Commercial Criteria Can Be Used by MA if…

Have you heard that the Medicare Advantage (MA) plans are required to follow the provisions of the Two-Midnight Rule, as of Jan. 1? Well, they are. And what you also commonly hear is that these plans can no longer use commercial criteria like MCG or InterQual to make coverage determinations.

But that last part’s not true.

Quoting from the Final Rule, the Centers for Medicare & Medicaid Services (CMS) states, “when coverage criteria are not fully established in applicable Medicare statute, regulation, NCD (National Coverage Determination) or LCD (Local Coverage Determination), MA plans may create internal coverage criteria under specific circumstances. In these circumstances, an MA plan is permitted to choose to use a product, such as InterQual or MCG or something similar, to assist in creating internal coverage criteria…”

While CMS has established the Two-Midnight Rule, it is obvious that its application is not the same as application of an NCD or LCD that has specific, quantifiable criteria, such as documented non-reversible bradycardia, one of the criteria necessary for coverage of a pacemaker. And that is where commercial criteria can be used to help determine if a patient has medical necessity for ongoing hospital care.

That is really the issue: does the patient require hospital care, and if so, how long will they need it (or how long have they needed it?) Of course, there will always be cases that don’t fit within criteria, and it’s the crucial role of the physician advisor to review those and determine the need for hospital care. It is said that “if you have seen one patient, you have seen one patient,” so the physician advisor can take each patient’s unique characteristics and combination of factors and the criteria (which are more rigid), and determine if the physician’s expectation of two midnights is clinically appropriate.

Now, what must the MA plan do to be permitted to use these tools? The rule states that “the MA plan must provide, in a publicly accessible way, the internal coverage criteria in use; a summary of evidence that was considered during the development of the internal coverage criteria used to make medical necessity determinations; a list of the sources of such evidence; and an explanation of the rationale that supports the adoption of the coverage criteria used to make a medical necessity determination.”

That’s a pretty high hurdle, but I know that Humana has met it with the use of MCG’s new Medicare criteria tool, which they adapted to Humana’s Criteria for Medicare Patients. Their tool allows public access, has the evidence base listed to support their criteria, and even includes a statement that inpatient admission is indicated if the patient requires hospital care that would pass the second midnight, exclusive of delays and convenience, or if any of the CMS-designated exceptions are met. This meets Medicare’s requirements and meets the provisions of the Two-Midnight Rule.

Now, since one MA plan can do it, the others certainly can. I did some Internet searching and found no such tool for any of the other national MA plans, although my search should be considered far from authoritative.

Humana’s use of MCG criteria means I probably should amend my recommendation when an MA plan denies inpatient admission for a patient who meets the Two-Midnight Rule and refers to criteria by suggesting you ask for access to the publicly available copy of those criteria. If they are unwilling or unable to provide it, I suggest that you notify them that you will be reporting them to CMS for violating another federal regulation, 42 CFR 422.101 (6)(ii).

One more unrelated topic to round out this article, just to get everyone fired up: Cotiviti has a new audit tactic. They are looking at a patient’s lifetime claim history and denying diagnoses that don’t fit their arbitrary rules for linking diagnoses. For example, they denied a diagnosis of encephalopathy on a claim for a patient with seizure disorder, since encephalopathy would be inherent to a seizure.

The problem is that this determination was made without any review of the medical records to know if the patient even had a seizure during the episode of care, to determine if the encephalopathy was caused by the seizure (in which case they would be correct), or if the patient’s encephalopathy was due to one of the other myriad of causes that had nothing to do with the patient’s seizure disorder.  

They call this a “cross-claim clinical review.” But what it really creates is another unethical way for payers to deny payment to providers that leads to more unreimbursed work by providers to fight these denials. I doubt that the payer, or Cotiviti, will reverse such a denial with a simple note reading “in this instance, as in every other instance, our coders followed coding guidelines and included the diagnosis of encephalopathy because the diagnosis was valid and the patient’s encephalopathy was not inherent to their seizure disorder.” Instead, the provider will likely need to go through the payer’s formal appeal process, at significant cost and effort, in order to get a reversal of the denial. This is just more unreimbursed work based on activities by a contingency-based contractor that should not be allowed to interfere with the payer-provider relationship in such a way.