Scan Now Sues Over Clover Lawsuit And CMS Recalculations
A new lawsuit has been filed by non-profit Scan Health Plan. Scan argues that CMS inappropriately recalculated Star Rating for 2026 after the Clover Health decision. Clover received an exact calculation based on the judge’s ruling throwing out 20 measures based on two legal arguments (10 measures were not statutorily allowed and another 10 measures were not properly promulgated via regulation). However, CMS’ recalculation measure set adopted part of the ruling by throwing out some of the judge’s measures, while retaining others. As well, CMS removed some measures not even struck by the court.
Elevance Health was the first to sue, arguing it is entitled to a calculation based exactly on what the judge ruled for Clover on the 20 measures. Scan’s suit appears different. Scan argues the court should force CMS to remove the ten measures that CMS failed to promulgate by regulation. That meant two of Scan’s contracts received 4s instead of 4.5s, costing the plan $125M in 2027. Scan does not address whether it also wants some measures removed by CMS restored. If not, Scan’s argument is much like what I said in a recent blog was a “Clover Strict” reading of the judge’s ruling — not the “Clover Specific” measure ruling. Therefore, as I wrote (and is underscored in the Scan lawsuit), we have at least four potential ratings scenarios before us:
–“Original Measure Ratings” (45)
–“Clover Specific” ruling directing a recalculation based on the measures Clover sued on (25)
–“Clover Strict” reading of the lawsuit striking all but HEDIS, CAHPS and HOS along with those that failed notice and promulgation provisions (17)
–“CMS Recalculation” that was implemented by the agency for all contracts but Clover’s main one (27)
While the 25 and 27 counts look close, the actual measures are very different — just 17 measures are common between Clover Specific and CMS Recalculation.
This is getting interesting. To keep it all straight, I have created a tracker of possible measure scenarios from SY 2026 to SY 2029. I assume little chance of statutory and regulatory cure for SY 2026 through SY 2028 and eventually CMS or congressional fixes that keep in place the CMS restructure in SY 2029. It also assumes that new measures and removals hitting in SY 2027 through SY 2029 would be deemed regulatory sufficient, which is an open question. Scan goes in depth on how the Clover judge was right to say anything outside the actual regulation (e.g., Technical Notes and Announcements) do not pass regulatory muster. You can email me for the tracker via the website page under Contact.
My most recent blog explaining what is happening – written before the Scan suit but still on target: https://www.healthcarelabyrinth.com/more-clover-lawsuit-fallout-the-balkanization-of-star-ratings/
#cms #medicareadvantage #stars #quality
The Scan lawsuit: https://litigationtracker.law.georgetown.edu/wp-content/uploads/2026/07/SCAN-Health-Plan-v.-HHS_2026.07.08_COMPLAINT.pdf
