Response to 60-day Public Comments

Responses to Comments Received
Federal Register Notice on Revised CMS-10636:
Three-Year Network Adequacy Review for Medicare Advantage Organizations
CMS received five comments on the November 4, 2016, notice on the new proposed information
collection, Three-Year Network Adequacy Review for Medicare Advantage Organizations. The
commenters were UnitedHealthcare, UCare, Blue Cross Blue Shield Association, America’s
Health Insurance Plans, and Health Care Service Corporation. Some of the comments were
identical and others were distinctive. Several commenters recommended CMS give Medicare
Advantage organizations (MAOs) more notice before the network review. CMS agrees with
commenters that a longer time period between MAO notification and the Health Service
Delivery (HSD) upload deadline is necessary, and the Supporting Statement has been revised
accordingly. Another comment amongst several submitters asked CMS to be more transparent
and communicative with the industry during the implementation of this new process. CMS
agrees and intends to work in close collaboration with the industry.
Burden Estimates
Two commenters noted that CMS may have significantly underestimated the hour burden due to
the way CMS posed the questions and aggregated the results of the responses received. The
commenters felt that the median number of hours for each information collection instrument may
not be representative of the true effort.
CMS Response
CMS considered the feedback from MAOs concerning the methodology for estimating the hour
burden for HSD tables and Exception Requests, but after further review of our internal process,
CMS is confident in its estimation. Therefore, CMS has not revised the burden estimates as a
result of these comments.
Exception Requests
Three commenters discussed Exception Requests and made recommendations or asked
questions.
Two of the commenters proposed solutions to MAOs having to resubmit previously approved
Exception Requests. One recommended that CMS retain previous Exception Requests so that
MAOs do not have to repeatedly submit the same information. The other commenter
recommended that rather than require MAOs to upload and resubmit the approved Exception
Requests, the agency should consider implementing a more streamlined approach (e.g., a check
box) that would balance the effort to minimize administrative burden and limit duplication, with
the need to signal to CMS that an exception to the network adequacy criteria has previously been
approved. It was also requested that CMS streamline the process by utilizing the same Exception
Request template every year and by constructing the Exception Request to give MAOs the ability
to submit provider-specific information.

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The third commenter asked CMS to confirm whether it is true that MAOs will not be required to
submit new requests for previously approved exceptions during the three-year network reviews.
CMS Response
CMS believes that retaining previous Exception Requests or having MAOs simply check a box
to signal a previously approved Exception Request would not be appropriate. The MAO must
resubmit the request using the current Exception Request template. There is no guarantee that a
previously approved Exception Request is still necessary, given the continuously evolving
patterns of care and the dynamic nature of the health care market landscape.
With regard to the template, CMS has recently improved the format and does not anticipate
significant changes in the future. The new template does allow for a listing of provider-specific
information. CMS reiterates that organizations must resubmit all previously approved Exception
Requests using the current Exception Request template, which can be found both in HPMS and
in the Medicare Advantage Network Adequacy Criteria Guidance, located at:
https://www.cms.gov/Medicare/MedicareAdvantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_
Document_1-10-17.pdf.
CMS has revised the Supporting Statement to include the above Exception Request clarifications
and has replaced the information collection instrument ‘Exception Request Template’ (section
12.3.3) with the current version. CMS has also revised and combined the information collection
instructions “Notice of Entire Network Review” Initial and Standard Letters into one HSD
upload request letter (section 12.6.2).
Compliance Actions for Network Deficiencies
Two commenters inquired about potential CMS compliance actions for any discovered MAO
network deficiencies. They recommended that CMS elaborate on: (1) the linkage between
network deficiencies and subsequent compliance actions; (2) the possibility of an opportunity to
respond to any finding before it is finalized; (3) the process for MAO appeal; (4) the compliance
continuum; (5) the consideration to be given to contracting efforts to come into network
compliance; and (6) the fair and appropriate application of enforcement actions.
CMS Response
As part of CMS’s network reviews, MAOs receive initial findings and have the opportunity to
request exceptions to address findings, prior to CMS making final determinations. Once CMS
makes final determinations, CMS may, as with any deficiency identified, take compliance
actions. The level of compliance action will be based on a number of factors, including the
number of deficiencies, types of deficiencies, how long the deficiency has existed, and any
extenuating circumstances, which may include contracting efforts. For more serious infractions,
CMS may impose an enforcement action (e.g., sanction). The CMS regulatory appeals processes
may be found in 42 CFR 422.

