On May 17, 2023, the Senate Homeland Security & Governmental Affairs Committee, Permanent Subcommittee on Investigations chaired by Senator Richard Blumenthal (CT) held a hearing titled “Examining Health Care Denials and Delays in Medicare Advantage”. A recording of the hearing and witness statements are available here.
Witnesses at the hearing were: Megan H. Tinker – Chief of Staff, Office of Inspector General (OIG) U.S. Department of Health and Human Services; Jeannie Fuglesten Biniek, PhD – Associate Director, Program on Medicare Policy, KFF; Christine Jensen Huberty – Lead Benefit Specialist Supervising Attorney, Greater Wisconsin Agency on Aging Resources; Lisa M. Grabert – Visiting Research Professor, Marquette University College of Nursing; and Gloria Bent – Widow of Gary Bent, Medicare Advantage Enrollee (and Center for Medicare Advocacy client).
As summarized in a STAT News article about the hearing titled “Senators probing largest Medicare Advantage plans over how algorithms factor in care denials” by Bob Herman and Casey Ross (May 17, 2023),
Senators warned the country’s largest Medicare Advantage insurers at a hearing on Wednesday that they must abide by Medicare’s coverage rules and cannot rely on algorithms to deny care that patients need.
Congress is ramping up its oversight, too. Lawmakers in both parties have asked UnitedHealth Group, Humana, and CVS Health’s Aetna for internal documents that “will show how decisions are made to grant or deny access to care, including how they are using [artificial intelligence],” said Sen. Richard Blumenthal, the top Democrat on a subcommittee with the power to investigate government affairs, during the hearing.
“I want to put these companies on notice,” said Blumenthal (D-Conn.). “If you deny life-saving coverage to seniors, we are watching. We will expose you. We will demand better. We will pass legislation if necessary. But action will be forthcoming.”
The article noted that “[a]lthough the senators who appeared in the hearing agreed Medicare Advantage denials are a problem, especially for people facing serious illnesses and injuries, they didn’t necessarily agree on a solution.”
McKnights Long-Term Care News focused on the hearing in an article titled “‘Impossible’ Medicare Advantage denials decried during Senate hearing” by Kimberly Marselas (May 18, 2023). Among other points, the article highlighted the testimony of Gloria Bent
who outlined her challenges in getting her husband intensive therapy after having a brain lesion removed and suffering physical and cognitive losses.
Gary Bent was denied intense acute therapy and instead approved for short-stay SNF care. But he began receiving notices for pending non-payment before his care plan was even completed there. Over seven weeks, Bent’s family won two appeals and lost a third. He was discharged from a nursing home and rehospitalized the next day.
“The reappearance of melanoma in 2022 pulled a rug out from under my husband and my family,” Gloria Bent testified. “Then came the added trauma, which piled on steadily, of having to fight to keep him receiving the care he needed. This should not be happening to families and patients. It’s cruel.”
A recent Washington Post op-ed titled “Denials of health-insurance claims are rising — and getting weirder” by Elisabeth Rosenthal (May 17, 2023) highlights inappropriate denials by insurance companies, including those relating to Affordable Care Act marketplace plans. Rosenthal notes that “denials have become yet another predictable, miserable part of the patient experience, with countless Americans unjustly being forced to pay out of pocket or, faced with that prospect, forgoing needed medical help.” Inappropriate insurance company denials are widespread across different types of coverage, which, as highlighted by the subcommittee, includes insurers’ most profitable line of business, Medicare Advantage.
The Center for Medicare Advocacy applauds Chairman Blumenthal and the subcommittee for holding this hearing and addressing a critical issue impacting Medicare Advantage enrollees. The Center has long raised concerns about inappropriate Medicare Advantage denials, including the more recent and increasing use of AI or algorithmic tools to make or guide coverage decisions (see, e.g., Center report from January 2022 and case study from April 2022).
As the Center outlined in a recent Special Report (May 2023) summarizing a final rule issued by the Centers for Medicare & Medicaid Services (CMS) that includes significant improvements to MA prior authorization rules, “[a]s with most consumer protections, however, the efficacy of these new rules will depend on plan compliance and CMS oversight and enforcement.” These new rules, by themselves, are not enough to curtail inappropriate denials. More action is required by both Congress and CMS.
