Fighting Back Against Medicare Advantage SNF Denials: Part II

Last week I wrote about the ongoing issue of Medicare Advantage (MA) denials related to appropriate transfer to a skilled nursing facility (SNF) and the regulations regarding medical necessity for these transfers, as determined by Medicare. Note that I specifically used the words “as determined by Medicare” to remind you that Medicare has set the requirements for medical necessity, and they do not involve many of the metrics we often hear about in peer-to-peer conversations related to “how far the patient walked” or other internal criteria. That sounds great, but how do we put it in practice and hold them accountable to these rules?

Last month at the National Physician Advisor Conference, there were several talks on this subject, including Dr. Edward Hu’s amazing talk on dismissals. While his talk was more related to status determinations for hospitalized patients with MA coverage, the regulatory guidance applies to any adverse determination. Contracts aside, a beneficiary maintains appeal rights with the ability to have the determination reviewed by a Qualified Independent Contractor (QIC) if the determination is unfavorable. This appeal process lies outside the usual peer-to-peer “reconsiderations” to which we are accustomed. Maximus is the QIC contracted with the Centers for Medicare & Medicaid Services (CMS) to carry out these external reviews, and we have seen success in getting these denials overturned. But how do we get these denials in front of Maximus?

As mentioned, beneficiaries maintain appeal rights with access to the QIC when a determination is unfavorable. If a patient appeals an initial unfavorable decision and the plan issues a denial, the case is automatically sent overnight to Maximus for independent review. In our experience, if the patient meets the four requirements of medical necessity for SNF transfer that I discussed last week, Maximus overturns the adverse decision. We have had some success having the patient or their family appeal the initial adverse decision; however, there is also a way for the hospital/provider to appeal on behalf of the patient. Form SSA-1696, Claimant’s Appointment of Representative, allows the beneficiary/patient to designate a provider as a representative in the appeal process. When submitted appropriately to the MA plan, the patient’s appointed representative appeals on behalf of the patient, and the appeal is managed the same as if the patient had called and appealed themselves. Thus, an adverse determination by the MA plan results in an immediate escalation to the QIC. Because the QIC (Maximus) follows Medicare regulations regarding SNF medical necessity, the same four criteria that were discussed last week are used to decide – and as long as the patient meets those four criteria, SNF care is approved.

We have all struggled with prolonged discharge delays related to pending authorizations. While this has financial implications, more importantly, it increases the risk of patient harm. The longer our elderly patients remain hospitalized, the more likely they are to have hospital-acquired conditions such as falls, infections, mental status changes, increased weakness, constipation, and recovery delays. Acute-care hospitals are well-equipped to care for sick patients who require hospital care; however, they are not rehabilitation facilities. It is in the best interests of the patient to move to a lower level of care as soon as it is medically appropriate. Authorizations (or as Medicare terms them, determinations) come in two forms: standard and expedited. While regulations state that all determinations should be made as “expeditiously as the enrollee’s health condition requires,” standard determination must be made in no more than 14 days.

An expedited determination is appropriate when the standard time frame “could seriously jeopardize the life or health of the enrollee or ability to regain maximum function.” (2) 42 CFR 422.570 states that the request of an expedited determination can be made by the enrollee (patient) or a physician, and a coverage decision must be made within 72 hours of receiving the request. The request for an expedited determination can be made via either orally or in writing to the MA plan or other entity responsible for making the decision. There is a real risk of harm to patients who remain hospitalized despite no longer needing acute care, so it is my opinion that nearly every authorization for post-acute care qualifies for an expedited determination request. I have personally seen the harm caused to patients waiting for an authorization for post-acute care. Expedited determinations are medically necessary to reduce this harm. 

Likely in response to the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) report mentioned in my article from last week, CMS also updated guidance in the Managed Medicare Manual in August 2022. Additions to the Manual state that plans cannot use peer-to-peer conversations or other methods as a requirement to delay determination or solicit a lower level of service/alternative service. At one of my hospitals, we have stopped doing peer-to-peer conversations entirely. While that decision may not fit at every hospital, we found that the percentage of cases overturned via peer-to-peer discussion was extremely small, and seemed to serve as a delay tactic from the MA plans. We now get the denial at least a day sooner, and can start the patient appeal process with an expedited determination request.

One additional regulatory update doesn’t specifically fit nicely into this conversation, but I think it is critically important to mention, given the broad implications. While speaking at the National Physician Advisor Conference, I also asked the audience if anyone was aware of the National Coverage Determination (NCD) 240.2 update concerning qualification for home oxygen. I was extremely surprised when only one individual raised their hand. I believe the reason is that people assumed that the changes were related to the COVID-19 Public Health Emergency (PHE). As I’m sure you are aware, patients were previously required to have a “qualifying diagnosis” such as chronic obstructive lung disease or congestive heart failure to meet medical necessity criteria for home oxygen. This was in addition to verifying hypoxia via room air and exertional oxygen saturation measurements. CMS updated this NCD, and effective Jan. 3, 2023, presence of a qualifying diagnosis is no longer listed in the criteria. Patients must still meet room air and/or exertional hypoxia metrics to show medical necessity, but any patient can be sent home with either acute or chronic oxygen, without diagnosis restrictions. This is not a part of the PHE waivers, and did not expire on May 11. I suggest you discuss and review this with your respiratory therapist, case managers, and physicians.

Many of the above changes will require significant coordination across multiple service lines, so get ready to break down those silos. I recommend discussing denials with patients and their families. Let them know what is going on and explain the different options. Not unexpectedly, they are often unhappy about the denial of services and want to take an active part in the appeal process. If they prefer to assign you as a representative, use form 1696 and appeal on their behalf. Work to avoid unnecessary denials by actively reviewing cases for medical necessity. If you have a physician advisor who covers care management, have them review questionable cases prior to submitting for authorization. Don’t waste time and resources submitting for authorization that clearly don’t meet the four criteria discussed last week; however, aggressively fight denials for care that would be covered under traditional Medicare. Hold the MA plans accountable to ensure your patients get the care they need. I recommend you utilize the option for expedited determinations. If you do not submit the authorizations for SNF care “in house,” you will need to work with your SNF partners or consider taking on the authorization responsibilities. My opinion is that all patients waiting in the hospital qualify for an expedited determination, but meet with your teams and decide what is best for your institution, and then develop an implementation process.

CMS has been changing Manual language and developing further regulatory guidance to ensure that Medicare beneficiaries who choose Medicare Advantage receive equal benefits to traditional Medicare. However, I still do not see this happening without our intervention. Using the tools outlined above, we can continue to advocate for our patients and ensure that they get the care they need and benefits they deserve.

Programming note: Listen to Dr. Kartchner report this story live during Monitor Mondays with Chuck Buck, May 22, 10 Eastern.