Protection in Managed Care Plans: A Side-by-Side Comparison of Proposal Federal Legislation

Part I: Congressional Budget Reconciliation Proposals

A. Entities Regulated Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) Establishes new Medicare managed care program, “MedicarePlus;” MedicarePlus plan options include coordinated care plans (HMOs, PPOs), MSA plans (exceptions for MSA plans from some requirements). (Medicare eligibles can still choose the traditional fee-for-service program.) Medicare; established new “Medicare Choice” program. Medicare Choice plan options include fee-for-service, PPOs, point-of-service plans, PSOs, HMOs, MSAs, any other private plan for the delivery of health care items and services. (Medicare eligibles can still choose traditional fee-for-service program.) Medicaid managed care plans. State Medicaid programs and Medicaid managed care entities. B. Plan Choice/Enrollment Protections Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Point-Of-Service Requirement Point of service plans as well as closed-panel plans can be offered under Medicare Plus (Commerce Committee–see section 1852(m)). Traditional fee-for-service option would continue as well as a non-MedicarePlus option. Similar provision to House Budget Bill (Medicare). No provisions. No provisions. 2. Other Enrollment Provisions After transition period, enrollment changes without cause permitted during 90 day period after beneficiary first enrolls, and once annually thereafter. Annual coordinated enrollment period. Disenrollment for cause permitted at any time. No limit on number of enrollment changes. Annual coordinated enrollment period. Disenrollment for cause permitted at any time. No provisions. States may mandate enrollment in managed care. Choice of at least 2 plans must be available (other than in rural areas, where out-of-plan care must be permitted under certain circumstances). Managed care may not be required for special needs children, Medicare beneficiaries, or Indians.

Enrollment changes without cause permitted during 90 day period after beneficiary first enrolls, and once annually thereafter. Disenrollment for cause permitted at any time. C. Information Disclosure Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Covered And Excluded Benefits Required; must describe service area and out-of-area coverage. Similar provision to House Budget Bill (Medicare). Information standards to be developed under QA program. Required, including plan service area; plan also must disclose benefit carveouts. 2. Enrollee Financial Obligations Required, including liability for balance billing; MSA plans must provide comparison of cost sharing with other MedicarePlus plans. Ways and Means Committee also requires MSA plans requirements to compare balance billing with other MedicarePlus plans. Similar provision to House Budget Bill (Ways and Means Committee) (Medicare). No provisions. Required. 3. List Of Health Plan Providers Number, mix, and distribution of providers. Commerce Committee also requires listing of any point-of-service options. Similar provision to House Budget Bill (Medicare). No provisions. Required upon request. 4. Description Of Prior Authorization/UR Process And Requirements Required for prior authorization. Similar to House Budget Bill (Medicare). No provisions. Required upon request. 5. Description Of Grievance/Appeals And UR Process/Requirements Required. Similar provision to House (Medicare) on grievances; UR processes upon request. No provisions. Required. 6. Outcomes Of Grievance, Appeals, and UR Processes Required; performed by Secretary (Commerce Committee only). No provisions. No provisions. No provisions. 7. Quality Indicators Required to the extent available, including comparison with fee-for-service indicators. Similar provision to House Budget Bill (Medicare). No provisions. Required to the extent available. 8. Enrollee Satisfaction Data Required to the extent available. Similar provision to House Budget Bill (Medicare). No provisions. Required to the extent available. 9. Enrollee Utilization Data No provisions. No provisions. No provisions. Must be disclosed to state for beneficiaries under age 21. 10. Provider Financial Incentives/Payment Methods Extent to which organization provides benefits through DSH/teaching hospitals, and extent to which differences between payment rates reflect disproportionate share percentage of low-income patients and presence of medical residency training programs (to Secretary). No provisions. No provisions. Required. 11. Disclosure of UR Criteria/Algorithms No provisions. No provisions. No provisions. No provisions. 12. Data Standardization Requires specified information to be broadly disseminated to beneficiaries and prospective beneficiaries. Similar provision to House Budget Bill (Medicare). Must provide information to state using Medicare Risk (Sec. 1876) information set or alternative set.

