A Suggestion for Addressing Medicare Advantage Plans that Refuse to Do What They’re Told

When I was a teenager, my father established the rules of the house. He sometimes referred to them as “guidance” or “clarifications.”

One day he said to me, “Let me make one thing clear: you are not to go anywhere until you cut the grass.” Later, I was talking to my friends, and I told them not to worry. “I will make it to track practice,” I said, “because after all, that is a requirement from my school and my track coach.” As I was walking out the door with my Puma track spikes slung over my shoulder, my father stopped me and said “What part of ‘you are not to go anywhere until you cut the grass’ did you not understand?”

In its Final Rule, issued on April 5 of this year, the Centers for Medicare & Medicaid Services (CMS) stated specifically that Medicare Advantage (MA) plans must follow the Two-Midnight Rule and the Inpatient-Only Procedure List.

Let me quote the CMS Final Rule directly:

“…an MA plan must provide coverage, by furnishing, arranging for, or paying for an inpatient admission when, based on consideration of complex medical factors documented in the medical record, the admitting physician expects the patient to require hospital care that crosses two midnights.”

CMS went on to describe that there can be case-by-case exceptions when the patient isn’t expected to stay two midnights (but can be, nonetheless, an inpatient). And, of course, there are procedures on the Inpatient-Only List wherein the patient status is not in question (because, you know, it’s called the Inpatient-Only List for a reason).

These seem to be pretty clear instructions for the MA plans. You would think that any typical managed care payor would take those instructions and go back to the drawing board to try to figure out a clever way around this rather precise instruction. Like, carving out days during a short stay with the claim that the patient didn’t “require hospital care.” I mean, I’d bet they feel that they can just make up a definition for what is “required hospital care.”

Now, they are probably doing this, but they are also trying my old teenager strategy for getting out of chores. It has been widely reported on the RAC Relief chat group that MA medical directors are stating that they have no intention of following the Two-Midnight Rule and that CMS guidance doesn’t pertain to them (although the rule directly states “an MA plan must”) because, they say, “our coverage rules are included in our contractual agreement with our individual hospitals.”

Wow, what hubris. To receive a very public, very specific instruction from CMS – and to say that they will not follow it.

I have read many Medicare Advantage contracts, and I can honestly say that I have never seen the words Milliman (or MCG) or InterQual in a single one of those contracts. What I have seen is wording that the provider will follow the utilization guidelines as specified in the Provider Manual. If, in your Provider Manual, your standards for determining inpatient status for Medicare beneficiaries says anything other than you will “provide coverage, by furnishing, arranging for, or paying for an inpatient admission when, based on consideration of complex medical factors documented in the medical record, the admitting physician expects the patient to require hospital care that crosses two midnights,” I suggest that you look into making a change right away.

The hospitals’ contracts with MA plans do not have to be revised at all. MA plans have been notified by CMS that they must change their utilization and coverage policies for Medicare beneficiaries.

I was at an HFMA conference once, and an acknowledged expert on this issue was delivering a presentation. When asked what hospitals can do when told that MA plans do not intend to follow the instructions of CMS regarding the Two-Midnight Rule or the Inpatient-Only Procedure list, the speaker stated, “When you receive denials that violate the two-midnight standard, you need to report them to CMS immediately!”

I say that may not be the best strategy. I would recommend that if you discuss this issue with the medical director of the MA plan and he or she tells you that they have no intention of following the CMS-required Two-Midnight Rule (because of, you know, “contracts”), you should make sure that the call and the discussion are well-documented. You need the name of the medical director and the MA plan for which he or she works. And you should contact CMS and report the details of your discussion. And report every similar discussion that you have with an MA plan to your hospital association and your regional CMS office.

Hopefully, we will get a forceful response from CMS before experiencing improper denials for inpatient status after Jan. 1, and we have to fight to get our money back.  I wish my father was still with us. He would explain to CMS how to say: “What part of ‘an MA plan must provide coverage, by furnishing, arranging for, or paying for an inpatient admission when, based on consideration of complex medical factors documented in the medical record, the admitting physician expects the patient to require hospital care that crosses two midnights’ do you not understand?”