The 7-day free trial remains open in our CDI and Coding Village online community. Sign up and get immediate access to over 7 hours of webinars by me and other experts from the community (and 247 forum discussions).
We have a huge announcement coming soon for members only… 😉 

Part of my job is fighting insurances against removing diagnoses thereby keeping the money we’re owed. The CDI lingo for this is clinical validation denial appeals and “DRG downgrades.”

These types of denials are becoming more common compared to traditional coding denials where insurances deny codes because coding guidelines weren’t properly followed, or they disagree with sequencing . These coding denials are relatively black and white.

But now they’re denying that the clinical conditions themselves even exist, which, of course, is not a coding decision but a clinical one. Even when international consensus definitions exist, such as the 4th universal definition of MI and 3rd international consensus definition of Sepsis, health plans still make up their own definitions of diagnoses, impose their own criteria, and then use those self-created parameters to form the basis of an adverse clinical validation determination. If the patient doesn’t have all the criteria that a plan requires, it deems the bedside provider’s diagnosis “clinically invalid.” The health plan will downgrade the payable DRG with the invalidated diagnosis excluded, and ask that the hospital pay money back for the difference between the hospital’s billed DRG and that which the payer re-calculates.

Many hospitals attempt to appeal those decisions and make an argument to keep that money. These are most often argued upon on clinical grounds. We may show how the clinical indicators were present and the patient did meet their definition of that condition. Or, we may disagree with the health plan’s clinical definition altogether and use high-quality evidenced-based publications to support that argument.

But I noticed a concerning trend.

Our appeals weren’t being given the good-faith consideration that they deserved.

Nuance seemed to be welcomed when it favored the payer (insurance), but not when it favored us (the hospital).

Instead of high-quality peer-reviewed publications, health plans were quoting blog posts and online articles.

They were taking international consensus definitions and adding additional layers of restrictions unsupported by any published literature.

It began to feel that clinical arguments were an exercise in futility.

Worse yet, Medicare Advantage payers seemed to be openly refusing to follow CMS regulations despite being tasked with “providing access to care that is equal to or better than Traditional Medicare” (or at the very least, exploiting loopholes). I knew there was probably a problem, but I wasn’t sure, nor did I know where to find the proof.

But I had a friend and a secret weapon.

That secret weapon was healthcare law attorney Richelle Marting (who co-wrote this newsletter with me).

She helped me start tackling these issues, and give me the legal sources to stand behind those arguments. There are many, but below are some of the concerns I had and the legal arguments against Medicare Advantage plans’ adverse clinical validation decisions.  

#1. Their criteria don’t exist under Traditional Medicare rules for DRG assignment, and clinical validation is even explicitly prohibited for several Traditional Medicare contractors.

Medicare Advantage plans have to cover and pay for Traditional Medicare benefits in a manner that is no more restrictive than Traditional Medicare, including the type and level of service. 42 U.S.C. 1395w–22. The benefit in this case is hospital inpatient care. The manner in which the type or level of service is covered and paid for hospital inpatient care is the MS-DRG system. 

If Traditional Medicare does not restrict the level or complexity of the DRG based on specific definitions of individual diagnoses, in theory, nor can a Medicare Advantage plan.

#2. They were not giving us an explanation for their denials, just the final determination, especially for subsequent levels of appeal.

In CMS’s 42 CFR 422.101 (b): eCFR :: 42 CFR 422.101 -- Requirements relating to basic benefits.

• Plans must comply with “General coverage and benefit conditions included in Traditional Medicare laws, unless superseded by laws applicable to MA plans”

• Per the Medicare manual 100-04 Chapter 29: Medicare Claims Processing Manual under “Explanation of the Decision”

  • “<Instructions: This is the most important element of the redetermination. Explain the logic/reasons that led to your final determination. Explain the coverage policy (LCD, NCD), regulations, policy guidance (IOM provisions), and/or laws used to make this determination. Make sure the rationale for the decision is clear and that it includes an explanation of why the claim can or cannot be paid for the particular set of facts at issue in the appeal. For example, the explanation should demonstrate how the beneficiary’s condition or circumstances do not meet specific coverage policy requirements. Statements such as "not medically reasonable and necessary under Medicare guidelines" or "Medicare does not pay for X" provide conclusions instead of explanation, and are not sufficient to meet the requirement of this paragraph.>

• For example, a Medicare Advantage plan decision that summarily concludes a diagnosis of sepsis is invalid because it is unsupported by clinical information in the record is a mere conclusion. It offers no citation to a coverage policy, regulation and/or law used to make the decision.

#3. They were not providing the credentials of the reviewer issuing the denial.

