The Center for Medicare Advocacy would like to highlight a recent legal development that may help enrollees and their families advocate for themselves when Medicare Advantage Plans prematurely deny Skilled Nursing Facility (“SNF”) care.
In a Center Alert article from 2022, we noted an alarming increase in complaints from Medicare Advantage enrollees who, despite requiring skilled nursing facility (“SNF”) care, receive Notices of Medicare Non-Coverage (“NOMNCs”) stating that their Medicare Advantage plan (“Plan”) has decided to terminate coverage of their SNF care. Although enrollees who utilize their appeal rights usually go on to get that denial overturned, the Plans will issue a new NOMNC within a few days and force the enrollee or their representative to work through yet another appeal over an essentially identical medical situation.
Presumably in response to this issue, CMS recently updated their appeal guidelines to include a significant change to the appeals process. When enrollees request an expedited appeal by using the information provided on the NOMNC, the Plan is required to give a Detailed Explanation of Non-Coverage (“DENC”) to the enrollee. These revised appeal guidelines (link here, see page 113, § 100.2.1), effective January 1, 2025, state the following:
DENC instructions include the following element for [Plans] to complete:
Special instructions for repeat appeals within the same episode of care: If the enrollee has previously received a favorable [NOMNC appeal decision] during the current episode of care, detail the specific change(s) in the enrollee’s condition since the previous appeal that provide the basis for this decision to terminate services.
This is an encouraging change that requires some additional justification from Plans before they issue multiple NOMNCs in the same benefit period. Enrollees are still in a place where they must request an expedited appeal before this DENC justification is required, but this additional compliance obligation will hopefully disincentivize this Plan practice in the future.
Additionally, this change may make DENCs more relevant to the appeal process. When arguing their appeals, enrollees can point to and criticize the alleged specific changes to their condition (or lack thereof) in the new DENC justification. Previously, Plans would be able to copy their previous denial justification without needing to provide any additional information.
Considering these changes to the appeal guidelines, the Center notes that Plan enrollees appealing repeated, inappropriate denials of SNF coverage may now do the following:
- utilize their NOMNC appeal rights,
- insist on receiving a copy of the DENC from the Plan (if a copy has not been received within a day or two of starting the appeal),
- keep a copy of the DENC in a safe, accessible place, and
- if this is not the first NOMNC appeal for this episode of care, to take note of the specific changes the Plan describes (or fails to describe) in the DENC. This justification can be criticized during the appeal process by you and your provider when communicating with the appeals organization about the situation.
If the Plan does not comply with these new rules for the DENC, enrollees can notify the appeals contractor itself, file a grievance, and notify a regional CMS office.
January 9, 2025 – J. Lalor