March 2, 2021

Volume XI, Number 61

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March 01, 2021

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Medicare Advantage Plans, Medicare Prescription Drug Plans and FEHBP Carriers Take Note: CMS and OPM Announce Actions to Address the Threat of Coronavirus

The Centers for Medicare and Medicaid Services (CMS) and the Office of Personnel Management (OPM) issued guidance to their contracting carriers on various issues surrounding the novel coronavirus or COVID-19.  These guidance documents remind carriers of their contractual obligations as well as give carriers flexibility in the administration of their benefit plans during this crisis.

Coronavirus; OPM

CMS Guidance to Medicare Advantage Organizations and Part D Sponsors

▪ Medicare Advantage Organizations

CMS reminds MA organizations of their obligations under 42 C.F.R. § 422.111(m) when there is a state of disaster.  These obligations include:

  • Covering Medicare Parts A and B services and supplemental Part C plan benefits furnished at non-contracted facilities subject to § 422.204(b)(3).

  • Waiving, in full, requirements for gatekeeper referrals where applicable.

  • Providing the same cost-sharing for the enrollee as if the service or benefit had been furnished at a plan-contracted facility.

  • Making changes that benefit the enrollee effective immediately without the 30-day notification requirement at 42 C.F.R. § 422.111(d)(3).

MA organizations may also take any of the following actions:

  • Waive or reduce enrollee cost-sharing for their Medicare enrollees who are impacted by the outbreak. Any such waivers must be on a uniform basis for all similarly situated plan enrollees.

  • Provide enrollees access to Medicare Part B services via telehealth in any geographic area and from a variety of places, including beneficiaries’ homes.

  • Waive plan prior authorization requirements that otherwise would apply to tests or services related to COVID-19 at any time.

CMS will exercise enforcement discretion with respect to the above deviations from CMS-approved plan benefit packages.  In addition, CMS has confirmed with the HHS Office of the Inspector General that the cost-sharing waivers and increased telehealth benefits would satisfy the Anti-Kickback Statute safe harbor for increased coverage, reduced cost-sharing amounts, or reduced premium amounts offered by health plans at 42 C.F.R. § 1001.952(l).

▪ Part D Sponsors

Part D sponsors may also take the following actions to ensure pharmacy access during a disaster or state of emergency resulting from COVID-19:

  • Relax “Refill-Too-Soon” edits and provide maximum extended day supply.

  • Reimburse enrollees for prescriptions obtained from out-of-network pharmacies.

  • Relax any plan-imposed policies that may discourage certain methods of delivery, such as mail or home delivery, for retail pharmacies that choose to offer these delivery services.

  • Waive prior authorization requirements at any time that they otherwise would apply to Part D drugs used to treat or prevent COVID-19, if or when such drugs are identified.

Office of Personnel Management Guidance to Federal Employees Health Benefits Program Carriers

In Carrier Letter 2020-02, OPM directs FEHB carriers to review their plan benefits to minimize barriers to testing and treatment for FEHB members who are affected by the COVID-19 outbreak.  This includes:

  • On a case-by-case basis, in consultation with the public health authorities and OPM, relaxing referral or pre-authorization requirements to provide benefits for COVID-19 testing, care at specialized centers, medical ambulance transportation reimbursement and early refills of prescription medications for displaced individuals.

In addition, OPM encourages carriers to consider:

  • Contracted medical transportation providers are equipped to handle the transport of potentially infectious patients.

  • Members who require treatment for COVID-19 disease have access to needed services in-network or to consider authorizing access to out-of-network services with in-network cost sharing.

  • Implementing solutions so that out-of-pocket costs are not a barrier to enrollees seeking testing for COVID-19, including waiving cost sharing for testing and telemedicine/ telehealth visits.

In the event that new treatments or vaccines become available (e.g., FDA approval of new drugs or vaccines, or peer-reviewed publications demonstrating the effectiveness of existing anti-viral medications), OPM expects carriers to rapidly review and approve these therapeutics consistent with other existing OPM guidance.

Be safe!

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Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 72
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About this Author

Christine Clements, Sheppard Mullin Law Firm, Washington DC, Corporate and Health Care Law Attorney
Partner

Christine M. Clements is a partner in the Healthcare Team in the firm's Washington, D.C. office with 25 years of experience on managed care law issues. Ms. Clements focuses her practice on federal healthcare government contract programs, with particular focus on the Medicare Advantage Program, the Medicare Prescription Drug Benefit, the Federal Employees Health Benefits Program, Medicaid managed care, and the Medicare-Medicaid Plans. Ms. Clements advises clients on the issues most important to them, including contract applications and service area expansions, responses...

202-747-1848
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