Health Law Daily Inappropriate ‘steering’ of dialysis patients leads to new facility coverage standards
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Wednesday, December 14, 2016

Inappropriate ‘steering’ of dialysis patients leads to new facility coverage standards

By Harold Bishop, J.D.

HHS has recently become concerned about the inappropriate "steering" of individuals eligible for coverage, including those eligible for dialysis treatment for end-stage renal disease (ESRD) under Medicare, into individual market plans. In particular, HHS is concerned that because individual market health plans typically provide significantly greater reimbursement to health care providers than public coverage like Medicare, providers and suppliers may be engaged in practices designed to encourage individual patients to forego public coverage for which they are eligible and instead enroll in an individual market plan. In other words, health care providers may be encouraging individual patients to make coverage decisions based on the financial interest of the health care provider, rather than the best interests of the individual patient. As one tool to influence these coverage decisions, health care providers may be offering to pay for, or arrange payment for, the premium for the individual market plan (Interim final rule with comment period, 81 FR 90211, December 14, 2016).

CMS response. CMS is issuing an Interim final rule with comment (IFC) that will require Medicare-certified dialysis facilities to disclose the risks of different coverage options to their patients, improve transparency around third-party payments of individual market premiums, and protect patients from disruptions in coverage.

New conditions for coverage. This immediate regulatory action, effective January 13, 2017, will establish new conditions for coverage standards (CfCs) for dialysis facilities. The standard will apply to any dialysis facility that makes payments of premiums for individual market health plans (in any amount), whether directly, through a parent organization (such as a dialysis corporation), or through another entity (including by providing contributions to entities that make such payments). Dialysis facilities subject to the new standard will be required to make patients aware of potential coverage options and educate them about the benefits of each to improve transparency for consumers. Further, in order to ensure that patients' coverage is not disrupted mid-year, facilities must ensure that issuers are informed of and have agreed to accept the payments. Specifically, the new policy requires:

  • up-front disclosures for patients regarding their coverage options, including information about available individual market plans, Medicaid or Children’s Health Insurance Program (CHIP) coverage, and available options and costs of Medicare ESRD coverage;
  • a summary of short- and long-term cost estimates of various health coverage options for patients and information on enrollment periods for those health coverage options;
  • that facilities inform issuers of the individual market plans for which they make payments of premiums for individual market plans; and
  • that facilities receive assurance from the issuer that it will accept these payments of premiums for individual market plans for the duration of the plan year, or else not make such payments.

The IFC does not restrict the ability of individuals or facilities to donate to charitable organizations that appropriately support access to health care.

Comment request. CMS is also considering whether it would be appropriate to prohibit third party premium payments for individual market coverage completely for people with alternative public coverage. Given the magnitude of the potential financial conflict of interest and the potential for abusive practices, CMS is unsure if disclosure standards will be sufficient to protect patients. CMS therefore seeks comments from stakeholders on whether patients would be better off if premium payments in this context were more strictly limited. CMS also seeks comment on alternative options where payments would be prohibited absent a showing that a third party payment was in the individual's best interest, and it seeks comment on what such a showing would require and how it could prevent mid-year disruptions in coverage.

To be considered, comments should be submitted by January 11, 2017.

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