A Medicare Advantage plan denies day five of a stay as not medically necessary. The reflex is to argue the clinical picture. There's a question worth asking first: which criteria is this denial actually based on? Medicare Advantage plans have specific limits on the criteria they can use, and a requirement to make certain criteria public.
What the Rule Says
Under 42 CFR §422.101, Medicare Advantage organizations must comply with the "general coverage and benefit conditions included in Traditional Medicare laws"[1]. They may create internal coverage criteria only when "coverage criteria are not fully established in applicable Medicare statutes, regulations, NCDs or LCDs," and those criteria must be "based on current evidence in widely used treatment guidelines or clinical literature"[1].
When a plan does use internal criteria, it has to make them publicly accessible, which the regulation spells out as three things: the internal coverage criteria in use along with a summary of the evidence considered, a list of the sources of that evidence, and an explanation of the rationale that supports adopting the criteria[1].
What "Publicly Accessible" Means
CMS's February 2024 FAQs add detail: internal coverage criteria for basic benefits may be used only "in the absence of fully established Traditional Medicare coverage criteria," and "publicly accessible" means available to everyone through the plan's website, "not behind a paywall or through subscription access"[2].
Plans often rely on commercial criteria sets such as InterQual or MCG in their reviews. CMS's FAQs don't name specific products, so the practical question for any given denial is simpler: is it resting on Medicare's own coverage rules, or on the plan's internal criteria — and if the latter, are those criteria published the way the rule requires?
What This Changes in Practice
- Write concurrent review documentation to Medicare's coverage standards first, then to the criteria the plan says it is applying
- When a continued-stay denial arrives, ask the plan which criteria set it applied, in writing
- If the answer is internal criteria, look for the plan's published version, including the evidence summary and rationale, and compare it against the clinical record
- Bring that comparison into the peer-to-peer conversation and the appeal, rather than arguing the clinical picture alone
None of this guarantees a denial gets overturned, and this is a general summary of the regulation rather than legal advice. But a denial that can't point to published, evidence-based criteria is a different conversation than one that can.
Why This Belongs in Daily Concurrent Review
A continued-stay denial gets argued from the day-by-day record. If that record is built to the right standard while the patient is still in the bed, there's something concrete to hold up against the plan's criteria later. If it's reconstructed after the denial, there isn't. That's the logic behind daily concurrent review and the physician-advisor peer-to-peer and appeals support bServed provides.
Related reading: What Is Concurrent Review? and The Hospital Cost of Medicare Advantage Placement Denials.
Sources
[1] 42 CFR §422.101, Requirements relating to basic benefits (Legal Information Institute)
[2] AHCA/NCAL, "CMS Releases FAQs Clarifying 2024 Medicare Advantage Final Rule" (summarizing CMS FAQs dated Feb 6, 2024)