Marketing materials must be approved by state and may not contain false or misleading information. Enrollment and informational materials must be easily understood by Medicaid beneficiaries and enable comparison of plans.

Similar provision to House Budget Bill (Medicaid). 13. Plan Loss Ratios No provisions. No provisions. No provisions. Required. 14. Other Information No provisions. No provisions. No provisions. Upon request, information on plan financial soundness.

Extent to which beneficiary may select provider of choice. D. Discrimination Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Anti-Discrimination Provisions Prohibits denial, limitation, or conditions upon coverage based on any health status-related factors outlined in HIPAA (medical condition, claims experience, receipt of health care, medical history, genetic information, evidence of insurability, or disability). Not required to enroll individuals with end-stage renal disease, but must continue to cover individuals who develop end-stage renal disease while enrolled in MedicarePlus plan. See also “Provider Protection.”

Must accept eligible individuals without restrictions (limited exceptions based on capacity). Same provision as House Budget Bill (Medicare). Plan must distribute marketing materials to entire service area. Prohibits discrimination in enrollment or disenrollment based on health status or anticipated need for health services.

Plan must distribute marketing materials to entire service area. E. Consumer Ombudsman Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Consumer Ombudsman, Functions HHS required to establish coordinated enrollment process, provide comparative plan information, and notice of coverage and enrollment rights to beneficiaries. Secretary must maintain toll-free number and Internet site to assist beneficiaries. Secretary may contract with outside entities to perform functions.

Beneficiary complaints may be taken to Social Security offices or directly to HCFA. Similar provision to House Budget Bill (Medicare). No provisions. Not required; states may use independent enrollment brokers to market plan enrollment to eligible beneficiaries. 2. Consumer Ombudsman, Financing No provisions. No provisions. No provisions. States may receive federal matching payments for eligible Medicaid managed care enrollment brokers. F. Access, Generally Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Access To Sufficient Number, Mix, Distribution Of Providers Must ensure access within service area with reasonable promptness (does not use number, mix, distribution requirement). Similar provision to House Budget Bill (Medicare). QA standards include access provisions. See QA requirements. Required to sufficiently assure same access as would be provided to non-Medicaid enrollees.

Adequate access to transportation and translation services.

Extended hours for primary care services.

Travel time standard for primary care services.

Services to be available and accessible with reasonable promptness in manner which assures continuity, and when medically necessary, 24 hours, 7 days/week.

HHS may impose additional access requirements. 2. Special Rules For Access In Rural/Underserved Areas No provisions. No provisions. No provisions. Rural Medicaid beneficiaries must be allowed to obtain care from providers outside plan in appropriate circumstances as established by HHS. 3. Enrollee Choice Of Primary Care Provider No provisions. No provisions. No provisions. If state requires enrollment with primary care case manager, beneficiary must have choice of 2 primary care case managers. 4. Emergency Care Access 24 hours, 7 days/week. Similar provision to House Budget Bill (Medicare). No provisions. 24 hours, 7 days/week. 5. Other Requirements Must cover service provided by nonparticipating provider if: (a) service was medically necessary and required immediately because of unforeseen illness, injury, or condition, and (b) it was unreasonable under the circumstances to obtain services through plan; must cover renal dialysis provided if enrollee temporarily out of service area. Similar provision to House Budget Bill (Medicare). No provisions. Plans can be sanctioned for substantially failing to provide medically necessary covered services.

States may not restrict choice of family planning providers. G. Access, Specialists Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Standard For Specialist Access Must provide access to appropriate credentialed specialists for:

Commerce Committee: treatment and services determined to be medically necessary by provider in consultation with individual;

Ways and Means Committee: for medically necessary services. Similar to House Budget Bill (Ways and Means Committee) (Medicare). No provisions. Must refer beneficiaries with sufficiently serious or complex conditions to available and accessible specialists.

Must refer children with special health needs to appropriate pediatric health care providers.

