oversight

Medicare and Medicaid: Consumer Protection Requirements Affecting Dual-Eligible Beneficiaries Vary across Programs, Payment Systems, and States

Published by the Government Accountability Office on 2012-12-05.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States Government Accountability Office

GAO             Report to Congressional Requesters




                MEDICARE AND
December 2012



                MEDICAID

                Consumer Protection
                Requirements
                Affecting Dual-Eligible
                Beneficiaries Vary
                across Programs,
                Payment Systems, and
                States




GAO-13-100
                                             December 2012

                                             MEDICARE AND MEDICAID
                                             Consumer Protection Requirements Affecting Dual-
                                             Eligible Beneficiaries Vary across Programs,
                                             Payment Systems, and States
Highlights of GAO-13-100, a report to
congressional requesters




Why GAO Did This Study                       What GAO Found
Dual-eligible beneficiaries are low-         Medicare and Medicaid consumer protection requirements vary across programs,
income seniors and individuals with          payment systems—either fee-for-service (FFS) or managed care—and states.
disabilities enrolled in Medicare and        Within Medicare, enrollment in managed care through the Medicare Advantage
Medicaid. In 2010, there were about          (MA) program must always be voluntary, whereas state Medicaid programs can
9.9 million dual-eligible beneficiaries.     require enrollment in managed care in certain situations. For example, Arizona
Both programs have requirements to           requires nearly all beneficiaries, including dual-eligible beneficiaries, to enroll in
protect the rights of beneficiaries.         managed care, but in North Carolina all beneficiaries are in FFS. In addition,
These requirements are particularly          Medicare and state Medicaid programs require managed care plans to meet
important to dual-eligible beneficiaries,
                                             certain provider network requirements to ensure beneficiaries have adequate
who must navigate the rules of both
                                             access to covered services. For example, MA plans in rural counties must have
programs and generally have poorer
health status.
                                             at least one primary care provider per 1,000 beneficiaries. Subject to federal
                                             parameters, states establish network requirements for their Medicaid programs.
To help inform efforts to better             For example, in California every plan must have at least one primary care
integrate the financing and care for         provider per 2,000 beneficiaries. Finally, Medicare and Medicaid also have
dual-eligible beneficiaries, GAO             different appeals processes that do not align with each other. The Medicare
(1) compared selected consumer               appeals process has up to five levels of review for decisions to deny, reduce, or
protection requirements within               terminate services, with certain differences between FFS and MA. In Medicaid,
Medicare FFS and Medicare                    states can structure appeals processes within federal parameters. States must
Advantage, and Medicaid FFS and              establish a Medicaid appeals process that provides access to a state fair hearing
managed care, and (2) described
                                             and Medicaid managed care plans must provide beneficiaries with the right to
related compliance and enforcement
                                             appeal to the plan, though states can determine the sequence of these appeals.
actions taken by CMS and selected
states against managed care plans.           For example, Arizona requires beneficiaries to appeal to the managed care plan
                                             first, while a beneficiary in Minnesota may go directly to a state fair hearing
GAO identified consumer protections          without an initial appeal to the managed care plan.
of particular importance to dual-eligible
beneficiaries on the basis of expert         Both the Centers for Medicare & Medicaid Services (CMS), the agency that
interviews and literature, including         administers the Medicare program and oversees states’ operation of Medicaid
protections related to enrollment,           programs, and states took a range of compliance and enforcement actions to
provider networks, and appeals. GAO          help ensure that MA and Medicaid managed care organizations complied with
reviewed relevant federal and state          their consumer protection requirements. Between January 1, 2010, and June 30,
statutes, regulations, and policy            2012, CMS took 546 compliance actions against MA organizations on the issues
statements, and interviewed officials        GAO identified as generally related to consumer protections of particular
from CMS and four states selected on         importance to dual-eligible beneficiaries. Compliance actions included notices,
the basis of their share of dual-eligible    warning letters, and requests for corrective action plans (CAP). During the same
beneficiaries and use of managed care        period, CMS took 22 enforcement actions against MA organizations, including
(Arizona, California, Minnesota, and         the imposition of 17 civil money penalties—nearly all for late or inaccurate
North Carolina). GAO analyzed data           marketing materials. For five serious violations, CMS suspended enrollment into
on compliance and enforcement                the MA plan and suspended the MA plan’s ability to market to beneficiaries.
actions in Medicare Advantage
                                             Similarly, states used notices, letters, fines, and CAPs to improve Medicaid
and Medicaid managed care from
                                             managed care plan compliance with Medicaid consumer protection requirements.
January 1, 2010, through June 30,
2012.
                                             During the same period, Arizona, California, and Minnesota required managed
                                             care plans to undertake 91 corrective action plans, 52 percent of which related to
                                             problems with plans’ appeals and grievances processes.
                                             In commenting on a draft of the report, the Department of Health and Human
                                             Services noted that the report was an accurate assessment of the programs we
View GAO-13-100. For more information,
contact Kathleen King at (202) 512-7114 or   reviewed.
kingk@gao.gov.

                                                                                       United States Government Accountability Office
Contents


Letter                                                                                       1
               Background                                                                    6
               Medicare and Medicaid Consumer Protection Requirements Vary
                 across Programs, Payment Systems, and States                               15
               CMS and States Used a Range of Actions to Help Ensure
                 Organizations Comply with Medicare and Medicaid Consumer
                 Protection Requirements                                                    31
               Agency Comments                                                              38

Appendix I     Information on Selected States’ Medicaid Programs                            41



Appendix II    Description of Selected Federal and State Requirements                       43



Appendix III   Comments from the Department of Health and Human
               Services                                                                     67



Appendix IV    GAO Contact and Staff Acknowledgments                                        69



Tables
               Table 1: Selected CMS Compliance Actions against Medicare
                        Advantage (MA) Organizations, January 1, 2010–June 30,
                        2012                                                                33
               Table 2: CMS Enforcement Actions against Medicare Advantage
                        (MA) Organizations, January 1, 2010–June 30, 2012                   34
               Table 3: Selected Requirements in Medicare and Medicaid FFS                  43
               Table 4: Selected Requirements in Medicare Advantage (MA) and
                        Medicaid Managed Care                                               51


Figure
               Figure 1: Number of and Reasons for Corrective Action Plans
                        (CAP) Required by Selected States, January 1, 2010–
                        June 30, 2012                                                       37



               Page i                                  GAO-13-100 Protections for Dual Eligibles
Abbreviations

ADL               activities of daily living
ALJ               administrative law judge
CAM               Compliance Activity Module
CAP               corrective action plan
CMP               civil money penalties
CMS               Centers for Medicare & Medicaid Services
D-SNP             dual-eligible special needs plan
FFS               fee-for-service
FTE               full-time equivalent
HCBS              home- and community-based services
IADL              instrumental activities of daily living
MA                Medicare Advantage
MMA               Medicare Prescription Drug, Improvement, and
                    Modernization Act of 2003
MSC+              Minnesota Senior Care Plus
MSHO              Minnesota Senior Health Options
PACE              Program for All-Inclusive Care for the Elderly
PCCM              primary care case management
QIC               qualified independent contractor
SNF               skilled nursing facility



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Page ii                                           GAO-13-100 Protections for Dual Eligibles
United States Government Accountability Office
Washington, DC 20548




                                   December 5, 2012

                                   Congressional Requesters

                                   About 9.9 million low-income seniors and persons with disabilities were
                                   enrolled in both the Medicare and Medicaid programs in 2010. 1 Known as
                                   “dual-eligible beneficiaries,” many of these individuals have significantly
                                   more health care needs than other beneficiaries in either program. In
                                   fiscal year 2008, dual-eligible beneficiaries accounted for about
                                   17 percent of the Medicare population but 29 percent of Medicare
                                   spending, 2 and 16 percent of the Medicaid population but about
                                   35 percent of Medicaid spending. 3 Health care spending for dual-eligible
                                   beneficiaries in 2010 exceeded $300 billion. 4

                                   Both Medicare and Medicaid can be provided in a fee-for-service (FFS) or
                                   managed care payment system. Under FFS, healthcare providers are
                                   paid on a per-service basis. Under managed care, either the Centers for
                                   Medicare & Medicaid Services (CMS), the agency that administers
                                   Medicare, or the state Medicaid agency contracts with managed care
                                   organizations to provide covered health care services in return for a fixed
                                   monthly payment per enrollee. Under Medicare managed care, private


                                   1
                                    Medicare Payment Advisory Committee (MEDPAC), Report to Congress: Medicare and
                                   the Health Care Delivery System (Washington, D.C.: June 2012). Medicare is the federal
                                   health insurance program for seniors, certain individuals with disabilities, and individuals
                                   with end-stage renal disease. Medicaid is the joint federal-state health care program that
                                   provides health care coverage for certain categories of low-income adults and children.
                                   The estimated number of dual-eligible beneficiaries includes both those who qualified for
                                   full Medicaid benefits (“full” duals) and those who received only assistance with Medicare
                                   premiums and cost sharing (“partial” duals). About 80 percent of dual-eligible beneficiaries
                                   were full duals. In this report, unless otherwise stated, the dual-eligible beneficiaries to
                                   which we refer are those entitled to full Medicaid benefits.
                                   2
                                    MEDPAC, A Data Book: Health Care Spending and the Medicare Program (Washington,
                                   D.C.: June 2012). Spending is for dual-eligible beneficiaries in Medicare fee-for-service
                                   (FFS) only. Under a FFS system, providers are paid on a per-service basis.
                                   3
                                    Medicaid and CHIP Payment and Access Commission (MACPAC), Report to the
                                   Congress: The Evolution of Managed Care in Medicaid (Washington, D.C.: June 2012).
                                   These data include both full and partial dual-eligible beneficiaries.
                                   4
                                    Melanie Bella, Director, the Medicare-Medicaid Coordination Office, Centers for Medicare
                                   & Medicaid Services (CMS), Examining Medicare and Medicaid Coordination for Dual
                                   Eligibles, testimony before the Special Committee on Aging, 112th Cong., July 18, 2012.
                                   Total includes spending for both full and partial dual-eligible beneficiaries.




                                   Page 1                                            GAO-13-100 Protections for Dual Eligibles
organizations offer health plans through the Medicare Advantage
program. These plans are referred to as Medicare Advantage, or MA,
plans.

Whether within the context of FFS, managed care, or both, dual-eligible
beneficiaries navigate both the Medicare and Medicaid programs to
access services. Under Medicare, dual-eligible beneficiaries have access
to coverage for most acute care services, such as care provided by
physicians or inpatient hospitals, postacute skilled nursing facility (SNF)
care, and prescription drugs. Under state Medicaid programs, dual-
eligible beneficiaries who qualify also have access to coverage for long-
term nursing facility care and home- and community-based services.
These beneficiaries may also qualify for payment of Medicare premiums
and cost sharing. 5

Both the Medicare and Medicaid programs have consumer protection
requirements to help ensure that beneficiaries have access to health care
providers and services covered under the programs. Such protections
generally apply to all beneficiaries, but some are of particular importance
to dual-eligible beneficiaries. Dual-eligible beneficiaries may have a
greater need for health care services because of increased physical and
mental health needs. Further, dual-eligible beneficiaries, because they
are in both programs, face navigating the different requirements in the
two separate programs. For instance, a dual-eligible beneficiary who
wants to appeal a denial of benefits must first determine which program
denied the benefit, because the entity to which he or she needs to appeal
and the time frames they have for making that appeal may differ
depending on whether the service was covered by Medicare or Medicaid,
or which program has primary responsibility for payment.

To integrate benefits more effectively under the Medicare and Medicaid
programs, and to improve the coordination between the federal
government and states to ensure that dual-eligible beneficiaries get
access to the items and services to which they are entitled, the Patient
Protection and Affordable Care Act established the Federal Coordinated
Health Care Office (also known as the Medicare-Medicaid Coordination



5
 In general, Medicare beneficiaries pay monthly premiums and a portion of their health
care costs as coinsurance or deductibles. In the case of dual-eligible beneficiaries, their
state Medicaid program covers some or all of these costs.




Page 2                                             GAO-13-100 Protections for Dual Eligibles
Office) within CMS. 6 CMS administers the Medicare program as well as
oversees the design and operation of state Medicaid programs. Goals for
the Medicare-Medicaid Coordination Office include increasing dual-
eligible beneficiaries’ understanding of and satisfaction with coverage
under Medicare and Medicaid and aligning the requirements between the
two programs. To support these efforts, CMS is working with states to
develop demonstrations to integrate Medicare and Medicaid for dual-
eligible beneficiaries. Key objectives are to improve beneficiary
experience in accessing care, improve quality, eliminate cost shifting
between Medicare and Medicaid, and achieve cost savings for states and
CMS. Twenty-six states have proposed demonstrations to integrate the
care of dual-eligible beneficiaries, starting in either 2013 or 2014.

As CMS’s integrated care demonstrations proceed, you were interested in
understanding the requirements related to consumer protections of
particular importance to dual-eligible beneficiaries. Such an
understanding will help policymakers assess the demonstrations and any
future integration efforts. You were also interested in information on
enforcement tools available to CMS and states to ensure that managed
care organizations comply with these requirements, as well as the recent
compliance and enforcement actions taken by CMS and states against
Medicare and Medicaid managed care plans. This study

1. compares selected consumer protection requirements in Medicare
   FFS, Medicare Advantage, Medicaid FFS, and Medicaid managed
   care; and
2. describes recent compliance and enforcement actions generally
   related to these consumer protections taken by the federal
   government and selected state governments against Medicare
   Advantage plans and Medicaid managed care plans.

To compare consumer protections associated with Medicare and
Medicaid, we identified and defined categories of consumer protections
that are particularly important to dual-eligible beneficiaries on the basis of
a review of the literature and interviews with researchers knowledgeable
about the experiences of dual-eligible beneficiaries. We identified and




6
Pub. L. No. 111-148, § 2602. 124 Stat. 119, 315 (2010).




Page 3                                         GAO-13-100 Protections for Dual Eligibles
defined six such categories: enrollment choice, 7 continuity of care,
provider networks, marketing, scope of home health and nursing facility
services, 8 and appeals. 9 With respect to continuity of care, provider
networks, and marketing, we reviewed those requirements only with
respect to their application in managed care. 10 We reviewed relevant
federal statutes, regulations, and policy statements and interviewed
federal officials to describe requirements in Medicare FFS, Medicare
Advantage, 11 Medicaid FFS, and Medicaid managed care plans. 12




7
 For enrollment choice, we reviewed federal requirements relating to (1) a beneficiary’s
choice between mandatory and voluntary enrollment in Medicare Advantage (MA) and
Medicaid managed care, (2) the ability of beneficiaries to select primary care providers,
(3) the ability of beneficiaries to switch between managed care and FFS, and (4) informing
and counseling beneficiaries on enrollment choices.
8
 We focused on the scope of the nursing facility and home health benefits, among all
benefits, specifically because both Medicare and Medicaid cover these services, though
under different circumstances, and a disproportionately large number of dual-eligible
beneficiaries use these services. In this report, we limited our review to federal
requirements related to circumstances under which beneficiaries can obtain nursing
facility or home health services under Medicare or Medicaid.
9
 We reviewed federal requirements related to certain aspects of appeals defined as
(1) how beneficiaries are notified of their right to appeal a denial of benefits, (2) the
appeals process for when beneficiaries have a benefit denied, reduced, or terminated,
(3) whether there is continuity of benefits during the appeals process, and (4) whether
beneficiaries are required to receive help when navigating appeal options.
10
  For purposes of this report, we defined continuity of care as federal requirements
relating to (1) the ability of beneficiaries to continue seeing historical providers not in the
plan’s network when transitioning to managed care or between plans and (2) whether
beneficiaries have access to assistance with coordination of care options. For provider
networks, we reviewed federal requirements related to (1) the adequacy of the number
and types of providers and (2) coverage of out-of-network services. With respect to
marketing, we reviewed federal requirements addressing (1) whether marketing materials
are permitted to promote enrollment and (2) the readability, reading level, and translation
of marketing materials.
11
  Under MA, Medicare beneficiaries may choose to have their benefits provided by private
entities that offer plans under contract with CMS. In this report we only looked at
requirements applicable to MA organizations that offer one type of plan: coordinated care
plans. We refer to these entities as “MA organizations” or “MA plans.” Coordinated care
plans include traditional managed care plans such as health maintenance organizations,
preferred provider organizations, and provider service organizations. As this report is for
consideration of future integrated plan models that coordinate care for dual-eligible
beneficiaries, we do not include other types of MA plans such as private fee-for-service
plans or Medicare savings accounts. We also did not consider requirements that may
apply to the Medicare Part D prescription drug benefit specifically.




Page 4                                               GAO-13-100 Protections for Dual Eligibles
We also selected four states for review to provide illustrative examples of
the variation in consumer protection requirements among state Medicaid
programs. We chose the four states to achieve a range in terms of the
share of dual-eligible beneficiaries in each state’s Medicaid population
and each state’s overall use of managed care within Medicaid. The four
states we selected were Arizona, California, Minnesota, and North
Carolina. (See app. I for information on each state’s Medicaid program.)
For each of these states, we focused on state requirements as related to
the federal requirements summarized above. To describe these state
requirements, we interviewed state Medicaid officials, and reviewed
relevant state statutes and regulations, state contracts with health plans,
and policy manuals.

To describe recent compliance and enforcement actions generally related
to the six categories of consumer protections taken by the federal
government and selected state governments, we interviewed CMS
officials about federal compliance and enforcement actions the agency
can take against MA plans or Medicaid managed care plans, respectively.
For the Medicare program, we also analyzed data from CMS’s
Compliance Activity Module (CAM) for the period January 1, 2010,
through June 30, 2012. The CAM includes information on all federal
compliance actions taken against MA plans. To assess the reliability of
the CAM data, we interviewed CMS staff and reviewed the system
documentation. We determined that the data were sufficiently reliable for
the purposes of this report. In addition, we analyzed the MA enforcement
letters posted on the CMS website. To describe recent state compliance
and enforcement actions in the Medicaid program, we interviewed
Medicaid officials in each of the same four states. We received
information from those states with managed care programs on the
numbers and types of compliance and enforcement actions taken against
Medicaid managed care plans, as well as the general reasons for these
actions.

The categories of consumer protections we examined in both Medicare
and Medicaid are generally applicable to all beneficiaries in these two
programs, not just dual-eligible beneficiaries. We note those cases where
specific protections for dual-eligible beneficiaries are different than for

12
  For purposes of this report, we only reviewed requirements that are applicable to
managed care plans that offer the full range of Medicaid benefits. Accordingly, we did not
address requirements that may apply to limited benefit plans which may provide only a
single service, such as dental or behavioral health.




Page 5                                            GAO-13-100 Protections for Dual Eligibles
             other beneficiaries in Medicare or Medicaid. We did not evaluate the
             adequacy of the consumer protections we examined in terms of achieving
             their intended goal. The data on compliance and enforcement actions,
             both at the federal and state level, allowed us to report actions taken in
             response to issues that were generally related to a broad category of the
             consumer protection requirements we identify in this report and that
             affected or could have affected any Medicare or Medicaid beneficiary. We
             were unable to identify those actions that addressed the specific type of
             consumer protection requirements discussed in this report or that only
             affected dual-eligible beneficiaries. We did not evaluate the adequacy of
             the federal or state oversight systems or the specific performance of
             managed care plans in either program.

             We conducted our work from June 2012 to December 2012 in
             accordance with all sections of GAO’s Quality Assurance Framework that
             are relevant to our objectives. The framework requires that we plan and
             perform the engagement to obtain sufficient and appropriate evidence to
             meet our stated objectives and to discuss any limitations in our work. We
             believe that the information and data obtained, and the analysis
             conducted, provide a reasonable basis for any findings and conclusions in
             this product.


             Dual-eligible beneficiaries—individuals eligible for both Medicare and
Background   Medicaid—generally fall into two categories: low-income seniors (those
             aged 65 years old and over) and individuals with disabilities under the
             age of 65 years. Requirements to protect the rights of beneficiaries under
             both programs are of particular importance to dual-eligible beneficiaries
             because of their generally greater health care needs. Several efforts have
             been made in the past to better integrate care for dual-eligible
             beneficiaries.