As highlighted by Ms. Fuglesten Biniek from KFF in both her testimony and in a recent KFF report (April 2023), there are significant gaps in data relating to MA, including information and data concerning plans’ use of prior authorization. Ms. Tinker’s testimony highlighted some of the current limitations of oversight relating to MA plans activities, including unimplemented recommendations to CMS, as well as OIG’s limited capacity – with its FY 2023 budget, “OIG has about 2 cents to oversee every $100 of HHS spending.” In addition to forcing more stringent requirements on MA plans to curb their ability to inappropriately deny care, Congress can and should fill these gaps in collected and reported data, and enhance oversight capacity of both OIG and CMS. The Center looks forward to further action promised by the subcommittee.
Other Medicare Advantage Updates
House Energy & Commerce Committee Republicans Press Cigna re: Claims Denials
Following an investigative report by ProPublica titled “How Cigna Saves Millions by Having Its Doctors Reject Claims Without Reading Them” by Patrick Rucker, Maya Miller and David Armstrong (March 25, 2023), House Energy & Commerce Committee Republicans recently sent a letter to Cigna requesting documents and information relating to the insurance company’s “procedure-to-diagnosis (PXDX) review process.”
As outlined in a press release titled “E&C Republicans Press Cigna for Clarification After Investigative Report Accuses Insurance Company of Denying Claims Without Reading Them” (May 16, 2023), the Members “ask the insurance company to respond to the allegations that it uses automation and AI technology to deny claims.” The press release states:
Why It Matters:
- 80 percent of Medicare Advantage coverage denials were overturned, suggesting that Cigna’s PXDX review process is leading to patients paying out-of-pocket for medical care that should be covered under their insurance policy contract.
The letter requests that Cigna turn over documents by May 30, 2023 and answer a list of questions, including “Identify all insurance plans offered or administered by Cigna whose claims are subject to PXDX review, including, if applicable, Medicare Advantage plans.”
The Center for Medicare Advocacy applauds Energy & Commerce Republicans for engaging in needed oversight of inappropriate insurance company practices that negatively impact plan enrollees.
Article in The Nation by Ady Barkan Warns Against Privatization of Medicare
Ady Barkan, founder and co-executive director of Be a Hero, wrote an article for The Nation titled “How Medicare Advantage Could Kill Medicare” (May 17, 2023). In the article, Mr. Barkan discusses the reintroduction of the Medicare for All Act in the context of growing enrollment in private Medicare Advantage plans: “[f]or more than two decades, health insurance corporations have been privatizing our cherished Medicare program. Now, I’m worried that once they have it we may never get it back.”
Mr. Barkan describes how growing MA enrollment hinders improving the traditional Medicare program:
As more people enroll in Medicare Advantage, and fewer in traditional Medicare, there may be less political will to improve traditional Medicare by adding vision, dental, and hearing coverage, and also less political will to rein in the abuse and profiteering of the Medicare Advantage plans. Left to them, the future of health care in this country might in fact be Medicare Advantage for All.
Mr. Barkan ends his article with a call to action:
There is a better way. Bound up in the Medicare for All legislation are the hopes and dreams of the majority of Americans—people who want to know that their loved ones will get good care if they are diagnosed with cancer, that they won’t go bankrupt paying for a hip replacement, and that they can be cared for at home alongside the people they love. These ideas are rational, humane, and wildly popular. American voters from across the political spectrum support Medicare and Medicare for All—guaranteed health care for all, without co-pays, deductibles, medical debt, or GoFundMe.
Generations of activists and leaders have pursued this same vision. But to get there, we will need to stop the corporate takeover of Medicare.
Statement for the Record – Senate Finance Committee Hearing re: MA Provider Directories
The Center for Medicare Advocacy, together with Legal Action Center and Medicare Rights Center, submitted a statement for the record regarding the Senate Finance Committee’s May 3rd hearing titled Barriers to Mental Health Care: Improving Provider Directory Accuracy to Reduce the Prevalence of Ghost Networks. The statement expressed support for eliminating ghost networks, and the additional audits that would likely require, in order to ensure insurance companies do not provide false or incorrect information to their enrollees. The statement urged Congress and the Centers for Medicare & Medicaid Services (CMS) “to hold Medicare Advantage plans accountable through sufficient penalties when they both fail to provide medically necessary services to their enrollees and when they misrepresent or falsify information to individuals and the federal government by putting forth inaccurate network directories.” The statement is available at https://medicareadvocacy.org/wp-content/uploads/2023/05/Statement-for-the-Record-SFC-Hearing-Provider-Directories-LAC-CMA-MRC-2023.05.17.pdf
May 18, 2023 – D. Lipschutz