CMS appreciates this suggestion. Use of two years of data is designed to ensure that smaller contracts have sufficient data to produce reliable results and that smaller contracts are not excluded from the HEI. We will explore other options, such as the commenters recommendation to use only one year of data for contracts that would have enough enrollees to calculate reliable measure scores; however, we will need to consider whether HEI scores for contracts using one year of data are comparable to the scores for contracts using two years of data and whether using one year of data advantages or disadvantages contracts in any way. Any changes related to the HEI methodology would have to be proposed through future notice-and- comment rulemaking. Commenter: A commenter stated that quality measures should be evaluated carefully to ensure they do not inadvertently create biases and mask or worsen health disparities that lead to care stinting. The commenter also stated that measures should also be appropriately stratified or adjusted to recognize population differences. Response: CMS is committed to accurately measuring and calculating scores and stars to reflect true performance in the Star Ratings. Some Star Ratings measures are case-mix adjusted, and this is accounted for in the HEI reward methodology. As discussed earlier in this preamble, the CAI accounts for within-contract disparities in performance associated with SRFs in Star Ratings measures that are not already adjusted according to the measure specifications developed by measure stewards. Beginning with the 2022 Star Ratings, CMS also began providing contracts with confidential stratified reports through HPMS that include the Star Ratings measures stratified by LIS/DE and disability status that plans can use for quality improvement purposes. Further, the HEI reward specifically focuses on performance among enrollees with the specified SRFs. Comment: A commenter suggested CMS stratify health outcomes by five- digit zip codes in order to help understand SRFs based in particular localities. Response: CMS appreciates this suggestion. It is not possible to stratify the Star Ratings measures by zip code because the sample sizes would be insufficient to provide reliable data. After considering the comments we received and for the reasons outlined in the proposed rule and our responses to comments, we are finalizing the removal of the reward factor and addition of the HEI reward to the 2027 Star Ratings as proposed, with additional revisions to  422.162(a) and 423.182(a) to modify the definition of highly-rated contract to remove references to CAI and reward factor and to instead reference applicable adjustments in  422.166(f) and 423.186(f); to  422.162(b)(1) and 423.182(b)(1) to remove references to the current reward factor and to instead reference applicable adjustments in  422.166(f) and 423.186(f); and to  422.166(f)(3)(i)(B) and 423.186(f)(3)(i)(B) to clarify that, for purposes of calculating the HEI, measure-level scores are used for contracts that have data for only the most recent year of the 2 years, but measure-level scores are not used for contracts that have data for only the first of the 2 years. We are finalizing changes to the following sections to revise references to the reward factor or to limit application of the current reward factor to the Star Ratings through the 2026 Star Ratings:  422.166(c)(1), 422.166(d)(1) 422.166(f)(1), 422.166(f)(2)(i), 422.166(g)(1), 423.186(c)(1), 423.186(d)(1) 423.186(f)(1), 423.186(f)(2)(i), and 423.186(g)(1). We are also finalizing the addition of the HEI reward at  422.166(f)(3) and 423.186(f)(3). G. Extreme and Uncontrollable Circumstances ( 422.166(i) and 423.186(i)) 1. 60 Percent Rule Currently, the Star Rating for each non-CAHPS measure score is determined by applying a clustering algorithm to the numeric value scores from all contracts required to submit the measure. The cut points for non-CAHPS measures are derived from this clustering algorithm. As discussed in the April 2019 final rule and described at  422.166(i)(9), 422.166(i)(10), 423.186(i)(7), and 423.186(i)(8), we exclude from this clustering algorithm and from the reward factor calculations (under  422.166(f)(1) and 423.186(f)(1)) the numeric values for affected contracts with 60 percent or more of their enrollees in Federal Emergency Management Agency (FEMA) designated Individual Assistance areas at the time of an extreme and uncontrollable circumstance (84 FR 1577615777). Affected contracts are contracts that meet all of the criteria in  422.166(i)(1) and 423.166(i)(1). We generally call this the 60 percent rule to distinguish it from the adjustments