Must allow beneficiary access to religiously affiliated long-term care facilities if plan does not provide access to appropriate faith-based facilities. 2. Standard For Access To Specialists For Chronic Illness No provisions. No provisions. No provisions. No provisions. 3. Care by Ob-Gyn No provisions. No provisions. Requires plan to permit female enrollee to designate Ob-Gyn as PCP or, if enrollee has not designated such a provider as PCP, plan may not require prior authorization for coverage of Ob-Gyn services by participating professional. No provisions. H. Continuity Of Care Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Enrollee Protections When Provider Contract Changes No provisions. No provisions. QA requirements include standard for continuity of care. See QA requirements. No provisions. I. Experimental Treatment Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Coverage Of Experimental Treatment No provisions. No provisions. No provisions. No provisions. J. Emergency Services Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Coverage Of Evaluation And Treatment Without Prior Authorization, Regardless Of Whether Provider Non-Participating Required. Required. Required. Required. 2. Coverage Of Maintenance And Post-Stabilization Care Requires compliance with guidelines that may be established by Secretary to promote timely and efficient coordination of appropriate care. Similar provision to House Budget Bill (Medicare) except specifies components Secretary’s guidelines must include. Requires compliance with guidelines established for MedicarePlus program. Must follow HHS guidelines relating to efficient and timely coordination of appropriate maintenance and post-stabilization care.

If covered service, good faith effort to obtain prior approval required. 3. “Prudent Layperson” Standard For Determining Emergency Service² Yes. Yes. Yes. Yes. 4. “Reasonable Payment” Standard For Participating And Non-Participating Providers No provisions. No provisions. No provisions. No provisions. 5. Prior Authorization Standard For Other ER Services No provisions. No provisions. No provisions. No provisions. 6. Other Requirements No provisions. No provisions. No provisions. No provisions. K. Grievances, Internal Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Internal Grievances Process Required for coverage denials. Required for coverage denials. Requires process for resolving grievances. Required for denial of coverage or payment for services. 2. Timeliness Standard Reconsideration of coverage denials within 30 days of receipt of medical information but no later than 60 days from date of determination.

Expedited process required upon request of physicians or enrollees when use of normal time frames could jeopardize life or health of enrollee or enrollee’s ability to regain maximum function; must notify of reconsideration as expeditiously as health condition requires but not later than 24 hours (longer if Secretary permits). Similar provision to House Budget Bill (Medicare).

Similar provision to House Budget Bill (Medicare). Requires resolution of oral or written complaints before board of appeals within 30 days.

Also requires expedited procedure for certain grievances. No provisions. 3. Professional Qualifications Of Grievance Reviewers Reconsideration of denials based on lack of medical necessity made only by physicians with appropriate expertise in field necessitating treatment (Commerce Committee only) and physician must not have been involved in initial determination. Similar provision to House Budget Bill (Ways and Means Committee) (Medicare). Board of appeals to include organization physician and nonphysician representatives, non-enrollee consumers; and providers with expertise in area necessitating treatments. No provisions. 4. Written Documentation Of Adverse Determinations Requires notice of coverage denials, including statement of reasons (Commerce Committee only). No provisions. Requires notice of coverage denials or termination or reduction of services, including statements of reasons, explanation of complaint process and other appeal rights and description of how to obtain supporting evidence. No provisions. 5. Maintain Internal Records Of Grievance Process/Actions Taken No provisions. No provisions. No provisions. No provisions. L. Grievances, External/Independent Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. External Grievance Procedures If amount in controversy of appeal is $100 or more, enrollee entitled to administrative hearing before Secretary. If $1000 or more, entitled to judicial review of Secretary’s final decision.

Secretary must contract with independent, outside entity to review and resolve reconsiderations affirming denial of coverage. Commerce Committee specifies that resolution be timely. Similar provision to House Budget Bill (Medicare).

Similar provision to House Budget Bill (Ways and Means Committee) (Medicare). No provisions. No provisions. 2. Certification Of Reviewer Hearing before the Secretary. Similar provision to House Budget Bill (Medicare). No provisions. No provisions. 3. Binding Process Yes; administrative hearing (some subject to judicial review). Similar provision to House Budget Bill (Medicare). No provisions. No provisions. M. Utilization Review Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. UR Program No provisions requiring UR program. No provisions requiring UR program. No provisions. No provisions. 2. Applicable Standards Mandatory UR standards set forth in bill. Similar to House Bill (Medicare). See “Quality Assurance Program” and “Grievances, Internal.” No provisions. 3. Enrollee Or Provider Input Physician input required on medical policies, quality, and medical management procedures.

