Despite ongoing concerns about denials and beneficiary access to care, Medicare Advantage (MA) companies remain in the spotlight as their market penetration continues to grow.
In April 2022, a report from the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) highlighted a significant issue in the capitated payment model employed by Medicare Advantage. The report expressed concerns about the potential incentive for Medicare Advantage Organizations (MAOs) to deny beneficiary access to services and withhold payments to providers, all in an effort to boost their profits.
The release of this report likely prompted a swift reaction from the Centers for Medicare & Medicaid Services (CMS) in the form of rule 4201, which was proposed and finalized within a remarkable four-month timeframe. The primary focus of the rule was to formalize existing manual language concerning the two-midnight rule, as well as enhance the existing regulations outlined in 42 CFR 422.101. This regulation emphasizes that Medicare Advantage must offer benefits that are equal to or better than those provided by traditional Medicare.
During the recent presentation at the National Physician Advisor Conference, it became evident that attendees were grappling with denials related to post-acute care (PAC), particularly skilled nursing facility (SNF) denials. Through peer-to-peer discussions, many discovered that Medicare Advantage (MA) plans were denying SNF transfers based on criteria like ambulation distance and the need for IV infusions such as antibiotics. It is crucial for care management (CM) and physician advisors to comprehend the actual medical necessity requirements for SNF transfers under traditional Medicare. This understanding is essential to effectively advocate for our patients, challenge these inappropriate denials, and ensure proper care.
A key element in understanding medical necessity for SNFs is grasping the concept of skilled care. While this distinction may not be immediately evident in a hospital setting where all personnel are skilled, it becomes crucial in the PAC setting where patients have generally stabilized and the focus shifts towards recovery. Skilled care is provided by medical professionals, such as nurses and therapists, and is specifically ordered by a healthcare provider. The determination of skilled need is not based on a specific diagnosis or the likelihood of recovery. Skilled care can be medically necessary to improve a patient’s condition or prevent further decline. It’s important to note that certain services that would typically be considered non-skilled may be deemed skilled based on a patient’s condition or medical complications. If the care necessitates supervision by nursing or rehabilitation personnel, it qualifies as skilled care. Understanding the distinction between skilled and non-skilled care is crucial when discussing the medical necessity of SNFs. In general, custodial care, which is non-medical and can be provided by non-licensed caregivers, serves as an alternative to skilled care.
Understanding the distinction between skilled care and non-skilled care is vital when examining Medicare’s requirements for medical necessity in skilled nursing facilities (SNFs). Contrary to what Medicare Advantage has led us to believe through their inappropriate denials, the requirements are straightforward and outlined in 42 CFR 409.31. According to this regulation, a transfer to an SNF is considered appropriate when the following four criteria are met:
- The patient requires skilled nursing or rehabilitation services:
- Either for a condition for which the patient received inpatient hospital services; or
- For a condition that arose while receiving SNF care for a condition for which the patient received hospital services.
- The patient requires skilled services on a daily basis.
- Daily skilled services can only be provided on an inpatient basis in an SNF, taking into account practicality, economy, and efficiency.
- The services are reasonable and necessary for the treatment of the patient’s illness or injury, consistent with the nature and severity of the individual’s condition.
There are several key points to focus on in this discussion. Firstly, it is crucial to determine if the patient requires skilled care. If the answer is no, then custodial care is more appropriate and not eligible for SNF placement. If the answer is yes, the next step is to assess whether the patient would be safe with skilled care 2-3 times per week or if daily skilled care is necessary. If intermittent skilled services would suffice, home health care would be suitable. However, if daily skilled care is required, then SNF care is appropriate and covered by Medicare. That’s all there is to it! There are no specific requirements regarding the level of assistance the patient needs or how far they can ambulate with stand-by assist (SBA). If your patients meet these requirements but are being denied by Medicare Advantage, it is crucial to stay engaged because fighting back is necessary.
When Medicare Advantage organizations issue denials for SNF care, they tend to focus on the third and fourth requirements mentioned earlier, especially when it comes to therapy-related skilled needs. While non-skilled needs can qualify as skilled based on patient condition and diagnosis, Medicare Advantage often considers this a “gray area” and can be difficult to convince otherwise.
Determining the need for SNF care based on therapy notes rather than the patient’s medical needs and comorbidities is common. Since MA plans frequently focus on therapy metrics in denials, few suggestions emphasizing the medical issues for which patients require skilled nursing. Remember, the requirement is that the patient needs daily skilled care that can only be provided on an inpatient basis due to practicality and efficiency reasons. Patients who require ongoing IV antibiotics, increased monitoring on diuretics, new blood pressure medications, wound care, etc., may benefit from daily skilled nursing based on their risk level. In my experience, it is more challenging for MA plans to rationalize medical care in addition to therapy compared to therapy alone. Remember, the above four criteria are non-negotiable as they are regulated, and MA plans are obligated to provide the same or better benefits as traditional Medicare.
During discussion the medical necessity requirements for SNFs, we should briefly review some other requirements, considering the recent expiration of COVID-19 emergency waivers. A famous doctor discussed the expiration of these waivers and the need for three inpatient days before discharge to an SNF on Monitor Mondays. Additionally, the patient must transfer to the SNF within 30 days of the qualifying stay, with a few exceptions. These exceptions account for predictable delays in the need for skilled care, known as the “medical appropriateness exception.” For instance, if a patient undergoes surgery to repair a broken hip but needs to be non-weight bearing for six weeks, skilled therapy may not be appropriate until the patient can bear weight. In such cases, Medicare allows for the transfer to an SNF to be delayed beyond the usual 30 days. However, the delay must be predictable and specifically documented upon discharge from the hospital. Unpredictable care does not qualify for this exception.
As from discussion Medicare’s regulatory requirements for SNFs and the obligation of MA plans to provide the same benefits as traditional Medicare. When seeking authorizations and engaging in peer-to-peer conversations, our recommendation focus on skilled medical needs in addition to therapy recommendations. It’s also essential to communicate this information when discussing post-acute care with physicians. This leads to unnecessary delays and avoidable increases in length of stay. Understanding these regulations works both ways. All must advocate for our patients when MA plans wrongly deny appropriate SNF referrals, as these denials result in avoidable hospital delays, subpar care, and potential patient harm. All must also understand when SNF care is inappropriate to educate the entire medical team and ensure that patients receive the right care in the right place at the right time.
