In The News

Is Medicare Advantage a Failed Experiment? Experts Debate  

MedCity News / By Marissa Plescia
More than half of Medicare beneficiaries are enrolled in Medicare Advantage (MA), and enrollment in MA has steadily grown over the years. But as the MA program draws scrutiny from the federal government, should it stick around? Two experts disagreed on this topic during a panel discussion held Monday at HLTH 2023 in Las Vegas.
Dr. Rick Gilfillan, an independent consultant, called the MA program a “failed experiment.” Gilfillan is the former CEO of Trinity Health System and former director of the Center for Medicare and Medicaid Innovation (CMMI). He referred to the program as Subsidized Medicare Advantage because it’s “subsidized to the tune of between 25% and 32% a year in excess payments from CMS.”
“I say failed because for 35 years of its existence, privatized Medicare, now Subsidized Medicare Advantage, has cost more than traditional Medicare,” he said. “In 2023, those numbers are projected to be more than $75 billion to $120 billion in excess payments to MA over what the cost would be in traditional. From a quality standpoint, … what we can say is that [MA plans] put in place obstacles to care, made access to care more difficult.”
Meanwhile, Dr. Sachin Jain, CEO of MA insurer SCAN Health Plan, disagreed that MA is a failed experiment. He noted that Gilfillan was his first mentor in managed care and that the two worked together at CMMI. And while Jain said he agrees with Gilfillan on “most things,” he thinks Gilfillan is “dead wrong” when it comes to Medicare Advantage. 
“You have to think about what we’re comparing Medicare Advantage to, which is fee-for-service Medicare, which was a program that for many years provided people with a sense of stability and security. As healthcare costs grew, as more cost shifting happened to traditional beneficiaries in the fee-for-service Medicare program, they felt less and less secure. … It’s debatable whether [MA] costs more or less, but let’s accept for a second Rick’s premise that it actually costs more. It may cost more because it does more. If you’re a beneficiary in the traditional fee-for-service Medicare program, CMS would have you believe that you don’t have teeth, eyes or ears because there’s no vision coverage, audiology coverage or dental coverage.”
However, Jain conceded that MA needs “refinement, reform, major tweaks and minor tweaks.”
Gilfillan acknowledged that traditional Medicare needs reform as well.
“I think we need to change Medicare, and I think we need to change MA,” he said. “I personally would do away with MA, I think it’s been too long, but that’s unrealistic. So what I would say is, let’s have a level playing field. Let’s create a level playing field where there’s a standard traditional Medicare benefit that includes an out-of-pocket cap, some vision, dental, hearing. And let’s compare it and let’s have a standard package in MA. Let’s stop the overpaying. The dollars we take out of MA will fund the extra benefits for both parties.”
He added that MA is not creating value for patients.
“MA today is not value-based care, it’s value-destroying care. Because it destroys the value of what we have in our healthcare dollar, taking dollars out for profits, for stock buybacks and dividends,” Gilfillan said.
Jain countered that SCAN Health Plan is a nonprofit health plan, and there are several other nonprofit health plans across the country that aren’t “feeding shareholders” and are working collaboratively with the provider community. While Gilfillan said he loves these types of companies, he’s not sure if they can beat the for-profit players like UnitedHealthcare, Aetna, Cigna and Elevance.
Ultimately, Jain believes that MA can be fixed, but healthcare professionals need to be the ones to step up.
“I do think there is an element of trying to recognize the flaws in the system, trying to fix them one-by-one,” he said. “I think we’ve been waiting for Congress to fix the overall system of care for 50 years. They’re not doing a better job today than they did 50 years ago. I think it’s up to us right now to look at these programs and try to make them better.”


EEOC Updates its Harassment Guidance

SESCO Management Consultants

The Equal Employment Opportunity Commission (EEOC) has published draft enforcement guidance regarding workplace harassment. Highlights of the proposed guidance include broad protections for LGBTQ+ employees, virtual workplace harassment, and non-work-related social media activity that contributes to a hostile work environment.

