January 2018 – Medicare Appeals & Other Issues

Contents

  1. Expedited v. Standard Appeals – Not Knowing the Difference Can Cost You Your Appeal Rights
  2. Federal Update
  3. CMA Home Health Access Initiative
  4. Litigation Updates

Expedited v. Standard Appeals – Not Knowing the Difference Can Cost You Your Appeal Rights

Here’s the Issue

Expedited Medicare appeals and standard Medicare appeals are designed to address different things and there are situations where a Medicare beneficiary must pursue both types of appeals.

Expedited Appeals – Address whether the provider’s termination of Medicare-covered services was proper.

Standard Appeals – Address whether any subsequent services the beneficiary chose to receive are coverable by Medicare.

The lack of clarity in current Medicare publications and notices regarding the difference between expedited and standard appeals has created much confusion among Medicare beneficiaries and representatives.  Further adding to the confusion is the fact that Medicare contractors, Administrative Law Judges (ALJs), and the Medicare Appeals Council do not address this issue consistently.  Without clear-cut information, a Medicare beneficiary can unknowingly lose his/her right to appeal.

Here’s the Law

Beneficiaries in both traditional Medicare and Medicare Advantage have the right to an Expedited Appeal, (also called “fast appeal”) when a hospital, skilled nursing facility (SNF), home health (HH), comprehensive outpatient rehabilitation facility (CORF), or hospice provider decides that Medicare will no longer cover the services they are receiving.

A provider must give advanced written notice informing the beneficiary of when coverage will end and of how to contact the Beneficiary and Family-Centered Care Quality Improvement Organization (BFCC-QIO) to request a fast appeal.

If the BFCC-QIO upholds the termination, the beneficiary can request an expedited reconsideration which is performed by the Qualified Independent Contractor (QIC).

If the QIC issues a denial the beneficiary can request an ALJ hearing.  ALJ hearings and decisions are not expedited.

Note: If a beneficiary continues to receive services while waiting for an ALJ hearing, coverage for those services cannot be addressed at the hearing.  ALJs, the Medicare Appeals Council, and federal courts have held that they have no regulatory authority to adjudicate such services in the context of an expedited appeal.  The reasoning is that in an expedited appeal, the lower review levels only look at the decision to terminate coverage, and not whether any services provided thereafter were reasonable and necessary.  The termination of coverage claim is considered independent of a claim for coverage of subsequent services received.  Therefore, the services provided to the beneficiary post-termination of coverage are new claims that cannot properly be added to a review of the termination itself.

Here’s What You Should Do

A Medicare beneficiary who continues receiving services after getting a coverage termination notice should, in addition to requesting an expedited appeal, also exercise their right to a standard Medicare appeal.

To begin a standard appeal, a claim for all of the subsequent services must be submitted.  This can be done by asking the provider to submit a claim to Medicare for all of the services received, which the provider is required to do.

Medicare Advantage (MA) plan enrollees should contact their MA plan to ask for an organization determination.

After a claim is submitted the beneficiary will receive a decision regarding the subsequent services.  If the decision denies the claim in whole or in part, the beneficiary can proceed through the standard administrative appeals process to challenge the denial.

It is important to note that there is a one-year deadline for submitting a claim.  A beneficiary should make sure that a claim gets in the system within one year of when the services were provided.

We would like to hear if anyone has had any issues with expedited and standard appeals.  Please share your experience with us at info@medicareadvocacy.org.

Federal Update

Federal Budget, Medicare Extenders, CHIP Reauthorization

As of January 22, 2018, the government shutdown over the federal budget enters its third day.

