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MA Plan Complaint Process for Violation of Two Midnight Rule Provisions

For contracted or non-contracted provider payment or claim dispute matters, CMS encourages all providers to first engage in the plans’ internal appeals and grievances process.  Providers should follow the Medicare Advantage or Part D plan’s established dispute process until exhausted. 

Providers have reported that CMS will not accept complaints unless the MA plan provider appeal process has been exhausted.

If after appeals and dispute processes have been exhausted and you feel the issues remain, you may document the form for CMS’ review. Please remember to provide the Medicare beneficiary’s information on the provider claims and disputes form (please see below).  A complaint will be filed for the plans’ review if CMS agrees the matter appears to be unresolved. However, CMS cannot intervene in contractual disputes, disagreements for payment or related interpretations of the existing contract.  

Hospitals and health systems may also send complaints about inappropriate utilization management criteria or claims processing approaches that they believe do not comply with CMS requirements to the CMS Part C and D Audit email at part_c_part_d_audit@cms.hhs.gov. This may include practices related to prior authorization, concurrent review or retrospective review to deny or downgrade coverage or payment that the provider believes is not permitted under CMS rules. These complaint types can be submitted to both the Part C and D Audit and the DHPO emails. Note that there is no cover sheets required for the Part C and D Audit email submission but must follow all PHI privacy rules.

Dr Hirsch note- This process should be used for legitimate non-compliance with 42 CFR 422.101(b)(2) and 42 CFR 412.3 where the MA plan's determination is clearly improper. Do not use it if the doctor states "I expect two midnights" and it is chest pain. Or the second midnight has the patient walking in the halls,  off oxygen, but not going home. Frivolous complaints about cases that do not meet the rule provisions do not strengthen our resolve to get MA plan compliance.