Medicare Appeals Have Become More Complex Than Ever.

(January 21, 2013):  Medicare appeals of denied claims for services are somewhat common.  In years past, both health care providers and members of their staff have represented themselves or their practice in the administrative process.  While the rules of participation are quite lenient, the process has significantly changed over the last decade.  Moreover, in recent years, contractors working for the Centers for Medicare and Medicaid Services (CMS) have assumed a much greater role in the Medicare appeals process.  Hearings conducted in today’s administrative appeals of alleged Medicare overpayments are likely to be quite different from those conducted even a few years ago.  Should you decide to represent yourself in a hearing before an Administrative Law Judge (ALJ), you must be prepared to respond to a number of relatively new challenges.  As set out below, the current administrative process is really the result of several consecutive legislative changes to the Medicare appeals process.

I.     The Enactment of “BIPA” Was the First of Many Changes to the Medicare  Appeals Process:

          The “Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000” (also referred to as “BIPA” )amended Section 1869 of the “Social Security Act” (Act), resulting in a number of changes.  Several of the changes implemented under BIPA included:

The legislation established a consistent, uniform process for handling both Medicare Part A and Part B administrative appeals;

BIPA introduced a new level of appeal for Part A claims, making it so that it now tracked the Part B claims appeals process;

The legislation revised the appeal deadlines for filing Part A and Part B claims appeals and also applied the same deadlines to both Part A and Part B claims;

The legislation identified “deadlines” for CMS contractors at the first level of appeal (Medicare Administrative Contractors, or “MACs”) to issue a “Redetermination’’ appeal decision;

BIPA also created a second level of appeal which would be heard by a type of CMS contractor known as a Qualified Independent Contractor (QIC) to conduct a “Reconsideration’’ of the MAC’s previously issued redetermination decision;

BIPA established a uniform “amount in controversy threshold” which must be met in order for a health care provider or supplier to appeal a reconsideration denial decision to the Administrative Law Judge (ALJ) level;

Required that each level of appeal conduct a de novo review of the evidence.

II.        The MMA Further Refined the Medicare Appeals Process:

Medicare appeals were further changed with the passage of the “Medicare Prescription Drug, Improvement, and Modernization Act of 2003” (MMA).  Several of the refinements made to the Medicare appeals process under the MMA included, but were not limited to:

Under the MMA, the ALJ hearing process was transferred from the Social Security Administration (SSA) to an agency reporting directly to the Secretary, HHS, known as the “Office of Medicare Hearings and Appeals” (OMHA).

The legislation established a process for a health care provider to seek and “expedited” judicial review;

The MMA required that health care providers present their evidence to be considered early in the appeals process so that it could be considered at the second level of appeals.  

Under the MMA, health care providers could not seek an administrative or judicial review of a determination by the Secretary of a “sustained or high levels of payment errors”; and 

These revisions, along with a number of other changes, have dramatically changed the way that Medicare appeals are conducted.  Equally significant, CMS contractors (including Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs) and even representative of the QIC now routinely show up at ALJ hearings (as a “participant” not as a “party”)in order to present their reasoning for denying the claims.

While the proceeding is technically “non-adversarial” in nature.  The participation in the ALJ hearing of medical and statistical experts working for ZPIC can greatly complicate your handling of a Medicare appeal.

Over the years, our attorneys have represented a wide variety of Part A and Part B providers and suppliers in Medicare hearings before an ALJ.  There are no guarantees in litigation.  Nevertheless, if you want to maximize your chances of presenting a persuasive case, we recommend that you retain experienced legal counsel to represent you as early in the process as possible.

Robert W. Liles, Esq. serves as Managing Partner at Liles Partner, PLLC.  Robert and the firm’s other attorneys have years of experience representing health care providers in the Medicare appeals process.  Should you have a question, call Robert for a free consultation:  1 (800) 475-1906.