According to the New York Times, “Medicare would operate ‘largely without disruption,’ according to the Health and Human Services contingency plan, and health care exchange activities would continue.”  The Times links to document on the Health and Human Services’ (HHS) website entitled “FY 2018 HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations” which notes:

  • Centers for Medicare & Medicaid Services (CMS) – CMS would continue key Federal Exchange activities, such as open enrollment eligibility verification, using Federal Exchange user fee carryover. In the short term, the Medicare Program will continue largely without disruption during a lapse in appropriations.  Additionally, other non-discretionary activities including Health Care Fraud and Abuse Control, and Center for Medicare & Medicaid Innovation  activities would continue.  States will have sufficient funding for Medicaid through the second quarter, due to the continuation of authority under the CR for appropriated entitlements, and CMS will maintain the staff necessary to make payments to eligible states from remaining Children’s Health Insurance Program (CHIP) carryover balances.

Activities that would not continue include: […]

  • Administration for Community Living (ACL) – ACL would not be able to fund the Senior Nutrition programs, Native American Nutrition and Supportive Services, Prevention of Elder Abuse and Neglect, the Long-Term Care Ombudsman program,  Protection and Advocacy for persons with developmental disabilities, or Independent Living Centers and services.

Proposed Part C & D Rule for CY 2019  

On November 28, 2017, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule entitled Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-for-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program  (82 FR 56336).

On January 16, 2018, Center attorneys submitted comments to CMS on behalf of the Center and California Health Advocates.  The comments were drafted in collaboration with several advocacy organizations.  The proposed rule would make significant changes to, among other things, Medicare Advantage (MA) rules that require plans to provide “uniform benefits” to all plan enrollees in a given service area, and to offer “meaningful differences” in plan benefit packages if a plan sponsor (insurance company) chooses to offer more than one plan in a service area.

In its introductory comments, the Center stated, in part:

“While much of these proposed changes appear to be aimed directly at assisting plan sponsors by reducing their obligations and oversight, we are unconvinced that beneficiaries will so benefit.

These proposed changes, some of which are untested, will make things more complex, not less, for beneficiaries.  Beneficiary ‘choice’ and plan ‘flexibility’ should not be stand-ins for adequate consumer protections.  The processes for offering and selecting private Medicare plans should not be designed for the savviest consumer; rather, there must be standard, baseline means of plan comparison.

There exists a large body of research and analysis that explores the challenges consumers currently face in making choices about their health insurance coverage, including when there are multitude of plan options, with little to no standardization.  Much of the findings in this work weigh against CMS’ proposals outlined in the [proposed rule], primarily those that would loosen both uniformity and meaningful difference standards.”

The Center’s comments outlined suggestions to strengthen educational tools and beneficiary supports, including:

  • Greater investment in State Health Insurance Assistance Programs (SHIPs),
  • Improving notices sent to plans by enrollees, and
  • Advancing policies that encourage people with Medicare to make active and informed choices about the coverage option(s) that are right for them, with help selecting among Traditional Medicare, MA plans, Medigap policies, and stand-alone Part D prescription drug plans.

The Center also urged CMS to strengthen and preserve essential consumer protections in the MA program, including improving access to network providers and increasing oversight of plan sponsors.  As our comments note, “CMS should not cater to plan requests to reduce ‘burden’ but should instead redouble efforts to ensure that MA plan enrollees, and the broader Medicare population, are being well served by the Medicare program.”

To review more detailed comments on provisions in the proposed rule that the Center either opposes or supports, see the Center’s full comments at http://www.medicareadvocacy.org/center-comments-on-proposed-rule-for-medicare-parts-c-d.

Update on Affordable Care Act (ACA) Sabotage 

Throughout 2017 we called on the Administration to stop undermining the Affordable Care Act (ACA) and protect the care of millions of consumers in need of quality coverage. We highlighted the Administration’s actions cutting the ACA enrollment period in half; slashing funding for enrollment assistance, refusing to participate in enrollment events; shutting down www.healthcare.gov during critical times; refusing to pay cost-sharing reductions and issuing an Executive Order allowing the sale of junk insurance plans.

