An appeal for help

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01/23/2008

Michael Watson has some real concerns about CMS's proposal to change the Medicare appeals process, and the industry should feel the same way, he says. Unfortunately, because CMS published the proposal in the Federal Register Dec. 28—during a time when may people are on vacation—most providers don't know about this proposal, said the vice president-governmental affairs for American Medical Technologies.

The Long Riders psp In a nutshell, the proposal—to the detriment of providers—would give CMS much more control over the process. Providers have until Jan. 28 to submit public comment on the proposal, and Watson encourages them to do so ASAP. Their livelihood could depend on it, he said.

In an email to HME News, here's what Watson had to say about the proposal:

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First, the primary problem this proposal presents is the “published guidance” issue. If allowed to become effective, any functionary (or Medical Director) from ANY Medicare Contractor can publish a directive, coverage guideline, etc. to the contractor’s web site and it, under the definition listed in the proposal, becomes “published guidance” and must be followed by both the ALJs AND the DAB. There is no room for interpretation here.

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We have seen time after time where a Medical Director publishes a “coverage guideline” that is contrary to the way things have previously been done (and sometimes contrary to all logic). Under this proposal, those epiphanies become “published guidance” which ALJs and the DAB must follow (not interpret) when rendering their decisions. Consider glucose test strips, if Dr. Hughes decided that two per day were enough and published this opinion either on the web site or in a “broadcast” e-mail, it would then become “published guidance” under the new rules. It would immediately evolve from a “guideline” to a “hard-and-fast” rule. As such, it would eliminate any possibility of individual patient consideration and no one, under any circumstances would be able to receive Medicare reimbursement for more than two per day. Since CMS seems to move at the rate of maple syrup in Maine in December, getting these “published guidance” articles revoked could be a long and expensive process for providers. In the meantime, claims remain unpaid.

This, as you can imagine, represents a very, very slippery slope down which CMS and their contractors will be pushing providers.

As to the effect on ALJ decisions, the Proposed Rule states, “Because Board (DAB) review is not a mandatory part of the appeals process . . .[the Board can decline review of an ALJ decision], we are proposing Secretarial review of both ALJ decisions that the Board has declined to review and Board decisions.” What this means is that ANY ALJ decision with which the Secretary (or his/her designee) disagrees and is unable to convince the DAB to review, would be subject to the Secretary’s (or his/her designees’) review and reversal. The only oversight available to the provider/supplier or beneficiary will then be relief through Judicial Review (the Federal Court System).

The time for comment on this Proposed Rule is short, it expires close of business 1/28/2008, so the provider/supplier community needs to act and act together.

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Michael D. Watson
Vice President - Governmental Affairs
American Medical Technologies
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Email: michaelwatson207@sbcglobal.net