This commentary provides a legal analysis of the extent to which changes proposed by scholars to promote care for substance use disorder or other under-treated illnesses throughrisk adjustment could be implemented administratively, with-out legislation, in federal risk adjustment systems: Medicare's privatized component, Medicare's pharmaceutical component, and the individual and small group market. As the article explains, federal laws governing risk adjustment provide broad discretion to regulators and can reasonably be interpreted to permit (or in the case of Part C even compel) full and final implementation through the administrative process of almost all of the changes that scholars have proposed.
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Montz, supra note 6. A “bug” of using prescription drug data is that doing so might encourage prescriptions, but this may be a feature when it comes to under-treated illnesses.
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Cf. Minuteman Health Inc. v. Burwell, 191 F. Supp. 3d 174, 198-99 (D. Ma. 2018) (recognizing agency discretion to consider values other than actuarial risk); New Mexico Health Connections v. HHS, 2018 WL 1136901, *28 (D. N.M. 2018) (same).
