New appeals process promises relief

Tuesday, May 31, 2005

At a time when it's easy to be cynical about the huge bureaucratic monolith that is Medicare, the new appeals process looks like a ray of light for tomorrow. The reorganized Medicare appeals process will be virtually the same for everyone -- whether hospital, HME or individual -- with an appealable claim. There is some new terminology to learn, but the new system does feature some sorely needed improvements. Now that there is one consolidated system of Medicare appeals, with strict deadlines required by law, we may get the increased quality and accountability in Medicare appeals that has long been missing.
Under the new system, initial determinations are now required by law to include the reasons for a denial, including whether a local medical review policy (LMRP) or local coverage determination (LCD) was used. That should help when appealing a claim. Also, every decision must include procedures for obtaining additional data concerning the determination and notification of any applicable appeal rights. This much information, this early, should make a supplier's decision whether to pursue an appeal much more informed.
The new regulations officially establish the ability of an HME supplier to request a "reopening" of a previously processed claim for the purpose of correcting clerical or minor errors. I like that. A reopening is not an official appeal and therefore does not require a supplier to enter into the appeals system simply to correct a minor flaw in a claim. Claims that have been reopened are still eligible for all five levels of official appeals.
More good news? Qualified Independent Contractors or "QICs" will take over the second level of an appeal from carrier staff. Now called "reconsiderations" instead of fair hearings, let's hope decisions at this second level of appeal will less frequently rubber stamp the DMERC's initial processing and policies. With as few as four QICs selected by CMS to perform all reconsiderations nationwide, none of the QICs should become too closely identified with and entrenched in the habits and policies of an individual contractor.
The QICs will be bound by Medicare law, regulations, CMS rulings and national coverage determinations, just like the current fair hearing officers are. But they will not be bound by local medical review policies, local coverage determinations, CMS manuals or other program guidance. QICs must give local carrier policy and practices deference if they are applicable to a particular case, but they are not required to follow them right or wrong and can arrive at an independent decision in keeping with only national rather than local rules.
Sixty days is the new deadline for contractor redeterminations as well as QIC reconsiderations. Administrative Law Judges and the Medicare Appeals Council each get 90 days. These kinds of deadlines should cut some appeals procesess from years to mere months.
Troublesome provisions remain, including the switch of the Administrative Law Judge function from the Social Security Administration to DHHS. Though the judges are supposed to be independent of CMS, I'm worried that CMS will have an undue influence on the new judges. The new ALJ corps is supposed to be up and running by Oct. 1, but to date, it's completely unorganized and untrained. I'm also concerned about the fact that there are just four ALJ offices in the country. This means most appellants will have to travel, potentially a considerable distance, to receive a face-to-face hearing. If an appellant is unwilling or unable to travel to the ALJ, then they must accept an on-the-record or video-conferenced hearing. This could cause a serious access problem, particularly for small suppliers and beneficiaries.
Here's another new twist. Before the reconsideration stage, appellants have to submit all necessary documentation unless they have a good reason why they cannot. The idea, according to CMS, is that with additional information available at the time of the initial determination of a claim appellants ought to be better able to focus and document appeals in the early stages. CMS contends this will result in more appeals being addressed and handled appropriately in the first and second levels, thereby saving the upper levels of appeals for cases that are substantive and truly contested.
CMS aired out these types of changes at a recent Open Door Forum. It was heartening to witness the amount of effort and desire to realistically improve the appeals process exhibited by the CMS staff.
Healthcare attorney Ann Berriman can be reached at (410) 244-0040 or