The New Year has just begun, but they are at it again. While the ink was drying on the tax bill that stripped the ACA’s coverage mandate, they issued a rule to allow more “association health plans” and further sabotage the ACA Marketplace. Under the rule, “association” health plans could be treated like large employer plans, which don’t have to play by the same ACA coverage rules for the individual or small group market. These so called “health plans” could weaken the ACA’s guaranteed consumer protections, raise costs and destabilize the market.

None of this comes as a surprise, especially in light of the “sabotage document” released last week by Senator Bob Casey. The document details a secret plan to undermine the ACA through executive actions no matter what happened on Capitol Hill. Senator Casey said in Politico that “The primary problem here is government officials, government agencies, were taking steps that would lead to fewer people having coverage and erecting barriers to people having coverage. In addition to that, you have kind of a closed-door, back-room slimy deal here that should trouble anyone.”

This is further evidence of the Administration’s goal to let the ACA “fail, collapse and explode,” as the president has stated. Even though 2017 ACA enrollment beat many expectations, the actual number of uninsured people in America has grown steadily under President Trump.  Nearly 3.5 million Americans have become uninsured since the end of 2016, according to a new Gallup report, with coverage loss greatest among Latinos, African Americans and young people. This is unacceptable.

In a bit of good news, many states stepped up to side with consumers and extended their enrollment deadlines. Consumers in the below states can still enroll.

California – January 31 – https://www.coveredca.com

Massachusetts – January 23 – https://www.mahealthconnector.org

New York – January 31 – https://nystateofhealth.ny.gov

Washington, D.C – January 31 – https://dchealthlink.com

It is also important to note that consumers adversely affected by recent natural disasters may qualify for a Special Enrollment Period through www.healthcare.gov.

Oral Health  

The Center’s ongoing oral health advocacy focuses on the urgent need for medically essential oral health coverage, while expanding the broader effort to push for comprehensive Medicare coverage for oral health care, including preventive services. We have been partnering with DentaQuest, Dental Lifeline Network, Oral Health America, Families USA and other medical and advocacy partners to move this issue forward.

Research demonstrates that oral health disparities exist for many racial and ethnic groups, by socioeconomic status, gender, age and geographic location. This underscores the need to approach oral health disparities as a component of social justice.

The Center is currently working to ensure beneficiaries who need non-routine, medically essential oral health care can obtain Medicare coverage for this essential care. Denying Medicare coverage to people for medically essential care, simply because it involves the mouth or teeth, is a misapplication of current law. It causes harm to older and disabled people, impeding their access to other critical health care and even leading to preventable deaths.

While the Center continues longstanding work to ensure Medicare coverage of medically essential oral health needs, we are also participating in a major national initiatives to develop a robust oral health benefit in Medicare that includes preventive care.

CMA Home Health Access Initiative

The Center continues to hear from people who meet Medicare coverage criteria for the Medicare home health benefit but who are unable to access care, or the appropriate amount of care.  After continuing to research and analyze the extent of the access problems, it is clear that the home health access issues most significantly impact the most vulnerable populations, those with long-term and chronic conditions.

The following is an excerpt from Part Six of a ten-part CMA Issue Brief Series examining the growing crisis in access to Medicare home health coverage and necessary care – and outlining the Center for Medicare Advocacy’s work to address these issues. We invite you to follow this Issue Brief Series and submit Medicare home health stories to the Center at http://www.medicareadvocacy.org/submit-your-home-health-access-story/.

Beneficiary Protections Expanded in Revised Home Health Conditions of Participation

2018 ushers in newly revised Conditions of Participation (COP) that must be met in order for home health agencies to participate in Medicare. Effective January 13, 2018, beneficiary protections will be expanded under the COP which provide a more patient-centered focus of care. The revised regulations include: A new patient bill of rights that must be clear and accessible to patients and staff; additional patient assessment requirements to include psychosocial, functional and cognitive components; more significant consideration of patient preferences; greater patient involvement in care planning; coordination and integration with all of a patient’s physicians; inclusion of patients, their representatives, and home health aides on the interdisciplinary care team; and, very significantly, greater protections for patients from  arbitrary transfer or discharge from home health care.

