Advocacy Tips: Medicare Administrative Law Judge (ALJ) Hearing Process

1. First Steps
Review the Center for Medicare Advocacy’s Self-help Packets and coverage guidelines regarding the particular level of care involved in the appeal at: http://www.medicareadvocacy.org.
Watch for, receive and review the Medicare Reconsideration decision.  If the decision denies Medicare coverage, you only have 60 days to appeal from the date of receipt of the decision (however, to be safe, we recommend appealing within 60 days of the actual letter date).

  • If you miss the deadline and there is a good reason for having missed it – for example, you were sick, request an appeal anyway. Include a written explanation stating why you missed the deadline.
2. Request a Hearing
Appeal the Reconsideration if it denies Medicare coverage and there is enough at issue.  This is done by requesting an ALJ hearing.

  • ​Note that in 2015, the ALJ can only hear your case if there is at least $200 at issue for a hospital case or $150 at issue for all other cases.  If the case involves Part D prescription medications, the amount in controversy is computed, roughly speaking, by determining the cost of a year’s supply of the denied medication.
  • Use the form sent to you with the Reconsideration for your hearing request.  Be sure to include the beneficiary’s name, address, and Medicare number.  Also include the document control number found on the Reconsideration, the date or dates of service, and the reason you think Medicare should pay for the care in question.  If you are not the beneficiary, include an Appointment of Representative form.  This form is available at http://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/downloads/cms1696.pdf
  • The Office of Medicare Hearings and Appeals (OMHA) administers Medicare’s nationwide hearings and appeals.  There are five field offices.  Each office is staffed by ALJs, attorneys, legal assistants, and hearing assistants.
  • Prior to mailing the request, visit OMHA’s home page and read its “Tips for Filing a Request for Hearing.”  You can find this at:  http://www.hhs.gov/omha/Tips%20for%20Filing%20Requests%20for%20Hearing/
    tips_for_filing_requests_for_hearing.pdf
  • Clearly mark the ALJ request form with the bolded phrase, “Beneficiary-Appellant.”  Mark the outside of the envelope with the same phrase in bold letters.  This will greatly expedite the scheduling of your hearing.
  • You have a right to a hearing by video-teleconference (VTC) so that you can see the ALJ and the ALJ can see you. Unless it will create a hardship for you, on your hearing request form, indicate that you would like the hearing scheduled as a VTC.  This will be of no cost to you.  If you decide not to use VTC technology, the ALJ’s hearing clerk will simply call you and the hearing will be held by telephone.
  • Send the hearing request via tracked mail service (for instance, certified mail) so you can prove you sent it and will get a receipt when it is received.
  • Send a copy of the appeal request to the health care provider that rendered the care or services for which you seek Medicare coverage.
3. Hearing Preparation
Ask the doctor who ordered the care or service in question for a letter describing why the care or service was medically reasonable and necessary.

  • If there is time, send the doctor’s letter with your Request for Hearing. If not, send it to the ALJ after the hearing is scheduled.
  • Keep a copy of this and all other documents related to your appeal.
Receive the supporting letter from your doctor.  
4. Notice of Hearing
Watch for and receive the Notice of Hearing.

  • It should have been mailed to you at least 20 days before the scheduled hearing.
  • It should include the specific issues to be addressed at the hearing, the time and place of the hearing, and indicate if it is a VTC or telephone hearing.  It should also tell you how to object if the notice indicates the wrong issues, if you cannot attend the hearing at the scheduled time, and if you want a VTC hearing and a telephone hearing was scheduled or vice versa.
  • The notice should also include the name of the ALJ assigned to your appeal and the name and contact information for the ALJ’s legal assistant.
Respond to the Notice of Hearing in Writing.

  • Object to any errors in the notice.
  • Object to hearing time if you or a valuable witness, including the beneficiary, cannot attend.
  • Object if you were given a telephone hearing and you want a VTC hearing or vice versa.
  • Ask for a copy of the OMHA case file that the ALJ will be reviewing.
5. Case File Review
Watch for the OMHA case file.

  • This should include pertinent medical records.
  • If medical records are missing from the case file, alert the ALJ in writing.
If you have additional medical records to submit, including a supporting letter from your physician, paginate the records and submit a copy of them to the ALJ prior to the hearing.  Do this by mail rather than by fax.  Be sure and keep a copy of the records for yourself so that you can refer to them during the hearing.
6. ALJ Hearing
Attend the Hearing.

  • Be sure to dress neatly for the hearing and address the ALJ respectfully.
  • Have a copy of the OMHA case file and any submitted additional documentation you want the ALJ to consider.
  • Expect the ALJ to begin by asking questions and explaining the hearing process.  The questions will probably include: Do you have an attorney?  Do you understand that you have a right to an attorney?  Did you receive a copy of the exhibit list?  The ALJ may put you under oath so that you can testify.
  • During the hearing, the ALJ will examine the issues, question the parties and witnesses and if appropriate, accept additional documentation.
  • Explain to the ALJ what kind of health care the individual received, why it was so important, and why it should be covered by Medicare.
    • Try to give the ALJ a feeling for the individual who received the health care, why the care was needed, and why it had to be provided in the care- setting and by skilled professionals (for example, by nurses or therapists)..
    • Use the medical records in the OMHA case file and submitted additional documentation to support your argument.  Refer to medical records by their page number so that the ALJ can look at them while you are referring to them.
7. ALJ Decision
Watch for and receive the ALJ Decision.

  • Read the decision carefully.  Make sure it addresses the correct kind of care and the correct dates at issue.  If the ALJ denies coverage, decide if you want to appeal further.  If so, follow the instructions included with the decision for requesting a further review by the Medicare Appeals Council.  Note: you only have 60 days to appeal from the date of receipt of the decision (however, to be safe, we recommend appealing within 60 days of the actual letter date).