Here is what I sent to CMS earlier this afternoon. . .
Since last night, I’ve gotten a better understanding of the fundamental issue in question and have had the opportunity to see where CMS is coming from on this issue. With this knowledge, perhaps I can give a more precise argument.
It is my understanding that in 2010, CMS is interpreting that the replacement of Original FFS Medicare and a Stand Alone Medicare Prescription Drug Plan (PDP) with a Medicare Advantage Plan (MA or MAPD) would be considered a “Not Like Plan” replacement and, therefore, entitling the broker to an “Initial” commission.
It is also my understanding that in 2009, CMS is interpreting the identical situation as “Renewal”. This is, of course, the opposite conclusion.
From what I have been about to gather, the reason we are coming to OPPOSITE conclusions originated from November 10th Interim Final Guidance (http://www.cms.hhs.gov/ManagedCareMarketing/Downloads/CMS-4138-IFC2_11-10-08_1119am.pdf) and was a result of the fact that CMS didn’t have the administrative capabilities at the time to communicate to the plans and, therefore, would be sending the list of members who were to be paid at initial commission rates “from time to time” during 2009.
Quoting directly from the Interim Final Guidance (page 4, I believe), “Several times in 2009, we will run a report identifying those beneficiaries enrolled in an MA plan or PDP who were enrolled in an MA plan or PDP who were newly entitled or enrolled from Original Medicare.” (emphasis added)
From this statement, CMS developed the “initial commission” report and it seems that there is some disagreement about what it means to be “enrolled from Original Medicare.”
If I am correct, you believe that someone who has Original Medicare is not being enrolled from Original Medicare if there is a PDP. Rather, you are arguing that they are not being “enrolled from Original Medicare”, but rather, they are being enrolled from the PDP. In fact, they are being enrolled from BOTH. I don’t think it’s a situation where it is solely one or the other, but both. So, they ARE being “enrolled from Original Medicare” and they ARE being enrolled from the PDP at the same time. I think it’s logical to say that both are true.
Assuming you agree that both are true, someone enrolling from Original Medicare would be enrolling from Original Medicare without regard to their prescription drug choice, or lack thereof.
However, assuming we MUST pick either one or the other and it CANNOT be both, it seems to me that it would make sense to choose the approach which is consistent with CMS’ 2010 interpretation and consistent with a fresh reading of the Federal Code of Regulations 422.2744(a)(3).
It seems that as each new interpretation came out, the interpretation of 422.2744(a)(3) got morphed into a conclusion that someone with Original Medicare is NOT being “enrolled from Original Medicare” if they have a drug plan. This conclusion, I believe, is totally inconsistent with 422.2744(a)(3) and this is the reason why you are arriving at two different answers (2009 versus 2010) to the same identical question.
Thank you again for the opportunity to express my thoughts as this definition of “enrolled from Original Medicare” will have an enormous impact on many people’s lives!