  • LGBTQ+ Protections. According to the proposed guidance, examples of harassment based on an individual’s gender identity may include (i) harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; (ii) intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity; or (iii) denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
  • Virtual Workplace Harassment. The proposed guidance cites examples of conduct that could be considered harassment, including: (i) sexist comments made during a video meeting; (ii) racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting; and (iii) sexual comments made during a video meeting about a bed being near an employee in the video image. While these examples cited by the agency focus on video conference technology, the EEOC opines that harassing conduct can also occur over instant messaging systems, internal electronic bulletin boards, and other virtual communications systems.
  • Harassment Over Social Media. While noting that employers are generally not responsible for conduct that occurs in non-work-related contexts, the EEOC advises that an employer can be held liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment. In the context of social media, the EEOC notes that communications through social media accounts can affect the “terms and conditions of employment” and therefore may constitute harassing conduct. To illustrate this point, the proposed guidance offers the following example: “If an Arab-American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.” Put starkly, according to the EEOC, social media posts that an employee has not personally viewed can contribute to a hostile work environment simply because the employee learned about the post as a result of the employee’s coworkers discussing the post at work.
  • Employer Takeaways. While the EEOC’s new proposed harassment guidance, even if it becomes final, does not have the force of law, it is clear that the modern workplace environment can create opportunities for workplace harassment that can catch employers by surprise. Accordingly, we recommend employers review and update their existing policies and procedures based on these changes to the workplace.

If you are not a retainer client, contact us to learn about our services by calling 423-764-4127 or click here.


Considering PIP Reimbursement for Hospices

The Health Group 

Most healthcare providers are not eligible for Periodic Interim Payment (“PIP”) reimbursement; however, hospices are eligible.  The beginning of a hospice’s fiscal year is the perfect time to request PIP reimbursement in lieu of being reimbursed as claims are processed.  Many hospices are unaware of the availability of PIP reimbursement which provides fixed bi-weekly payments to the hospice throughout the year, with periodic adjustment to the PIP payment rates based on actual billing experience and projected levels of Medicare beneficiary activity.

Requesting PIP reimbursement is easy and, once approved, management and periodic reporting to the Medicare Administrative Contractor is relatively simple.  PIP can accelerate cash flow to the hospice if properly monitored, provides reimbursement stability (same amount every two weeks, adjusted three (3) times per-year), and generally requires minimal administrative resources.

Assuming level utilization throughout the year, a hospice with $2,000,000 in total Medicare reimbursement would experience approximately $49,000 more in their bank account daily than the hospice would experience being reimbursed as claims are processed (assuming all claims are reimbursed within thirty days of the end of the prior month).  Attendees at our upcoming conference will be provided with detailed information to take back to their hospices to appropriately assess the potential cash-flow benefits of PIP.


OIG Updates the List of Excluded Individuals and Entities

The Health Group 

OIG maintains a list of all currently excluded individuals and entities called the List of Excluded Individuals/Entities (“LEIE”). Anyone who hires an individual or entity on the LEIE may be subject to civil monetary penalties (“CMP”). To avoid CMP liability, health care entities should routinely check the list to ensure that new hires and current employees are not on it.  The list should also be reviewed to ensure that vendors are not included on the list.  We recommend all healthcare providers review employees and vendors against the list at the beginning of the year.  The list is available here


DEA Extends COVID-19 Teleprescribing Flexibilities through December 2024


The Drug Enforcement Administration (DEA) on October 6, 2023 issued a temporary rule extending COVID-19 telemedicine flexibilities for prescribing of controlled medications through December 31, 2024, which is the current date for expiration of other telemedicine-related flexibilities. Prior to issuance of this temporary rule those flexibilities would have expired for new patients on November 11, 2023, and for existing patients on November 11, 2024.

The National Association for Home Care & Hospice (NAHC) submitted comments on the DEA’s proposed expiration of the flexibilities, urging the DEA to extend the COVID-19 prescribing flexibilities through the end of 2024, exempt hospice from any in-person requirements, and develop a registration process for practitioners who prescribe controlled substances via telemedicine encounters. In response to the dramatic outpouring of comments on its earlier notice regarding expiration of the flexibilities, DEA held listening sessions on September 12 and 13 to reopen the conversation and to gather input from various stakeholders. Partly in response to that input, DEA and the Department of Health and Human Services (HHS) made the decision to further extend the flexibilities.

As noted in the temporary rule, “In light of the need to further evaluate the best course of action given the comments received in response to the NPRMs and the presentations at the Telemedicine Listening Sessions, DEA, jointly with HHS, is issuing this second temporary rule…extending the full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID-19 PHE, through December 31, 2024. This extension authorizes all DEA-registered practitioners to prescribe schedule II-V controlled medications via telemedicine through December 31, 2024, whether or not the patient and practitioner established a telemedicine relationship on or before November 11, 2023…The purpose of this Second Temporary Rule, like the one before it, is to ensure a smooth transition for patients and practitioners that have come to rely on the availability of telemedicine for controlled medication prescriptions, as well as allowing adequate time for providers to come into compliance with any new standards or safeguards.  DEA is working to promulgate new standards or safeguards by the fall of 2024.”

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