Required for length of stay decisions (Commerce Committee). Similar provision to House Budget Bill (Medicare). No provisions. No provisions. 4. Reviewer Professional Standards No provisions. No provisions. No provisions. No provisions. 5. Timeliness Standard “Timely” standard (not defined), determined by urgency of situation, applies to prior authorization of nonemergency services. (Prior authorization not required for emergency services.)

Expedited process required upon request of physicians or enrollees when use of normal time frames could jeopardize life or health of enrollee or enrollee’s ability to regain maximum function; must notify of determination as expeditiously as health condition requires but not later than 72 hours from receipt of request or information³ (longer if Secretary permits). Similar provision to House Budget Bill (Medicare).

Similar provision to House Budget Bill (Medicare). No provisions. Plan may require prior authorization for services only if process provides for decisions to be made in a timely manner, depending on urgency of situation. 6. Consistency Standard No provisions. No provisions. No provisions. No provisions. 7. Notice Or Documentation Of UR Decisions Notice of any coverage denial required, including statement of reasons and description of grievance/appeals procedure (Commerce Committee). No provisions. No provisions. No provisions. 8. Other Patient Or Provider Protections No provisions. No provisions. No provisions. Child referred for treatment or permitted to seek treatment out of plan for special health care need shall be deemed to have obtained any prior authorization required. N. Quality Assurance Program Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Quality Assurance Requirements Mandatory program, subject to regulation. Must include data measuring health outcomes and other quality indices, UR protocols, review by physicians/other health professionals of process followed in provisions of health care, monitoring and evaluation of high volume and high risk services and care of acute/chronic conditions, evaluation of continuity and coordination of care, mechanisms to identify over/underutilization, action to improve quality with assessment of effectiveness, measures of consumer satisfaction. Must publish information on quality/outcomes to facilitate beneficiary comparison and choice (Secretary to establish form and guidelines). Similar provision to House Budget Bill (Medicare). States must develop and implement QA and QI standards, consistent with standards to be developed by the Secretary. Must require QA data to be provided to state and must use data and information set specified for Medicare risk contractors (Sec. 1876) or alternative set.

Regularly review scope and content of QI strategy.

Must include other aspects of care including grievance procedures, marketing and information standards, and adequately provide for financial reporting.

Must include access standards to assure availability within reasonable time frames and ensure continuity of care, adequate primary and specialist care, procedures for monitoring quality of care that reflect spectrum of populations.

Other aspects of care including grievance procedures and marketing and information standards. Required internal QA program; state contract with managed care entity must provide for state to develop and implement QA strategy with respect to access to care in reasonable time, adequate physician networks, and quality/ appropriateness of care.2. Independent Review Requires independent review through independent quality review and improvement organization approved by Secretary.

Accreditation: plans deemed to have met quality standards if accredited by private organization through process approved by Secretary. Standards must be no less stringent than standards in section 1856. Similar provision to House Budget Bill (Medicare). No requirement for independent review.

States may choose to have plans privately accredited; Secretary shall specify requirements for standards and process by which organizations shall be deemed in compliance.

Plan also deemed to have met QA standards if plan is current Medicare risk contractor (Sec. 1876) or MedicarePlus organization. Annual external independent review of quality outcomes, timeliness of and access to covered services, includes audit of sample medical records.

Managed care plans with Medicare contracts or accredited by private organization approved by HHS deemed in compliance and not subject to external quality review.

HHS will monitor state external quality review systems and will have “look-behind” authority to validate managed care plan compliance with quality standards. O. Privacy And Confidentiality Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Safeguards For Individually Identifiable Medical Information Must have procedures to safeguard privacy of such information, to maintain accurate and timely medical records and other health information for enrollees, and to assure timely access for enrollees to medical information. Similar provision to House Budget Bill (Medicare). No provisions. No provisions. P. Protections Relating To Covered Benefits Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Mandated Benefit Coverage Mandatory coverage for evaluation and treatment of emergency services. See also “Emergency Services.”

