Medicare Advantage plans intent on skirting new rules, providers fear

Aging services providers are increasingly concerned that powerful Medicare Advantage plans will not fall into line under new federal rules, which were once seen as the possible beginning of a tide change for beneficiary rights.

Changes to Medicare Advantage slated to kick in Jan. 1 were designed to ensure plans extend their enrollees the same benefits and coverage as available to traditional Medicare beneficiaries. Specific revisions outline how MA plans could make coverage determinations, limit their use of denials and prior authorization, and place new limits on the use of digital technologies in deciding when covered care ends.

Based on mounting concerns from their members and patients covered under MA plans, five provider organizations joined with the consumer-oriented Center for Medicare Advocacy to demand that the Centers for Medicare & Medicaid Services issue specific subregulatory guidance to ensure plans can be forced to comply with the 2024 updates.

“More detailed guidance will ensure improved access to care for Medicare beneficiaries and clarity for providers,” representatives from the American Health Care Association, Leading Age and three other post-acute groups wrote in a Nov. 29 letter.  “At present, our provider members are hearing from MA plans that they don’t believe they need to do anything different based upon the final rule. This would suggest the intent of the rule is not yet clear regarding plan compliance obligations.”

The letter outlined issues they “anticipate will be encountered with the final rule implementation” and made a series of recommendations that they said would improve customer service and care for patients in post-acute care settings.

The letter follows an American Hospital Association letter to the CMS Medicare director alleging that MA insurers have told health systems they would not be changing policies to comply with the new rules. The association urged careful oversight to monitor for compliance and take response to any violations.

Circumventing rules’ intent

One plan issued guidance to its network providers indicating that it would continue using internal criteria beyond the traditional Medicare criteria to evaluate inpatient admissions, the AHA noted. The association also alleged some plans are making changes to the terminology they use in denial letters, a move that could be “intended to circumvent recent CMS rulemaking.”

“We are deeply concerned that these practices will result in the maintenance of the status quo … proliferating the very behavior that CMS sought to address,” wrote Ashley Thompson, senior vice president of public policy analysis and development for AHA.

On the post-acute side, provider groups want CMS to tell plans exactly what they need to include in making their coverage determinations including CMS transmittals; the CMS manuals produced for each setting; the Jimmo vs. Sebelius ruling that found patients can be entitled to additional care even if they don’t show “improvement”; and facility assessments.

Among the assessment concerns, the provider groups said, is the fact that “MA plans are increasingly pressuring SNFs to down code the MDS level in violation of federal MDS documentation and coding requirements.”

“Plans are telling SNFs that they will not pay for the level of care identified by the in-person assessment and that the SNF should only submit a claim for reimbursement at a lower level of care it designates,” they wrote. “In other words, the plans are disregarding the outcome of Medicare-required assessments and forcing providers to accept a lower payment for these services or receive no payment at all. Requiring providers to submit inaccurate medical necessity information so plans can reduce the provider payment or threatening the provider with non-payment if the provider files a claim based on assessed levels constitutes fraud and should not be tolerated.”

Defiantly replacing human judgment

That letter also called on CMS to stop MA plans from overriding a physician’s determination of medical necessity. That was a topic of major concern for Congress earlier this year.

While the CMS effort to rein in plans’ questionable prior authorization and claim denial practices largely has been seen as a win for patients and providers, Celtic Consulting President and CEO Maureen McCarthy warns that nursing home staff will have to fight to ensure the revisions translate into changes for patients.

“The problem with the changes to the rule was there was no penalty that was imposed for the Medicare Advantage folks. When we have a final rule, the penalty will be non-payment, the penalty will be something getting denied,” McCarthy said during a Medicare Advantage webinar she hosted for the American Association of Post-Acute Care Nursing. “Now we have some rules in place, but I think we’re going to have to police a little bit to make sure Medicare Advantage is following the rules.”

Keeping patients where they will receive the most appropriate care, according to their physician’s assessment, is a major concern for the post-acute sector. The rationale that patients could be cared for in less intensive settings, despite physician notes saying otherwise, “violates plan rules and runs counter to the patients’ clinical needs, plans nonetheless continue to issue these types of inappropriate denials. It is therefore imperative that CMS issues sub-regulatory guidance that makes clear that the physician’s referral should be given deference and engages in enhanced oversight regarding plan authorizations and rationales.”

The letter also asked CMS to force plans to issue more detailed denial letters and place more specific prohibitions and limitations on the use of  artificial intelligence to determine whether care and services will be covered and the duration of that care received.

KIMBERLY MARSELAS. (2023, December 1). Medicare Advantage plans intent on skirting new rules, providers fear. Retrieved from