Highlights from the revised Conditions of Participation that add protections for home health patients include the following revisions to 42 Code of Federal Regulation (CFR) Section (§) 484:

Section 484.2 – Definitions

§484.2  A Patient-Selected Representative is newly defined as someone chosen by the patient to participate in making decisions related to the patient’s care or well-being, including family members or advocates, despite the fact that they may not have any legal standing. Legal Representatives continue to be someone who is acting on the legal authority to make health care decisions.

Section 484.50 – Condition of Participation: Patient Rights

§§484.50 – 484.50(a)(1)(iii)  The patient and patient’s legal representative (if any) have the right to be informed of the patient rights in a language and manner the individual understands. This must include the home health agency’s policies regarding transfers and discharge from care.

§484.50(a)(3)  The home health agency must provide at least verbal notice of patient rights no later than the completion of the second visit from a skilled professional.

§484.50(a)(4)  This section requires: (1) written notice of patient rights and discharge or transfer policies be given to a patient-selected representative within 4 business days after an initial evaluation visit; (2) the home health agency to inquire about patient preferences and demonstrate progress toward goals; and (3) the home health agency to identify family caregivers and their willingness and availability to assist with care.

§484.50(c)(4)(i)  Patients have a right to participate in and be informed about all assessments (the previous Conditions of Participation only extended the patient right to be involved in the initial comprehensive assessment).

§484.50(c)(4)  Patients have the right to participate in, be informed about, and consent or refuse care in advance of and during treatment.

§484.50(c)(5)  Patients have the right to receive all the services outlined in the plan of care.

§484.50(d)(1)  Importantly, this section creates a new standard addressing transfer and discharge of patients by a home health agency. In this section, home health agencies are responsible for making arrangements for any safe and appropriate transfer of a patient to another agency.

§484.50(d)(3)  Discharge is noted to be appropriate only when a physician and home health agency both agree that the patient has achieved measureable outcomes and goals established in the individual plan of care. Remember that goals may include slowing deterioration of a condition, maintaining a condition, or improving a condition.

§484.50(e)(1)(i)  The subject matter upon which patients may make complaints about a home health agency is not limited just to subjects specified in the regulations.

§484.50(e)(1)(iii)  Home health agencies must take action to prevent retaliation against a patient while a patient complaint is investigated.

Section 484.55 – Condition of Participation: Comprehensive Assessment of Patients

§484.55(c)(1)  The comprehensive assessment must assess or identify current health status. A new requirement has been added to include assessment of psychosocial, functional, and cognitive status.

§484.55(c)(2)  The comprehensive assessment must include patient’s strengths, goals and care preferences, including, but not limited to, patient’s progress toward achievement of goals identified by the patient and measureable goal outcomes identified by the home health agency.

§484.55(c)(6)  The comprehensive assessment must identify the patient’s primary caregivers (if any) and any other actually available support.

§484.55(c)(6)(i)  The comprehensive assessment must include information about caregivers’ willingness and ability to provide care, their availability, and schedules.

Section 484.60 – Condition of Participation: Care Planning, Coordination of Services and Quality of Care

This section requires patients and caregivers to receive education and training including written instructions outlining medication schedules and instructions, home health personnel visit schedules, and other pertinent instructions related to patient care and treatment that the home health agency will provide specific to patient care needs.

§484.60(b)(1)  Expands services, treatments and medications that can be ordered by any of the patient’s physicians, not only the physician or physicians responsible for the plan of care.

§484.60(b)(4)  Permits any nurse acting in accord with state licensure requirements to verbally receive physician orders.

§484.60(d)(1) and (2)  Home health agencies must assure communication with all physicians involved in the plan of care, not just the physician that signed the plan of care, and the home health agency must integrate orders from all physicians to ensure appropriate coordination of services and interventions.