Medicare     Medicare is a federally financed program that in 2011 provided health
             insurance coverage to nearly 49 million beneficiaries—people age 65 and
             older, certain individuals with disabilities, and those with end-stage renal
             disease. In Medicare FFS, beneficiaries may choose their health care
             providers among any enrolled in Medicare. However, CMS also contracts
             with MA organizations, private entities that offer managed care plans to
             Medicare beneficiaries. As of 2011, about 25 percent of Medicare
             beneficiaries were enrolled in a MA plan.




             Page 6                                    GAO-13-100 Protections for Dual Eligibles
           As part of the agency’s oversight of MA plans, CMS responds to
           complaints from beneficiaries and other parties, conducts surveillance,
           and conducts compliance audits. CMS responds to complaints from
           beneficiaries, health care providers, and other parties that come into the
           agency through a 1-800-MEDICARE phone line. It is through this
           mechanism that CMS generally resolves issues that are beneficiary-
           specific. 13 CMS conducts surveillance by having routine discussions with
           managed care organizations, monitoring plan-submitted data, and
           tracking and monitoring complaint rates by MA plan and complaint
           category. CMS uses compliance audits to assess whether a managed
           care organization’s operations are consistent with federal laws,
           regulations, and CMS policies and procedures. Audits typically involve a
           combination of desk reviews of documents submitted by MA
           organizations, and, at CMS’s discretion, site visits.


Medicaid   Medicaid is a joint federal-state program that finances health care
           coverage for certain low-income individuals. 14 To receive federal
           matching funds for services provided to Medicaid beneficiaries, each
           state must submit a state Medicaid plan for approval by CMS. The state
           Medicaid plan defines how the state will operate its Medicaid program,
           including which populations and services are covered.

           States must operate their Medicaid programs within broad federal
           parameters. While complying with these federal requirements, however,
           states have the flexibility to tailor their programs to the populations they
           serve, including the imposition of additional protections for beneficiaries.
           For example, states generally are required by federal Medicaid law to
           cover certain benefits, while other benefits may be included at a state’s
           option. Subject to CMS approval, states may choose to operate a portion
           of or their entire Medicaid programs as FFS or managed care. With




           13
             MA organizations are required to respond to grievances, which are complaints that
           come directly to the MA organization from beneficiaries. CMS oversees MA organizations’
           grievance processes through the review of plan-submitted data.
           14
             Under federal law, states must cover certain populations such as low-income children,
           pregnant women, and individuals with disabilities under their Medicaid programs. Subject
           to federal approval, states also have the option of extending Medicaid coverage to
           additional populations, beyond these mandatory categories.




           Page 7                                           GAO-13-100 Protections for Dual Eligibles
respect to managed care, states vary widely in terms of the scope of
services they provide and the populations they enroll. 15

States have certain options when considering whether to enroll Medicaid
beneficiaries into managed care, including whether enrollment is
voluntary or mandatory. States may obtain the authority to mandatorily
enroll Medicaid beneficiaries into managed care plans with CMS approval
of a state plan amendment. However, under federal law, states cannot
require certain categories of beneficiaries, including dual-eligible
beneficiaries, to mandatorily enroll under this authority. 16 Alternatively,
states may obtain the authority to enroll Medicaid beneficiaries, including
dual-eligible beneficiaries, into managed care through the approval of two
types of Medicaid waivers: 17

•     Section 1115 of the Social Security Act provides the Secretary of
      Health and Human Services with the authority to grant states waivers
      of certain federal Medicaid requirements and allow costs that would
      not otherwise be eligible for federal funds for the purpose of
      demonstrating alternative approaches to service delivery. 18

•     Under a 1915(b) waiver, the Secretary may waive certain Medicaid
      requirements, allowing states to operate a managed care program to
      the extent it is cost-effective and consistent with the purposes of the
      program. 19

Historically, states have been more likely to require beneficiaries who are
not dually eligible, such as children and families, to enroll in Medicaid


15
  States commonly contract with managed care organizations to provide the full range of
covered Medicaid services to certain enrollees. States may also rely on other
arrangements, such as primary care case management programs in which enrollees are
assigned to a primary care provider who is responsible for providing primary care services
and for coordinating other needed health care services.
16
    See 42 U.S.C. § 1396u-2(a)(1)-(2).
17
  States must comply with the specific terms and conditions of an approved waiver, which
in some cases may be different than the federal requirements that would otherwise apply.
18
    See 42 U.S.C. § 1315(a).
19
  See 42 U.S.C. § 1396n(b). Under these waivers, the Secretary has the authority to
waive the requirement that Medicaid beneficiaries can obtain services from any qualified
Medicaid provider, thereby allowing states to limit beneficiaries’ choice to a network of
providers.




Page 8                                            GAO-13-100 Protections for Dual Eligibles
managed care plans. However, more recently states are beginning to
move dual-eligible beneficiaries into managed care plans as well. In 2010,
about 9.3 percent of dual-eligible beneficiaries were enrolled in Medicaid
managed care plans. 20

Another type of waiver, the 1915(c) waiver, is the primary means by
which states provide home- and community-based services (HCBS) to
Medicaid beneficiaries. Under a 1915(c) waiver, states can provide HCBS
that may not be available under the state’s Medicaid plan to beneficiaries
that would, if not for the services provided under the waiver, require
institutional care. 21 Home health care is one of the services that states
may provide under a 1915(c) waiver or through the state’s Medicaid plan,
in addition to other services such as respite care, personal care, and case
management.

At the federal level, CMS oversight of state Medicaid programs includes
monitoring the programs and providing guidance to states. States must
provide assurances to CMS that they have mechanisms in place to
ensure that any managed care organization with which the state contracts
complies with federal regulations in order to obtain approval for enrolling
Medicaid beneficiaries into managed care. Though CMS is not a party to
the contract, states are required to obtain CMS approval of the contracts
between states and managed care organizations in order to qualify for
federal funding. States administer the day-to-day operations of their
Medicaid programs. At the state level, requirements for Medicaid
managed care plans are often included as part of the contract between
the state and the managed care plan and may derive from federal or state
law, regulations, or policies. States generally oversee managed care
plans through a combination of informal and formal monitoring that may


20
  Marsha Gold, Gretchen Jacobson, and Rachel Garfield, “There is Little Experience and
Limited Data to Support Policy Making on Integrated Care for Dual Eligibles,” Health
Affairs, vol. 31, no. 6 (June 2012). This percentage does not include dual-eligible
beneficiaries enrolled in managed care plans that provide a single or limited set of
services, such as dental or behavioral health.
21
  States may also receive CMS approval for a state plan amendment to provide access to
home- and community-based services to Medicaid beneficiaries under section 1915(i)
authority or section 1915(k) authority. Section 1915(i) authority provides states with the
option to furnish home- and community-based services to Medicaid beneficiaries who do
not meet institutional level-of-care requirements. Section 1915(k) allows states to cover
home- and community-based attendant services for Medicaid beneficiaries who would
otherwise qualify for institutional care.




Page 9                                           GAO-13-100 Protections for Dual Eligibles
                                 include regular meetings, reviews of plan-submitted reports, audits, and
                                 financial reviews. 22


Selected Consumer                Medicare and Medicaid have a number of requirements intended to
Protection Requirements          protect the rights of beneficiaries, some of which are of particular
                                 importance to dual-eligible beneficiaries.

Enrollment Choice                Medicare and Medicaid have requirements that specify the circumstances
                                 under which a beneficiary may be compelled to enroll in a managed care
                                 plan instead of obtaining services through the FFS program. How
                                 beneficiaries are enrolled in managed care, for example whether the
                                 enrollment is mandatory or voluntary, could have implications for dual-
                                 eligible beneficiaries who may have more serious health care needs and
                                 who, because of cognitive impairments, may require assistance in
                                 understanding their options or the implications of their choices.

Continuity and Coordination of   In general, federal law and regulations do not specifically require MA
Care                             plans or Medicaid managed care plans to cover services provided by a
                                 beneficiary’s previous providers if that provider is not in the plan’s network
                                 when a beneficiary first enrolls in a plan or switches plans. There are
                                 limited circumstances when managed care plans are required to cover
                                 such services during a transition period. Medicare and Medicaid also
                                 have certain federal requirements for managed care plans to ensure
                                 coordination of at least some services for beneficiaries. Dual-eligible
                                 beneficiaries often have complex health care needs and, therefore, may
                                 see several different providers. Accordingly, continuing relationships with
                                 providers, as well as ensuring coordination of care, is of particular
                                 importance to this population. 23




                                 22
                                   As an illustration, federal regulations require that states have procedures in effect for
                                 monitoring the following: (1) recipient enrollment and disenrollment, (2) processing of
                                 grievances and appeals, (3) violations subject to intermediate sanctions, (4) violations of
                                 conditions of the receipt of federal funding, and (5) all other contractual provisions, as
                                 appropriate. 42 C.F.R. § 438.66.
                                 23
                                   While our discussion of continuity of care focuses on the period of transition as a
                                 beneficiary changes managed care plans or payment systems, continuing relationships
                                 with providers and coordinating care are also important for dual-eligible beneficiaries in
                                 FFS given the complex array of services they may receive from several different
                                 providers.




                                 Page 10                                            GAO-13-100 Protections for Dual Eligibles
Provider Networks     Medicare and Medicaid have requirements for managed care plans to
                      maintain provider networks that ensure beneficiaries can access a range
                      of health care providers and obtain services in a timely manner. 24 Within
                      Medicaid managed care, provider participation problems have been
                      specifically noted for specialty and dental care. 25

Marketing Materials   Medicare and Medicaid have requirements about the type and format of
                      materials provided to beneficiaries to promote enrollment into a managed
                      care plan or communicate information about coverage and costs.
                      Inappropriate marketing practices have in the past led some Medicare
                      beneficiaries to enroll in MA plans in which they had not intended to enroll
                      or that did not meet their health care needs. Inappropriate marketing may
                      include activities such as providing inaccurate information about covered
                      benefits and conducting prohibited marketing practices, such as door-to-
                      door marketing without appointments and providing potential beneficiaries
                      with meals or gifts of more than nominal value to induce enrollment.

Scope of Services     Medicare and Medicaid have requirements about how beneficiaries can
                      qualify for certain services and the scope of coverage provided.
                      According to CMS, two services where coverage differences between
                      Medicare and Medicaid are particularly problematic for dual-eligible
                      beneficiaries are nursing facility services and home health care. While
                      both programs cover these benefits, they differ in terms of how a dual-
                      eligible beneficiary can qualify for the benefit and the scope of the
                      coverage provided. As a result, there can be cost-shifting between the
                      programs.

                      Nursing Facility Services. Medicare and Medicaid both set requirements
                      for the conditions a beneficiary must meet to become eligible for coverage
                      of nursing facility services. Medicare’s coverage of nursing facility care is
                      limited to 100 days of posthospital skilled nursing facility (SNF) services. 26


                      24
                        Although we focus on provider networks in relation to managed care plans, studies have
                      found differences between provider participation in Medicare FFS and Medicaid FFS. See
                      MACPAC, Report to the Congress on Medicaid and CHIP (Washington, D.C.: March
                      2011), and Sandra Decker, “In 2011 Nearly One-Third of Physicians Said They Would Not
                      Accept New Medicaid Patients, But Rising Fees May Help,” Health Affairs, vol. 31, no. 8
                      (August 2012).
                      25
                        Kathleen Gifford et al., A Profile of Medicaid Managed Care Programs in 2010: Findings
                      from a 50-State Survey, The Henry J. Kaiser Family Foundation (Washington, D.C.:
                      September 2011).
                      26
                       42 U.S.C. § 1395d(2).




                      Page 11                                         GAO-13-100 Protections for Dual Eligibles
SNF services may only be provided in an inpatient setting and include
skilled nursing (such as intravenous injections, administration of
prescription medications, and administration and replacement of
catheters); room and board; and physical, occupational, and speech
language therapies. In contrast, Medicaid’s coverage of nursing facility
services includes skilled nursing, rehabilitation needed due to injury,
disability or illness, and long-term care. 27 Under federal law, state
Medicaid programs must cover nursing facility services for qualified
individuals age 21 or over. 28 All states have chosen to also offer the
optional benefit of nursing facility services for individuals under 21 years
of age.

Medicare beneficiaries may continue to need nursing facility care after
their Medicare benefit is exhausted. In such instances beneficiaries may
pay privately or use any long-term care insurance they may have. In
certain circumstances, the beneficiaries may also be eligible for Medicaid
if, for example, they spend enough of their resources to meet Medicaid
eligibility rules in their state. If the beneficiary does become dually eligible,
the beneficiary may then qualify for Medicaid coverage of nursing facility
services, beyond what Medicare covers.

Overlapping coverage of nursing facility care in Medicare and Medicaid
provides nursing facilities with a financial incentive to transfer dual-eligible
beneficiaries back to hospitals when nursing facility care is being paid for
by Medicaid. 29 By transferring dual-eligible beneficiaries from a nursing
facility to a hospital, the nursing facility will qualify for what is generally a
higher payment under Medicare when beneficiaries are readmitted and
require skilled nursing services. One study of hospitalizations among
dually eligible nursing facility residents in 2005 found that approximately
45 percent of hospitalizations among beneficiaries receiving Medicare




27
  Long-term care consists of health-related care and services above the level of room and
board that are not available in the community and are needed regularly due to a mental or
physical condition.
28
 42 U.S.C. § 1396a(a)(10)(A).
29
  CMS, Initiative to Reduce Avoidable Hospitalizations among Nursing Facility Residents
(Mar. 15, 2012).




Page 12                                          GAO-13-100 Protections for Dual Eligibles
SNF services or Medicaid nursing facility services were potentially
avoidable. 30

Home Health Care. Medicare and Medicaid both set requirements for how
a beneficiary can qualify for home health services, and state Medicaid
programs further refine these requirements for Medicaid coverage.
Medicare’s home health benefit covers skilled nursing services, physical
therapy, speech-language pathology, occupational therapy, medical
social services, and medical equipment. 31 State Medicaid programs are
required to cover home health services for certain categories of
beneficiaries, including those who are entitled to nursing facility services
under the state plan. 32 Under Medicaid’s home health benefit, states must
cover nursing services, home health aide services, and medical supplies
and equipment for use in the home. States may also choose to cover
physical, occupational, or speech therapy under this benefit. 33 The
Medicare Payment Advisory Commission reported that some states have
tried to increase the proportion of home health services for dual-eligible
beneficiaries covered by Medicare, rather than Medicaid. For instance,
some states have required home health agencies to show proof of a
Medicare denial for home health services for a dual-eligible beneficiary
before covering the service under Medicaid. 34

Additionally, states also have the option of covering home- and
community-based services, including home health care and personal care
services, for beneficiaries under different authorities. Personal care is
designed to provide assistance inside or outside the home with activities




30
 Edith Walsh et al., Cost Drivers for Dually Eligible Beneficiaries: Potentially Avoidable
Hospitalizations from Nursing Facility, Skilled Nursing Facility, and Home and Community
Based Services Waiver Programs, prepared for the Centers for Medicare & Medicaid
Services (Washington, D.C.: August 2010).
31
   Medicare may also cover home health aide services on a part-time or intermittent basis
if they are needed as support services for skilled nursing services.
32
 42 U.S.C. § 1396a(a)(10)(D).
33
 42 C.F.R. § 440.70.
34
  MEDPAC, Report to the Congress: New Approaches in Medicare, (Washington, D.C.:
June 2004).




Page 13                                           GAO-13-100 Protections for Dual Eligibles
                              of daily living (ADL), instrumental activities of daily living (IADL),
                              supervision or guidance with ADLs, or a mix of those. 35

Appeals                       Beneficiaries’ ability to contest a determination that their benefits will be
                              denied, reduced, or terminated is a basic right provided for both Medicare
                              and Medicaid beneficiaries. 36 The appeals process that a beneficiary
                              must follow depends on whether the benefit being contested is a
                              Medicare or Medicaid benefit.


Programs to Integrate         For many years, efforts have been made to improve coordination of
Medicare and Medicaid for     services for dual-eligible beneficiaries. One of these efforts is the
Dual-Eligible Beneficiaries   Program of All-Inclusive Care for the Elderly (PACE), a provider-based
                              program that serves frail, elderly individuals with the goal of keeping them
                              in the community rather than in long-term care institutions as long as
                              medically and socially feasible. PACE is covered under Medicare, and
                              states may choose to cover the program as an optional benefit under
                              Medicaid. According to CMS, nearly 94 percent of 2011 enrollees in
                              PACE were dual-eligible beneficiaries. Dual-eligible beneficiaries may
                              enroll in PACE if they are age 55 or older, are certified by their state as
                              being eligible for coverage of nursing facility services, and live in a PACE
                              program’s service area. PACE providers receive separate capitation
                              payments from Medicare and their state’s Medicaid program, which
                              represent total reimbursement for all the services they provide, including
                              primary, acute, and long-term care; behavioral health services;
                              prescription drugs; and end-of-life care planning. 37 The majority of PACE
                              programs provide adult day care, where enrollees receive therapy,
                              medical care, and social support from an interdisciplinary team. As of


                              35
                                ADLs generally refer to activities such as eating, bathing, using the toilet, dressing,
                              walking across a small room, and getting into or out of a chair or bed. IADLs are
                              necessary for an individual to live independently in the community and include activities
                              such as preparing meals, managing money, shopping for groceries or personal items,
                              performing housework, using a telephone, doing laundry, getting around outside the
                              home, and taking medications.
                              36
                                Both Medicare and Medicaid have standard appeals processes and expedited appeals
                              processes in cases of urgent need. In this report, we only describe the standard Medicare
                              and Medicaid appeals processes.
                              37
                                A PACE benefit program must include all Medicare covered items and services,
                              Medicaid covered items and services as determined by the state, and other services
                              determined necessary by an interdisciplinary team to improve the participant’s overall
                              health status.




                              Page 14                                           GAO-13-100 Protections for Dual Eligibles
                       January 2012, 84 PACE sites in 29 states enrolled about 21,000
                       beneficiaries. 38

                       Dual eligible special needs plans (D-SNP), first authorized by the
                       Medicare Prescription Drug, Improvement, and Modernization Act of 2003
                       (MMA), 39 are a more recent attempt to integrate care for dual-eligible
                       beneficiaries. 40 D-SNPs are a type of MA plan exclusively for dual-eligible
                       beneficiaries. As of 2011, about 9 percent of dual-eligible beneficiaries
                       nationally were enrolled in a D-SNP, and another 10 percent were
                       enrolled in other MA plans. 41 MA organizations seeking to offer D-SNPs
                       must contract with the relevant state Medicaid agency. 42

                       There are key differences in enrollment choice requirements across the
Medicare and           Medicare and Medicaid programs, the FFS and managed care payment
Medicaid Consumer      systems and the selected states. Certain consumer protection
                       requirements are unique to managed care plans in areas such as
Protection             continuity and coordination of care and provider networks. Other
Requirements Vary      consumer protection requirements also differ across the programs,
                       payment systems, and selected states.
across Programs,
Payment Systems, and
States

                       38
                         National PACE Association, “PACE in the States” (Alexandria, Va.: September 2012).
                       39
                         The MMA authorized a type of MA plan referred to as a special needs plan to address
                       the unique needs of certain categories of Medicare beneficiaries, including dual-eligibles.
                       Pub. L. No. 108-173, § 231, 117 Stat. 2066, 2207 (2003) (codified, as amended, at
                       42 U.S.C. § 1395w-21(a)(2)(A)(ii)). SNPs, including D-SNPs, have been reauthorized
                       several times since their establishment was first authorized in 2003.
                       40
                         Dual-eligible beneficiaries may also choose to enroll in other types of special needs
                       plans for which they are eligible, including institutional SNPs for individuals residing in
                       nursing facilities or institutions, and chronic condition SNPs for individuals with severe or
                       disabling chronic conditions.
                       41
                         See GAO, Medicare Special Needs Plans: CMS Should Improve Information Available
                       about Dual Eligible Plans’ Performance, GAO-12-864 (Washington, D.C.: Sept. 13, 2012)
                       42
                         Effective January 1, 2010, all MA organizations offering a new D-SNP must have a
                       contract with the state Medicaid agency to operate within a state. Existing D-SNPs that do
                       not have a contract may continue to operate through the 2012 contract year but may not
                       expand service areas during this period. 42 C.F.R. § 422.107(b)(d). If a D-SNP contracts
                       with a state Medicaid agency, the D-SNP receives capitation payments from both
                       Medicare and Medicaid.




