Leveling the Playing Field: Medicare Advantage vs. Providers

Overcoming the Medicare Advantage bullies.

It is a well-known fact that denials are increasing exponentially. The commercial payers, especially the Medicare Advantage Organizations (MAO), have been changing the rules, the situations, and criteria they use to their benefit.  

This is causing providers to create and/or modify their denials management programs to meet the needs for financial survival resulting in increasing efforts, time, and cost. There is a multi-factorial etiology, and this is a short list of some of the top reasons involved:

  • More egregious payer denials
  • Provider process challenges
  • Provider technical information challenges
  • Information received from provider and/or acquired by payer
  • Combination of all

As a baseline, many financial components of healthcare facilities believe that the solution to dealing with denials is accomplished by having a strong CDI program. While this is mostly correct, it must be realized that denials prevention must come from a strong clinical revenue cycle program of which clinical documentation integrity (CDI) plays an important, but not a solitary role. Denials can commonly be divided into two categories of causes:

  • Technical denials
  • Provider process challenges

These two categories are not mutually exclusive in that, not only do many of the causes of denials come from the provider, but there are deficiencies and reasons on the payer side as well. Based on experience with denials and peer-to-peers, physicians and their documentation plays a significant role in denials but not a solitary role, similar to CDI programs as mentioned above. Understanding this concept is of critical importance in developing a program of prevention of denials as opposed to correction of denials.

There seems to be a strong understanding of what are the perceived weaknesses in the process on the provider side, yet when dealing in denials management programs one must understand the weaknesses on the payer side, but they tend to hold the “trump” card. For example, medical directors may not have all the pertinent clinical information due to what is provided to them by their case managers, what is provided by the provider, and, of course, poor physician documentation. Also, payers use their own modification of the non-physician criteria that is used by provider utilization review, resulting in discrepancies.

Payers will not typically divulge their “proprietary criteria.” Beyond these commercial criteria, there are also regulations that exist providing guidance for approval of inpatient, but many medical directors do not know of them. When it comes to appealing denials peer-to-peers have the best chance of overturning a denial than a written appeal. That is why it is critically important that peer-to-peers not be done by non-physicians and attending physicians.

This is not a statement diminishing the efforts of these groups but not all hospitals and doctors have the time or the will or the understanding of the innuendos of appealing a denial to do these reviews. The best results tend to be by a physician knowledgeable of all specialties, federal regulations, and payer contracts.

The key to a successful denials management program is working on prevention more than correction. This can be accomplished by having a compliant process in your clinical revenue cycle, especially utilization review to support the acuity of an inpatient and focusing on the correctable technical aspects of patient admission.

Even though providers should work towards correction, denials will still occur. For the appeal, start with the peer to peer when one can. When a peer to peer cannot be overturned with additional clinical information, here is some regulatory guidance to aid in the appeal, especially with the MAO.

With the implementation of the CMS Two-midnight rule in fiscal year 2014 physician advisors and others across the country have debated its role and applicability to the Medicare Advantage beneficiaries. The question often posed is do Medicare Advantage plans have to follow this rule?

Quite simply, the answer to that question is “no.” There is no rule that explicitly states that insurers must follow the Two-midnight rule. But hold on because, more importantly, that is really the wrong question and perpetuates that ever-growing lack of reimbursement.

The more effective and relevant question is why does CMS prohibit insurers from being more restrictive or provide less benefits than traditional Medicare? In fact, title 42 of the code of federal regulations, part 422 at section 101, directs Medicare Advantage plans that, although they do not need to implement Medicare specific policies such as the Two-midnight rule they cannot be more restrictive than original Medicare fee for service. 

What does that mean? Medicare Advantage plans cannot have more restrictive guidelines than Medicare. They must, at the very least, adhere to the simplistic confines of traditional Medicare which include the traditional Medicare definition of observation and the definition of inpatient which just so happens to align with a standard Two-midnight rule approach. To resist Medicare Advantage bullies, hospitals should follow CMS requirements to hold them to a standard that is not less than Medicare.

Medicare Advantage beneficiaries should have the same if not better benefits than traditional Medicare.It is clearly stated in the Social Security Act 1852, the code of federal regulations, and reports issued by the U.S. Department of Health and Human Services (HHS) the Office of Inspector General (OIG), as recent as September 2018, to name just a few, that a Medicare Advantage plan cannot take advantage of, cannot lessen, cannot manipulate a Medicare beneficiaries’ benefits.

In summary, denials management programs are facing increasing and changing challenges daily. Providers must look more towards prevention of denials by instituting strong technical and compliant practices.

Yet, when faced with a denial, don’t just roll over and say “uncle!”

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John Zelem, MD, FACS

John Zelem, MD, is principal owner and chief executive officer of Streamline Solutions Consulting, Inc. providing technology-enabled, expert physician advisor services. A board-certified general surgeon with more than 26 years of clinical experience, Dr. Zelem managed quality assessment and improvement as a former executive medical director in the past. He developed expertise in compliance, contracts and regulations, utilization review, case management, client relations, physician advisor programs, and physician education. Dr. Zelem is a member of the RACmonitor editorial board.

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