provided under  422.166(i) and 423.186(i) for affected contracts with 25 percent or more of their enrollment residing in a FEMA-designated Individual Assistance area at the time of the extreme and uncontrollable circumstance. This exclusion ensures that any impact of the extreme and VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222294 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 168We use the start date of the incident period to determine which year of Star Ratings could be affected, regardless of whether the incident period lasts until another calendar year. uncontrollable circumstance on certain affected contracts measure-level scores does not have an impact on the cut points or reward factor for other contracts. When this rule was first implemented, the concern was that a contract impacted by an extreme and uncontrollable circumstance would have significantly different scores than other contracts and that these significantly different scores would shift the cut points and/or reward factor thresholds for non-affected contracts. Our analyses since the rule was implemented show the measure scores for affected contracts do not tend to be outliers and that this 60 percent rule can have adverse effects when extreme and uncontrollable circumstances affect nearly all contracts, as we saw with the COVID19 PHE. We proposed to limit to the 2025 and earlier Star Ratings, application of the rule at  422.166(i)(9)(i), 422.166(i)(10)(i), 423.186(i)(7)(i), and 423.186(i)(8)(i) that excludes numeric values for affected contracts with 60 percent or more of their enrollees residing in FEMA-designated Individual Assistance areas at the time of an extreme and uncontrollable circumstance from cut point calculations and reward factor determinations. During the COVID19 pandemic, we adopted a change to remove these rules temporarily since all contracts qualified for the extreme and uncontrollable circumstances policy as a result of COVID19 in 2020; this change was adopted in the interim final rule titled Medicare and Medicaid Programs, Clinical Laboratory Improvement Amendments (CLIA), and Patient Protection and Affordable Care Act; Additional Policy and Regulatory Revisions in Response to the COVID19 Public Health Emergency which appeared in the Federal Register and was effective on September 2, 2020, and the final rule titled Medicare Program; Contract Year 2023 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit 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 and was effective on June 28, 2022 (hereinafter referred to as the May 2022 final rule). The removal of the 60 percent rule was necessary to calculate measure stars for most measures for the 2022 Star Ratings and for HEDIS measures that are based on the Health Outcomes Survey (HOS) (HEDISHOS measures) for the 2023 Star Ratings. Without the removal of the rule, CMS would not have been able to calculate stars for most measures for 2022 Star Ratings and for the HEDIS HOS measures for the 2023 Star Ratings because all contracts qualified for the extreme and uncontrollable circumstances policy as a result of COVID19 in 2020. Beginning with the 2024 Star Ratings, measure scores that are extreme outliers will be removed through Tukey outlier deletion, a standard statistical method to remove extreme outliers, as codified at  422.166(a)(2)(i) and 423.186(a)(2)(i), prior to applying the clustering methodology to determine the cut points. The combination of mean resampling (implemented with the 2022 Star Ratings and described at  422.166(a)(2)(i) and 423.186(a)(2)(i)) and Tukey outlier deletion will alleviate the impact of any extreme outliers. Thus, if a contract is impacted by an extreme and uncontrollable circumstance and as a result has a significantly lower score on a measure, the score will be removed if it is an extreme outlier. Removing extreme outliers will eliminate the concern that other contracts are inappropriately impacted by changes in scores for contracts impacted by disasters. By removing the 60 percent rule, we will also simplify the Star Ratings calculations and continue to allow measure-level Star Ratings to be calculated if all or most contracts qualify for an extreme or uncontrollable circumstance in the future. We proposed to amend  422.166(i)(9)(i), 422.166(i)(10)(i), 423.186(i)(7)(i), and 423.186(i)(8)(i) to remove the 60 percent rule beginning with the 2026 Star Ratings for non- CAHPS measures, including the HOS measures, even though the measurement period is slightly different for these measures. We solicited comments on this proposal. Comment: Most commenters supported the removal of the 60 percent rule. Response: CMS appreciates the