                       Page 15                                             GAO-13-100 Protections for Dual Eligibles
Notable Differences Exist   Within Medicare, enrollment in managed care is always voluntary,
in Requirements for         whereas state Medicaid programs can require enrollment in managed
Enrollment Choice across    care in certain situations. In Medicare, beneficiaries—including dual-
                            eligible beneficiaries—are enrolled in FFS unless they select an MA plan.
the Programs, Payment       In general, beneficiaries may select an MA plan voluntarily when they first
Systems, and Selected       become eligible for Medicare, during an annual coordinated election
States                      period, 43 or during special election periods, such as when an MA plan’s
                            contract is terminated or discontinued in the area where a beneficiary
                            lives or when CMS determines that beneficiaries meet exceptional
                            conditions. 44 CMS has created a special election period for dual-eligible
                            beneficiaries, and accordingly, they may opt into MA or FFS or change
                            MA plans at any time. They generally may select any MA plan, including
                            D-SNPs, that serves the area where they live, though the number of plans
                            available varies by area. MA plans may limit the providers from whom
                            Medicare beneficiaries, including dual-eligible beneficiaries, may receive
                            covered services, 45 whereas beneficiaries in Medicare FFS may receive
                            covered services from any provider enrolled in Medicare. 46

                            In contrast, a Medicaid beneficiary’s ability to choose to remain in FFS or
                            enroll in managed care depends on how the state structures its Medicaid
                            program. As an alternative to FFS, states can structure their Medicaid
                            programs to require enrollment in managed care, or allow beneficiaries to
                            choose between the two payment systems. Unlike in Medicare, states
                            can mandatorily enroll beneficiaries, including dual-eligible beneficiaries,
                            into Medicaid managed care with CMS approval of a section 1115



                            43
                              The annual coordinated election period extends from October 15 through December 7 of
                            each year.
                            44
                              During these times, beneficiaries may also switch between managed care plans.
                            Beneficiaries may also disenroll from MA plans and enroll in FFS at any time from
                            January 1 through February 14 of each year. 42 U.S.C. §§ 1395w-21(a), (e), 42 C.F.R.
                            § 422.62.
                            45
                              An MA organization may specify the network of providers from whom beneficiaries may
                            obtain services if the organization meets certain criteria such as ensuring that covered
                            services are available and accessible within the plan’s service area. 42 U.S.C. § 1395w-
                            22(d), 42 C.F.R. § 422.112(a). There are certain circumstances, however, when MA plans
                            must provide coverage of out-of-network services such as for emergency or urgently
                            needed services. 42 C.F.R. § 422.100(b).
                            46
                              42 U.S.C. § 1395cc(a). A provider may be qualified to receive Medicare reimbursement
                            for services rendered to a beneficiary if that provider enters into an agreement with CMS
                            that meets applicable standards.




                            Page 16                                          GAO-13-100 Protections for Dual Eligibles
demonstration waiver or section 1915(b) waiver. 47 States mandating
enrollment into a managed care plan generally must provide beneficiaries
a choice of at least two plans, except in specific circumstances, such as
in rural areas. 48 Otherwise, similar to Medicare, the number of available
Medicaid managed care plans varies, depending on how many plans are
offered where the beneficiary lives. Subject to the terms and conditions of
the waiver, Medicaid managed care plans can generally limit
beneficiaries, including dual-eligible beneficiaries, to the plan’s provider
network, 49 whereas beneficiaries in Medicaid FFS may receive covered
services from any qualified Medicaid provider. 50 CMS officials informed
us, however, that for dual-eligible beneficiaries, the agency does not have
the authority to allow states to limit the beneficiary’s choice of provider for
Medicare covered benefits when mandatorily enrolling them into Medicaid
managed care plans.

State requirements vary with respect to Medicaid enrollment into FFS or
managed care and for choice between plans if beneficiaries enroll in
managed care. For example:

•     Arizona: The state requires Medicaid beneficiaries, including all dual-
      eligible beneficiaries, to enroll in either the Medicaid acute or long-
      term managed care programs under a section 1115 demonstration
      waiver. Beneficiaries in the state’s acute care program have a choice
      among managed care plans. Beneficiaries enrolled in the long-term
      care program generally have a choice of plans if they live in or are
      moving to Pima or Maricopa counties, which are the state’s two most


47
  In addition to using waivers, states may also amend their Medicaid state plan to require
certain Medicaid populations to enroll in managed care; however, federal law prohibits
states from enrolling dual-eligible beneficiaries under this authority. If a state operates its
Medicaid managed care program under this authority, enrollment of dual-eligible
beneficiaries would need to be voluntary. See 42 U.S.C. § 1396u-2(a)(1).
48
  42 U.S.C. § 1396u-2(a)(3), 42 C.F.R. § 438.52. States may also limit beneficiaries to
enrollment into a single health insuring organization, which is a certain type of plan
operated by a county, as long as the beneficiaries have a choice of at least two primary
care providers. This option only applies to the state of California.
49
  States must ensure that Medicaid managed care plans maintain a network of
appropriate providers that is sufficient to provide adequate access to all covered services.
In addition, there are certain circumstances when a Medicaid managed care plan must
cover out-of-network services, such as when a beneficiary is unable to obtain necessary
services within the plan’s provider network. 42 C.F.R. § 438.206(b).
50
    42 U.S.C. § 1396a(a)(23)(A).




Page 17                                              GAO-13-100 Protections for Dual Eligibles
     populated counties and the only counties where more than one long-
     term care plan operates.

•    California: Medicaid beneficiaries’ choice of payment system varies
     depending on where they live among California’s 58 counties. In 28
     mostly rural counties all dual-eligible beneficiaries are in FFS. 51 In the
     remaining 30 counties, the state has three different Medicaid
     programs for enrolling beneficiaries in managed care. Dual-eligible
     beneficiaries in 14 California counties are mandatorily enrolled in
     managed care through a county-organized health system, which is a
     health plan operated by a county that contracts with the state to
     provide health care benefits to Medicaid beneficiaries. Because there
     is only one plan in each of these counties, beneficiaries enrolled in the
     county-organized health systems have no choice between plans.
     Dual-eligible beneficiaries in 14 counties may choose between FFS or
     the state’s Two-Plan managed care program. Under the Two-Plan
     program, beneficiaries who enroll in managed care have a choice
     between the Local Initiative Health Plan—a public agency that is
     independent of the county—and a commercial plan. In the remaining
     two counties—Sacramento and San Diego—dual-eligible beneficiaries
     can choose between FFS or the Geographic Managed Care
     program. 52 Under the Geographic Managed Care program, dual-
     eligible beneficiaries who enroll in managed care can choose from
     several commercial managed care plans.

•    Minnesota: Dually eligible seniors in Minnesota must enroll in one of
     two managed care programs, and dual-eligible beneficiaries who
     became eligible on the basis of their disabilities can choose whether
     to enroll in a managed care program. Minnesota has a 1915(b)(c)
     waiver to mandatorily enroll dually eligible seniors in a Medicaid
     managed care plan. 53 Alternatively, these seniors can choose to enroll


51
  California is planning an expansion of Medicaid managed care in the state. By June
2013, all counties in the state will offer Medicaid managed care plans to beneficiaries.
52
 In the counties with the Two-Plan or Geographic Managed Care programs, most other
Medicaid populations are mandatorily enrolled in managed care.
53
  A 1915(b)(c) waiver simultaneously implements a 1915(b) and a 1915(c) waiver. The
combined waiver allows states to provide a continuum of services for the elderly and
people with disabilities as long as the requirements of both waivers are met.

Minnesota’s program for seniors is for all beneficiaries age 65 and over, whether or not
they have a disability. Minnesota has a separate program for other Medicaid populations
who are not dual-eligible beneficiaries.




Page 18                                            GAO-13-100 Protections for Dual Eligibles
                                     in a participating D-SNP that, under contract with the state, integrates
                                     Medicare and Medicaid financing and services. Dual-eligible
                                     beneficiaries age 18 to 64 who have disabilities may opt back into
                                     FFS. If they do not opt into FFS, they are enrolled in managed care
                                     and may opt into FFS at any time. Whether dual-eligible beneficiaries
                                     have a choice between plans varies depending on the county where
                                     they live.

                                 •   North Carolina: According to North Carolina Medicaid officials, all
                                     Medicaid beneficiaries, including dual-eligible beneficiaries, are in
                                     FFS, and the majority of dual-eligible beneficiaries are in a primary
                                     care case management program, where primary care providers are
                                     paid on a FFS basis, in addition to receiving a monthly fee to perform
                                     certain care coordination activities.


Certain Requirements for
Continuity and
Coordination of Care,
Provider Networks, and
Marketing Materials Are
Unique to Managed Care
Continuity and Coordination of   In general, federal law and regulations do not specifically require MA
Care                             plans or Medicaid managed care plans to cover services provided by a
                                 beneficiary’s previous providers if that provider is not in the plan’s network
                                 when a beneficiary first enrolls in a plan or switches plans. There are
                                 limited circumstances when managed care plans are required to cover
                                 such services during a transition period. MA organizations must ensure
                                 that covered services are available and accessible to beneficiaries. In
                                 implementing this requirement, CMS officials informed us that MA
                                 organizations must ensure that there is no gap in coverage or problems
                                 with access to medically necessary services when a beneficiary must
                                 change to a plan-contracted provider. For example, a beneficiary
                                 receiving oxygen may need to switch to a new oxygen supplier when the
                                 beneficiary joins the MA plan or switches plans. As the beneficiary
                                 transitions to the new oxygen supplier, the MA plan may need to
                                 reimburse the beneficiary’s previous provider to ensure that there is no
                                 gap in coverage, and that the beneficiary maintains access to medically
                                 necessary services. MA organizations also must ensure coordination of
                                 services through various arrangements with network providers, such as
                                 programs that coordinate plan services with community and social



                                 Page 19                                    GAO-13-100 Protections for Dual Eligibles
services in the area, such as services offered by an area agency on
aging. 54 Additionally, D-SNPs or any other type of SNP must provide
dual-eligible beneficiaries with access to appropriate staff to coordinate or
deliver all services and benefits, and coordinate communication among
plan personnel, providers, and the dual-eligible beneficiaries
themselves. 55

As with Medicare, Medicaid managed care plans are generally not
required to cover services by a beneficiary’s previous provider if that
provider is not in the plan’s network. 56 However, states determine to what
extent Medicaid managed care plans must provide beneficiaries with
access to a person or entity primarily responsible for coordinating health
services on the basis of the services the plan must cover. 57 Individual
states may have continuity of care requirements for their Medicaid
managed care programs, as defined under an applicable waiver or state
requirements. For example, in California, beneficiaries newly enrolled in
managed care plans may request and receive coverage of the completion
of treatments initiated by an out-of-network provider with whom they have
an ongoing relationship in certain circumstances, such as for the
treatment of a terminal illness or acute condition. The length of the
coverage depends on the stability of the beneficiary and the nature of the
medical condition. 58 Minnesota also has continuity of care requirements.
For newly enrolled dually eligible seniors, managed care plans must



54
  42 C.F.R. § 422.112(b).
55
  42 C.F.R. § 422.101(f).
56
  States that mandatorily enroll beneficiaries, including dual-eligibles, in rural areas into
managed care without providing a choice of plans must cover out-of-network services and
give the beneficiary’s prior FFS provider an opportunity to become a network provider. If
the provider does not join the network, the beneficiary must select or be transitioned to a
participating provider within 60 days. 42 C.F.R. § 438.52(b).
57
  42 C.F.R. § 438.208(a)(3). For example, states determine whether plans must ensure
that dual-eligible beneficiaries have a person or entity formally designated as primarily
responsible for coordinating services. States also may determine that, on the basis of an
assessment of special health care needs, plans must provide a treatment plan for these
beneficiaries.
58
  In addition, during California’s transition of non–dually eligible seniors and persons with
disabilities into managed care, if beneficiaries were seeing a FFS provider before enrolling
into a health plan, the beneficiaries may have been able to continue to see that doctor for
12 months while enrolled in the health plan, as long as the physician accepted payment
from and agreed to work with the health plan and had no quality of care issues.




Page 20                                            GAO-13-100 Protections for Dual Eligibles
                    cover medically necessary services that an out-of-network provider, a
                    different plan, or the state agency authorized before the dual-eligible
                    beneficiary enrolled with the managed care plan. However, the plan is
                    allowed to require that the dual-eligible beneficiary receive the services
                    from an in-network provider if that would not create an undue hardship on
                    the dual-eligible beneficiary and the services are clinically appropriate.
                    Arizona requires that managed care plans employ transition coordinators
                    to ensure continuity of care, and beneficiaries in the state’s long-term
                    care program receive additional case management for help navigating
                    their care options, including planning, coordinating and facilitating access
                    to services.

Provider networks   Medicare and state Medicaid programs require managed care plans to
                    meet certain provider network standards. In order to limit beneficiaries to
                    a network of providers, MA organizations must meet a number of
                    requirements, including maintaining and monitoring a network of
                    appropriate providers, under contract, that is sufficient to provide
                    adequate access to covered services to meet the needs of enrolled
                    beneficiaries. 59 Federal guidelines establish minimum network adequacy
                    requirements that vary depending on a county’s geographic designation,
                    such as whether the county is urban or rural. MA organizations must
                    contract with sufficient numbers of certain types of provider specialists per
                    1,000 Medicare beneficiaries in a county. For example, MA plans
                    operating in rural counties must have at least one full-time equivalent
                    (FTE) primary care provider per 1,000 beneficiaries. 60 Additionally, MA
                    organizations must demonstrate that their network meets geographic
                    requirements related to the time and distance it takes beneficiaries to
                    travel to providers. For example, in rural counties, MA organizations must
                    also ensure that 90 percent of beneficiaries can access primary care
                    providers within 40 minutes and 30 miles of travel. MA organizations must
                    also ensure that the networks include a minimum number of specialists
                    and specialty facilities, such as at least one cardiologist and one skilled
                    nursing facility per 1,000 beneficiaries.




                    59
                     See 42 U.S.C. § 1395w-22(d), 42 C.F.R. § 422.112(a)(1).
                    60
                      For CMS’s network adequacy calculations, the primary care provider category
                    comprises physicians in general practice, family practice, internal medicine, and geriatrics,
                    and primary care physician assistants and primary care nurse practitioners.




                    Page 21                                            GAO-13-100 Protections for Dual Eligibles
                      States must ensure, through contracts, that Medicaid managed care
                      plans demonstrate that they have the capacity to serve expected
                      enrollment in the service area in accordance with state standards. 61 For
                      example, plans must submit documentation to the state that they offer an
                      appropriate range of preventive, primary care, and specialty services, and
                      maintain a network of providers that is sufficient in number, mix, and
                      geographic distribution to meet the needs of the enrollees.

                      Unlike Medicare, however, federal Medicaid laws and regulations do not
                      establish minimum provider network requirements and instead generally
                      require states to set the standards for access to care. Accordingly,
                      subject to the terms and conditions of a waiver, if applicable, states may
                      establish requirements that define the minimum number and types of
                      providers in a network, and time and distance requirements between
                      beneficiaries and primary care providers, as well as other network
                      adequacy requirements. For example, Medicaid managed care plans in
                      California must maintain a provider to beneficiary ratio of one FTE
                      primary care physician for every 2,000 beneficiaries and one FTE
                      physician from any specialty for every 1,200 beneficiaries. In some
                      counties, managed care plans must also ensure that primary care
                      physicians are located within 30 minutes or 10 miles of beneficiaries’
                      residences, unless the state approves an alternative time and distance
                      standard. In addition to time and distance standards, Arizona requires
                      managed care plans to contract with a specific number of providers, as
                      determined by the state, which varies by each area that the plan serves.
                      Arizona also defines time frames for beneficiaries to be able to access
                      some services. For example, Arizona Medicaid managed care plans must
                      provide beneficiaries with access to emergency primary care services
                      within 24 hours, urgent primary care services within 2 days, and routine
                      primary care services within 21 days. Plans must include a minimum
                      number of other types of providers—such as dentists, pharmacists,
                      home- and community-based services providers, and behavioral health
                      facilities—in their networks as well.

Marketing materials   Medicare and Medicaid each have requirements regarding the marketing
                      materials managed care organizations send out to beneficiaries. MA
                      organizations are required to comply with a variety of federal
                      requirements for marketing materials that are intended to promote



                      61
                       42 U.S.C. § 1396u-2(b)(5), 42 C.F.R. § 438.207.




                      Page 22                                        GAO-13-100 Protections for Dual Eligibles
enrollment in a specific health plan. For example, organizations generally
must submit marketing materials to CMS for review prior to sending to
beneficiaries. 62 Materials must provide an adequate written description of
the plan’s benefits and services and comply with formatting requirements,
such as a minimum font size. In addition, MA organizations must translate
materials into any non-English language that is the primary language of at
least 5 percent of individuals in the plan’s service area. 63

Medicaid managed care plans are required to comply with both federal
and state requirements for marketing materials. For example, Medicaid
managed care plans must obtain state approval before distributing
marketing materials. 64 Federal requirements also mandate that materials
must be written in an easily understood language and format, 65 though
requirements for format are not precisely defined. In addition, plans must
make information, including Medicaid marketing materials, available in
each prevalent language spoken by enrollees and potential enrollees in
the plan’s service area. 66 Subject to the terms and conditions of a waiver,
if applicable, states may further define requirements for readability and
material translation, while other states may prohibit marketing altogether.
For example, marketing materials in California must be translated when a
threshold number of beneficiaries whose primary language is not English
live in a managed care plan’s service area or in the same or adjacent zip
codes, among other circumstances. Additionally, all Medicaid marketing
materials in California must be written at no higher than the sixth-grade
reading level and be approved by the state Medicaid agency. Arizona
prohibits Medicaid managed care plans from conducting any marketing
that is solely intended to promote enrollment; all marketing materials must
include a health message.




62
 42 U.S.C. § 1395w-21(h)(1), 42 C.F.R. § 422.2262(a).
63
 42 C.F.R. § 422.2264.
64
 42 U.S.C. § 1396u-2(d)(2)(A), 42 C.F.R. § 438.104(b).
65
 42 U.S.C. § 1396u-2(a)(5), 42 C.F.R. §§ 438.10(b), 438.104(b)(iii).
66
  42 C.F.R. §§ 438.104(b)(iii), 438.10(c). States must establish a methodology for
identifying prevalent non-English languages spoken by enrollees and potential enrollees
throughout the state.




Page 23                                          GAO-13-100 Protections for Dual Eligibles
Other Requirements Also      Other requirements affecting dual-eligible beneficiaries, such as coverage
Vary by Program, Payment     for nursing facility and home health services and the appeals process,
System, and State            vary between Medicare and Medicaid, and between the FFS and
                             managed care payment systems.

Scope of Services: Nursing   Beneficiaries must meet different requirements to qualify for nursing
Facility Care                facility care under Medicare and Medicaid. As required under federal law,
                             to qualify for Medicare’s 100 days of SNF coverage, beneficiaries must
                             have a prior hospital stay. 67 Specifically, Medicare beneficiaries must
                             have been hospitalized for medically necessary inpatient hospital care for
                             at least 3 consecutive calendar days, not including the discharge date. In
                             addition, Medicare beneficiaries must meet certain criteria, such as:
                             (1) require skilled nursing or rehabilitative services on a daily basis,
                             (2) services must only be rendered for a condition the beneficiary had
                             during hospitalization, and (3) require daily skilled services that can only
                             be provided in an SNF. 68

                             Unlike Medicare, Medicaid does not limit coverage of nursing facility
                             services to beneficiaries with prior hospital stays and states must cover
                             services provided by qualified SNFs as well as other types of nursing
                             facilities. 69 Instead, federal Medicaid law requires states to provide
                             coverage of nursing facility services for adult Medicaid beneficiaries when
                             medically necessary. 70 Within broad federal parameters, such as
                             requiring that beneficiaries need daily, inpatient nursing facility services
                             that are ordered by a physician, states may impose additional




                             67
                              42 U.S.C. § 1395d(2). MA plans generally must cover all services covered by Medicare
                             FFS.
                             68
                               42 C.F.R. §§ 409.30, 31. For beneficiaries in MA plans, however, the plans may
                             determine that a direct admission to an SNF without a prior hospital stay is medically
                             appropriate.
                             69
                               SNFs provide skilled nursing care or rehabilitation services. In addition to these
                             services, nursing facilities may also provide health-related care to beneficiaries who,
                             because of their mental or physical condition, require institutional services (above the level
                             of room and board).
                             70
                               42 U.S.C. § 1396a(a)(10)(A). Medicaid managed care plans must cover the same
                             benefits as covered by FFS under the state Medicaid plan.