Section 484.65 – Condition of participation: Quality Assessment and Performance Improvement (QAPI)

This section sets out standards and required quality and improvement measures for home health agencies that are detailed, monitored and documented.

§484.75 – Condition of Participation: Skilled Professional Services

§484.75(b)(7)  A home health agency must communicate with all physicians involved in the plan of care and accept orders directly from multiple physicians involved in the plan of care, even if they are not in the same practice group.

484.80 Condition of Participation: Home health Aide Services

§484.80(g)(1)  Removes a previous requirement that the skilled professional who is responsible for the supervision of a home health aide must be the same individual who prepares written patient care instructions for the home health aide.

§484.80(g)(2)  Requires home health agencies to provide services ordered by the physician in the plan of care as long as the home health agency is permitted to perform the services under state law and the services are consistent with training received by the home health aide to provide the services.

§484.80(g)(3)  Home health aides duties are defined to include: Provision of hands on personal care; performance of simple procedures as an extension of therapy or nursing services; assistance in ambulation or exercises; and assistance in administering medications ordinarily self-administered.

§484.80(g)(4)  Requires that home health aides be members of the interdisciplinary team; report changes in a patient’s condition; and, complete appropriate records in compliance with home health agency policies and procedures.

§484.80(h)(1)  Requires a home health supervisor (RN or therapist) to make an onsite visit to the patient’s home no less frequently than every 14 days. The home health aide would not have to be present at the time of the onsite visit.

§484.80(h)(4) Requires a supervisor to ensure the care provided by the home health aide is safe and effective, including, but not limited to: following the plan of care; maintaining open communication with the patient, representatives, caregivers and family; demonstrating competency with assigned tasks; complying with infection prevention and control policies and procedures; reporting changes in the patient’s condition; and, honoring patient rights.

484.105 – Condition of participation: Organization and administration of services

§484.105(c)  This section was revised to specify that one or more qualified individuals must provide oversight of all patient care services and personnel.

484.110 – Condition of participation: Clinical records

§484.110(e)  A patient’s clinical records must be made readily available to a patient or appropriately authorized individual upon request.

Conclusion

The practical impact of the new Conditions of Participation is yet to be seen. They should, however, provide welcome additional tools to ensure Medicare-covered home health care is properly provided and that patient rights are respected.

Litigation Updates

  • Alexander v. Hargan (formerly Bagnall v. Sebelius, Barrows v. Burwell)No. 3:11-cv-1703 (D. Conn.) (Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a proposed class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered “outpatient observation” rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled “outpatients,” even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have access to nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years.

On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.  Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status.  On January 22, 2015, the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

The parties completed discovery on the issue ordered by the Second Circuit: whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, which depends on whether CMS has “meaningfully channeled” discretion on the question of patient status determinations.  If the Secretary has established criteria for inpatient hospitalization, plaintiffs have an interest that is protected by the Due Process Clause and thus they may be entitled to notice and opportunity to appeal their placement on observation. Plaintiffs received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, joined as representatives of the plaintiffs during this phase and is continuing to provide invaluable pro bono assistance.

After briefing and a hearing on cross motions for summary judgment on the protected property interest issue and defendant’s supplemental motion to dismiss, the court issued a decision on February 8, 2017 denying both motions for summary judgment and largely denying the government’s motion to dismiss.  The court found that all named plaintiffs have standing and none of their claims was moot, even though some have passed away and some have resolved their underlying individual claims. It decided that factual disputes precluded summary judgment on the property interest question, though it did note that CMS considers the billing of hospitalizations as inpatient or observation to be a regulatory matter, under the authority of the Secretary, as opposed to a clinical decision. The court also found that while a treating physician’s status order plays a “role” in Medicare’s review of a hospital claim, it is not dispositive or even presumed to be correct.

