Are Medicare Advantage Plans Flaunting CMS Rules?

CMS is eliciting comments on MA plans abusing basic Medicare benefits.

EDITOR’S NOTE: Patients and healthcare providers can present their personal experiences, devoid of personal health information (PHI), on CMS-4201-P. The comment period extends to Feb. 13, 2023. Comments may be made here.

The Centers for Medicare & Medicaid Services (CMS) created Medicare Advantage (MA) plans to unload Medicare’s administrative costs and potentially encourage cost-effective delivery of care. The vast majority of U.S. government agencies run a deficit. How can MA plans produce billions in quarterly profits on government rates?

While always claiming to make determinations that don’t affect care decisions, MA plans do make determinations denying Medicare beneficiaries their basic care and “inappropriately interpret Medicare’s policy.” Such actions should be treated as fraud, and based on their continued, constant application, they can be interpreted as intentional and systematic. Hospitals have had to pay significant fines on extrapolated determinations. A recent U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) review highlighted this abuse by MA plans. CMS, under OIG prompting, has decided to remove any ambiguity in policies or guidelines by issuing a ruling. This ruling will be legally binding in 2024.

For years, working as a physician advisor, I’ve heard that hospital systems bear the blame for contracting away their power to determine care. The MA plans’ contracts aren’t widely disseminated for review, and we allow their agents to “interpret them in their favor.” Not negotiable, the contract still guarantees that MA plans have to provide basic benefits to Medicare beneficiaries. MA plans’ “provider handbooks” do not trump Medicare policy. Regrettably, contracts pay lip service to utilization review, which will ultimately determine the success of a contract, as contract terms are too attractively lucrative.

CMS has started to hear from disgruntled patients and physicians how manipulative MA plans are. MA plans expect the appeal process to be so convoluted and expensive that most people won’t see the reward in appealing small sums. However, these small sums, for now associated with 30 percent of the Medicare-eligible population, equates to billions of dollars overall.

MA plans claim that they are allowed to have never-ending periods of observation. Some claim that 48-72 hours is reasonable. In my opinion, observation should be limited to the time to identify a patient’s problem and define their treatment plan. MA plans further manipulate CMS definitions, which are based on severity of illness, risk of adverse events, and intensity of care, to use private companies’ guidelines and their own proprietary guidelines, which are not available nor disclosed on request. Even in patients meeting needs at presentation, MA plans will try to argue intensity of care after 48 hours. Really? Shouldn’t the right care lead to improvement?

Listening to a recent Association for Healthcare Denial and Appeal Management (AHDAM) webinar, I was feeling the need to reinforce our need to speak up and be heard. CMS is currently eliciting comments on MA plans abusing basic Medicare benefits. Patients and healthcare providers can present their personal experiences, devoid of PHI, on CMS-4201-P.

As lawyers make their livings in “interpreting nuances,” we should advocate for simple, clear rules (your list may be different):

  • A physician’s acumen should remain superior to any private entity’s guidelines, which can only be used to determine care for services exceeding Medicare, not to determine status at presentation;
  • Patients require inpatient status after two midnights of medically necessary care;
  • Medicare’s inpatient-only list is non-negotiable;
  • MA plans cannot deny retroactively if care is approved and obtained concurrently or through prior authorization;
  • Denials of preauthorization for administrative reasons are immediately available for reconsideration if information defects are revised;
  • Respective audits of a particular case can be done once, and only within a year of the date of service;
  • Denials must have an explicit basis, defined in writing, with an identified physician reviewer;
  • MA plans are responsible for timely placement of their clients in an appropriate level of care, not the facility;
  • Denial of basic benefits defined by the facility allows hospitals to appeal beyond the insurer; and
  • MA plans should be legally responsible for denials of payment which could be interpreted by a lay person as a denial of care as they may not seek timely care due to fiscal constraints.

We should help our patients receive their benefits and help them appeal. If necessary, we should encourage them to call 1-800-Medicare to complain that “I signed up for a MA plan expecting the same benefits as Medicare. But I’m getting less!”

Regardless of these issues’ resolution, one can expect MA plans to revise their approaches to maintain their profits. We still need to fix our own ship by improving documentation by “painting the picture, thinking in ink, and avoiding note bloat,” improving transitions of care, and striving to optimize efficiencies, especially by deferring elective outpatient interventions to the outpatient setting.

Healthcare requires our constant attention and continuous involvement and improvement to secure “the right patient, the right status, and the right care.”

“Speak up now and light the candle, or forever curse the darkness.”  


Andrew Markiewitz MD, MBA-Healthcare

Andrew D. Markiewitz, MD, MBA has transitioned from being an orthopaedic hand surgeon to a hospital system physician advisor team member. In the process, he has learned the new world of business that used to be unobserved and behind-the-scenes from most healthcare providers and has realized that “understanding the why” and teaching the reason why will empower any CDI initiatives.

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