                             Page 24                                            GAO-13-100 Protections for Dual Eligibles
                          requirements when defining coverage for this benefit. 71 For example,
                          beneficiaries in North Carolina, must show they meet the requirements to
                          be in a nursing facility by demonstrating some qualifying conditions.
                          Qualifying conditions may include, among other things, (1) the need for
                          services that require a registered nurse a minimum of 8 hours a day and
                          other personnel working under the supervision of a licensed nurse, (2) the
                          need for restorative nursing to maintain or restore maximum function or
                          prevent deterioration in individuals with progressive disabilities as much
                          as possible, or (3) the need for a specialized therapeutic diet. In Arizona,
                          the acute care program covers nursing facility services for a limited
                          amount of time (90 days) if hospitalization will occur otherwise or the
                          treatment cannot be administered safely in a less restrictive setting, such
                          as at home. Medicaid beneficiaries in the long-term care program in
                          Arizona have longer-term nursing facility benefits. Beneficiaries qualify for
                          the long-term-care program when they have a functional or medical
                          condition that impairs functioning to the extent that the individual would be
                          deemed at immediate risk of institutionalization. Impairments may include,
                          among other things, requiring nursing care, daily nurse supervision,
                          regular medical monitoring, or presenting impairments with cognitive
                          functioning or self-care with ADLs.

Scope of Services: Home   Beneficiaries must meet different requirements to qualify for home health
Health Care               services under Medicare and Medicaid. Medicare beneficiaries may only
                          qualify for home health coverage when they are confined to a home or an
                          institution that is not a hospital, SNF, or nursing facility. Additionally, the
                          beneficiary must be under the care of a physician, need intermittent
                          skilled nursing care, 72 physical therapy, speech language pathology




                          71
                            42 C.F.R. § 440.50. Although coverage of services must be sufficient in amount,
                          duration, and scope to achieve its purpose, states may place appropriate limits on
                          services on the basis of criteria such as medical necessity or utilization control
                          procedures. 42 C.F.R. § 440.230. While Medicaid managed care plans are required to
                          cover services in the same manner as under the state Medicaid plan, in some cases
                          states allow managed care plans to modify requirements so long as they are no more
                          restrictive than the requirements under FFS. 44 C.F.R. § 438.210.
                          72
                            Intermittent means that the skilled care is either provided or needed fewer than 7 days
                          each week, or less than 8 hours of each day for periods of 21 days or less, with
                          extensions in exceptional circumstances when the need for additional care is finite and
                          predictable.




                          Page 25                                           GAO-13-100 Protections for Dual Eligibles
services, or have a continuing need for occupational therapy services,
and receive services under a written plan of care. 73

Unlike in Medicare, states may not require that Medicaid beneficiaries be
confined to a home or institution in order to qualify for home health
benefits. Instead, federal regulations require that in order to qualify for
Medicaid coverage, home health services generally must be provided at
the beneficiary’s home and ordered by a physician as part of a written
plan of care, which must be renewed every 60 days. 74 As with nursing
facility services, state Medicaid programs have the authority to impose
additional conditions on accessing home health benefits, and accordingly
state programs vary with respect to when beneficiaries may qualify for
home health benefits. 75 For example, to receive home health coverage in
North Carolina, a physician must order the home health services and
must have face-to-face contact with the beneficiary 90 days prior to care
or 30 days after care, and the services must be medically necessary.
Beneficiaries must have at least one reason, from a specific list of
reasons set by the state, to receive home health services. 76 For example,
beneficiaries might qualify if they require assistance leaving the home
because of a physical impairment or medical condition, or if they are
medically fragile.




73
  42 C.F.R. §§ 409.42, 43. The written plan of care must be reviewed every 60 days or
more frequently in some circumstances, such as when there is a change in the
beneficiary’s condition.
74
  42 C.F.R. § 440.70. As referenced earlier, states may also provide coverage for home
health services under a 1915(c) waiver, or other authorities, under which there may be
additional requirements to access home health benefits.
75
  Although coverage of services must be sufficient in amount, duration, and scope to
achieve its purpose, states may place appropriate limits on services on the basis of criteria
such as medical necessity or utilization control procedures. 42 C.F.R. § 440.230. In
addition, while Medicaid managed care plans are required to cover services in the same
manner as under the state Medicaid plan, in some cases states allow managed care plans
to modify requirements so long as they are no more restrictive than the requirements
under FFS. 44 C.F.R. § 438.210.
76
  North Carolina has several 1915(c) waivers to cover additional services for certain
populations.




Page 26                                            GAO-13-100 Protections for Dual Eligibles
Appeals Processes   Medicare and Medicaid each have multiple levels of appeals, which vary
                    further between each program’s managed care and FFS delivery
                    systems. Accordingly, the appeals processes that dual-eligible
                    beneficiaries encounter differ depending on whether the benefit being
                    denied, reduced, or terminated is a Medicare or Medicaid benefit, and
                    whether the individual is enrolled in FFS or managed care. 77 Both
                    programs require that beneficiaries in either managed care and FFS be
                    notified of their right to appeal. 78

                    Medicare has five levels of appeals for managed care and FFS.

                    1. Beneficiaries enrolled in an MA plan must first request review by the
                       MA organization. 79 In FFS, beneficiaries first request review by the
                       claims processing contractor that made the initial coverage decision. 80




                    77
                      These appeals processes also apply when eligibility is denied or a claim is not acted
                    upon with reasonable promptness. For this report, we are focusing on appeals for
                    coverage that is denied, reduced, or terminated. There are other parties that may appeal a
                    denial, reduction, or termination of a benefit. For purposes of this report, however, we only
                    address the beneficiary’s rights with respect to these appeal processes.
                    78
                      For Medicare, beneficiaries must receive a notice of the initial coverage determination
                    that includes information on the right to request review by the appropriate entity and
                    subsequent appeals processes, when applicable. 42 U.S.C. §§ 1395w-22(g)(1),
                    1395ff(a)(4), 42 C.F.R. §§ 405.921(a), 422.568(e). Medicaid FFS beneficiaries must
                    receive notice from the state informing them of their right to a state fair hearing when the
                    state intends to terminate, suspend, or reduce covered services. 42 C.F.R. § 431.206.
                    Medicaid managed care enrollees must receive a notice of the initial coverage
                    determination from their managed care plan, which must include information on the right
                    to file an appeal with the plan or request a state fair hearing, when applicable. 42 C.F.R.
                    § 438.404.
                    79
                      MA organizations must have a process in place to make organizational determinations
                    as to whether a beneficiary is entitled to receive coverage for a health service.
                    Beneficiaries have the right to request reconsideration by the MA organization of any
                    adverse organizational determination. When a denial of coverage is based on the lack of
                    medical necessity, the reconsidered determination must be made by a physician with the
                    appropriate medical expertise. 42 U.S.C. §1395w-22(g)(1)-(2), 42 C.F.R. §§ 422.566,
                    .578.
                    80
                      42 U.S.C. § 1395ff(a), (b), 42 C.F.R. § 405.940. CMS contracts with Medicare
                    Administrative Contractors to process claims in Medicare FFS. The contractors make
                    initial determinations as to whether Medicare will cover services. Beneficiaries dissatisfied
                    with this initial determination may request a redetermination from the contractor,
                    regardless of the amount.




                    Page 27                                            GAO-13-100 Protections for Dual Eligibles
2. For MA, if the adverse determination is affirmed, the issues must be
   automatically reviewed and resolved by an independent review entity,
   and for Medicare FFS, beneficiaries may request review by a qualified
   independent contractor. 81 For beneficiaries in either FFS or managed
   care, this is the earliest opportunity for their claim to be reviewed by a
   different entity than the one that made the original determination.
3. If the independent entity affirms the adverse determination, MA and
   FFS beneficiaries have the right to request a hearing before an
   administrative law judge (ALJ) in the Department of Health and
   Human Services if the amount remaining in controversy—the
   projected value of denied services or a calculated amount based on
   charges for services provided—is above a specified level. 82
4. MA and FFS beneficiaries who are dissatisfied with the ALJ hearing
   decision may request review by the Medicare Appeals Council. 83
5. MA and FFS beneficiaries may request judicial review by a U.S.
   district court of a decision by the Medicare Appeals Council if the
   amount in controversy is above a specified level. 84




81
 42 U.S.C. §§ 1395w-22(g)(4), 1395ff(c), 42 C.F.R. §§ 405.960, 422.592.
82
  42 U.S.C. § 1395w-22(g)(5), 42 U.S.C. § 1395ff(b), (d), 42 C.F.R. §§ 405.1000,
405.1004, 422.600. Medicare FFS beneficiaries have the right to request an ALJ hearing if
(1) they are dissatisfied with the qualified independent contractor’s decision, (2) the
qualified independent contractor has not rendered its decision within applicable time
frames, or (3) the qualified independent contractor dismissed their request. ALJs are
employed by the Department of Health and Human Services and are responsible for
conducting formal proceedings such as hearings, among other things. CMS established a
formula for annually calculating the minimum amount that must be in controversy for
beneficiaries to appeal to an ALJ. That amount was $130 for 2012.
83
  42 C.F.R. §§ 405.1100, 422.608. The Medicare Appeals Council undertakes a de novo
review and may issue a final decision, dismiss the appeal, or remand the case to the ALJ
with instructions for rehearing the case. Medicare FFS beneficiaries may also request this
review if the ALJ dismissed their case or failed to issue a timely decision.
84
  42 U.S.C. § 1395w-22(g)(5), 42 U.S.C. § 1395ff(b), 42 C.F.R. §§ 405.1132, 422.612.The
minimum amount that must be in controversy for beneficiaries to request judicial review is
updated annually. The amount was $1,350 for 2012. In addition to the threshold amount
requirement, Medicare FFS beneficiaries may request judicial review if the Medicare
Appeals Council has not issued a decision, dismissed the case or remanded the case
back to an ALJ within the relevant period. MA beneficiaries may request judicial review if
the council’s decision is the final determination of CMS or the council denied the request
for review.




Page 28                                           GAO-13-100 Protections for Dual Eligibles
There are no federal Medicare requirements that benefits continue during
the appeals processes for either managed care or FFS, nor do federal
law and regulations require that FFS or MA beneficiaries receive personal
assistance, including assistance from a care coordinator or other
specialist, when navigating the appeals process. However, there are
certain protections incorporated into the appeals process that are
designed to assist Medicare beneficiaries. For example, Medicare
beneficiaries may appoint a representative to assist them with an appeal.
Beneficiaries also may seek assistance through the Office of the
Medicare Beneficiary Ombudsman, which is responsible for resolving
inquiries and complaints for all aspects of the Medicare program, through
the 1-800-MEDICARE help line.

States can structure their Medicaid appeals processes within the
parameters of federal requirements. Medicaid FFS beneficiaries must
have access to a fair hearing before a state agency for certain actions,
including when benefits are terminated, suspended, or reduced. 85 Once a
final agency decision is made, Medicaid FFS beneficiaries may request a
judicial review of the decision if permitted under state law. Beneficiaries in
Medicaid managed care plans must have the ability to appeal a
termination, suspension, or reduction of a benefit to the plan as well as
have access to a state fair hearing. 86 States determine whether
beneficiaries must first exhaust their appeal to their Medicaid managed
care plans before they may request a state fair hearing. During these
appeals, benefits generally must continue in certain circumstances.
Benefits generally must continue until a final agency decision is made if
the beneficiary is mailed a notice of action and files an appeal before the




85
  42 U.S.C. § 1396a(a)(3), 42 C.F.R. §§ 431.205, .240(a)(3). State Medicaid agencies
must provide for a hearing before the agency or an evidentiary hearing at the local level
with the right to appeal to a state agency hearing. The state agency hearing must be
conducted by one or more impartial officials. In providing a final agency decision to the
beneficiary, state agencies may choose to accept or reverse the hearing officials’ decision
or request a rehearing.
86
  42 U.S.C. § 1396u-2(b)(4), 42 C.F.R. §§ 438.400, .402. Each Medicaid managed care
plan must have an internal appeals process in place for beneficiaries to challenge certain
actions, including termination, suspension, or reduction of a service, denial or limited
authorization of a service, or a denial of payment for a service.




Page 29                                           GAO-13-100 Protections for Dual Eligibles
date of the action. 87 As in Medicare, neither federal regulations nor law
require that beneficiaries in Medicaid FFS have access to personal
assistance in navigating the appeals process. States, however, have the
option of providing this assistance to FFS beneficiaries. 88 For
beneficiaries in Medicaid managed care, plans must give beneficiaries
assistance with completing appeal forms and taking other procedural
steps, including providing interpreter services and toll-free numbers for
assistance. 89

The appeals processes in the states that we reviewed varied, for instance
as to whether a beneficiary in managed care has to appeal to his or her
managed care plan first. For example, Arizona requires beneficiaries to
first appeal to their managed care plan before requesting a state fair
hearing. In contrast, Minnesota allows beneficiaries to request a state fair
hearing without first appealing to their managed care plan. Dual-eligible
beneficiaries in Minnesota may also request help from the state
ombudsman, and county boards are required to designate a coordinator
to assist the state Medicaid agency, including coordinating appeals with
the ombudsman.

See appendix II for a more detailed summary of these consumer
protection requirements across programs, payment systems, and
selected states.




87
  For Medicaid FFS beneficiaries, benefits must continue unless it is determined at the
hearing that the sole issue is one of federal or state law or policy. 42 C.F.R. § 431.230.
States may also reinstate benefits if the beneficiary requests a hearing within a certain
time frame after the date of action. 42 C.F.R. § 431.231. For Medicaid managed care
beneficiaries, benefits must continue if the beneficiary files a timely appeal, the appeal
involves the termination, suspension, or reduction of a previously authorized service, the
service was ordered by an authorized provider, the original period covered by the
authorization has not expired, and the beneficiary requests the extension of benefits.
42 C.F.R. § 438.420.
88
  For example, states may assist beneficiaries with the submission and processing of their
appeal requests. See 42 C.F.R. § 431.221(c).
89
 42 C.F.R. § 438.406.




Page 30                                           GAO-13-100 Protections for Dual Eligibles
                          CMS and states used compliance and enforcement actions that ranged
CMS and States Used       from informal written notices to contract terminations in order to help
a Range of Actions to     ensure MA organizations and Medicaid managed care plans complied
                          with consumer protection requirements.
Help Ensure
Organizations Comply
with Medicare and
Medicaid Consumer
Protection
Requirements
CMS Took Compliance and   CMS used both compliance and enforcement actions to bring
Enforcement Actions       noncompliant MA organizations into compliance with federal
against Medicare          requirements. Compliance actions are intended to prompt managed care
                          organizations to address issues of noncompliance, such as the timing of
Advantage Organizations   disenrollments, whereas enforcement actions impose a penalty on a
                          managed care organization and are taken to address more significant
                          violations. According to CMS, the nature of each violation is considered
                          when determining the appropriate compliance or enforcement action and
                          the actions generally proceed through the process in a step-by-step
                          manner before enforcement actions are taken. 90

Compliance Actions        CMS takes compliance actions against MA organizations to address
                          violations that are identified during the agency’s monitoring and auditing
                          activities. According to agency guidance, compliance actions are
                          appropriate when the MA organization: (1) demonstrates sustained poor
                          performance over a period of time; (2) has a noncompliance issue that
                          involves a large number of beneficiaries; or (3) does not meet its
                          contractual requirements. The lowest-level compliance action is a notice
                          of noncompliance, which may be an e-mail from a CMS contract manager
                          to a managed care plan stating that an aspect of the program is out of
                          compliance. The notice of noncompliance requests the plan respond with
                          how it will address the problem and may be followed by a warning letter
                          from CMS that identifies a limited and quickly fixable issue of
                          noncompliance that requires immediate remedy. If CMS determines that



                          90
                            For more serious violations, CMS may choose to immediately proceed to later-stage
                          compliance or enforcement actions.




                          Page 31                                         GAO-13-100 Protections for Dual Eligibles
the noncompliance affects multiple beneficiaries and represents an
ongoing or systemic inability by the plan to adhere to Medicare
requirements, CMS will send a formal letter to the MA’s chief executive
officer stating the concern and requiring the organization to develop and
implement a corrective action plan (CAP). The CAP must address the
deficiencies identified by CMS, provide an attainable time frame for
implementing corrective actions, and devise a process for the managed
care organization to validate and monitor that the corrective actions were
taken and remain effective.

Between January 1, 2010, and June 30, 2012, CMS took 546 compliance
actions generally related to consumer protection requirements of
importance to dual-eligible beneficiaries. 91 (See table 1.) These issues of
noncompliance that could potentially affect dual-eligible beneficiaries
were identified during CMS’s ongoing oversight activities, analysis of plan
deliverables, and complaints made by beneficiaries or providers. Of these
546 actions, 386, or 70 percent, were due to marketing issues. 92 CMS
sent notice of noncompliance or warning letters for marketing issues
related to misrepresentation of requirements for enrollment and use of
unapproved marketing materials.




91
  CMS’s Compliance Activity Module (CAM) includes 45 different compliance categories.
In consultation with CMS staff, we determined the top eight issue categories most closely
aligned with the consumer protections identified and detailed in our first finding. However,
actions directly tied to dual-eligible beneficiaries could not be broken out from actions tied
to the Medicare beneficiary population broadly.
92
 We have previously reported on marketing violations by MA organizations. See GAO,
Medicare Advantage: CMS Assists Beneficiaries Affected by Inappropriate Marketing but
Has Limited Data on Scope of Issue, GAO-10-36 (Washington, D.C.: Dec. 17, 2009).




Page 32                                             GAO-13-100 Protections for Dual Eligibles
                      Table 1: Selected CMS Compliance Actions against Medicare Advantage (MA)
                      Organizations, January 1, 2010–June 30, 2012

                                                                              Compliance actions
                                                          Notice of        Warning        Corrective Total compliance
                          Issue                      noncompliance          letters     action plans          actions
                          Marketing                               314             72                  0                   386
                          Enrollment/disenrollment                  94            23                  1                   118
                                             a
                          Appeals/grievances                        12              2                 2                        16
                          Benefits administration                   11              0                 0                        11
                          Complaint monitoring                       5              1                 0                        6
                          Premium/copay Billing                      4              0                 2                        6
                          Access to services/providers               3              0                 0                        3
                          Coordination of benefits                   0              0                 0                        0
                          Total actions                           443             98                  5                   546
                      Source: CMS.

                      Note: Data are from CMS’s Compliance Activity Module (CAM). The CAM includes 45 different
                      compliance categories. In consultation with CMS staff, we determined the top eight issue categories
                      most closely aligned with the consumer protections identified by researchers and detailed in our first
                      finding. However, actions directly tied to dual-eligible beneficiaries could not be broken out from
                      actions tied to the Medicare beneficiary population broadly. Data exclude compliance actions taken
                      against Medicare prescription drug plans.
                      a
                       A grievance is any complaint or dispute expressing dissatisfaction with any aspect of the operations,
                      activities, or behavior of a Medicare health plan, or its providers, regardless of whether remedial
                      action is requested.


                      The second most common issue resulting in a compliance action was
                      related to beneficiary enrollment/disenrollment in a MA plan. Twenty-two
                      percent, or 118, of CMS’s compliance actions were due to issues such as
                      delays in disenrollment processing, lack of monthly attestation of
                      enrollment data, and failure to verify that beneficiaries were eligible to
                      enroll in SNPs.

