Helaine I. Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in AIS Health, in “From RADV Audits to Utilization Concerns, Medicare Advantage Insurers Chart Uncertain Path,” by Lauren Flynn Kelly.
Following is an excerpt:
Since President Donald Trump’s return to the White House, CMS has been clear about its goals of rooting out fraud, waste and abuse. For Medicare Advantage organizations, that means an expansion of Risk Adjustment Data Validation (RADV) audits, which present operational burdens and potential financial implications for plans. But that’s just one key area of uncertainty that industry observers are watching in the second half of 2025. How can MA organizations keep calm and carry on?
All Eyes Are On October …
In the meantime, industry observers eagerly await Oct. 1, when plans begin marketing their products for the 2026 Annual Election Period (AEP), which runs from Oct. 15 through Dec. 7. …
“CMS has never required plans to market actively or to pay compensation, but we’ve seen over the last couple of years where plans are [pulling back] on paying commissions for certain types of products, and this year it seems it’s gotten a lot more widespread. So this is something CMS could speak to, either in rulemaking or just to say, ‘We don’t think this is a good idea’ and [suggest] voluntary compliance,” observes Helaine Fingold, member of the law firm Epstein Becker Green. “We’ll see what happens with 2026. It will be interesting to monitor, if we’re able to, what the impact is for those plans that have cut compensation and see where that enrollment goes. And that just gives CMS a little more reason to act on that.” …
Can CMS Meet Its RADV Audit Goals? …
In June, CMS notified 355 contracts of their selection for RADV audits to confirm the accuracy of medical records submitted for payment year 2019 through a review of sample enrollee data. That was after unveiling an aggressive plan to rapidly scale RADV audits, eventually expanding its annual audit capacity by more than 800% to cover approximately 550 MA contracts. To accomplish this, CMS said it intends to increase the number of medical coders, who manually review diagnoses that are at higher risk for overpayment, from 40 to approximately 2,000.
It is important to note that the 2018 audits mark the first year that CMS will apply its extrapolation methodology, which has been challenged in a lawsuit filed by Humana Inc. “If the sample meets certain standards and they extrapolate it to the [entire contract], it can be extremely significant depending on what they find in the sample,” says Fingold. Meanwhile, CMS’s plan to hire thousands of coders raises the question of how quickly the audits CMS intends to conduct can be completed. “CMS is only [starting to] look at the 2019 payment year and we haven’t closed the loop on previous payment years,” she points out.
Another potential unknown is whether the agency will revisit shelved plans to broaden the scope of marketing materials subject to review. That proposal, which was issued by CMS under former President Joe Biden, was one of several items excluded from the final 2026 MA and Part D rule released in April. Fingold says the proposal, which called for removing the so-called content standard, would not only be burdensome for plans and their third-party marketing partners but for the agency.
“The CMS oversight framework isn’t really structured for such a broad review, especially given the closure of multiple regional offices, so I think that’s something a lot of people are still monitoring,” she says. Meanwhile, plan sponsors are anxiously awaiting CMS’s proposed rule for the 2027 plan year, which could come out in November or December. Under new leadership, CMS “could use the ’27 rule to forge their own path…and decide how they want to approach what the Biden administration left on their plate,” remarks Fingold.
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