Congressman Jerry Nadler, Congresswoman Judy Chu and 28 other House members recently sent a letter to the Centers for Medicare and Medicaid Services (CMS) urging CMS to assess AI denials in Medicare Advantage. If only CMS could do so effectively and in a timely manner. Not only does CMS lack the resources to do the requisite oversight at the moment, but when it finds Medicare Advantage plans are inappropriately denying care through AI, CMS appears to lack the power to punish the insurers in a meaningful way.
Bottom line: It seems unlikely that CMS can rein in the Medicare Advantage plans’ use of AI to deny claims at eye-popping rates, even if the insurers offering Medicare Advantage plans deny care without regard to enrollees’ particular conditions, as required.
In their letter to CMS, the members of Congress express concern about CMS’ Medicare Advantage and Part D prescription drug prior authorization requirements in its 2024 final rule.
What’s happening exactly? NaviHealth, myNexus and CareCentrix provide Medicare Advantage plans with AI software to restrict coverage based on artificial intelligence. The insurers who rely on AI claim that they also review claims based on patient needs. But, former NaviHealth staff argue to the contrary. Mounting evidence suggests that the lives and health of some Medicare Advantage enrollees are endangered.
Because CMS does not prevent insurers from using AI to deny Medicare Advantage coverage, members of Congress recognize the challenge for CMS to monitor the use of AI and ensure that claims are properly processed. “Absent prohibiting the use of AI/algorithmic tools outright, it is unclear how CMS is monitoring and evaluating MA plans’ use of such tools in order to ensure that plans comply with Medicare’s rules and do not inappropriately create barriers to care,” the members wrote.
The insurers will always claim that AI is not making the denial decision, which is true. The insurers are. But, they appear to be exercising little if any independent judgment in many instances. So, the question remains whether the insurers are determining medical necessity based on the medical needs of their enrollees, as they should be. What’s clear is that though Medicare Advantage plans are legally required to provide the same coverage as traditional Medicare, they do not.
To help ensurer appropriate oversight of the insurers’ use of AI, among other things, the members of Congress propose that CMS:
- Require MA plans to report prior authorization data including reason for denial, by type of service, beneficiary characteristics (such as health conditions) and timeliness of prior authorization decisions;
- Compare the AI determinations against the actual MA plans’ determination;
- Assess whether the AI/algorithms are “self-correcting,” by determining whether, when a plan denial or premature termination of services is reversed on appeal, that reversal is then factored into the software so that it appropriately learns when care should be covered.
Here’s more from Just Care:
- 2023: Five things to think about when choosing between traditional Medicare and a Medicare Advantage plan
- Seven questions you should be asking this Medicare Open Enrollment period
- 2023: Four things to know if your income is low and you have Medicare
- Corporate health insurers use NaviHealth algorithms to deny care in Medicare Advantage plans
- OIG finds widespread inappropriate care denials in Medicare Advantage
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