Enforcement Actions   In addition to compliance actions, CMS may take enforcement actions
                      against MA organizations for more serious violations. Enforcement
                      actions can be taken when (1) all compliance actions have been
                      exhausted, (2) the MA organization has a repeat deficiency, (3) the area
                      of noncompliance could result in harm to one or more Medicare
                      beneficiaries, or (4) the area of noncompliance is deemed a “substantial
                      failure” of Medicare requirements. Enforcement actions include the
                      imposition of intermediate sanctions defined as the imposition of civil
                      money penalties (CMP), the suspension of enrollment of or marketing to
                      Medicare beneficiaries, or the suspension of payment to a MA




                      Page 33                                                  GAO-13-100 Protections for Dual Eligibles
organization. 93 CMS also has the authority to terminate the organization’s
MA contract. 94

CMS took 22 enforcement actions related to consumer protection
requirements against MA organizations between January 1, 2010, and
June 30, 2012. (See table 2.) These enforcement actions were taken
against MA organizations offering plans serving all beneficiaries, not just
dual-eligible beneficiaries. Seventeen of the 22 enforcement actions were
CMPs imposed because of marketing violations. According to CMS, these
violations included incomplete, inaccurate, or late marketing
communications about plan benefits or changes that prevented
beneficiaries from having complete information to choose among
competing MA plans. CMS levied a total of about $3.4 million in CMPs
against MA organizations during the period. The average CMP was about
$200,000.

Table 2: CMS Enforcement Actions against Medicare Advantage (MA)
Organizations, January 1, 2010–June 30, 2012

                                                          CMS enforcement action
                                               Suspension of
                                                enrollment or        Civil monetary
 Violation issue                                   marketing               penalties Termination
 Access to services                                             0                     0                 0
 Access to drugs                                                3                     1                 0
 Marketing communications/broker                                2                   15                  0
 Patient billing/contract administration                        0                     1                 0
 Total                                                          5                   17                  0
Source: CMS.

Note: Data are from CMS enforcement letters. These enforcement actions include those taken in
response to issues affecting all MA beneficiaries, not just dual-eligible beneficiaries. Data exclude
enforcement actions taken against Medicare prescription drug plans.



93
  42 U.S.C. 1395w-27(g). Intermediate sanctions may be imposed for certain categories
of misconduct including (1) failing substantially to provide medically necessary services in
a manner that has adversely affected beneficiaries, (2) imposing premiums or charges on
enrollees that are in excess of those permitted under the program, (3) misrepresenting or
falsifying information that is furnished to the Secretary or beneficiaries, and (4) failing to
comply with marketing requirements.
94
  Prior to termination of a contract, CMS must provide the MA organization with the
opportunity to develop and implement a corrective action plan (CAP) and the opportunity
to appeal the termination.




Page 34                                                   GAO-13-100 Protections for Dual Eligibles
                           CMS suspended plan enrollment and marketing activities five times.
                           Three plans were suspended because of deficiencies in the
                           administration of their prescription drug benefit resulting in beneficiaries
                           not receiving medications. The agency suspended two other MA plans
                           because of the use of prohibited marketing practices affecting vulnerable
                           populations. These practices included brokers using aggressive tactics, 95
                           misrepresenting plan information, and enrolling beneficiaries in plans
                           without their knowledge. Once the five plans corrected these violations to
                           CMS’s satisfaction, the agency released them from sanctions and they
                           were permitted to market to and enroll beneficiaries again. Four of the
                           suspensions were for 14 months or longer. CMS did not terminate any
                           MA plan during our reporting period.


States Took Actions        Oversight of Medicaid managed care plans is the primary responsibility of
against Medicaid Managed   the states. The states we interviewed have systems in place to monitor
Care Plans                 ongoing activities and to take action when the need arises. 96 State
                           officials said they communicate regularly with plans to anticipate and
                           troubleshoot potential problems. They also provide plans with guidance
                           and offer training and technical assistance resources. In addition, all three
                           of the states we reviewed required monthly reports of plan activities, and
                           conducted periodic audits of their managed care plans to identify and
                           address issues of noncompliance.

                           The three states we reviewed used similar sequences of actions to
                           identify and address issues of noncompliance by their Medicaid managed
                           care plans. State officials reported that when noncompliance issues are
                           suspected they first notify the plans and give them an opportunity to
                           remedy the problem. Subsequent deficiencies may require a Medicaid
                           managed care plan to initiate a corrective action plan that the state would
                           monitor to assure the appropriate changes are made. Between January 1,
                           2010, and June 30, 2012, the three states reported they took a total of
                           157 compliance actions against their Medicaid managed care plans.
                           These actions ranged from sending warning letters, issuing notices to




                           95
                             A broker is an individual who markets a specific MA plan and may receive compensation
                           directly or indirectly from a managed care organization for marketing activities.
                           96
                            North Carolina does not contract with managed care plans.




                           Page 35                                        GAO-13-100 Protections for Dual Eligibles
cure, requiring CAPs, and imposing financial penalties. 97 The most
common action taken by the states was to require a managed care plan
to implement a CAP.

The reasons that states required Medicaid managed care plans to
institute CAPs during the reporting period varied. California and
Minnesota identified noncompliance with the appeals and grievance
process that required corrective actions. 98 California required plans to
take corrective actions to ensure beneficiaries were able to access
appropriate translation services. The majority of the CAPs required by
Minnesota’s Medicaid office dealt with plan management of beneficiary
appeals and grievances. Arizona required CAPs to address the use of
unapproved marketing materials. After appeals, the next most frequent
reason states requested CAPs on consumer protection requirements was
to address problems regarding beneficiaries’ access to providers,
services, or drugs. Figure 2 illustrates the reasons why Medicaid
managed care plans were required to implement a CAP for the 91 CAPs
issued during the period.




97
  In California, two departments—the Department of Health Care Services and the
Department of Managed Health Care—share responsibility for oversight of Medicaid
managed care plans. We obtained compliance and enforcement data from the
Department of Health Care Services, which operates the Medicaid managed care program
in California. We were not able to obtain similar information from the Department of
Managed Health Care, which oversees all managed care plans in the state, because its
data do not separate Medicaid lines of business from other lines of business a managed
care organization may operate. Officials from the Department of Managed Health Care
told us that issues related specifically to Medicaid managed care plans represent a small
percentage of total compliance and enforcement actions taken by that agency.
98
  A grievance is any complaint or dispute expressing dissatisfaction with any aspect of the
operations, activities, or behavior of a health plan, or its providers, regardless of whether
remedial action is requested.




Page 36                                            GAO-13-100 Protections for Dual Eligibles
Figure 1: Number of and Reasons for Corrective Action Plans (CAP) Required by
Selected States, January 1, 2010–June 30, 2012




Note: Corrective action plans (CAP) may include actions to address multiple deficiencies.

In addition to termination of contracts, under federal law states must
establish a series of intermediate sanctions that may be imposed on
Medicaid managed care plans for failing to comply with certain federal
requirements. 99 An intermediate sanction may be imposed when a
managed care plan (1) fails substantially to provide medically necessary
services under its contract with the state, (2) imposes premiums or
charges on enrollees that are in excess of those permitted under the
program, (3) discriminates among enrollees on the basis of their health
status, and (4) misrepresents or falsifies information that it furnishes to
CMS or the state. Under these circumstances, states may impose a CMP,
appoint temporary management for the health plan, grant enrollees the
right to terminate enrollment without cause, suspend new enrollment in
the plan, or suspend payment to the plan. If a state takes an intermediate
sanction against a managed care plan it must report it to CMS. According



99
  42 U.S.C. § 1396u-2(e). While the intermediate sanction authority pertains to statutorily
defined categories of noncompliance, states also have authority to take action for other
types of noncompliance such as defined under the terms of their contracts with Medicaid
managed care plans.




Page 37                                                 GAO-13-100 Protections for Dual Eligibles
                  to CMS, none of the three states we reviewed imposed an intermediate
                  sanction against a managed care plan because of violations of consumer
                  protection requirements during our reporting period.

                  While CMS does not directly oversee the operation of Medicaid managed
                  care plans, CMS has the authority to disallow or withhold federal
                  matching funds to states for certain reasons, including if states fail to
                  obtain prior approval of contracts with Medicaid managed care plans or if
                  the contracts fail to meet applicable federal requirements. 100 Between
                  January 1, 2010, and June 30, 2012, CMS did not stop or defer federal
                  Medicaid payments to any state Medicaid program because of contractual
                  issues related to consumer protections, according to agency officials. 101


                  We received written comments on a draft of this report from the
Agency Comments   Department of Health and Human Services, which are reprinted in
                  appendix III, and technical comments, which we incorporated as
                  appropriate. The department noted that the report was an accurate
                  assessment of the programs we reviewed, and added that the Medicare-
                  Medicaid Coordination Office has already made some progress aligning
                  the requirements between the two programs in the area of appeals. CMS
                  has developed a revised Notice of Medicare Denial of Coverage (or
                  Payment) that includes optional language to be used in cases where a
                  Medicare health plan enrollee also receives full Medicaid benefits that are
                  being managed by the Medicare health plan. The revised Notice of
                  Medicare Denial of Coverage (or Payment) is under review as part of the
                  approval process.


                  We will send copies of this report to the Administrator of CMS and
                  interested congressional committees. We will also make copies available
                  at no charge on GAO’s website at http://www.gao.gov.




                  100
                    As a condition of federal matching funds for Medicaid managed care programs, CMS
                  must review and approve comprehensive risk contracts between states and Medicaid
                  managed care plans.
                  101
                     CMS did defer four payments to two states for reasons unrelated to the consumer
                  protections we reviewed for this report. The four deferred payments were for $6,477,
                  $64,227, $65,732, and $4,203,782, totaling about $4.34 million.




                  Page 38                                          GAO-13-100 Protections for Dual Eligibles
If you or your staff have any questions about this report, please contact
me at (202) 512-7114 or KingK@gao.gov. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made key contributions to this report
are listed in appendix IV.




Kathleen M. King
Director, Health Care




Page 39                                  GAO-13-100 Protections for Dual Eligibles
List of Requesters

The Honorable Max Baucus
Chairman
Committee on Finance
United States Senate

The Honorable John D. Rockefeller IV
Chairman
Subcommittee on Health Care
Committee on Finance
United States Senate

The Honorable Sander M. Levin
Ranking Member
Committee on Ways and Means
House of Representatives

The Honorable Henry A. Waxman
Ranking Member
Committee on Energy & Commerce
House of Representatives

The Honorable Pete Stark
Ranking Member
Subcommittee on Health
Committee on Ways and Means
House of Representatives

The Honorable Frank Pallone Jr.
Ranking Member
Subcommittee on Health
Committee on Energy and Commerce
House of Representatives




Page 40                                GAO-13-100 Protections for Dual Eligibles
Appendix I: Information on Selected States’
               Appendix I: Information on Selected States’
               Medicaid Programs



Medicaid Programs

               In Arizona’s Medicaid program, called the Arizona Health Care Cost
Arizona        Containment System, nearly all Medicaid beneficiaries, including dual-
               eligible beneficiaries, are enrolled in the acute care managed care
               program for Medicaid benefits. Individuals requiring long-term supports
               and services are enrolled in a separate long-term care managed care
               program. Both managed care programs operate under a section 1115
               demonstration waiver. As of January 2012, Arizona had about 110,000
               dual-eligible beneficiaries enrolled in Medicaid managed care, and over
               1.3 million total Medicaid beneficiaries.


               California’s Medicaid system, called Medi-Cal, includes 28 counties with
California     only a fee-for-service (FFS) system and 30 counties with one of three
               different managed care programs. Of the managed care options, the first
               is a county-operated health system, which requires nearly all Medicaid
               beneficiaries in participating counties, including dual-eligible beneficiaries,
               to enroll in a plan operated by the county. The second is the Two-Plan
               model, which has a commercial plan and a Local Initiative Health Plan—a
               public agency that is independent of the county. In the third program,
               called Geographic Managed Care, several commercial plans are offered
               as choice for beneficiaries. In both the Two-Plan and Geographic
               Managed Care programs, most Medicaid beneficiaries in the county are
               mandatorily enrolled in a managed care plan, but dual-eligible
               beneficiaries are in FFS unless they enroll voluntarily into one of the
               health plans. California officials reported that, as of June 2012, 26 percent
               of California’s approximately 1 million dual-eligible beneficiaries are
               enrolled in managed care, while the remaining 74 percent of dual-eligible
               beneficiaries are in FFS.


               In Minnesota, dual-eligible beneficiaries who are 65 years old and older
Minnesota      are required to enroll in a managed care program called Minnesota
               Senior Care Plus (MSC+). As of June 2012, about 10,500 dually eligible
               beneficiaries 65 and older in Minnesota are enrolled in MSC+.
               Alternatively, dual-eligible beneficiaries 65 and older may choose to enroll
               in the Minnesota Senior Health Options (MSHO) program. Unlike MSC+
               plans, MSHO plans are Medicare special needs plans that also have
               contracts with the state for the Medicaid benefits package, which enables
               the plans to integrate Medicare and Medicaid financing and services for
               dual-eligible beneficiaries. About 35,700 dually eligible beneficiaries 65
               and older in Minnesota are enrolled in a MSHO plan. Dual-eligible
               beneficiaries age 18 to 64 who have a disability are enrolled in the state’s
               Special Needs Basic Care managed care program if they do not opt into


               Page 41                                       GAO-13-100 Protections for Dual Eligibles
                 Appendix I: Information on Selected States’
                 Medicaid Programs




                 Medicaid FFS. As of July 2012, about 39,000 of the state’s disabled
                 population (both dual-eligible beneficiaries and non-dual-eligible
                 beneficiaries) are enrolled in Special Needs Basic Care. More than
                 21,000 of these disabled beneficiaries were dual-eligible beneficiaries.
                 According to Minnesota Medicaid officials, as of June 2012, almost
                 14 percent, or about 114,500, of Minnesota’s Medicaid population are
                 dual-eligible beneficiaries, and 59 percent of the state’s dual-eligible
                 beneficiaries are enrolled in managed care.


                 According to North Carolina Medicaid officials, North Carolina primarily
North Carolina   operates its Medicaid program through a primary care case management
                 (PCCM) program, called Carolina Access. Under the PCCM program,
                 primary care providers are paid on a FFS basis, in addition to receiving a
                 monthly fee for certain care coordination activities. The state’s enhanced
                 PCCM program, called Community Care of North Carolina, includes
                 14 networks of primary care providers that are responsible for an
                 enhanced set of care coordination activities. According to North Carolina
                 Medicaid officials, dual-eligible beneficiaries are assigned a primary care
                 provider in one of the 14 networks, but they may opt out of the program if
                 they choose a healthcare provider outside of the state’s Medicaid
                 program. As of June 2012, according to state officials, about 13 percent
                 of the state’s Medicaid population was dually eligible for Medicare and
                 Medicaid and almost 68 percent of dual-eligible beneficiaries in the state
                 were enrolled in the state’s PCCM program.




                 Page 42                                       GAO-13-100 Protections for Dual Eligibles
Appendix II: Description of Selected Federal
                                           Appendix II: Description of Selected Federal
                                           and State Requirements



and State Requirements

                                           Table 3 describes selected consumer protection requirements for
                                           Medicare and Medicaid fee-for-service (FFS), and table 4 describes
                                           selected consumer protection requirements for Medicare Advantage (MA)
                                           and Medicaid managed care.

Table 3: Selected Requirements in Medicare and Medicaid FFS

                                                                               Payment system
Requirement                               Medicare FFS                                    Medicaid FFS
Enrollment and choice
How are beneficiaries enrolled            Federal requirements                            Federal requirements
(e.g., mandatory or voluntary             Beneficiaries are enrolled in FFS if they do    Beneficiaries may enroll voluntarily in a
enrollment)?                              not enroll in managed care voluntarily.         managed care plan or are mandatorily
                                                                                          enrolled if the state has the Centers for
                                                                                          Medicare and Medicaid Services (CMS)
                                                                                          approval. They are in FFS if they are not
                                                                                          enrolled in managed care.
                                                                                          Examples of state requirements
                                                                                          Arizona has a section 1115 demonstration
                                                                                          waiver to mandatorily enroll beneficiaries in
                                                                                          managed care.
                                                                                          In California, all beneficiaries in 28 counties
                                                                                          are in FFS. Dual-eligible beneficiaries in
                                                                                          another 16 counties are in FFS unless they
                                                                                          enroll voluntarily in a managed care plan.
                                                                                          Dual-eligible beneficiaries in the 14
                                                                                          remaining counties are mandatorily enrolled
                                                                                          in managed care.
                                                                                          Minnesota has a section 1915(b)(c) waiver
                                                                                          to mandatorily enroll dually eligible seniors in
                                                                                          managed care. A 1915(b)(c) waiver
                                                                                          simultaneously implements a 1915(b) and a
                                                                                          1915(c) waiver. The combined waiver allows
                                                                                          states to provide a continuum of services for
                                                                                          the elderly and people with disabilities as
                                                                                          long as the requirements of both waivers are
                                                                                          met. Dual-eligible beneficiaries age 18 to 64
                                                                                          who have disabilities may opt into FFS. If
                                                                                          they do not opt into FFS, they are enrolled in
                                                                                          managed care and may opt into FFS at any
                                                                                          time.
                                                                                          All North Carolina beneficiaries are in FFS.
To what extent can beneficiaries select   Federal requirements                            Federal requirements
their primary care provider?              Beneficiaries may generally select any          Beneficiaries may generally select any
                                          provider who is enrolled as a Medicare          provider who is enrolled as a Medicaid
                                                    a                                               b
                                          provider.                                       provider.




                                           Page 43                                             GAO-13-100 Protections for Dual Eligibles
                                         Appendix II: Description of Selected Federal
                                         and State Requirements




                                                                             Payment system
Requirement                             Medicare FFS                                    Medicaid FFS
Can beneficiaries enrolled in managed   Federal requirements                            Federal requirements
care switch to FFS?                     Dual-eligible beneficiaries may switch to       Requirements depend on whether dual-
                                        FFS at any time, while most other               eligible beneficiaries are voluntarily or
                                                                                                                         d
                                        beneficiaries may only switch during certain    mandatorily enrolled into plans.
                                                 c
                                        periods.                                        Examples of state requirements
                                                                                        Beneficiaries in Arizona generally may not
                                                                                        switch to FFS.
                                                                                        In California, dual-eligible beneficiaries in
                                                                                        16 counties are enrolled voluntarily in
                                                                                        managed care and may switch to FFS at any
                                                                                        time. Dual-eligible beneficiaries in 14
                                                                                        counties are mandatorily enrolled in
                                                                                        managed care and may not switch to FFS.
                                                                                        In Minnesota, dually eligible beneficiaries
                                                                                        with a disability who are enrolled voluntarily
                                                                                        in managed care may switch to FFS in any
                                                                                        month. Dually eligible seniors may not
                                                                                        switch to FFS.
How are beneficiaries informed of and   Federal requirements                            Federal requirements
counseled on enrollment options?        Beneficiaries receive information about         In states that also have managed care
                                        Medicare coverage from CMS. Beneficiaries       programs, states must ensure that
                                        may also receive CMS-reviewed marketing         beneficiaries receive a summary of the
                                                                            d
                                        materials sent by MA organizations.             state’s Medicaid managed care program
                                                                                        from the state or its contracted
                                                                                        representatives. The summary must include,
                                                                                        among other things, information about the
                                                                                        program requirements, covered benefits,
                                                                                        and cost for each plan operating in the
                                                                                                       e
                                                                                        service area.
                                                                                        Examples of state requirements
                                                                                        In Arizona, beneficiaries in the long-term
                                                                                        care program have access to an eligibility
                                                                                        case worker who determines eligibility and
                                                                                        helps them navigate their enrollment
                                                                                        options.
                                                                                        Beneficiaries in Minnesota may call a help
                                                                                        line specifically for senior citizens or people
                                                                                        with disabilities for information about
                                                                                        enrollment options. The state or county
                                                                                        agency is responsible for describing the
                                                                                        available managed care plans for dually
                                                                                        eligible seniors through presentations or
                                                                                        written materials.
                                                                                        In North Carolina, county Departments of
                                                                                        Social Services are responsible for notifying
                                                                                        beneficiaries about their provider options.




