Review for Discrimination and Steering

10.5.3 – Review for Discrimination and Steering (Rev. 121, Issued: 04-22-16, Effective: 04-22-16, Implementation: 04-22-16) CMS reviews and approves MA PBPs based on statutes, regulations, and policy guidelines contained in this manual and other CMS instructions. Review is to ensure that: • An MAO provides Medicare-covered services that meet CMS guidelines under original Medicare; • An MAO is responsible for how its downstream entities present the MAO, the MA plan, and its benefits. If the downstream entity offers other items or services, not part of the MA PBP, then they must not reference the MA plan or in any way characterize such items or services as benefits covered or offered by the MA plan. • An MAO does not offer a cost-sharing structure or plan benefits that: o Condition eligibility for a supplemental benefit on utilization. For example, a plan may not condition the offering of a gym benefit based on an enrollee meeting minimal gym attendance requirements; o Promote discrimination; o Discourage enrollment; o Encourage disenrollment; o Steer specific subsets of Medicare beneficiaries to particular MA plans (with the exception of SNPs); o Inhibit access to services; and o Design cost-sharing differentials in such a way as to unduly limit choice or availability to the beneficiary. An MAO: o May not, for example, charge higher copays for all providers in the western portion of the county while charging lower co-payments for providers in the eastern portion of the county; o As indicated in section 50.1 below, must clearly disclose any tiered cost- sharing to its enrollees; and o May not design a plan with supplemental benefits that only appeal to healthier beneficiaries. o Benefit designs meet other MA program requirements. Note: Section 50.1 below contains general guidance on acceptable cost-sharing. The anti- discrimination prohibitions in this section apply to both original Medicare, mandatory supplemental, and optional supplemental benefits. An MAO must comply with all Federal laws and regulations designed to prevent or ameliorate fraud, waste, and abuse including, but not limited to, applicable provisions of the Federal criminal law, the False Claims Act (31 U.S.C. 3729 et seq.), the anti-kickback statute (section 1128B(b)) of the Act, and HIPAA administrative simplification rules at 45 CFR parts 160, 162 and 164.