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From Health Law Daily, August 19, 2016

CMS cautions providers on steering beneficiaries to marketplace plans

By Anthony H. Nguyen, J.D.

CMS is concerned with healthcare providers and provider affiliated organizations steering people eligible for Medicare or Medicaid benefits to an individual market plan for the purpose of obtaining higher payment rates. By steering Medicare or Medicaid eligible individuals to a Patient Protection and Affordable Care (ACA) (P.L. 111-148) market plan, the provider actions may harm the individual, the individual market single risk pool, and other enrollees in the individual market single risk pool, as well as potentially raise overall health care costs. In an advance release of a Request for Information set to publish in the Federal Register on August 23, 2016, CMS is seeking public comments on these concerns. CMS also sent letters to all Medicare-enrolled dialysis facilities and centers informing them of its information request. Under section 1882(d)(3)(i)(II) of the Social Security Act, providers are prohibited from selling to individuals actively receiving Medicare or Medicaid benefits insurance coverage that duplicates such Medicare or Medicaid benefits.

Currently, CMS discourages third-party payment of premiums and cost sharing of qualified health plans in the individual market by health care providers such as physicians, medical facilities or affiliated non-profit organizations, but noted that the ultimate decision about accepting payments are left to health insurance companies. CMS’ position does not apply to specific federal, state, or local government programs that are expressly permitted to pay insurance premiums for consumers.

Future actions. In addition to seeking public and provider comments, CMS is considering potential regulatory options, including: (1) prohibiting or limiting premium payments and routine waiver of cost-sharing for qualified health plans by health care providers; (2) revising Medicare and Medicaid provider enrollment rules; (3) imposing civil monetary penalties for individuals that fail to provide correct information about consumers enrolling in a plan; or (4) permitting issuers to limit their payment to health care providers to Medicare-based amounts for particular services and items of care. CMS is examining, in particular, whether to impose civil monetary penalties on health care providers when their actions result in late enrollment penalties for Medicare eligible individuals who are steered to an individual market plan and, as a result, are delayed in enrolling in Medicare.

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