                                         Page 44                                             GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                                  Payment system
Requirement                                 Medicare FFS                                     Medicaid FFS
Scope of services
Under what circumstances can              Federal requirements                               Federal requirements
beneficiaries obtain coverage for nursing Medicare covers posthospital extended care         State Medicaid programs must cover nursing
facility services?                        services for up to 100 days for any spell of       facility care for adult Medicaid beneficiaries
                                                   f
                                          illness.                                           and may cover this benefit for children as an
                                                                                                                i
                                          In order to access posthospital skilled            optional benefit.
                                          nursing facility (SNF) care, beneficiaries         Beneficiaries must need daily, inpatient
                                          must have been hospitalized for medically          nursing facility services ordered by a
                                          necessary inpatient hospital care for at least     physician in order to qualify for nursing
                                                                                                                j
                                          3 consecutive calendar days, not including         facility services. States must cover services
                                          the discharge date and be eligible for             provided by qualified SNFs as well as
                                                                                                                         k
                                          Medicare on the date of discharge. The             nursing facility services. States, however,
                                          beneficiary also generally must be admitted        may place appropriate limits on services on
                                          to the facility within 30 days after the date of   the basis of criteria such as medical
                                                                         g                                                                    l
                                          discharge from the hospital.                       necessity and utilization control procedures.
                                          In addition, (1) the beneficiary must require      Examples of state requirements
                                          skilled nursing or rehabilitative services on a    In Minnesota, beneficiaries must meet one
                                          daily basis, (2) the services must be              of several criteria for nursing facility care, as
                                          furnished for a condition the beneficiary had      determined by the state. The criteria include,
                                          during hospitalization, and (3) the daily          among other things: requiring assistance
                                          skilled services required are those that can       with activities of daily living; exhibiting
                                                                         h
                                          only be provided in an SNF.                        impaired cognition, such as short term
                                                                                             memory loss; or experiencing frailty or
                                                                                             vulnerability, such as frequent falls.
                                                                                             Beneficiaries in North Carolina must show
                                                                                             they meet the requirements to be in nursing
                                                                                             facility care by demonstrating some
                                                                                             qualifying conditions. Qualifying conditions
                                                                                             may include, among other things, the need
                                                                                             for services that require a registered nurse a
                                                                                             minimum of 8 hours daily and other
                                                                                             personnel working under the supervision of
                                                                                             a licensed nurse, the need for restorative
                                                                                             nursing to maintain or restore maximum
                                                                                             function or prevent deterioration in
                                                                                             individuals with progressive disabilities as
                                                                                             much as possible, or the need for a
                                                                                             specialized therapeutic diet. The services
                                                                                             must be medically necessary.




                                             Page 45                                              GAO-13-100 Protections for Dual Eligibles
                                          Appendix II: Description of Selected Federal
                                          and State Requirements




                                                                              Payment system
Requirement                              Medicare FFS                                     Medicaid FFS
Under what circumstances can             Federal requirements                             Federal requirements
beneficiaries obtain coverage for home   Beneficiaries must: be confined to a home or     State Medicaid programs must cover home
health services?                         an institution that is not a hospital, SNF, or   health services for categories of
                                         nursing facility, need intermittent skilled      beneficiaries, including those who are
                                                        m
                                         nursing care, physical therapy, speech           entitled to nursing facility benefits under the
                                                                                                                  o
                                         language pathology services, or have a           state’s Medicaid plan.
                                         continuing need for occupational therapy         Home health services must be ordered by a
                                         services; and receive services under a           physician as part of a written plan of care,
                                         written plan of care.                            which must be renewed every 60 days.
                                                                                                                                    p

                                         Home health services must be ordered by a        States are not allowed to require that
                                         physician as part of a written plan of care,     beneficiaries be homebound in order to
                                         which must be reviewed every 60 days, or         access home health services. States,
                                         more frequently in some circumstances,           however, may place appropriate limits on
                                         such as when there is a significant change       services on the basis of criteria such as
                                                                         n
                                         in the beneficiary’s condition.                  medical necessity and utilization control
                                                                                                       q
                                                                                          procedures. Additionally, states also have
                                                                                          the option of covering home- and
                                                                                          community-based services, including home
                                                                                          health care and personal care services, for
                                                                                          beneficiaries under different authorities.
                                                                                          Examples of state requirements
                                                                                          In California, beneficiaries have multiple
                                                                                          paths to obtain home health services. For
                                                                                          example, to qualify for home health services
                                                                                          through the 1915(c) HCBS waiver for
                                                                                          nursing facilities and acute health, the
                                                                                          beneficiary must be medically fragile or
                                                                                          technology dependent. Specifically, the
                                                                                          beneficiary must have a medical need for at
                                                                                          least 90 days of care in an acute hospital
                                                                                          setting or an inpatient nursing facility.
                                                                                          Qualifying criteria may include, among other
                                                                                          things, the need for constantly available
                                                                                          skilled nursing services for conditions such
                                                                                          as those that require therapeutic
                                                                                          procedures, like dressing postsurgical
                                                                                          wounds.




                                          Page 46                                              GAO-13-100 Protections for Dual Eligibles
                                           Appendix II: Description of Selected Federal
                                           and State Requirements




                                                                               Payment system
Requirement                               Medicare FFS                                    Medicaid FFS
                                                                                          In Minnesota, home health services must be
                                                                                          medically necessary, ordered by a
                                                                                          physician, documented in a care plan that is
                                                                                          reviewed every 60 days, and generally
                                                                                          provided at the beneficiary’s residence other
                                                                                          than a hospital or long-term care facility.
                                                                                          Home health services including skilled nurse
                                                                                          visits and home health aide visits must be
                                                                                          authorized by the commissioner or the
                                                                                          commissioner’s designee. They base their
                                                                                          authorization on medical necessity and cost-
                                                                                          effectiveness when compared with other
                                                                                          care options, among other things. The
                                                                                          commissioner must receive the request for
                                                                                          authorization of skilled nurse visits and
                                                                                          home health aide visits within 20 working
                                                                                          days of the start of service. When home
                                                                                          health services are used in combination with
                                                                                          personal care and private duty nursing, the
                                                                                          cost of all home care services is considered
                                                                                          for cost-effectiveness. Authorization may be
                                                                                          valid for up to 1 year. Dually eligible
                                                                                          beneficiaries may also access home health
                                                                                          services under Minnesota’s 1915(c) waivers.
                                                                                          In North Carolina, a physician must order
                                                                                          home health services and have face-to-face
                                                                                          contact with the beneficiary within 90 days
                                                                                          prior to care or within 30 days after care, and
                                                                                          the services must be medically necessary.
                                                                                          Beneficiaries must have at least one reason,
                                                                                          from a specific list of reasons created by
                                                                                          North Carolina Medicaid officials, to receive
                                                                                                                   r
                                                                                          home health services, For example,
                                                                                          beneficiaries might qualify if they require
                                                                                          assistance leaving the home because of a
                                                                                          physical impairment or medical condition, or
                                                                                          if they are medically fragile. Dually eligible
                                                                                          beneficiaries may also access home health
                                                                                          services under North Carolina’s 1915(c)
                                                                                          waivers.
Appeals
How are beneficiaries notified of their   Federal requirements                            Federal requirements
right to appeal a denial, reduction, or   Beneficiaries must receive a notice of the      Beneficiaries must receive notice from the
termination of benefits?                  initial coverage determination that services    state when it intends to terminate, suspend
                                          are denied, which must include information      or reduce services. The notice must include
                                                                     s                                                             t
                                          on the right to an appeal.                      information about the right to an appeal.




                                           Page 47                                             GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                                  Payment system
Requirement                                 Medicare FFS                                     Medicaid FFS
What is the appeals process for             Federal requirements                             Federal requirements
beneficiaries that have a benefit denied,   Medicare has five levels of appeals.             Beneficiaries must have access to a fair
reduced, or terminated?                     Beneficiaries first appeal to the Medicare       hearing before the state agency. Beyond this
                                            contractor that made the initial coverage        federal requirement, states may define other
                                            decision and is responsible for processing       levels of appeals, which can include a
                                                    u
                                            claims. In the second level, beneficiaries       request for a hearing prior to a state fair
                                                                                                                                     z
                                            may request review by a qualified                hearing and an appeal to state court.
                                                                            v
                                            independent contractor (QIC). In the third       Examples of state requirements
                                            level, beneficiaries may file an appeal to an
                                            administrative law judge (ALJ) if the amount     In California, beneficiaries may request a
                                            remaining in controversy—the projected           state fair hearing conducted by an ALJ
                                            value of denied services or a calculated         employed by the state Medicaid agency. The
                                            amount based on charges for services             state Medicaid agency may adopt the ALJ’s
                                                                                    w
                                            provided—is above a specified level. In the      decision, decide the matter for himself or
                                            fourth level, they may request review by the     herself, or order a further hearing. After
                                                                         x
                                            Medicare Appeals Council. Finally,               receiving a final decision from the state
                                            beneficiaries may request judicial review of     Medicaid agency, beneficiaries may request
                                            the decision by the Medicare Appeals             a rehearing or may file a petition for judicial
                                            Council by a U.S. district court if the amount   review in state court.
                                                                                       y
                                            in controversy is above a specified level.       In Minnesota, beneficiaries may request a
                                                                                             state fair hearing, during which a hearing
                                                                                             officer recommends an order to the
                                                                                             commissioner of human services, who either
                                                                                             accepts, rejects, or modifies the order.
                                                                                             Beneficiaries who disagree with the
                                                                                             commissioner can request reconsideration
                                                                                             by the commissioner, who may either amend
                                                                                             or affirm the original order. A beneficiary
                                                                                             may then request judicial review in state
                                                                                             court.
                                                                                             In North Carolina, beneficiaries may request
                                                                                             a state fair hearing. The state Medicaid
                                                                                             agency then accepts or reverses the ALJ
                                                                                             determination. After receiving a final
                                                                                             decision, beneficiaries may request judicial
                                                                                             review in state court. Beneficiaries may opt
                                                                                             for mediation instead of a state fair hearing.
                                                                                             If they do not accept the terms of the
                                                                                             mediation, they receive a fair hearing.
Are there provisions to ensure continuity   Federal requirements                             Federal requirements
of access to benefits throughout the        There are no federal requirements that           Benefits generally must continue if the
duration of the appeal process?             benefits continue during the appeals.            beneficiary is mailed a notice of action and
                                                                                                                                       aa
                                                                                             filed an appeal before the date of action.




                                             Page 48                                              GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                                                 Payment system
Requirement                                 Medicare FFS                                                       Medicaid FFS
To what extent are beneficiaries required   Federal requirements                                               Federal requirements
to have personal assistance, including      Although federal law and regulations do not                        Although federal law and regulations do not
from a care coordinator or other            require that beneficiaries receive personal                        require that beneficiaries receive personal
specialist, in navigating their appeal      assistance when navigating the appeals                             assistance when navigating the appeals
options?                                    process, there are certain protections. For                        process, Medicaid beneficiaries may appoint
                                                                                                                                                           cc
                                            example, Medicare beneficiaries may                                a representative for the state fair hearing.
                                            appoint a representative to assist them with                       Federal regulations provide states with the
                                                       bb                                                                                      dd
                                            an appeal. Beneficiaries also may seek                             option of providing assistance.
                                            assistance through the office of the                               Examples of state requirements
                                            Medicare Beneficiary Ombudsman, which is
                                            responsible for resolving inquiries and                            Beneficiaries in California may request help
                                            complaints for all aspects of the Medicare                         from the county when filing a state fair
                                            program, through the 1-800-MEDICARE                                hearing request.
                                            help line.                                                         In North Carolina, notice that service(s) will
                                                                                                               be denied, terminated, suspended, or
                                                                                                               reduced must inform beneficiaries that they
                                                                                                               may contact Legal Aid, which provides free
                                                                                                               legal services to low income individuals.
                                             Source: GAO analysis of federal and state statutes, regulations, and guidance.

                                             Notes: Information on state laws was confirmed by state Medicaid agency officials. We use
                                             “beneficiaries” to refer to statements or requirements that apply to all individuals receiving Medicare
                                             or Medicaid benefits, and “dual-eligible beneficiaries” to refer to statements or requirements that apply
                                             only to the dual-eligible beneficiaries.
                                             a
                                              42 U.S.C. § 1395cc. Any provider of service may be qualified to receive Medicare reimbursement for
                                             services rendered to a beneficiary if that provider enters into an agreement with CMS that meets
                                             applicable requirements.
                                             b
                                                 42 U.S.C. § 1396a(a)(23)(A).
                                             c
                                                 42 U.S.C. § 1395w-21(a), (e), 42 C.F.R. § 422.62.
                                             d
                                                 42 C.F.R. § 422.2262(b).
                                             e
                                                 42 C.F.R. § 438.10(e).
                                             f
                                                 42 U.S.C. § 1395(d)(2).
                                             g
                                              42 C.F.R. §§ 409.30, .31. For beneficiaries enrolled in MA plans, however, the plans may determine
                                             that a direct admission to an SNF without a hospital stay is medically appropriate.
                                             h
                                                 42 C.F.R. § 409.31.
                                             i
                                                 42.U.S.C. §§ 1396a(a)(10)(A), .1396d(a).
                                             j
                                                 42 C.F.R. § 440.50.
                                             k
                                              SNFs provide skilled nursing care or rehabilitation services. In addition to these services, nursing
                                             facilities may also provide health-related care to beneficiaries who because of their mental or physical
                                             condition require institutional services (above the level of room and board).
                                             l
                                                 42 C.F.R. § 440.230.
                                             m
                                              Intermittent means that the skilled care is either provided or needed fewer than 7 days each week,
                                             or less than 8 hours of each day for periods of 21 days or less, with extensions in exceptional
                                             circumstances when the need for additional care is finite and predictable.
                                             n
                                                 42 C.F.R. §§ 409.42., .43.
                                             o
                                                 42 U.S.C. § 1396a(a)(10)(D).




                                             Page 49                                                                   GAO-13-100 Protections for Dual Eligibles
Appendix II: Description of Selected Federal
and State Requirements




p
    42 C.F.R. § 440.70.
q
    42 C.F.R. § 440.230.
r
    North Carolina has several 1915(c) waivers to cover additional services for certain populations.
s
    42 U.S.C. § 1395ff(a)(4), 42 C.F.R. § 405.921(a).
t
    42 C.F.R. § 431.206.
u
    42 U.S.C. § 1395ff(a), (b), 42 C.F.R. § 405.940.
v
    42 U.S.C. § 1395ff(c), 42 C.F.R. § 405.960.
w
  42 U.S.C. § 1395ff(b), 42 C.F.R. § 405.1000. ALJs are employed by the Department of Health and
Human Services and are responsible for conducting formal proceedings such as hearings, among
other things. CMS established a formula for annually calculating the minimum amount that must be in
controversy for beneficiaries to appeal to an ALJ. That amount was $130 for 2012. Beneficiaries may
request an ALJ hearing if (1) they are dissatisfied with the QIC’s decision, (2) the QIC did not render
its decision within applicable timeframes, or (3) the QIC dismissed the request.
x
 42 C.F.R. § 405.1100. The Medicare Appeals Council undertakes a de novo review and may issue a
final decision, dismiss the appeal, or remand the case to the ALJ with instructions for rehearing the
case. Beneficiaries may also request this review if the ALJ dismissed their case or failed to issue a
timely decision.
y
 The minimum amount that must be in controversy for beneficiaries to request judicial review is
updated annually. The amount was $1,350 for 2012. In addition to the threshold amount, beneficiaries
may also request judicial review if the Medicare Appeals Council does not issue a decision, dismisses
the case, or remands the case back to an ALJ within relevant time frames. 42 U.S.C. § 1395ff(b),
42 C.F.R. § 405.1132.
z
 42 U.S.C. § 1396a(a)(3), 42 C.F.R. §§ 431.205, .240(a)(3). State Medicaid agencies must provide for
a hearing before the agency or an evidentiary hearing at the local level with the right to appeal to a
state agency hearing. The state agency hearing must be conducted by one or more impartial officials.
In providing a final agency decision to the beneficiary, state agencies may choose to accept or
reverse the officials’ determination or request a rehearing.
aa
  Benefits generally must continue unless it is determined at the hearing that the sole issue is one of
federal or state law or policy. 42 C.F.R. § 431.230. States may also reinstate benefits if the
beneficiary requests a hearing within a certain time frame after the date of action. 42 C.F.R.
§ 431.231.
bb
     42 C.F.R. § 405.910.
cc
    42 C.F.R. § 431.206(b).
dd
  42 C.F.R. § 431.221(c). States may assist beneficiaries with the submission and processing of their
fair hearing requests.




Page 50                                                     GAO-13-100 Protections for Dual Eligibles
                                           Appendix II: Description of Selected Federal
                                           and State Requirements




Table 4: Selected Requirements in Medicare Advantage (MA) and Medicaid Managed Care

                                                                            Payment system
Requirement                     Medicare Advantage                              Medicaid managed care
Enrollment and choice
How are beneficiaries           Federal requirements                            Federal requirements
enrolled in managed care        Beneficiaries may enroll voluntarily in an MA   Beneficiaries may enroll voluntarily in a Medicaid
(e.g., mandatory or voluntary   plan.                                           managed care plan, or they are enrolled mandatorily
enrollment)?                                                                    if the state has CMS approval of a State Plan
                                                                                Amendment, 1115 demonstration waiver, or 1915(b)
                                                                                         a
                                                                                waiver.
                                                                                Examples of state requirements
                                                                                Arizona has a section 1115 demonstration waiver to
                                                                                mandatorily enroll beneficiaries in managed care.
                                                                                In California, all dual-eligible beneficiaries in 28
                                                                                counties are in FFS. Thirty counties have one of three
                                                                                different managed care programs. The first program
                                                                                is a county-operated health system, which requires
                                                                                nearly all Medicaid beneficiaries, including dual-
                                                                                eligible beneficiaries, in the 14 participating counties
                                                                                to enroll in a health system operated by the county.
                                                                                The second program is the Two-Plan program, which
                                                                                has a Local Initiative Health Plan—a public agency
                                                                                that is independent of the county—and a commercial
                                                                                plan in 14 counties. The third program, called
                                                                                Geographic Managed Care, has several commercial
                                                                                health plans in 2 counties. In the Two-Plan and
                                                                                Geographic Managed Care programs, dual-eligible
                                                                                beneficiaries are in FFS unless they enroll voluntarily
                                                                                in managed care.
                                                                                Minnesota has a section 1915(b)(c) waiver to
                                                                                mandatorily enroll dually eligible seniors in managed
                                                                                care. A 1915(b)(c) waiver simultaneously implements
                                                                                a 1915(b) and a 1915(c) waiver. The combined
                                                                                waiver allows states to provide a continuum of
                                                                                services for the elderly and people with disabilities as
                                                                                long as the requirements of both waivers are met.
                                                                                Dual-eligible beneficiaries age 18 to 64 who have
                                                                                disabilities may opt into FFS. If they do not opt into
                                                                                FFS, they are enrolled in managed care and may opt
                                                                                into FFS at any time.
                                                                                Not applicable in North Carolina where all
                                                                                beneficiaries are enrolled in FFS.
To what extent can              Federal requirements                            Federal requirements
beneficiaries select their      Beneficiaries in MA may be limited to the       Subject to terms and conditions of a waiver, if
primary care provider?          plan’s provider network.
                                                         b
                                                                                applicable, beneficiaries in managed care may be
                                                                                                                        c
                                                                                limited to the plan’s provider network.