MedicarePlus plans must cover Medicare benefits for beneficiaries.

Length of inpatient hospital stay as determined by attending physician, in consultation with patient, to be medically appropriate (Commerce Committee only). Similar provision to House Budget Bill (Medicare), except for Commerce Committee provision on length of stay. No provisions. Medically necessary Medicaid covered services must be provided; plan can be sanctioned for “substantial failure” to provide medically necessary covered services.

Medically necessary shall not be construed as requiring coverage for abortion other than in cases of rape, incest, or if necessary to save life of mother. 2. Requirements If Covered Service See above. See above. No provisions. See above. 3. Balance Billing Limits On Out-Of-Network Services Prohibits balance billing for out-of-network services.

Commerce Committee exempts unrestricted fee-for-service MSA plans from these provisions. Similar provision to House (Medicare), except exempts MSA and unrestricted fee-for-service plans from this provision. No provisions. Prohibits balance billing by plan providers and subcontractors. Q. Anti-Gag Rule Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Medical Communications Between Providers And Patients No restrictions allowed on health care professionals’ communications about individual’s health status or medical care for individual’s condition, regardless of whether such care is covered under plan. No provisions. Similar provision to House Budget Bill (Medicare). No provisions. 2. Exceptions Based On Religious Or Moral Convictions Not required to provide, reimburse for, or cover counseling or referral service if organization objects to provision of such service on moral or religious grounds. Must make information available on policies regarding such service to prospective enrollees before or during enrollment and to enrollees within 90 days after organization adopts change in such policy. No provisions. Similar provision to House Budget Bill (Medicare). No provisions. R. Provider Protection Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Provider Incentive Plans⁴ Prohibited unless: not made as inducement to restrict medically necessary services; if plan puts provider at substantial financial risk, plan must provide stop-loss protection and conduct periodic customer satisfaction/access surveys; and plan must provide Secretary with sufficient information to determine if plan acceptable. Similar provision to House Budget Bill (Medicare). No provisions. Required to meet standard for Medicare plans. 2. Anti-Discrimination Prohibits discrimination in selecting health professionals for network based on race, origin, gender, age, disability (Commerce Committee).

May not deny participation, ability to participate in, or ability to be reimbursed for providing covered services based solely on license or certification (Commerce Committee). Similar provision to House Budget Bill (Commerce Committee) (Medicare), with clarification that plan not precluded from including providers only to extent necessary to meet enrollee’s needs nor does it preclude plan from implementing quality measures. No provisions. Similar provision to House Budget Bill (Medicare), and adds prohibition on discrimination in indemnification against health professional. 3. Provider Contracting Prohibits direct or indirect arrangements for providers to indemnify plans against any liability resulting from civil action brought for damage caused by plan denial of medically necessary care.

Once provider’s contractual obligations have ended, plan may not enforce contractual provisions preventing provider from joining or forming competing MedicarePlus organization that is a PSO in same area (Commerce Committee only). Similar provision to House Budget Bill (Ways and Means Committee) (Medicare).No provisions. No provisions. 4. Provider Application And Participation Requirements Must have procedures on physician participation including notice of rules, written notice of participation decisions adverse to physicians, and process for appealing adverse decisions with physician input. Commerce Committee excepts unrestricted fee-for-service MSA plans from this provision. Similar provision to House Budget Bill (Ways and Means Committee) (Medicare). No provisions. Managed care plan’s written participation requirements for any provider shall include terms and conditions that are no more restrictive than those included in agreements with other participating providers. 5. Payment Timeliness Standard No provisions. No provisions. No provisions. Required to meet general Medicaid requirements for timely payment unless alternative schedule is mutually agreed upon. 6. Other Payment Protections No provisions. No provisions. No provisions. Payments to RHCs and FQHCs: center or clinic that contracts with Medicaid managed care plan shall be able to elect payment under 1905(a)(2)(C) or 1902(a)(13)(E).