As for the motion to dismiss, the court found that plaintiffs have plausibly alleged the other two aspects of a due process claim: state action (in the form of pressure on providers by CMS) and inadequacy of existing procedures (it is undisputed that there is currently no appeal method for patients placed on observation status). The court found that plaintiffs’ claim for expedited notice is now moot due to the new requirements being implemented under the NOTICE Act (“MOON” notice). The parties filed an updated plan for further discovery as plaintiffs continue to press their due process claim.

Plaintiffs filed a renewed motion for class certification on March 3, 2017. On July 31, 2017, the court issued a decision certifying a nationwide class of Medicare beneficiaries who have received “observation services” in a hospital since January 1, 2009, and have received an “initial determination” that such services were covered, or subject to coverage, under Medicare Part B. In response to a motion for reconsideration filed by plaintiffs, the court issued a decision October 16, 2017 redefining the class to specifically include beneficiaries who have received a MOON notice. The court declined to include beneficiaries who do not have Part B, as plaintiffs had requested, but stated that it may revisit the class definition as more evidence is presented.

Update: The parties are now proceeding with discovery on their due process claim. Both parties have served written discovery requests and are in the process of providing written responses and producing documents.

As class counsel receives inquiries from people asking whether they can “join” the case, we advise them that no action is required of class members, but they should save any paperwork relating to their hospitalization and costs resulting from it. We also encourage them to share their observation status story on the Center’s website here: http://www.medicareadvocacy.org/submit-your-observation-status-story/

  • Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard).  The settlement in Jimmo was approved on January 24, 2013.  CMS issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS also implemented a nationwide Educational Campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve. Pursuant to the settlement, counsel for the parties met twice a year to discuss problems with implementation and possible solutions.

On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the settlement agreement. The filing came after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.

The court announced its decision on the Motion for Resolution of Non-Compliance on August 18, 2016.  The Order required CMS to remedy the inadequate Educational Campaign that was a cornerstone of the original Settlement Agreement. As the judge stated, “Plaintiffs bargained for the accurate provision of information regarding the maintenance coverage standard and their rights under the Settlement Agreement would be meaningless without it.” The parties negotiated but could not come to agreement on what a Corrective Action Plan should entail.  The court then ordered each party to submit a brief explaining and justifying their proposed corrective action plans, as well as a response to the other party’s plan.

On February 2, 2017, the court released a decision ordering CMS to carry out a Corrective Action Plan to remedy noncompliance with the Settlement. The plan includes a new webpage by CMS dedicated to the Jimmo settlement with frequently asked questions and a statement (which the court largely adopted from plaintiffs’ suggested language) that affirmatively disavows the Improvement Standard; new training for Medicare contractors making coverage decisions; and a new National Call for Medicare contractors and adjudicators to correct erroneous statements that had been made on a previous call. The government was given an opportunity to object to the language of the corrective statement, and the parties negotiated final wording which was submitted to the court.  On February 16, 2017, the court approved the final wording of the statement to be used by CMS to affirmatively disavow the use of an Improvement Standard.  Importantly, the statement notes that the “Jimmo Settlement may reflect a change in practice for those providers, adjudicators, and contractors who may have erroneously believed that the Medicare program covers nursing and therapy services under these benefits only when a beneficiary is expected to improve.”

In late August 2017 the government published the new Jimmo-webpage on the CMS website to comply with the Corrective Action Plan.  The webpage can be found here.  The webpage includes court-approved affirmative disavowal of the Improvement Standard in a blue box titled “Important Message About the Jimmo Settlement.” The webpage also contains links to Jimmo-related documents, such as the transmittals of the revised Manual provisions, and a new set of Frequently Asked Questions. The imprimatur of CMS on these materials will help beneficiaries and their advocate who are arguing against inappropriate coverage denials or service terminations.

Class counsel raised the issue of some language on the Jimmo webpage in the “Additional Information” section that conflicts with the language in the “Important Message About the Jimmo Settlement” box.  Class counsel has asked that two sentences be removed from the webpage. The parties submitted briefs on this issue in October 2017.