                                           Page 51                                            GAO-13-100 Protections for Dual Eligibles
                                           Appendix II: Description of Selected Federal
                                           and State Requirements




                                                                          Payment system
Requirement                     Medicare Advantage                              Medicaid managed care
To what extent can              Federal requirements                            Federal requirements
beneficiaries select their      The number of plan options varies by county.    Whether beneficiaries may select among plans varies
managed care plan?              Beneficiaries may select any plan for which     by state. For example, states that mandate
                                they are eligible that serves the area where    enrollment in a managed care plan must provide
                                           d
                                they live.                                      beneficiaries a choice of at least two plans, except in
                                                                                                                                  e
                                                                                specific circumstances, such as in rural areas.
                                                                                Examples of state requirements
                                                                                Beneficiaries in Arizona’s acute care program have a
                                                                                choice among managed care plans, and have choice
                                                                                in the long-term care program in some
                                                                                circumstances, including if they live in or are moving
                                                                                to one of the state’s two most populated counties—
                                                                                Pima or Maricopa counties.
                                                                                Dual-eligible beneficiaries’ choice of managed care
                                                                                plans in California varies, depending on the county
                                                                                where they live. Dual-eligible beneficiaries living in
                                                                                the counties that have the Geographic Managed Care
                                                                                program may choose from several plans. Dual-
                                                                                eligible beneficiaries living in counties that have the
                                                                                Two-Plan program may choose between one of two
                                                                                plans. In the other counties that have the county-
                                                                                operated health system, dual-eligible beneficiaries
                                                                                have no choice because there is only one plan
                                                                                operating in the county.
                                                                                Dual-eligible beneficiaries’ choice of managed care
                                                                                plans in Minnesota varies, depending on the county
                                                                                where they live.
When can beneficiaries switch   Federal requirements                            Federal requirements
between managed care and        Dual-eligible beneficiaries may switch          Requirements depend on whether dual-eligible
FFS or change managed care      between MA and FFS or change MA plans at        beneficiaries are voluntarily or mandatorily enrolled in
plans?                          any time. Most other beneficiaries may only     plans. For mandatory enrollment, subject to the terms
                                switch to FFS or between plans during           and conditions of the waiver, if applicable, states may
                                                f
                                certain periods.                                limit disenrollment to 90 days following initial
                                                                                enrollment and at least once a year or at other times
                                                                                            g
                                                                                with cause.
                                                                                Examples of state requirements
                                                                                In Arizona, beneficiaries may generally enroll in or
                                                                                switch plans within 30 days of the date of notice of
                                                                                enrollment, during an annual election period, or in
                                                                                special circumstances, such as when a notification of
                                                                                the annual enrollment period was not sent. For
                                                                                beneficiaries in the long-term care program, in limited
                                                                                circumstances generally involving preexisting
                                                                                conditions and continuity of care issues, beneficiaries
                                                                                may request to change plans on a case-by-case
                                                                                basis if they live in a county with more than one plan.




                                           Page 52                                            GAO-13-100 Protections for Dual Eligibles
                                          Appendix II: Description of Selected Federal
                                          and State Requirements




                                                                         Payment system
Requirement                    Medicare Advantage                              Medicaid managed care
                                                                               In California, dual-eligible beneficiaries living in
                                                                               counties that have either the Two-Plan or Geographic
                                                                               Managed Care programs may enroll in a plan, switch
                                                                               plans, or opt out of managed care into FFS at any
                                                                               time. Dual-eligible beneficiaries living in counties that
                                                                               have the county-operated health system may not
                                                                               switch plans or change into FFS.
                                                                               In Minnesota, dual-eligible beneficiaries with a
                                                                               disability may change plans or enroll in managed care
                                                                               in any month. Dually eligible seniors enrolled in a
                                                                               special needs plan for duals (D-SNP)—a type of
                                                                               Medicare managed care plan exclusively for dual-
                                                                               eligible beneficiaries—may change plans once per
                                                                               month and during an annual open enrollment period.
                                                                               Dually eligible seniors who are not enrolled in a
                                                                               D-SNP may change plans during an annual open
                                                                               enrollment period, once during the first year of
                                                                               enrolling in the program, and in limited
                                                                               circumstances, such as within 60 days of moving to a
                                                                               new county or at any time for good cause (e.g., poor
                                                                               quality of care).
                                                                               Not applicable in North Carolina where all
                                                                               beneficiaries are enrolled in FFS.
How are beneficiaries informed Federal requirements                            Federal requirements
of and counseled on enrollment Beneficiaries receive information about         Beneficiaries must receive a summary of the state’s
options?                       Medicare coverage from CMS, which               Medicaid managed care program from the state or its
                               distributes material that MA organizations      contracted representatives. The summary must
                               submit. Beneficiaries may also receive CMS-     include, among other things, information about the
                               reviewed marketing materials sent by MA         program requirements, covered benefits, and cost for
                                              h                                                                          i
                               organizations.                                  each plan operating in the service area.
                                                                               Examples of state requirements
                                                                               In Arizona, beneficiaries in the long-term care
                                                                               program have access to an eligibility case worker
                                                                               who determines eligibility and helps them navigate
                                                                               their enrollment options.
                                                                               In California’s counties where managed care
                                                                               enrollment is voluntary, enrollment brokers—who
                                                                               provide plan information to beneficiaries and help
                                                                               them choose a plan—must provide a presentation on
                                                                               plan options and enrollment to beneficiaries.
                                                                               In Minnesota, dual-eligible beneficiaries may call a
                                                                               help line specifically for seniors or people with
                                                                               disabilities for information about enrollment options.
                                                                               The state or county agency is also responsible for
                                                                               providing presentations or written materials to dually
                                                                               eligible seniors.




                                          Page 53                                            GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                            Payment system
Requirement                       Medicare Advantage                              Medicaid managed care
Continuity and coordination of care
Can beneficiaries continue to     Federal requirements                            Federal requirements
see historical providers not in   MA organizations generally are not required     Medicaid managed care plans generally are not
the managed care plan’s           to cover services by a beneficiary’s previous   required to cover services by a beneficiary’s previous
network when transitioning into   provider who is not part of the MA network      provider who is not part of the managed care
managed care or between           when a beneficiary first enrolls in a plan or
                                                                                            j
                                                                                  network. Individual states, however, may have
plans?                            switches plans. There are limited               continuity of care requirements as defined under the
                                  circumstances when MA organizations are         terms and conditions of their waiver or state
                                  required to cover such services during a        requirements.
                                  transition period. MA organizations must        Examples of state requirements
                                  ensure that covered services are available
                                  and accessible to beneficiaries. In             In California, beneficiaries newly enrolled in managed
                                  implementing this requirement, CMS officials    care plans may request and receive coverage of the
                                  informed us that MA organizations must          completion of treatments initiated by an out-of-
                                  ensure that there is no gap in coverage or      network provider with whom they have an ongoing
                                  problems with access to medically necessary     relationship in certain circumstances, such as for
                                  services when a beneficiary must change to a    treatment of a terminal illness or acute condition. The
                                  plan-contracted provider.                       length of the coverage depends on the stability of the
                                                                                  beneficiary’s health and the nature of the medical
                                                                                  condition. For coverage to continue, the provider
                                                                                  must accept either the health plan rate or Medicaid
                                                                                  FFS rate, whichever is higher. Health plans must
                                                                                  ensure, to the maximum extent possible, existing
                                                                                  provider–beneficiary relationships are not disrupted
                                                                                  for certain providers. These providers include
                                                                                  traditional providers, which are physicians who have
                                                                                  delivered services to Medicaid beneficiaries in the
                                                                                  prior 6 months, and safety-net providers, which are
                                                                                  any providers of comprehensive primary care or
                                                                                  acute hospital inpatient services that provide these
                                                                                  services to a significant number of Medicaid, charity,
                                                                                                                  k
                                                                                  or medically indigent patients.
                                                                                  In Minnesota, for newly enrolled dually eligible
                                                                                  seniors, managed care plans must cover medically
                                                                                  necessary services that an out-of-network provider, a
                                                                                  different plan, or the state agency authorized before
                                                                                  the dual-eligible beneficiary enrolled with the
                                                                                  managed care plan. However, the plan may require
                                                                                  the dual-eligible beneficiary to receive the authorized
                                                                                  services from an in-network provider and the services
                                                                                  be clinically appropriate.




                                             Page 54                                            GAO-13-100 Protections for Dual Eligibles
                                            Appendix II: Description of Selected Federal
                                            and State Requirements




                                                                           Payment system
Requirement                     Medicare Advantage                               Medicaid managed care
To what extent do beneficiaries Federal requirements                             Federal requirements
have access to assistance with MA plans must ensure coordination of              States determine whether plans must ensure that
coordination of care?           services through various arrangements with       dual-eligible beneficiaries have a person or entity
                                network providers such as programs that          formally designated as primarily responsible for
                                coordinate plan services with community and      coordinating services. States also may determine
                                                                     l
                                social services in the service area.             that, on the basis of an assessment of special health
                                Beneficiaries who enroll in an SNP—which         care needs, plans must provide a treatment plan for
                                                                                                      n
                                can be a D-SNP or other type of SNP—must         these beneficiaries.
                                have access to appropriate staff to coordinate   Examples of state requirements
                                or deliver all services and benefits and
                                coordinate communication among plan              In Arizona, managed care plans are required to
                                personnel, providers, and beneficiaries to       employ a transition coordinator who advocates for
                                ensure continuity of care.
                                                           m                     beneficiaries who are leaving or joining the plan and
                                                                                 coordinates the transition between plans to ensure
                                                                                 continuity of care. Beneficiaries in the long-term care
                                                                                 program must receive case management from a case
                                                                                 manager who helps them navigate their care options,
                                                                                 including service planning and coordination and
                                                                                 facilitating access to services.
                                                                                 In California, beneficiaries enrolled in managed care
                                                                                 have access to a state ombudsman office to provide
                                                                                 assistance. Some beneficiaries, including those
                                                                                 deemed medically fragile or those who have multiple
                                                                                 diagnoses and require services from multiple
                                                                                 providers, may receive targeted case management
                                                                                 including help navigating care options. Managed care
                                                                                 plans must also identify beneficiaries who are
                                                                                 receiving services from out-of-network providers and
                                                                                 ensure coordination of care. Additionally, managed
                                                                                 care plans must have a call center and a 24-hour
                                                                                 nurse advice line to assist beneficiaries with care
                                                                                 options.




                                            Page 55                                            GAO-13-100 Protections for Dual Eligibles
                                            Appendix II: Description of Selected Federal
                                            and State Requirements




                                                                            Payment system
Requirement                     Medicare Advantage                                Medicaid managed care
                                                                                  In Minnesota, for dually eligible seniors, access to a
                                                                                  patient advocate or ombudsman to help navigate care
                                                                                  options depends on the program. Dually eligible
                                                                                  seniors enrolled in the program where the health plan
                                                                                  is a Medicare D-SNP contracted to provide Medicaid
                                                                                  benefits receive additional care coordination and case
                                                                                  management. This is intended to ensure access and
                                                                                  integration of covered services, which includes an
                                                                                  assigned case manager to arrange and coordinate
                                                                                  the necessary provision of supports and services.
                                                                                  Dually eligible seniors who are in a non-D-SNP
                                                                                  managed care plan have a case manager to
                                                                                  coordinate plan services, but do not receive the
                                                                                  additional care coordination. Managed care plans for
                                                                                  dual-eligible beneficiaries with disabilities must have
                                                                                  a range of case management services available, from
                                                                                  telephone consultation to intensive ongoing
                                                                                  intervention depending on the dual-eligible
                                                                                  beneficiary’s health status. Dual-eligible beneficiaries
                                                                                  have access to a 24-hour nurse line for consultations.
Provider network
Are there requirements          Federal requirements                              Federal requirements
addressing whether the          In order to limit beneficiaries to a network of   States must ensure, through contracts, that Medicaid
provider network has an         providers, MA organizations must meet a           managed care plans demonstrate that they have the
adequate number of providers?   number of requirements, including                 capacity to serve expected enrollment in the service
                                                                                                                             q
                                maintaining and monitoring a network of           area in accordance with state standards. For
                                appropriate providers, under contract, that is    example, plans must submit documentation to the
                                sufficient to provide adequate access to          state that they offer an appropriate range of
                                covered services to meet the needs of             preventive, primary care, and specialty services, and
                                                        o
                                enrolled beneficiaries.                           maintain a network of providers that is sufficient in
                                                                                  number, mix, and geographic distribution to meet the
                                                                                  needs of the anticipated number of enrollees. Federal
                                                                                  regulations do not establish a minimum number of
                                                                                  providers that must be in the network, though states
                                                                                  may be subject to requirements under the terms and
                                                                                  conditions of their waiver, if applicable.




                                            Page 56                                             GAO-13-100 Protections for Dual Eligibles
                         Appendix II: Description of Selected Federal
                         and State Requirements




                                                        Payment system
Requirement   Medicare Advantage                                Medicaid managed care
              Federal guidelines establish minimum              Examples of state requirements
              requirements that vary, depending on a            In Arizona, managed care plans must ensure that
              county’s geographic designation, such as          their network of primary care providers is sufficient to
              whether the county is urban or rural. MA          provide beneficiaries with available and accessible
              organizations must contract with sufficient       services within specified time frames. Managed care
              numbers of certain types of provider              plans also must contract with a specific number of
              specialists per 1,000 beneficiaries in a          providers established by the state, which varies
              county. For example, the networks of              depending on the area covered by the plan. For
              managed care plans operating in rural             example, beneficiaries must be able to access
              counties must have at least one full-time         emergency primary care services within 24 hours,
              equivalent (FTE) primary care provider per        urgent primary care services within 2 days, and
                                                 p
              1,000 beneficiaries in a county. Additionally,    routine primary care services within 21 days. The
              MA organizations must demonstrate that their      network must also be sufficient to provide covered
              network meets geographic requirements             services within designated distance limits. For
              related to the time and distance it takes         example, for the acute program, in Arizona’s two
              beneficiaries to travel to their providers. For   most populated counties, at least 95 percent of the
              example, in rural counties, MA organizations      beneficiaries living in a metropolitan area must be
              must also ensure that 90 percent of               within 5 miles of a primary care physician, dentist, or
              beneficiaries can access primary care             pharmacy.
              providers within 40 minutes and 30 miles of
              travel.                                           In California, plans ensure their provider network is
                                                                adequate to provide the covered services for
                                                                beneficiaries in the service area. For example, plans
                                                                must maintain a provider to beneficiary ratio of one
                                                                FTE primary care physician for every 2,000
                                                                beneficiaries, and one total FTE physician in the
                                                                network for every 1,200 beneficiaries. Primary care
                                                                physicians must be located within 30 minutes or
                                                                10 miles of a beneficiary’s residence, unless the state
                                                                has approved an alternative time and distance
                                                                standard.
                                                                In Minnesota, the maximum travel distance or time
                                                                must be the lesser of 30 miles or 30 minutes from the
                                                                beneficiary to the nearest provider for each of the
                                                                following services: primary care, mental health, and
                                                                general hospital services. For primary care, the plan
                                                                must arrange services on a timely basis; appointment
                                                                times are not to exceed 45 days from the date of a
                                                                beneficiary’s request for routine and preventive care
                                                                and 24 hours for urgent care. Managed care plans
                                                                may receive an exception by demonstrating this
                                                                requirement is not feasible in a service area, or if the
                                                                beneficiary has full knowledge when choosing a plan
                                                                that contracts with no providers meeting these
                                                                requirements.




                         Page 57                                              GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                            Payment system
Requirement                       Medicare Advantage                               Medicaid managed care
Are there requirements            Federal requirements                             Federal requirements
addressing whether the            Federal guidelines establish the minimum         States must ensure, through contracts, that Medicaid
provider network has the          number of each provider and facility specialty   managed care plans demonstrate that they have the
appropriate types of providers?   type for each MA network. For example, the       capacity to serve expected enrollment in the service
                                                                                                                               q
                                  networks of MA plans must have at least one      area in accordance with state standards. For
                                  general surgeon and one cardiologist per         example, plans must submit documentation to the
                                  1,000 beneficiaries in a county. These           state that they offer an appropriate range of
                                  networks must also include at least one          preventive, primary care, and specialty services, and
                                  occupational therapy and skilled nursing         maintain a network of providers that is sufficient in
                                  facility per 1,000 beneficiaries. MA             number, mix, and geographic distribution to meet the
                                  organizations may need to contract with more     needs of the anticipated number of enrollees. Federal
                                  than the minimum number of providers and         regulations do not establish minimum numbers for
                                  facility specialty types to meet the time and    specialty providers and facility specialty types that
                                  distance requirements.                           must be in the network, though states may be subject
                                                                                   to requirements under the terms and conditions of
                                                                                   their waiver, if applicable.
                                                                                   Examples of state requirements
                                                                                   In Arizona, managed care plans must contract with
                                                                                   specific types of providers, which varies by
                                                                                   geographic service area and is determined by the
                                                                                   state. The state has contracting requirements for a
                                                                                   variety of types of providers, including dentists,
                                                                                   pharmacists, and primary care providers. For long-
                                                                                   term care plans, providers include nursing facilities,
                                                                                   assisted living facilities, home- and community-based
                                                                                   care providers, and behavioral health facilities.
                                                                                   In Minnesota, generally, the maximum distance or
                                                                                   time must be the lesser of 60 miles or 60 minutes
                                                                                   from the beneficiary to the nearest provider of each of
                                                                                   the following services: specialty physician, ancillary,
                                                                                   specialized hospital, and all other health services not
                                                                                   included in the 30 miles or 30 minutes requirement.
                                                                                   Managed care plans may receive an exception by
                                                                                   demonstrating this requirement is not feasible in a
                                                                                   service area.
Under what circumstances can Federal requirements                                  Federal requirements
beneficiaries access out-of- MA organizations must cover out-of-network            Beneficiaries must receive out-of-network coverage if
network services?            benefits in some circumstances, such as               the network is unable to provide necessary services
                             ambulance services dispatched through 911             that are covered under the state plan. The cost to the
                             or for emergency or urgently needed                   beneficiary may be no greater than if the services
                                       r                                                                     s
                             services.                                             were provided in network.




                                             Page 58                                             GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                               Payment system
Requirement                       Medicare Advantage                                Medicaid managed care
                                                                                    Examples of state requirements
                                                                                    In Arizona, out-of-network services are covered if: the
                                                                                    beneficiary is referred by a primary care provider for
                                                                                    specialty care outside the service area (the plan is
                                                                                    required to provide all other medically necessary
                                                                                    covered services); there is a net savings in costs
                                                                                    without undue travel time or hardship for the
                                                                                    beneficiary; the plan authorizes placement in a
                                                                                    nursing facility outside the service area; or the
                                                                                    services were provided during a prior period of
                                                                                    coverage.
                                                                                    In California, in addition to the federal requirement
                                                                                    described above, Medicaid managed care plans in
                                                                                    certain counties must arrange for rarely used
                                                                                    medically necessary services to be provided by
                                                                                    specialists outside the network if unavailable within
                                                                                    the network.
                      t
Marketing materials
Are marketing materials           Federal requirements                              Federal requirements
permitted to promote              Yes, marketing materials are permitted to         Yes, marketing materials are permitted to promote
enrollment in a specific health   promote enrollment in a specific health plan if
                                                                                                                           v
                                                                                    enrollment in a specific health plan. However, in
plan?                             MA organizations send the materials to CMS        some circumstances states have prohibited such
                                                                    u
                                  for review prior to distribution.                 materials.
                                                                                    Examples of state requirements
                                                                                    Arizona does not permit Medicaid managed care
                                                                                    plans to send marketing materials that are intended
                                                                                    solely to promote enrollment in a specific health plan.
                                                                                    All marketing materials must include a health
                                                                                    message.
                                                                                    California permits marketing materials to promote
                                                                                    enrollment in a specific health plan through means
                                                                                    such as billboards and flyers.
                                                                                    Minnesota permits marketing materials to promote
                                                                                    enrollment for some beneficiaries, including dual-
                                                                                    eligible beneficiaries with disabilities, dually eligible
                                                                                    seniors who are in a D-SNP, and Medicaid
                                                                                    beneficiaries who will be eligible for Medicare within
                                                                                    6 months. Marketing is not permitted to dually eligible
                                                                                    seniors who are not in a D-SNP.
What requirements, if any,        Federal requirements                              Federal requirements
exist for the readability of      Marketing materials must provide an               Marketing materials must be written in easily
marketing materials?              adequate written description of the plan’s        understood language and format.
                                                                                                                     w

                                  benefits and services and comply with
                                  formatting requirements, such as using a
                                  minimum font size.




