Medicare Advantage Network Adequacy Exceptions, and Challenging Them

Medicare Advantage network adequacy is measured county by county. CMS publishes maximum travel times and distances and a minimum number of providers for each specialty type and each kind of county, and a plan's network has to meet them. When it cannot, the plan can ask CMS for an exception. The exception rules turn on one factual question: are the missing providers actually unavailable? For a provider who has been told "we have enough," that question is where the leverage is.

What standards must an MA network meet?

Under 42 CFR 422.116(a)(3), "An MA plan must meet maximum time and distance standards and contract with a specified minimum number of each provider and facility-specialty type." The standards vary by county type: large metro, metro, micro, rural and counties with extreme access considerations (CEAC), defined by population and density in 422.116(c).

The provider-specialty types in 422.116(b)(1) are 29 in all, including primary care, cardiology, chiropractor, dermatology, gynecology and OB/GYN, neurology, orthopedic surgery, podiatry, psychiatry, clinical psychology and clinical social work. The facility types in 422.116(b)(2) include physical therapy, occupational therapy, speech therapy and outpatient behavioral health. The outpatient behavioral health category can include marriage and family therapists, mental health counselors, opioid treatment programs and community mental health centers, and some NPs, PAs and clinical nurse specialists who regularly furnish behavioral health services.

Plans must ensure that at least 90 percent of beneficiaries in large metro and metro counties, and at least 85 percent in micro, rural and CEAC counties, can reach at least one provider of each type within the published limits (422.116(d)(4)). CMS updates two files every year: a Health Service Delivery (HSD) Reference file with the numbers and limits, and a Provider Supply file "that lists available providers and facilities and their corresponding office locations and specialty types" (422.116(a)(5)).

When can a plan get an exception?

A plan "may request an exception to network adequacy criteria" when, among other grounds, "Certain providers or facilities are not available for the MA plan to meet the network adequacy criteria as shown in the Provider Supply file for the year for a given county and specialty type" and the plan "has contracted with other providers and facilities that may be located beyond the limits in the time and distance criteria, but are currently available and accessible to most enrollees, consistent with the local pattern of care" (422.116(f)(1)(i)). A separate ground covers facility-based institutional special needs plans.

In deciding, CMS considers whether "The current access to providers and facilities is different from the HSD reference and Provider Supply files for the year," whether other factors show access "consistent with or better than the original Medicare pattern of care," and whether approval "is in the best interests of beneficiaries" (422.116(f)(2)).

Which credits can make a thin network look adequate?

Before an exception is even needed, the rules give plans percentage credits:

• Telehealth. A 10 percentage point credit toward the time and distance percentage when the network includes telehealth providers of certain specialties, including dermatology, psychiatry, cardiology, neurology, primary care, clinical psychology, outpatient behavioral health and clinical social work (422.116(d)(5)). Telehealth-only providers still do not count toward the minimum number standard (422.116(e)(1)(ii)).
• Certificate of need states. A 10 point credit, or customized standards, where state law limits the number of providers or facilities (422.116(d)(6)).
• New or expanding service areas. A 10 point credit during application review, and permission to use signed letters of intent instead of contracts. Both end when the contract year begins, and an approved plan must then have signed contracts (422.116(d)(7)).

The letter-of-intent rule is worth noting. If a plan expanding into your county approached you during its application and then never signed, the plan still had to have signed contracts once the year began.

How can a provider challenge an exception?

The regulations do not give providers a petition to file against a plan's exception. What they do is make the exception depend on facts a provider can speak to: whether providers in that specialty and county are available, and whether current access matches CMS's files. A practical sequence:

1. Confirm your type and county. Is your specialty one of the 422.116(b) types? Which county type are you in?
2. Put your availability in writing. Ask the plan to contract, state that you accept new Medicare patients, and give your locations, hours and languages. Keep the plan's written reason for any refusal, which 42 CFR 422.205(a) requires.
3. Document access. Travel times from the communities you serve to the nearest in-network provider of your type, current wait times at listed providers, and directory entries that turn out to be wrong or not accepting patients. See documenting an access gap and time and distance standards.
4. Present it to the plan. The plan's network team is the party that files exception requests and must answer CMS. A clear record that an available provider was refused gives it a reason to reconsider before its next filing.

CMS can also update the Provider Supply file "based on findings from validation of provider information submitted on Exception Requests" (422.116(a)(5)(ii)(B)), which shows that availability data in exception requests is checked. Whether and how CMS takes information directly from an individual provider about a specific plan is not set out in the rule, so we do not promise a CMS review.

What does "available and accessible" mean for members right now?

Exceptions do not erase the member protection in 42 CFR 422.112(a)(1)(iii): a coordinated care plan must "Arrange for and cover any medically necessary covered benefit outside of the plan provider network, but at in-network cost sharing, when an in-network provider or benefit is unavailable or inadequate to meet an enrollee's medical needs." For a patient who cannot get timely care in network, that duty can support a per-patient arrangement while the broader contracting question is open. See single-case agreements.

Is a closed MA network illegal when the county is short?

Not by itself. A plan may refuse providers beyond the number needed (42 CFR 422.205(b)(1)), and CMS may grant an exception when its criteria are met. The point of documenting access is to show that the plan's own network data and the facts on the ground disagree, which is a reason for the plan to contract, not a guarantee that it will. When a dispute turns into a question of legal rights or contract terms, a healthcare attorney should advise you.

Who does the work, and who signs?

We research, prepare and organize; you sign and send. A Network Rejection Review ($249, credited toward a dispute) checks whether your specialty and county fall under 422.116 and whether the refusal reason holds up. A Payer Network Dispute ($799 per payer, or $1,999 for three payers) assembles the access evidence and the letters for your signature, and we track every response. If a plan offers a contract, the win fee is a flat $1,500 ($1,250 per win in the three-payer bundle). For the broader picture, read what MA participation rules require or start at the closed panels hub.