Medicare Advantage Complaints that the Plans Don’t Want – And the Review of Systems that Wasn’t Done

Last week was the National Physician Advisor Conference, and I want to thank all of those who stopped me and noted how useful they find Monitor Monday and RACmonitor news for keeping up on the latest regulatory news. I also hoped you enjoyed the conference as much as I did. It was three and a half days full of informative talks from many of the best physician advisors, case managers, and social workers from around the country.

Let me summarize a few things I learned.

As one can imagine, many of the talks at the conference were related to how to deal with Medicare Advantage (MA) plans. And one of the best was from Drs. Eddie Hu and Chris Caulfield from UNC Health. They went into depth about the process for appealing Medicare Advantage denials, which, despite my best efforts, I still think is nearly incomprehensible. But Dr. Hu also went into depth about another way we can influence MA plan behavior: by filing complaints.

In the past, I have talked about complaining to your regional Centers for Medicare & Medicaid Services (CMS) office about violations of CMS-4201-F, but Dr. Hu described how to do it to actually get action. First, it is important that a complaint not be frivolous. Don’t complain because your doctor documented “I expect two midnights” on a patient with chest pain and the MA plan refused to approve inpatient admission. But if you have a solid two-midnight inpatient case, an inpatient-only surgery that they will not allow inpatient admission on, for example, and the MA plan medical director states that the Two-Midnight Rule provisions do not apply to them (or, for another example, a pediatrician is denying a patient inpatient rehabilitation when the patient meets the requirements), then a complaint is warranted.

How much do MA plans dislike formal complaints? I received an email from Chrissy, who told an MA plan that she would be filing a complaint. The MA plan told her that “if you disagree, there is no need to file the complaint with CMS. CMS cannot do anything but forward your concern to us. All you need to do is file the appeal with us.” When an MA plan tries to convince you that something is unnecessary, it means it absolutely needs to be done.

Dr. Hu recommends sending the complaint to your CMS regional office, and most importantly, requesting that they acknowledge receiving the complaint by sending you the Complaint Tracking Module ID number that was assigned to the case. Also important is to send the complaint to the CMS regional office in two emails, the first with a password-protected document that includes the patient’s Medicare Beneficiary ID number and the MA plan name and contract ID number, a description of the case, and the Medicare policy that was violated. Do not send medical records; CMS does not want reams of paper, or rather huge piles of electrons.

You should outline what efforts were made to resolve the disagreement prior to filing a complaint and the MA plan’s response, if any. The second email, of course, should simply be the password for the document. CMS will not open emails that are encrypted by your email system, so you must use the two-email system; ask your IT department for assistance to ensure you remain HIPAA-compliant.

As a reminder, 42 CFR 422.101(b)(2) is the regulation that requires MA plans to follow all provisions of the Two-Midnight Rule, including the inpatient-only list, the two-midnight benchmark, the exceptions (including unplanned mechanical ventilation and the case-by-case exception), and unplanned occurrences such as death, departure against medical advice, transfer, hospice, and unexpected rapid recovery. Refer to that regulation if that is their offense.

42 CFR 422.629(k)(3) is the regulation that requires that the determination be reviewed by a physician or other appropriate healthcare professional with expertise in the field of medicine or healthcare that is appropriate for the services at issue. In other words, a pathologist should not be denying an inpatient admission, and a pediatrician should not be denying an admission to a skilled nursing facility (SNF). Of note, CMS does not require this to be a physician; depending on the case, a nurse or therapist may be considered to have such expertise. It is worth noting that this requirement for “expertise” only applies to MA plans; hospitals are not required to assign cases only to professionals with expertise in the area to make determinations and defend cases.

Now, why should you take the time to file these complaints? Because CMS tracks formal complaints, and a lot of complaints can significantly affect their quality bonus – and we know how when their money is at risk, the MA plans suddenly pay attention.

In addition, if the patient’s care is directly affected, such as a denial of SNF or home care, the patient can file their own complaint by calling 1-800-MEDICARE or going online to https://www.medicare.gov/my/medicare-complaint. Patient complaints are very powerful in bringing about change.

In another informative talk, Dr. Robert Leviton from New York City Health and Hospitals gave great remarks about his health system’s process for peer-to-peer calls with insurers. He has a great system to collate all the information and track the results. As Deming said, “Without data, you are just another person with an opinion.”

But what really struck me about his talk was when he asked the audience about their familiarity with the documentation changes that came with the evaluation and management update for hospital visits in 2023; very few in the audience were aware. I did not believe it, so I asked the same question in my session, and the result was similar.

Dr. Leviton and I were shocked. The changes mean no more requirement for documenting a full physical exam that in most cases was never actually done, nor a full review of systems that was in most cases never really performed. The visit code is based on documentation of the physician’s medical decision-making.

Then, the next day, I was reviewing a chart from an academic medical center, and the note from the emergency department physician for a patient with chest pain had a history with all seven elements, a comprehensive review of systems, and a full physical examination, which included the notation of normocephalic and atraumatic, a sure sign that a templated physical examination was used. That ED note was seven pages long.

I just don’t get it.

The American Medical Association (AMA) and CMS hand physicians a gift, and the vast majority say “no thanks”? I want every single reader to look at your physician notes. If you see a review of systems, I want you to find your medical records physician champion and demand they educate the doctors on the new rules.

Sell it as less work for the doctors, which it is, but the real benefit for you is better notes for your utilization review and clinical documentation needs.