Coverage and medical necessity criteria used by Medicare Advantage organizations

(a) Codification under the Medicare Advantage program of two-Midnight benchmark and presumption rules Section 1852(g)(1) of the Social Security Act (42 U.S.C. 1395w–22(g)(1)), as amended by section 2, is further amended by adding at the end the following new subparagraph: (E) Application of two-midnight rules The procedures under subparagraph (A) shall provide that, for making determinations described in such subparagraph with respect to hospital and critical access hospital admissions— (i) in determining whether an individual is an inpatient of a hospital or critical access hospital, the Medicare Advantage organization shall continue to apply the provisions of section 412.3(d) of title 42, Code of Federal Regulations, or any successor regulation, in the same manner and to the same extent as such provisions apply with respect to payment under part A; and (ii) beginning on January 1, 2028, in conducting medical review activities, with respect to such admissions, the Medicare Advantage organization shall apply the two-midnight presumption finalized in the rule published by the Secretary in the Federal Register on August 19, 2013 (78 Fed. Reg. 50952), or any successor regulation, in the same manner and to the same extent as such provisions apply with respect to payment under part A.. (b) Requiring consistent medical necessity criteria between Medicare Advantage and original fee-for-Service (1) In general Section 1852(g) of the Social Security Act (42 U.S.C. 1395w–22(g)), as amended by section 4(c), is further amended— (A) in paragraph (2)(B), by striking A reconsideration relating and inserting In accordance with paragraph (7)(C), a reconsideration relating; and (B) by adding at the end the following new paragraph: (7) Medical necessity determined based on FFS reasonable and necessary criteria (A) In general For purposes of a determination or reconsideration under this subsection made on or after January 1, 2028, or a review made on or after such date by an independent, outside entity under paragraph (4), with respect to coverage for an item or service furnished to an individual enrolled in an MA plan offered by a Medicare Advantage organization, the Medicare Advantage organization or independent, outside entity, respectively, shall not apply criteria for determining the medical necessity of such item or service that is more restrictive than the standards and criteria applied pursuant to section 1862(a)(1) for determining under parts A and B whether the item or service is reasonable and necessary. (B) Certain coverage criteria For purposes of a determination or reconsideration under this subsection made on or after January 1, 2028, or a review made on or after such date by an independent, outside entity under paragraph (4), with respect to coverage of inpatient hospital services furnished by a rehabilitation facility (as referred to in section 1886(j)(1)(A)) or long-term care hospital to an individual enrolled in an MA plan offered by a Medicare Advantage organization, the Medicare Advantage organization or independent, outside entity, respectively, shall not apply coverage criteria that is more restrictive than the standards and criteria applied under parts A and B, including under— (i) paragraphs (a)(3), (a)(4), and (a)(5) of section 412.622 of title 42, Code of Federal Regulations (or any successor to such regulation), with respect to such a rehabilitation facility; and (ii) paragraphs (1), (3), and (4) of section 1861(ccc) and clauses (iii) and (iv) of section 1886(m)(6)(A), with respect to a long-term care hospital. (C) Personnel For purposes of subparagraph (A), a determination, reconsideration, or review regarding the medical necessity of an item or service shall be made only by a physician or other health care professional with appropriate expertise, including education, with respect to such item or service and the related standards and criteria applied pursuant to section 1862(a)(1). For purposes of subparagraph (B), a determination, reconsideration, or review regarding coverage of inpatient hospital services furnished by a facility or hospital described in such subparagraph shall be made only by a physician or other health care professional with appropriate expertise, including education, with respect to such services and the related standards and criteria applied pursuant to such subparagraph.. (2) Enforcement Section 1857(g)(1) of the Social Security Act (42 U.S.C. 1395w–27(g)(1)) is amended— (A) by redesignating subparagraph (L) as subparagraph (M); (B) by striking or at the end of subparagraph (K); (C) by inserting after subparagraph (K) the following subparagraph: (L) fails to comply with section 1852(g)(7); or; (D) in subparagraph (M), as redesignated by subparagraph (A), by striking subparagraphs (A) through (K) and inserting subparagraphs (A) through (L); and (E) in the matter following such subparagraph (M), by striking subparagraphs (A) through (L) and inserting subparagraphs (A) through (M). (c) Requiring transparency in coverage criteria Section 1852(a)(2) of the Social Security Act (42 U.S.C. 1395w–22(a)(2)) is amended by adding at the end the following new subparagraph: (D) Transparency in coverage criteria (i) Requirement For plan years beginning on or after January 1, 2028, in order to meet the requirement under paragraph (1)(A), in the case of an item or service for which there is no national coverage determination, applicable local coverage determination, or applicable guidance for coverage provided by the Secretary, a Medicare Advantage organization offering an MA plan shall— (I) make a coverage determination with respect to such item or service in accordance with publicly available evidence-based coverage criteria that is published on a public website of the Medicare Advantage organization; and (II) submit to the Secretary information, with respect to every medical necessity determination made in the absence of such national coverage determination, applicable local coverage determination, or applicable guidance for coverage, specifying the coverage criteria applied under the MA plan. (ii) Use of information The Secretary shall use the information submitted under clause (i)(II) to prioritize coverage determinations..