                                             Page 59                                              GAO-13-100 Protections for Dual Eligibles
                                            Appendix II: Description of Selected Federal
                                            and State Requirements




                                                                           Payment system
Requirement                      Medicare Advantage                              Medicaid managed care
At what reading level do         Federal requirements                            Federal requirements
managed care organizations       There are no federal requirements that          There are no federal requirements that marketing
have to write marketing          marketing materials be written at a certain     materials be written at a certain reading level,
materials?                       reading level.                                  however materials must be available in a format that
                                                                                 considers those who have limited reading
                                                                                              w
                                                                                 proficiency.
                                                                                 Examples of state requirements
                                                                                 All correspondence sent to managed care
                                                                                 beneficiaries, including marketing materials, in
                                                                                 California must be written at or below the sixth-grade
                                                                                 reading level.
                                                                                 Marketing materials in Minnesota must be written at
                                                                                 or below the seventh-grade reading level.
When do marketing materials      Federal requirements                            Federal requirements
have to be translated for        Medicare marketing material must be             Medicaid marketing materials must be translated into
beneficiaries who do not speak   translated into any non-English language that   each prevalent language spoken by enrollees and
English?                         is the primary language of at least 5 percent   potential enrollees in the plan’s service area.
                                                                                                                                 y
                                                                            x
                                 of individuals in the plan’s service area.      Examples of state requirements
                                                                                 In California, marketing materials must be translated
                                                                                 when: 3,000 mandatorily enrolled managed care
                                                                                 beneficiaries live in the plan’s service area and
                                                                                 indicate their primary language as other than English;
                                                                                 or 1,000 mandatorily enrolled managed care
                                                                                 beneficiaries in a single zip code or 1,500 mandatory
                                                                                 managed care beneficiaries in adjacent zip codes live
                                                                                 in the service area and indicate their primary
                                                                                 language as other than English.
                                                                                 In Minnesota, vital documents must be translated into
                                                                                 10 languages specified by the state. Additionally, vital
                                                                                 documents must be translated when the lesser of
                                                                                 either 5 percent or 1,000 beneficiaries eligible to be
                                                                                 served or likely to be affected in the service area
                                                                                 speak a non-English language. Plans that enroll
                                                                                 dually eligible seniors must provide oral translation or
                                                                                 translation by other means to any potential or current
                                                                                 beneficiary who does not speak English.




                                            Page 60                                            GAO-13-100 Protections for Dual Eligibles
                                          Appendix II: Description of Selected Federal
                                          and State Requirements




                                                                         Payment system
Requirement                    Medicare Advantage                              Medicaid managed care
Scope of services
Under what circumstances can Federal requirements                              Federal requirements
beneficiaries obtain coverage  MA plans must provide coverage using the        Coverage of nursing facility services by managed
for nursing facility services? same criteria as FFS, which are described in    care plans must be no more restrictive than Medicaid
                                                                                                 z
                               table 3.                                        FFS coverage.
                               For beneficiaries in MA plans, the plans may    Examples of state requirements
                               determine that a direct admission to an SNF     In Arizona, nursing facility services are covered when
                               without a prior hospital stay is medically      beneficiaries qualify for the state’s long-term care
                               appropriate.                                    program. Beneficiaries qualify for the long-term care
                                                                               program when they have a functional or medical
                                                                               condition that impairs functioning to the extent that
                                                                               the individual would be deemed at immediate risk of
                                                                               institutionalization. Impairments may include, among
                                                                               other things, requiring nursing care, daily nurse
                                                                               supervision, regular medical monitoring, or presenting
                                                                               impairments with cognitive functioning or self-care
                                                                               with activities of daily living. General requirements
                                                                               also include that nursing facility services are
                                                                               medically necessary, cost-effective, federally
                                                                               reimbursable, coordinated by a case manager, have
                                                                               prior authorization, provided in licensed or certified
                                                                               facilities, provided by registered providers, and the
                                                                               appropriate type of care as determined by the case
                                                                               manager or primary care provider. The acute care
                                                                               program covers nursing facility services for a limited
                                                                               amount of time if hospitalization will occur otherwise
                                                                               or the treatment cannot be administered safely in a
                                                                               less restrictive setting, such as at home.
                                                                               In California, county-organized health system plans
                                                                               must cover nursing facility services as covered under
                                                                               FFS. In the Two-Plan and Geographic Managed Care
                                                                               programs, health plans only cover the first month of
                                                                               admission and 1 additional month. At that point, the
                                                                               beneficiary is disenrolled into FFS.
                                                                               In Minnesota, managed care plans must cover
                                                                               nursing facility services under the same
                                                                               circumstances as when beneficiaries receive
                                                                               coverage in FFS.




                                          Page 61                                            GAO-13-100 Protections for Dual Eligibles
                                                Appendix II: Description of Selected Federal
                                                and State Requirements




                                                                               Payment system
Requirement                          Medicare Advantage                              Medicaid managed care
Under what circumstances can Federal requirements                                    Federal requirements
beneficiaries obtain coverage MA plans must provide coverage using the               Coverage of home health services by managed care
for home health services?     same criteria as FFS, which are described in           plans must be no more restrictive than Medicaid FFS
                                                                                                 z
                              table 3.                                               coverage.
                                                                                     Examples of state requirements
                                                                                     In Arizona, one way that beneficiaries can qualify for
                                                                                     coverage of home health services is by qualifying for
                                                                                     the state’s long-term care program, which may occur
                                                                                     when they have a functional or medical condition that
                                                                                     impairs functioning to the extent that the individual
                                                                                     would be deemed at immediate risk of
                                                                                     institutionalization. Impairments may include, among
                                                                                     other things, requiring nursing care, daily nurse
                                                                                     supervision, regular medical monitoring, or presenting
                                                                                     impairments with cognitive functioning or self-care
                                                                                     with activities of daily living. General requirements for
                                                                                     coverage also include that home health services are
                                                                                     medically necessary, cost-effective, federally
                                                                                     reimbursable, coordinated by a case manager, with
                                                                                     prior authorization, provided in licensed or certified
                                                                                     facilities, provided by registered providers, and the
                                                                                     appropriate type of care as determined by the case
                                                                                     manager or primary care provider. Reassessments
                                                                                     must be conducted within 62-day periods after the
                                                                                     initial assessment or more often if necessary.
                                                                                     In California, home health coverage is not covered by
                                                                                     managed care plans, and is provided under FFS.
                                                                                     In Minnesota, managed care plans must provide
                                                                                     coverage using the same criteria as FFS.
Appeals
How are beneficiaries notified       Federal requirements                            Federal requirements
of their right to appeal a denial,   Beneficiaries receive a notice of the initial   Beneficiaries must receive a notice of the initial
reduction, or termination of         coverage determination from their managed       coverage determination from their managed care
benefits?                            care plan, which must include information on    plan, which must include information on the right to
                                     the right to request another review by the MA   file an appeal with the plan. If the state does not
                                                                               aa
                                     organization and a subsequent appeal.           require beneficiaries to exhaust the managed care
                                                                                     plan’s appeals process, the notice must also inform
                                                                                     the beneficiaries of their right to request a state fair
                                                                                              bb
                                                                                     hearing.




                                                Page 62                                             GAO-13-100 Protections for Dual Eligibles
                                            Appendix II: Description of Selected Federal
                                            and State Requirements




                                                                           Payment system
Requirement                     Medicare Advantage                                 Medicaid managed care
What is the appeals process     Federal requirements                               Federal requirements
for beneficiaries that have a   Beneficiaries enrolled in an MA plan must          Beneficiaries must have the ability to file an appeal
benefit denied, reduced, or     first request the MA organization that made        with their Medicaid managed care plan as well as
terminated?                     the initial determination to review the            request a fair hearing before the state agency. States
                                           cc
                                decision. For MA, if the adverse                   determine whether beneficiaries must first exhaust
                                determination is affirmed, the issues must be      their plan-level appeal before they can request a state
                                reviewed and resolved by an independent            fair hearing. Once a final agency decision is made
                                               dd
                                review entity. If the independent entity           following a fair hearing, beneficiaries may request
                                affirms the adverse determination and the          judicial review of the decision if permitted under state
                                                                                        hh
                                amount remaining in controversy is above a         law.
                                specified level, MA beneficiaries have the         Examples of state requirements
                                right to request a hearing before an
                                administrative law judge (ALJ) in the              Arizona requires beneficiaries to appeal first to their
                                Department of Health and Human Services.
                                                                              ee   managed care plan before requesting a state fair
                                MA beneficiaries who are dissatisfied with the     hearing with a state ALJ. The state Medicaid agency
                                ALJ hearing decision may request review by         must accept, modify, or reject the ALJ decision. After
                                the Medicare Appeals Council. MA
                                                                 ff                receiving the agency decision, beneficiaries can
                                beneficiaries may request judicial review by a     request another review. The state Medicaid agency
                                U.S. district court if the amount in controversy   will grant a rehearing or review if the beneficiary’s
                                is above a specified level and the Medicare        rights have been materially affected, such as
                                Appeals Council’s decision is the final            misconduct by a party or newly discovered evidence.
                                determination of CMS or the Council denied         Beneficiaries may then appeal to state court.
                                                          gg
                                the request for review.                            In California, beneficiaries may submit an appeal to
                                                                                   the plan, or may request a state fair hearing before
                                                                                   exhausting the plan’s appeals process. After
                                                                                   appealing to the plan, if the service is denied,
                                                                                   reduced, or terminated, or the plan fails to
                                                                                   satisfactorily resolve the dispute, the beneficiary may
                                                                                   request a review by the Independent Medical Review
                                                                                   System, where an independent contractor reviews the
                                                                                   appeal and makes a determination as to whether the
                                                                                   service was medically necessary. The Department of
                                                                                   Managed Health Care must adopt this determination.
                                                                                   Beneficiaries may also request a state fair hearing
                                                                                   prior to, during, or at the conclusion of the plan’s
                                                                                   appeal process. If the hearing is conducted by an
                                                                                   ALJ, the Director of the Department of Health
                                                                                   Services may adopt the ALJ’s decision, decide the
                                                                                   matter for himself or herself, or order a further
                                                                                   hearing. After receiving a final decision from the state
                                                                                   Medicaid agency, beneficiaries may request a
                                                                                   rehearing or may file a petition for judicial review in
                                                                                   state court.




                                            Page 63                                              GAO-13-100 Protections for Dual Eligibles
                                             Appendix II: Description of Selected Federal
                                             and State Requirements




                                                                                         Payment system
Requirement                        Medicare Advantage                                            Medicaid managed care
                                                                                                 In Minnesota, beneficiaries may submit an appeal to
                                                                                                 their managed care plan, or may request a state fair
                                                                                                 hearing without first appealing to their plan. During
                                                                                                 the state fair hearing, a hearing officer recommends
                                                                                                 an order to the Commissioner of Human Services,
                                                                                                 who either accepts, rejects, or modifies the order.
                                                                                                 Beneficiaries who disagree with the commissioner
                                                                                                 may request reconsideration by the commissioner,
                                                                                                 who may either issue an amended order or affirm the
                                                                                                 original order. A beneficiary may then request judicial
                                                                                                 review in state court.
Are there provisions to ensure Federal requirements                                              Federal requirements
continuity of access to benefits There are no federal requirements that                          Benefits must continue during the appeal if: the
throughout the duration of the benefits must continue during the appeals.                        beneficiary is mailed a notice of action and files an
appeal process?                                                                                  appeal prior to the effective date of action, the appeal
                                                                                                 involves services that are being reduced, terminated
                                                                                                 or denied; the course of treatment was previously
                                                                                                 authorized; the services were ordered by an
                                                                                                 authorized provider; the original period covered by
                                                                                                 the authorization has not expired; and the beneficiary
                                                                                                                                     ii
                                                                                                 requests an extension of benefits. If the beneficiary
                                                                                                 also requests a state fair hearing, benefits must
                                                                                                 continue during that process in the circumstances as
                                                                                                 described above.
To what extent are                 Federal requirements                                          Federal requirements
beneficiaries required to          Although federal law and regulations do not                   Federal regulations require that Medicaid managed
receive personal assistance,       require that beneficiaries receive personal                   care plans provide beneficiaries assistance with
including from a care              assistance when navigating the appeals                        completing appeal forms and take other procedural
coordinator or other specialist,   process, there are certain protections. For                   steps, including providing interpreter services and toll-
in navigating the appeals          example, Medicare beneficiaries may appoint                   free numbers for assistance for plan-level appeals.
                                                                                                                                                      kk
process?                           a representative to assist them with an                       Medicaid beneficiaries may appoint a representative
                                           jj                                                                               ll
                                   appeal. Beneficiaries may also seek                           for the state fair hearing. Federal regulations provide
                                   assistance from the Medicare Beneficiary                      states with the option of providing assistance during
                                                                                                                                 mm
                                   Ombudsman through the 1-800-MEDICARE                          the state four hearing process.
                                   help line.                                                    Examples of state requirements
                                                                                                 In Arizona, managed care plans are required to
                                                                                                 provide reasonable assistance to beneficiaries when
                                                                                                 completing forms and taking other procedural steps
                                                                                                 during the appeals process, including, for example,
                                                                                                 providing interpreter services.
                                             Source: GAO analysis of federal and state statutes, regulations and guidance.

                                             Note: Information on state laws was confirmed by state Medicaid agency officials. We use
                                             “beneficiaries” when referring to statements or requirements that apply to all individuals receiving
                                             Medicare or Medicaid benefits, and “dual-eligible beneficiaries” when referring to statements or
                                             requirements that apply only to the dual-eligible beneficiaries.
                                             a
                                              Dual-eligible beneficiaries can only be mandatorily enrolled in managed care under an 1115
                                             demonstration waiver or 1915(b) waiver.




                                             Page 64                                                                  GAO-13-100 Protections for Dual Eligibles
Appendix II: Description of Selected Federal
and State Requirements




b
 42 U.S.C. § 1395w-22(d), 42 C.F.R. § 422.112(a). In order to limit beneficiaries to a network, MA
organizations must meet certain federal requirements, such as ensuring that covered services are
available and accessible within the plan’s service area.
c
 42 U.S.C. § 1396u-2(b)(5), 42 C.F.R. § 438.207. In establishing provider networks, plans must
demonstrate that they have the capacity to serve expected enrollment in the service area in
accordance with state standards.
d
    42 U.S.C. § 1395w-21(a)(1), (b)(1).
e
 42 U.S.C. § 1396u-2(a)(3), 42 C.F.R. § 438.52. States may also limit beneficiaries to enrollment in a
single health insuring organization, which is a certain type of plan operated by a county, as long as
the beneficiaries have a choice of at least two primary care providers. This option only applies in the
state of California.
f
    42 U.S.C. § 1395w-21(a), (e), 42 C.F.R. § 422.62.
g
    42 C.F.R. § 438.56(c).
h
    42 C.F.R. § 422.2262(b).
i
    42 C.F.R. § 438.10(e).
j
There are certain exceptions. States that mandatorily enroll beneficiaries into plans in rural areas
without providing a choice of plans must cover out-of-network services and give the beneficiary’s prior
provider an opportunity to join the network. If the provider does not join, the beneficiary must select or
be transitioned to a participating provider within 60 days. 42 C.F.R. § 438.52. In addition, states that
mandatorily enroll Medicaid beneficiaries under a state plan amendment must meet certain federal
requirements. Specifically, if beneficiaries do not select a plan, the state must ensure there is an
enrollment process to assign them to a plan. This process must seek to preserve existing provider–
beneficiary relationships in which the provider was the main source of Medicaid services for the
beneficiary during the previous year. 42 C.F.R. § 438.50(f). However, these federal requirements do
not apply to dual-eligible beneficiaries, who cannot be mandatorily enrolled in managed care under a
state plan amendment.
k
  In 2011, California began mandatorily enrolling seniors and persons with disabilities—excluding dual-
eligibles—into Medicaid managed care. Beneficiaries who are mandatorily enrolled in managed care
may see the their prior FFS provider for the first 12 months if the provider works with and accepts
payment from the managed care plan and had no quality of care issues.
l
    42 C.F.R. § 422.112(b).
m
    42 C.F.R. § 422.101(f).
n
    42 C.F.R. § 438.208(a)(3).
o
    42 U.S.C. § 1395w-22(d), 42 C.F.R. § 422.112(a)(1).
p
 For CMS’s network adequacy calculations, the primary care provider category comprises physicians
in general practice, family practice, internal medicine, and geriatrics, and primary care physician
assistants and primary care nurse practitioners.
q
    42 U.S.C. § 1396u-2(b)(5), 42 C.F.R. § 438.207.
r
    42 C.F.R. § 422.100(b).
s
    42 C.F.R. § 438.207(b).
t
We refer to marketing communications in the context of materials intended to promote enrollment in a
specific health plan.
u
    42 C.F.R. § 422.2262.
v
    42 C.F.R. § 438.104.
w
    42 U.S.C. § 1396u-2(a)(5), 42 C.F.R. §§ 438.10(b), 438.104(b)(iii).
x
    42 C.F.R. § 422.2264.




Page 65                                                    GAO-13-100 Protections for Dual Eligibles
Appendix II: Description of Selected Federal
and State Requirements




y
 42 C.F.R. § 438.10(c). States must establish a methodology for identifying prevalent non-English
languages spoken by enrollees and potential enrollees throughout the state.
z
     42 C.F.R. § 438.210.
aa
     42 U.S.C. § 1395w-22(g)(1), 42 C.F.R. § 422.568(e).
bb
     42 C.F.R. § 438.404.
cc
  42 U.S.C. § 1395w-22(g)(1)-(2), 42 C.F.R. §§ 422.566, .578. MA organizations must have a process
in place to make organizational determinations as to whether a beneficiary is entitled to receive
coverage for a health service. Beneficiaries have the right to request the MA organization that made
the initial determination to review any adverse determination. When a denial of coverage is based on
the lack of medical necessity, the reconsidered determination must be made by a physician with the
appropriate medical expertise.
dd
     42 U.S.C. § 1395w-22(g)(4), 42 C.F.R. § 422.592.
ee
  42 U.S.C. § 1395w-22(g)(5), 42 C.F.R. § 422.600. ALJs are employed by the Department of Health
and Human Services and are responsible for conducting formal proceedings such as hearings,
among other things. CMS has established a formula for annually calculating the minimum amount
that must be in controversy for beneficiaries to appeal to an ALJ. That amount was $130 for 2012.
ff
 42 C.F.R. § 422.608.The Medicare Appeals Council undertakes a de novo review and may issue a
final decision, dismiss the appeal, or remand the case to the ALJ with instructions for re-hearing the
case.
gg
  The minimum amount that must be in controversy for beneficiaries to request judicial review is
updated annually. The amount was $1,350 for 2012.
hh
  42 U.S.C. § 1396a(a)(3), 42 U.S.C. § 1396u-2(b)(4), 42 C.F.R. §§ 431.205, .240(a)(3),
438.400, .402. Each Medicaid managed care plan must have an internal appeals process in place for
beneficiaries to challenge certain actions, including termination, suspension, or reduction of a service,
denial or limited authorization of a service, or a denial of payment for a service. State Medicaid
agencies must provide for a hearing before the agency or an evidentiary hearing at the local level with
the right to appeal to a state agency hearing. State agency hearings must be conducted by one or
more impartial officials. In providing a final agency decision to the beneficiary, state agencies may
choose to accept or reverse the officials’ determination or request a rehearing.
ii
     42 C.F.R. § 438.420.
jj
     42 C.F.R. §§ 422.672.
kk
     42 C.F.R. § 438.206.
ll
     42 C.F.R. § 431.206(b).
mm
   42 C.F.R. § 431.221(c). States may assist beneficiaries with the submission and processing of their
fair hearing requests.




Page 66                                                    GAO-13-100 Protections for Dual Eligibles
Appendix III: Comments from the
             Appendix III: Comments from the Department
             of Health and Human Services



Department of Health and Human Services




             Page 67                                      GAO-13-100 Protections for Dual Eligibles
Appendix III: Comments from the Department
of Health and Human Services




Page 68                                      GAO-13-100 Protections for Dual Eligibles
Appendix IV: GAO Contact and Staff
                  Appendix IV: GAO Contact and Staff
                  Acknowledgments



Acknowledgments

                  Kathleen M. King, (202) 512-7114 or kingk@gao.gov
GAO Contact
                  In addition to the contact named above, Randy DiRosa (Assistant
Staff             Director), Lori Achman, Anne Hopewell, Lisa Motley, Laurie Pachter,
Acknowledgments   Pauline Seretakis, Lillian Shields, and Hemi Tewarson made key
                  contributions to this report.




(291036)
                  Page 69                                GAO-13-100 Protections for Dual Eligibles
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