Payment adequacy for managed care organizations: states shall certify for Secretary that Medicaid payments to managed care entities are actuarially sufficient relative to cost of covered services. S. Provider Credentialing Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Provider Credentialing Requirements No provisions, but does require access to credentialed specialists. No provisions, but does require access to credentialed specialists. No provisions. No provisions. T. Minimum Solvency Requirements Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Minimum Solvency Provisions State solvency standards apply for Medicare Choice plans other than PSOs and to PSOs that do not have a waiver from the Secretary. (See “Enforcement;” federal solvency standards apply to PSOs that have obtained waivers.)⁵

Solvency standards for PSOs with waivers are to be developed through a negotiated rulemaking process. Secretary required to take into account, in developing the standards, delivery system assets and organization’s ability to provide services directly and alternative means of protecting against insolvency (examples provided). Same provision as House Budget Bill (Medicare) except also requires Secretary to take into account any NAIC standards for risk-based health delivery organizations in developing standards.⁶ Organization deemed to have met federal standards if meets state standards for private HMOs or other licensed risk-bearing entities unless the organization is not responsible for inpatient hospital service and physician services, or is a public entity, or solvency of organization is guaranteed by state or organization is controlled by one or more federally-qualified health centers and meets solvency standards established by state for such organization.

Effective 10/1/98 except that provides 3-year transition period for organizations that already have Medicaid contract. HHS will establish standard, including model contracting guidelines with contractors and subcontractors, to protect against risk of insolvency for Managed care plans.

Managed care plans shall report financial information to states annually.

States are required to annually audit at least 1 percent of in-state managed care plans operating.

Beneficiaries are protected from debts of providers and managed care plans due to insolvency. U. Enforcement Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Enforcement Provisions State enforcement of state requirements except with respect to PSOs with a waiver and state standards preempted by federal standards (See also “Preemption”).

No provision for agreement with state to enforce state non-solvency standards.

Secretarial certification process to ensure that PSOs meet federal solvency standards.

Secretarial approval process for waiver applications (includes explicit requirement that organizations have applied for state licensure); waiver supersedes state licensing standards that would prohibit organization from contracting with MedicarePlus. Commerce committee also states that waiver shall not supersede state quality and non-solvency consumer protection laws if imposed uniformly and generally applicable to entities engaged in substantially similar business.⁷ Similar provision to House Budget Bill (Medicare).

Secretary to enter into agreement with states with respect to PSOs with a waiver to ensure enforcement of state law non-solvency requirements for PSOs with waiver.

Similar provision to House (Medicare) on certification of PSO solvency standards.

Secretarial approval process of waiver applications; waiver supersedes any state law that would prohibit organization from contracting with Medicare Choice except that non-solvency state licensing provisions shall apply.⁸ Joint federal-state, as under current law. States must establish intermediate sanctions to enforce requirements on managed care plans. Secretary also may provide for application of sanctions against non-complying Medicaid managed care plan. V. Preemption Of State Law Issue H.R. 2015–House Budget Bill
(Medicare) S. 947–Senate Budget Bill
(Medicare) H.R. 2015–House Budget Bill
(Medicaid) S. 947–Senate Budget Bill
(Medicaid) 1. Preemption Provisions States may establish or enforce more stringent requirements on plans⁹ (section 1852(n) of Commerce Committee mark only).

Federal solvency standards preempt state solvency standards for PSOs with a waiver (waiver criteria include state solvency standards that differ from federal standards, other evidence of state’s differential treatment of entities engaged in substantially similar business).

Does not preempt state non-solvency requirements for all MedicarePlus plans (including PSOs) if :

Commerce Committee: state standards are applied on a uniform basis and are generally applicable to other entities engaged in substantially similar business and that provides consumer protections in addition to, or more stringent than, those developed by the Secretary.

Ways and Means Committee: state standards are not inconsistent with MedicarePlus standards. Preempts state solvency standards for PSOs with a waiver.

Preempts state non-solvency standards to extent they are inconsistent with the federal non-solvency standards developed by Secretary. No provisions. No provisions. Return to top

Side-By-Side Comparison Of Proposed Federal Legislation For Consumer Protection In Managed Care Plans:

Side-By-Side Part One Part Two Part Three Part Four