The American Hospital Association has submitted comments strongly supporting the Centers for Medicare & Medicaid Services proposed rule changes governing Medicare Advantage plans beginning in the program year 2024. The proposed rule changes would codify CMS guidance that Medicare Advantage plans must follow traditional Medicare’s coverage guidelines and must not make medical necessity determinations based on internal policies or guidelines that are more restrictive than traditional Medicare’s. The proposed rules specifically require Medicare Advantage plans to follow traditional Medicare’s coverage criteria for inpatient admissions, including the Two Midnight Rule. Under the Two Midnight Rule, Medicare provides inpatient benefits when a physician using his or her complex medical judgment determines that a patient will require hospitalization over two midnights.

In its cover letter submitting its comments, the AHA stated:

The AHA strongly supports the proposed changes intended to strengthen consumer protections and oversight of MAOs [Medicare Advantage Organizations], which are critical and urgently needed and we encourage the agency to expeditiously finalize these important program updates.


Hospitals and health systems nationwide are increasingly concerned about certain MAO policies that restrict or deny patient access to care, while adding cost and burden to the system.  These include misuse of utilization management programs, inappropriate denial of medically necessary services that would be covered by Traditional Medicare, requirements for unreasonable levels of documentation to demonstrate clinical appropriateness, inadequate provider networks to ensure patient access and unilateral restriction in health plan coverage in the middle of a contract ear, among others.  These practices harm the health of Medicare beneficiaries and are a major driver of health care worker burnout while also adding billions of wasted dollars to the health care system.

(emphasis in the original).  AHA’s comments included an appendix of specific patient case examples, illustrating the impact on Medicare Advantage plan denials on Medicare beneficiaries.

The attorneys at Whatley Kallas, LLP have likewise found that Medicare Advantage plans inappropriately override physicians’ judgment to deny and underpay medically necessary care, including inappropriately denying inpatient admissions.

The proposed rules are entitled CMS 4201-P, Medicare Program; Contract Year 2024 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Program.  The AHA’s cover letter and comments are linked here.

The attorneys at Whatley Kallas will continue to follow the proposed rules, as they are finalized and implemented.

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