CMS’s Rapid Retreat on Portions of Proposed MA/Part D Rule: One for the Record Books

By James Gutman - March 14, 2014 It wasn’t just what CMS did March 10 regarding its 678-page proposed Medicare Advantage (MA) and Part D rule that left several industry observers amazed. It was when and how the agency shelved four major portions of the rule that led to such comments from them as “I can’t recall that ever happening before” and “I can’t remember such a complete reversal.” For those who haven’t been following the saga since Jan. 6, when CMS released the proposal rule, here is the “Cliff Notes” summary of the relevant portions involved in the March 10 actions. Among the many changes the agency proposed in the rule were lifting the protected-class definition on two major classes of drugs with a third perhaps coming later, changing requirements for participation in preferred pharmacy networks, limiting to two the number of stand-alone Prescription Drug Plans (PDPs) a sponsor may offer in a region starting in 2016 and allowing CMS to have a role in contract negotiations involving Part D plans and pharmacies. It seemed those provisions contained something to hate for virtually every stakeholder. Patient-advocacy groups and pharmaceutical manufacturers were outraged that the regulations would remove required access to all antidepressants and immunosuppressant drugs in 2015 and perhaps all antipsychotics in 2016. Insurers and some consumer advocates were upset by the limits on the number of PDPs, plans and employers detested that “any willing pharmacy” would be able to join a preferred pharmacy network, and both insurers and employers thought no good could come out of CMS getting involved in contract negotiations for that kind of network. With all of those constituencies yelling in Congress’ ear, it may be no wonder that a majority of the members of the Senate Finance Committee, including both the Democratic chairman and the ranking minority member, sent CMS Administrator Marilyn Tavenner a Feb. 28 letter asking the agency not to “unnecessarily interfere with a successful program.” The deadline for comments on the proposed rule was March 7. On March 10, the very next business day, Tavenner sent Congress a letter saying that “given the complexities of these issues and stakeholder input, we do not plan to finalize these proposals at this time.” She did add that CMS would go ahead with some other provisions of the rule that were less controversial. “While we anticipated that they might pull back on the Part D modifications, we didn’t see that happening before the comments were even fully analyzed,” one attorney who represents the industry tells AIS. “What a circus,” summarizes an industry consultant. They both, though, suggested that time, and not just opposition, might have played a factor in the decision in that CMS probably wanted to make sure it could get the final rule out on or close to the April 7 mandated date for release of the final MA pay rates and 2015 Call Letter that both MA plans and PDPs will use as their guide in preparing the 2015 bids due June 2. Why do you think CMS acted so quickly in reversing itself on four key portions of the proposed rule? Was it more because of the time factors for getting the rule out, or did some potential political fallout in an election year have the key role? Will CMS, as it said March 10, indeed wind up “advancing some or all of the changes in these areas in future years,” or are these proposals dead forever? Is this a lesson in what can happen in those rare times when Democratic and Republican members of Congress can agree on something, or is it just fodder for a brief footnote in Ripley’s Believe It or Not? http://aishealth.com/blog/medicare-advantage-and-part-d/cmss-rapid-retreat-portions-proposed-mapart-d-rule-one-record-boo?utm_source=Real%20Magnet&utm_medium=Email&utm_campaign=34682688