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WASHINGTON -- A 79-year-old man with prostate cancer needed a PET scan, but his Medicare Advantage (MA) plan refused to pay for it. Another MA plan denied approval for a wheelchair for a patient with multiple sclerosis and a tibia fracture. Still another enrollee recovering from a stroke found he was ineligible for coverage for physical therapy.

The neurosurgeon treating a fourth patient, the late University of Connecticut physics professor and melanoma patient Gary Bent, PhD, referred him for acute rehab after removing a lesion from his brain. But Bent's MA plan intermediary refused, putting him and his wife, Gloria, through a . They were told he "couldn't withstand intense therapy," she said.

He was eventually admitted to a skilled nursing facility, but was discharged from there after about 5 weeks because his MA plan discontinued payment, even though it turned out he had bacterial meningitis, she said.

Those were among many examples of how MA plans have routinely denied coverage for medical services -- despite their doctors' orders and despite Medicare policy that they should be covered -- presented Wednesday during a of the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations.

Lawmakers have collected many examples in which MA plans are failing beneficiaries, "denying or delaying care," said committee chair Sen. Richard Blumenthal (D-Conn.) at the start of the hearing. They "face denials in the middle of major medical crises, forcing them and their loved ones to fight even as they are fighting for their lives."

Algorithms Decide

"Perhaps most troubling of all," Blumenthal continued, "there is growing evidence that insurance companies are relying on rather than doctors or other clinicians to make decisions to patient care."

Sen. Roger Marshall, MD (R-Kan.), an ob/gyn, listed many examples of denials, including the examples above.

He said a huge culprit is prior authorization, in which MA companies -- to avoid waste and reduce costs -- require doctors to get many kinds of medical care pre-approved. A few years ago, an MA plan canceled Marshall's patient's next-day surgery because Marshall was required to talk with a plan representative first. Prior authorization has "become a tool to delay care -- hoping the patient dies so they don't have to give any more care, I guess."

One focus during the hearing was on the MA plans' frequency of incorrectly denying care. Of 35 million prior authorization requests submitted to MA plans in 2021, 6% or two million were denied, said Jean Fuglesten Biniek, PhD, associate director of Medicare policy for the Kaiser Family Foundation here. Of those, only 11% were appealed and when they were, 80% of the denials were overturned, suggesting that many denials should have been initially approved.

These denials burden providers' staff resources and impose delays for enrollees "during a point in their lives when they're potentially in very poor health," she said.

Why such a low rate of appeals? Biniek was asked. "People may not know how to appeal; they may not believe they have a case to appeal. And people are often very ill ... and if they don't have a caregiver or somebody to assist them or access to legal services, going through that process can be difficult," she replied.

A key problem with MA plans is their refusal to pay for skilled nursing facility stays or approve coverage for lengths of stays that doctors say their patients need, said Christine Huberty, an attorney with the Greater Wisconsin Agency on Aging Resources, which provides free legal services for seniors.

For a patient who has undergone hip replacement surgery in a hospital, for example, she said, "their doctor generally recommends several weeks in a skilled nursing facility until they're ready to safely go home."

In regular Medicare, that patient would be covered for up to 100 days of skilled nursing facility care after a 3-day hospitalization. But although MA plans are supposed to provide the same coverage, Huberty said, too often they don't.

Dizzying Red Tape

Instead, a senior "can expect to receive a denial well before their doctor even says they're ready to go home ... they're thrown into a maze of red tape that is dizzying, even to our experienced legal team," fighting a denial that is made by "a third-party contractor using an algorithm," Huberty said.

The length of that patient's stay is determined by a computer based on millions of "past beneficiary data points, not the patient's plan of care or the advice of their doctors," she continued. If the patient chooses to fight, denials at each level are upheld by a quality improvement organization, often with little to no explanation, she said.

Megan Tinker, chief of staff of the Office of Inspector General (OIG) for the Department of Health and Human Services (HHS), noted that Medicare pays MA plans a capitated rate per beneficiary, and thus have "a potential incentive" to deny access to services they should cover.

For example, she said, a plan denied payment for a computed tomography scan, medically necessary to rule out a life-threatening aneurysm, referencing a rule that beneficiaries are supposed to first get a less-expensive x-ray. "But Medicare has no such requirement," Tinker said.

Prior authorization is being used to deny care that, in 13% of the cases investigated, traditional Medicare would have paid, Tinker told lawmakers. "Plans make more money by providing fewer services."

Although OIG has on this problem, its oversight abilities are limited by resources. The agency receives 2¢ to oversee every $100 HHS spends, and each year turns down between 300 and 400 "viable criminal and civil healthcare fraud cases," leading to the "potential for patients to be put in harm's way, including individuals enrolled in Medicare Advantage," Tinker said.

They Didn't Choose

It's not as if the cost savings that MA plans were designed to achieve are happening, Biniek said. In its report, the Medicare Payment Advisory Commission that in 2023, the trust fund will pay $27 billion more for MA enrollees, or 6% more, than similar patients with traditional Medicare.

One witness at the hearing, Lisa Grabert, MPH, a visiting research professor at Marquette University's College of Nursing in Milwaukee and a former staff member of the House Ways & Means Committee, praised MA plans, saying that both of her parents are enrolled in them.

She said beneficiaries are choosing MA plans for their comprehensive benefit packages and "improved financial protections" and "choice simplicity," and that beneficiaries are willing to accept the trade-off of using a provider network with some utilization review requirements such as prior authorization.

"It is our expectation that a Medicare beneficiary has a basic understanding of this when they elect their choice of coverage," she said. "However, it may not be clear to beneficiaries what they are agreeing to when it comes to prior authorization."

Later in the hearing, Blumenthal referenced Bent's case, and whether he had an informed choice to buy an MA plan.

"Actually," his widow replied, "Gary was a retired state employee whose benefits were determined by the Office of the State Comptroller ... Someone else made the decision for us that we would be on Medicare Advantage." Her husband died in March after developing an infection.

Blumenthal summarized as he adjourned the hearing: MA plans' denials and delays of care "deeply impact people, impoverishes them financially but also spiritually when they have to be on the battlefield at the same time their loved ones are fighting for their lives," he said.

"The fact of the matter is [an MA plan] works until you need it," he said. "It's fine, so long as you don't need it for the big stuff, like melanoma, like long term care, like certain kinds of injections, and other needs that everyday Americans have."

How Congress should fix the problem remains unclear. But, Blumenthal said, "This investigation will continue. There's a lot here that needs to be known."

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