Nursing Homes’ Letter to CMS Calls Out Lack of Teeth – and Clarity – in Final Rule’s Medicare Advantage Reform

In order to keep Medicare Advantage plans in check for denial of services, provider organizations are pressuring federal authorities to do more, and asking them to closely monitor and aggressively enforce reforms for these plans as envisioned in a final rule that takes effect on Jan. 1.

Companies managing MA plans have said they don’t believe they need to do anything different, based on what was laid out in the final rule, a worrying concern that needs to be addressed, providers said, who are also seeking to gain clarity on how the Center for Medicare & Medicaid (CMS) will monitor MA plans’ compliance.

To that end, nursing home and hospital associations are seeking to influence the implementation of CMS’s rule regarding MA plans.


“[The] intent of the rule is not yet clear regarding plan compliance obligations,” multiple provider associations wrote in a letter addressed to CMS deputy administrator and director Meena Seshamani on Wednesday. “We understand that CMS has already completed proposed rules for CY 2025, but we would appreciate the opportunity to further engage with staff on other areas of the MA regulations.”

This is especially true, associations said, as MA enrollment now tops 50% of Medicare beneficiaries.

LeadingAge and the American Health Care Association (AHCA) were among the organizations that put together a series of “sub-regulatory guidance” to clarify how changes to MA plans in the final rule should be implemented.


First, MA plans should be required to follow Medicare regulations, the associations said, including CMS transmittals, CMS provider manuals, the Jimmo v. Sebelius settlement policy, and post-acute care assessments, as well as other items outlined in the final rule, the letter states.

The Jimmo v. Sebelius settlement agreement, for one, states that a beneficiary’s lack of potential for improvement or restoration can’t be the sole reason for denying skilled care under Medicare.

When an MDS assessment is completed in a nursing home, for example, it informs not only the care plan but also the payment level required for the service under traditional fee-for-service Medicare.

“MA plans are not beholden to this payment structure although many pay SNFs a percentage of the Medicare FFS structure,” associations said in the letter.

CMS must also provide examples and clarification of limited circumstances in which an MA plan can override a physician’s medical necessity determination, associations said.

A third recommendation by the associations calls upon CMS to identify the actions MA plans must take and oversee circumstances when they employ internal coverage criteria, the associations said. This includes how such information would be publicly disclosed and the evidence and tools the MA plan used to develop its own criteria.

Associations are suggesting that the federal agency’s actions and internal criteria align with rules Medicare Contractors need to follow in similar situations.

In terms of denial notices, associations said CMS should clarify the specific elements needed to deny coverage, including person-specific details for why a service is denied or terminated, pointing out what information is missing, along with identifying internal criteria to make such a decision.

An MA plan would need to identify the specific regulatory requirement that isn’t being met, and note the health professional who reviewed the request, citing specific denial codes, the associations added in their letter.

“As you consider future rule revisions, we would like to work with you to establish a clear public process for providers to submit complaints when they see plans making inappropriate care denials or terminations or similar non-compliance issues,” associations noted.

Provider complaints could help CMS with a more complete data set on the issues plans are encountering, they said, in terms of interpreting and complying with rules.

The last two recommendations from the associations involve prohibiting the use of algorithms or AI in coverage denials, limiting the use of such tools until a systematic review of their use can be done. CMS needs to clarify the application of the term “course of treatment” as well – they noted – specifically when it comes to treatment across multiple care settings.

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