Per the statement of work of the recovery audit contractors, 2011:

• Page 23: "Clinical validation is a separate process, which involves a clinical review of the case to see whether or not the patient truly possesses the conditions that were documented. Clinical validation is beyond the scope of DRG (coding) validation, and the skills of a certified coder. This type of review can only be performed by a clinician or may be performed by a clinician with approved coding credentials"

• This has been referenced by AHIMA and AHA coding clinic as well (Coding Clinic, Fourth Quarter ICD-10 2016 Pages: 147-149):

  • "Although ultimately related to the accuracy of the coding, clinical validation is a separate function from the coding process and clinical skill. The distinction is described in the Centers for Medicare & Medicaid (CMS) definition of clinical validation from the Recovery Audit Contractors Scope of Work document and cited in the AHIMA Practice Brief ("Clinical Validation: The Next Level of CDI") published in the August issue of JAHIMA: "Clinical validation is an additional process that may be performed along with DRG validation. Clinical validation involves a clinical review of the case to see whether or not the patient truly possesses the conditions that were documented in the medical record. Clinical validation is performed by a clinician (RN, CMD, or therapist). Clinical validation is beyond the scope of DRG (coding) validation, and the skills of a certified coder. This type of review can only be performed by a clinician or may be performed by a clinician with approved coding credentials."

• There may be state law rules that define the practice of medicine which could influence whether a clinical validation review must be performed by a licensed physician in your state. For example, some states define the practice of medicine as including any written or verbal opinion about a patient’s medical diagnosis.

• Medicare Advantage plans’ adverse clinical validation review findings often provide no indication of the qualifications of the reviewer at all. Some state the review was performed by a nurse with coding experience. Some indicate the review was performed “under the supervision” of a physician, suggesting the review was not personally performed by a physician.

#4. Their clinical criteria were not publicly available and
#5. They were not using high-quality clinical literature.

• In CMS's final rule 4201-F, page 22202 CMS states:

  • "Finally, in response to whether prior authorization policies or procedures that dictate specific definitions of medical diagnoses is considered more restrictive than Traditional Medicare, we consider coverage policies that dictate specific definitions of medical diagnoses to be additional coverage criteria that are only authorized in accordance with § 422.101(b)(6) as finalized in this rule."’

• If you then go to 422.101(b)(6) it states:

  • "MA organizations may create publicly accessible internal coverage criteria that are based on current evidence in widely used treatment guidelines or clinical literature when coverage criteria are not fully established in applicable Medicare statutes, regulations, NCDs or LCDs. Current, widely-used treatment guidelines are those developed by organizations representing clinical medical specialties, and refers to guidelines for the treatment of specific diseases or conditions. Acceptable clinical literature includes large, randomized controlled trials or prospective cohort studies with clear results, published in a peer-reviewed journal, and specifically designed to answer the relevant clinical question, or large systematic reviews or meta-analyses summarizing the literature of the specific clinical question."

    • Publicly accessible. For internal coverage policies, the MA organization must provide in a publicly accessible way the following:

      • (A) The internal coverage criteria in use and a summary of evidence that was considered during the development of the internal coverage criteria used to make medical necessity determinations;

      • (B) A list of the sources of such evidence; and

      • (C) An explanation of the rationale that supports the adoption of the coverage criteria used to make a medical necessity determination. When coverage criteria are not fully established as described in paragraph (6)(i)(A), the MA organization must identify the general provisions that are being supplemented or interpreted and explain how the additional criteria provide clinical benefits that are highly likely to outweigh any clinical harms, including from delayed or decreased access to items or services.

#6. We were never provided the criteria in advance.

Even if we were able to get a written copy of the definitions and criteria the plan was using - and many times, we aren’t given this documentation at all - many health plan contracts require the plan to make their policies available before a hospital is responsible for following them. If they were not made available until after we began receiving unfavorable decisions - or we were denied copies entirely - maybe there is contract language to support our efforts.

Making it count

The key to this is not necessarily including these arguments in the appeal itself, but keeping track of each one of these violations and submitting a complaint to CMS and even your managed care contracting department.

No, don’t group them together. For each individual case, file a complaint. Create templates and standardize the process so your hospital can efficiently file these complaints. Wait until you get a complaint number, then file the next. Then repeat. (Dr. Ronald Hirsch has discussed this process before)

Why does this matter? CMS complaints go into the MA plan’s star rating, which is worth hundreds of millions of dollars. (It’s such a big deal that multiple MA plans sued CMS over changes to how the star rating was calculated).

These are only a few examples of the arguments Richelle has discovered to assist in the fight against Medicare Advantage plans. She’s a unicorn in this space as a certified coder turned lawyer…and she’s creating an army of others just like her. I can’t recommend her enough.

That’s all for now. Don’t hesitate to ask questions as they help inspire future issues!

Cheers,

Robert

When you’re ready, there are 3 ways I can help you:

1. Join our CDI and Coding Village online community! It’s impossible to know it all, it takes a village! What you’ll get:

• Learn from me and other experienced professionals (perfect for new coders / CDI’s and those pivoting their career)

• Participate in monthly interactive webinars hosted by me, and anatomy and physiology reviews not found anywhere else

• Share ideas & solutions to new problems with peers in real-time discussions

2. Check out The Practical Guide to Attending Documentation video course.

• Stop underbilling your hard work & MASTER the new billing rules

• Get 3.5 hours of CME credit! (Use your CME funds!)

• Stop feeling guilty about writing shorter notes

• Use notes to PREVENT getting sued

3. Check out The Resident Guide to Clinical Documentation video course. The course that helps you:

• Impress your attendings and improve your evaluations.

• Prepare for real-world productivity pressures

• Gain the confidence to write shorter yet more effective notes.

• Use notes to make you a better, more prepared physician

If you were forwarded this newsletter and would like to subscribe:

The above represents my opinion only, and not that of my employer’s.