By Brian M. Foley, Esq.

Aetna, one of the nation’s leading Health Insurers and Managed Care Organizations, is seeking to impose additional authorization, medical necessity, and precertification requirements on hospitals for outpatient services. The effect would be to eliminate advanced radiology procedures, including Magnetic Resonance (MR) and Computerized Tomography (CT) scans, as well as certain identified services from being performed in the hospital outpatient setting. In notices released last month, Aetna announced certain changes to its clinical, payment and coding policies, that would, among other things, add a “Site of Care Medical Necessity” requirement to its “Enhanced Clinical Review” program. 

According to the announcement, effective December 1, 2021, Aetna will require that advance radiology imaging procedures be reviewed by eviCore Healthcare for applicable medical necessity criteria, prior to authorization of such services in the hospital outpatient setting. As part of the review and authorization process, Aetna identified a limited number of examples in which an advanced imaging procedure at a hospital outpatient site would be considered medically necessary. One of the examples provides: “There are no other appropriate alternative sites for the individual to undergo the imaging procedure”. In essence, Aetna, through eviCore, will deny requests for authorization for the imaging procedures to be performed in the hospital outpatient setting, asserting that there are “other appropriate alternative sites” for the patients to undergo the imaging procedure. This is evidenced by Aetna’s statement: “All requested advanced radiology procedures that don’t meet the required criteria will be considered non-medically necessary unless performed at a freestanding or office location.” In a tortured interpretation of “medical necessity”, Aetna purports to determine the medical necessity of a service based on the location where the service would be provided. According to Aetna, except for certain circumstances fitting narrow criteria, no service that is performed in a hospital outpatient setting is medically necessary if it can be performed at a freestanding or office location.  

Aetna also announced new site of service precertification requirements for certain services that, again, target the outpatient hospital setting. Effective December 1, 2021, Aetna will require precertification for numerous procedures performed in an outpatient hospital setting. They will not, however, require precertification for those same procedures performed in an ambulatory surgical facility or an office. Aetna’s stated reason behind making this distinction in the site of service: “Our goal is to ensure that our members receive quality care at the most appropriate site of service based on individual needs”. A closer examination may reveal this justification to be pretextual and a means by which Aetna seeks to steer patients away from the hospital outpatient setting and into Aetna’s chosen sites of service.

These policy changes could have a drastic financial impact upon the hospitals and their outpatient departments. They clearly constitute material changes, which pursuant to New Jersey law, and by contract, the hospitals may challenge. Some contracts may even prevent these types of “policy changes”, depending on the language in the particular hospital’s contract. It is anticipated that many hospitals will object to these policy changes and, depending again on the specific language of the hospital’s contract, may be able to negate them. If you are a hospital and are concerned about these changes, and your rights to challenge them, we would be happy to review your options with you. For more information, you may contact Brian M. Foley, Esq., Co-Chair of our Health Care Law Practice Group, at 973-540-7326 or BMF@SPSK.com.     

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.