Level-of-care denials

You are in treatment, or a doctor says you need it, and the plan says a lower level of care is enough. The plan may say you can “step down” from residential to outpatient care, or from inpatient to a day program. This is a level-of-care denial. It is a clinical decision, so it is argued with your clinician’s facts, the plan’s own criteria and speed.

What this means

Level of care is the setting and intensity of treatment: inpatient, residential, partial hospitalization, intensive outpatient, standard outpatient. A plan reviews your stay at set points (“concurrent review”) and may decide that your condition no longer needs the current level. If the plan had approved a course of treatment, cutting it short is a denial. The plan must give notice far enough ahead for you to appeal and get a decision before the benefit is reduced or ended. Non-grandfathered plans must provide continued coverage while the appeal is pending on these terms.

Several rules help:

• Urgent appeals. If a physician who knows your condition says the claim is urgent, the plan must treat it as urgent, and a non-grandfathered plan must defer to your attending provider. An urgent appeal is due within 72 hours. An urgent request to extend an approved course of treatment is due within 24 hours if made at least 24 hours before the approval runs out.
• External review. Denials about level of care, health care setting and medical necessity qualify for federal external review. If the denial is final and concerns a continued stay and you have not yet been discharged, you can ask for expedited external review. You can also ask for expedited external review at the same time as an expedited internal appeal.
• Criteria are yours to see. Medical necessity criteria for mental health and substance use benefits must be made available to any participant, beneficiary or contracting provider on request. The reason for a denial of this care must also be made available on request.
• Parity. If the plan applies stricter review to this care than to comparable medical or surgical care, that may be a parity problem. See the mental health parity guide.

What to do

1. Read the notice for the end date and the reason. Note the date care is to end and the date by which you must appeal. Call right away if care ends within days. (You or a family member.)
2. Ask your treating clinician to request a peer-to-peer call. The clinician speaks to the plan’s reviewing physician. The script for asking for a peer-to-peer call works for the office staff. (Your clinician.)
3. Ask for an urgent appeal. Your clinician certifies the urgency in writing, using the urgency certification letter. File by phone or in writing. (Your clinician and you.)
4. Ask for the criteria and the file the same day. Use the clinical criteria request. Ask which published or internal criteria set the plan used and the reviewer’s name and field. (You.)
5. Send the clinical facts. The clinician’s letter should state symptoms, safety risks, what happened at lower levels of care, and why the lower level will not work now. It should apply the plan’s criteria point by point. (Your clinician.)
6. File the level-of-care appeal. Use the level-of-care appeal letter. Employer and non-grandfathered individual plans must allow at least 180 days after you receive the denial; do not wait for that. Check the date on your notice, which controls. (You.)
7. Request expedited external review if the internal appeal is denied or runs late. You have at least four months after a final denial. (You.)
8. Complain to the regulator if the plan does not follow the deadlines. See the guides on state insurance departments and the Department of Labor. (You.)

What the plan may say, and what to say back

“You no longer meet our criteria for this level of care.” Ask for the exact criteria, the date they were adopted, and how each point was applied to you. Ask for the criteria the plan uses for comparable medical stays.

“You can step down to an outpatient program.” Ask your clinician to write what is expected to happen if you step down, and what was tried at lower levels before. Ask the plan whether such a program is available and in network.

“The facility type is not covered.” Ask the plan for the plan provision. The Kennedy Forum’s sample letters on facility-type exclusions also ask the plan to explain how the limit compares with the limits on medical and surgical facilities.

The rule

If a plan has approved a course of treatment, cutting it short is a denial, and the plan must give notice early enough for you to appeal and get a decision before the benefit is reduced or ended. 29 Code of Federal Regulations (CFR) 2560.503-1

Watch for

• Medicare. If a hospital tells you that you are being discharged, you can ask the quality improvement organization (the reviewer Medicare uses) for a fast review no later than the day of discharge. See the Medicare fast appeals guide.
• Medicaid managed care. To keep benefits going during a plan appeal of a reduction or ending of services, you must ask within 10 calendar days of the plan sending the notice, or before the date the action takes effect if later. A provider cannot ask for you. The plan may seek repayment if you lose.
• Payment in the meantime. Ask the facility about its policy on discharge dates and payment, and talk to your clinician before any change in treatment.
• Crisis. If you or someone you know is in immediate danger, go to the nearest emergency room or call emergency services. Coverage questions can wait.

What next

• Mental health and substance use denials: using the parity law: documents to demand and how to argue parity.
• Keep treatment going during an appeal: your rights for approved care.
• Get a fast decision: how urgent appeals work.
• Medicare fast appeals: if you have Medicare.