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Timeframes
Several commenters requested that CMS send out the HSD upload request letters earlier, giving
MAOs as much advance notice as possible of their qualification for a network review. Some
commenters requested at least 60 days (or preferably 90 days) to prepare and test networks
before the Network Management Module (NMM) gates open for uploading HSD tables. One
commenter asked that CMS not require completion of the review until after the application
season, and another alternatively recommended establishing a static due date for the upload.
CMS Response
CMS agrees that more preparation time (i.e., than the 30 days initially proposed) is appropriate
and has revised the Supporting Statement to say that CMS will issue HSD upload request letters
to MAOs at least 60 days in advance of the required upload of current HSD tables. CMS has
also revised and combined the information collection instructions “Notice of Entire Network
Review” Initial and Standard Letters into one HSD upload request letter (section 12.6.2).
Transparency/Communication with Industry
Several commenters expressed concerns regarding CMS transparency and communication with
the industry during the rollout of the three-year network adequacy review. The commenters
recommended that CMS provide additional information regarding the actual timing of the initial
comprehensive reviews and produce continuing guidance in a transparent manner throughout the
implementation process. It was also recommended that CMS work in close and ongoing
collaboration with MAOs in a transparent manner and take a flexible approach to initial
implementation of the new process.
CMS Response
CMS appreciates these concerns and agrees that detailed guidance and transparency are key to
the success of the three-year network adequacy reviews. CMS will communicate to the industry
additional information on the exact timing of the reviews as soon as dates are determined.
Ongoing technical assistance will also be provided as needed throughout the review process.
CMS intends to work closely and transparently with MAOs.
Provider Exclusivity Contracts
One commenter requested that CMS consider approving exceptions for providers/facilities that
contract exclusively with another MAO.
CMS Response
Since the initial publication of the Supporting Statement, CMS has added this consideration to its
examples of valid rationales for exceptions in section 5.3.2 of the Medicare Advantage Network
Adequacy Criteria Guidance, located at https://www.cms.gov/Medicare/MedicareAdvantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_
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Document_1-10-17.pdf. Note that CMS has not revised the Supporting Statement as a result of
this comment. CMS references this guidance document in the Supporting Statement.
Original Medicare Pattern of Care
One commenter recommended that CMS remove the language “equal to or better than the
prevailing original Medicare pattern of care” and instead use the language from 42 CFR
422.112(a)(10), which states that when CMS is evaluating MA networks, CMS must consider
prevailing patterns of community health care delivery.
CMS Response
Since the initial publication of the Supporting Statement, CMS has clarified its guidance by
stating that in evaluating an exception, CMS will consider whether there are “other factors”
present, in accordance with 42 CFR 422.112(a)(10)(v), including: (1) the proposed exception
reflects access that is consistent with or better than the original Medicare pattern of care, and (2)
the proposed exception is in the best interests of beneficiaries. 42 CFR 422.112(a)(10)(v) states,
“Factors making up community patterns of health care delivery that CMS will use as a
benchmark in evaluating a proposed MA plan health care delivery network include...Other
factors that CMS determines are relevant in setting a standard for an acceptable health care
delivery network in a particular service area.” In its updated guidance, CMS has articulated the
“other factors” it has determined to be relevant, which include “the proposed exception reflects
access that is consistent with or better than the original Medicare pattern of care.” Therefore,
CMS will not change its policy as a result of this comment. We have determined that the
original Medicare pattern of care is a critical consideration when evaluating community patterns
of health care delivery. An MA enrollee in a particular service area must have access that is
consistent with or better than an original Medicare beneficiary’s access in the same geographic
area, because it is the nature of MA plans to provide health care services that are often an
advanced alternative to original Medicare. Thus, an MA provider network should not be of
lower quality than the provider options in original Medicare.
For more details, please refer to section 5 of the Medicare Advantage Network Adequacy
Criteria Guidance, located at: https://www.cms.gov/Medicare/MedicareAdvantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_
Document_1-10-17.pdf. Note that CMS has not revised the Supporting Statement as a result of
this comment. CMS references this guidance document in the Supporting Statement.
HPMS Report
One commenter requested that CMS make the “Contract Anniversary Date” reports
downloadable from HPMS, which would ensure that MAOs are prepared with their HSD tables
and Exception Requests.
CMS Response

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CMS anticipates making an organization-specific version of this report available in HPMS. The
report will list when the next network submission is due. An MAO could reference the report at
any time and see data for contracts affiliated with their user ID, in order to tell when each
contract is due for its next three-year network review. CMS has revised the Supporting
Statement to include these details about the HPMS report.
Full Network Review in Application
One commenter recommended that CMS eliminate the full contract-level review from the
Service Area Expansion (SAE) application process.
CMS Response
CMS plans to review Medicare Advantage provider and facility networks under this collection,
at a minimum every three years or possibly sooner if there is a network review triggering event,
rather than our previous process of reviewing networks at the time of application. Our goal is to
make this change beginning with CY 2019 applications, pending OMB approval of this proposed
information collection. If this information collection is approved by OMB, then the network
review would be removed from the application process. CMS has revised the Supporting
Statement to include these details.
Cost to Federal Government
One commenter noted that CMS may not be properly estimating the cost to the federal
government, such as work hours and staff needed, which might potentially result in process
delays and quality issues.
CMS Response
As CMS makes the procedural change to move the network review out of the MA application
and into this three-year review, we are shifting the annualized cost to the federal government
from the information collection entitled Applications for Part C Medicare Advantage, 1876 Cost
Plans, and Employer Group Waiver Plans to Provide Part C Benefits (OMB control number:
0938-0935), to this New information collection request. CMS has revised the Supporting
Statement to include these costs to the federal government.
Network Submission Criteria
One commenter requested that CMS provide MAOs with as much detailed submission criteria as
possible.
CMS Response
Since the initial publication of the Supporting Statement, CMS has consolidated and significantly
enhanced all guidance, including detailed submission criteria, in the Medicare Advantage
Network Adequacy Criteria Guidance, located at: https://www.cms.gov/Medicare/Medicare5

Advantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_
Document_1-10-17.pdf. For specific information on HSD table upload instructions, please refer
to sections 4, 10.4, 11, and 12 of the guidance document. CMS has replaced the information
collection instructions/guidance ‘HSD Instructions’ (section 12.6.1) and the information
collection instruments ‘Provider HSD Table’ (section 12.3.1) and ‘Facility HSD Table’ (section
12.3.2) with the current versions.
Phase-In for Large MAOs
One commenter requested that CMS consider phasing in the three-year network adequacy review
for large MAOs with many contracts.
CMS Response
CMS understands the concern regarding this new requirement for large MAOs with many
contracts. However, all MAOs must be held to the same standards in order to maintain a level
playing field. In addition, it is CMS’s expectation that all MAOs continuously monitor their
networks to ensure compliance with the current CMS network adequacy criteria. The network
adequacy review process is not new, and a phase-in is not necessary so long as large MAOs are
practicing the continuous monitoring CMS expects.
Partial Counties
One commenter requested that CMS indicate whether adequacy will be measured at the zip code
level or globally, regarding partial counties.
CMS Response
If an MAO with partial counties fails the network adequacy criteria in a certain area, then the
MAO may submit an Exception Request. Exception Requests are submitted at the county level
as network adequacy is assessed at the county level for each contract.
Triggering Events
One commenter requested that CMS provide more details about the criteria used for determining
when a triggering event warrants a full network review.
CMS Response
As described in the Medicare Advantage Network Adequacy Criteria Guidance, the extent of the
CMS network review varies based on the specific circumstances of the triggering event. Some
events may warrant a partial network review if only certain specialty types and/or counties are
impacted, however, CMS makes this determination on a case-by-case basis. CMS has revised
the Supporting Statement to include these details.

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Coordination of Audits/Monitoring
One commenter noted that there is a need for greater coordination of MA and Part D audits and
monitoring efforts to increase efficiency, reduce redundancy, and minimize administrative
burdens.
CMS Response
CMS understands the importance of coordination and will strive to increase efficiency, reduce
redundancy, and minimize administrative burdens whenever possible.
Exception Process Improvements
One commenter recommended that, prior to finalizing its proposal on three-year network
adequacy reviews, CMS work with the industry to develop improvements to the current
exceptions criteria and process.
CMS Response
Since the initial publication of the Supporting Statement, CMS has consolidated and significantly
enhanced all guidance, including the exceptions guidance, in the Medicare Advantage Network
Adequacy Criteria Guidance, located at: https://www.cms.gov/Medicare/MedicareAdvantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_
Document_1-10-17.pdf. CMS has significantly improved the exceptions criteria and process
based on lessons learned with the industry during the CY 2017 application cycle and appeals
process. CMS has replaced the information collection instrument ‘Exception Request Template’
(section 12.3.3) with the current version.
Approved Exceptions
One commenter recommended that CMS implement a process to make available to all MAOs in
a given service area, information regarding all approved Exception Requests for certain provider
types in the service area, in an effort to increase transparency and consistency in the application
and review process.
CMS Response
CMS notes that this information is already available to the industry in the current HSD
Reference File, on the ‘Criteria Changes’ tab, which includes county/specialty instances where
criteria has changed between the CY 2016 and CY 2017 application cycles. These criteria
changes resulted from approved Exception Requests during the CY 2017 application cycle.
CMS will update this information every year in the HSD Reference File, which is located at:
https://www.cms.gov/Medicare/Medicare-Advantage/MedicareAdvantageApps/index.html.
Significant Network Changes

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One commenter recommended that CMS further clarify and refine the definition of “significant”
network changes, for example, by providing guidelines and/or criteria organizations may use to
make accurate and appropriate determinations.
CMS Response
CMS recognizes the industry’s concern regarding defining “significant” network changes. CMS
believes that the guidance currently provided in chapter 4 of the Medicare Managed Care Manual
is sufficient. CMS also reiterates the fact that every network change is different and must be
assessed on a case-by-case basis.

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