Medicare Advantage insurers may utilize artificial intelligence and other technologies to assess coverage decisions, but the tools cannot override benefits rules and medical necessity standards, the Centers for Medicare and Medicaid Services wrote in a notice to health insurance companies Tuesday.
UnitedHealth Group, Humana and Cigna are fighting lawsuits alleging they utilize AI, algorithms and similar utilities to routinely decline coverage for post-acute care and other services. As these emerging technologies proliferate in healthcare, CMS is offering a Frequently Asked Questions document to clarify this and other policies from its 2024 Medicare Advantage final rule.
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"An algorithm or software tool can be used to assist MA plans in making coverage determinations, but it is the responsibility of the MA organization to ensure that the algorithm or artificial intelligence complies with all applicable rules for how coverage determinations by MA organizations are made,” CMS wrote in the FAQ.
For example, CMS states that Medicare Advantage insurers may use software tools to predict how long a patient may require post-acute care but cannot use that prediction as the basis for limiting the duration of services. Likewise, insurers may not use AI and other technologies to determine whether to cover an inpatient hospital admission without considering factors specific to each patient, CMS wrote.
The agency also reminds Medicare Advantage carriers that federal anti-discrimination laws apply to them, and to take care that software utilities do not perpetuate inequities. "We are concerned that algorithms and many new artificial intelligence technologies can exacerbate discrimination and bias," CMS wrote.
CMS also addresses provider complaints that Medicare Advantage plans have grown stingy with post-acute care coverage in recent years. One of the questions in the document asks, "Can an MA organization deny admission of a patient to a post-acute care facility from an acute care hospital if it’s ordered by their physician and the patient meets the coverage criteria for admission into that facility?" CMS' answer to the question is "No."
"If a patient is being discharged from an acute care hospital to a post-acute care facility that would be covered under traditional Medicare and the patient’s attending physician orders post-acute care in the specific type of facility ... and the patient meets all applicable Medicare coverage criteria for admission into that facility type, the MA organization cannot deny admission to that post-acute setting and/or redirect the care to a different setting," CMS wrote.
The FAQ offers guidance on several other subjects, including when and how insurers are permitted to use internal coverage criteria instead of federal standards, how they must publicly disclose their internal coverage criteria, how the "two-midnight" hospital admissions policies apply to Medicare Advantage and when they are permitted to deny payment via post-claim audits.