Update: On November 21, 2017, the court ordered the government to remove one of the two sentences that class counsel had requested be removed from the Jimmo webpage.  The court case has now concluded, but class counsel continues to work on ensuring that access to skilled maintenance nursing and therapy for older adults and people with disabilities is not inappropriately denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.”

For more information, see the Center’s website at: http://www.medicareadvocacy.org/medicare-info/improvement-standard/.

  • Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut. The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing. The parties also conducted discovery. In March 2016 the court preliminarily approved a settlement and notice to the class was posted.

A Fairness Hearing was held on August 1, 2016 and the Court granted final approval of the settlement agreement. The settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants, and to address any complaints or questions concerning the processing of those appeals. OMHA will also introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals.

On September 1, 2016 as part of the settlement, OMHA established a toll-free Beneficiary Help Line: (844) 419-3358.  This line, which is staffed by representatives of OMHA, will address inquiries about ALJ appeals being pursued by Medicare beneficiaries. The Center urges anyone pursuing a beneficiary appeal who believes the appeal is not receiving timely attention to call the Beneficiary Help Line. The expectation is that a call to this line will help resolve delays in cases that are eligible to be prioritized. The Beneficiary Help Line is staffed from 8:00 a.m. to 4:30 p.m., Eastern Time. If calling at other times or if the OMHA Beneficiary Help Line staff are assisting other callers, OMHA instructs callers to leave a voicemail. Please report your experiences using the Help Line to the Center at: abers@medicareadvocacy.org.

As of November 1, 2016 CMS updated scripts for 1-800-Medicare to highlight the OMHA beneficiary prioritization policy for beneficiary callers and to refer them to the toll-free OMHA Beneficiary Help Line if they have questions about filing appeals with OMHA or about ALJ appeals that are pending with OMHA. OMHA also posted the beneficiary appeals data required by the settlement on their website at http://www.hhs.gov/about/agencies/omha/about/current-workload/beneficiary-appeals-data/index.html. The data shows beneficiary appeals now being processed within or very close to the 90-day statutory time period.

In late January 2017 the Office of Medicare Hearings and Appeals issued a new ALJ request form, the OMHA-100, which is a unified request for hearing and review and can be used for all appeals to OMHA.  As part of the settlement, the form allows beneficiaries and enrollees to self-identify, making it easier for these claims to be classified as beneficiary appeals and given priority for processing. CMS has also issued instructions to appeal contractors that deal with reconsiderations (the level below ALJ hearings) the begin using revised appeal instructions that include plain-language instructions about OMHA’s beneficiary mail-stop as well as information on the beneficiary help-line that has been established at OMHA.  The OMHA-100 is available at: https://www.hhs.gov/sites/default/files/OMHA-100-Request-for-Hearing-or-Review-of-Dismissal.pdf.

  • Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff represents beneficiaries who have received the usual “rubber stamp” denials at redetermination and reconsideration. The plaintiff also filed a motion for class certification, and the government filed a motion to dismiss. Written discovery was served but responses were stayed while the motion to dismiss was pending. Oral argument was held on February 29, 2016.

On August 8, 2016, the judge largely denied the government’s motion to dismiss and granted plaintiff’s motion for certification of a nationwide class. The court concluded that it had jurisdiction and decided that the case was not moot even though plaintiff’s claim had ultimately been approved. The judge dismissed the statutory claim, but found that plaintiff had stated a valid claim for relief under the Due Process Clause. He found plaintiff’s claim of policies or practices causing the denial rate sufficiently plausible to allow the case to continue to discovery. The judge also certified a nationwide class of Medicare beneficiaries of home health care services who had received adverse decisions at the first two levels of appeal on their Part A or Part B claims, and who had received an initial adverse initial determination on or after January 1, 2012.

Plaintiffs and the Secretary each served discovery and provided written responses and document production. Several depositions were held.  The court stayed discovery deadlines as the parties discussed settlement.

Update: On December 12, 2017, the parties filed a joint motion for preliminary approval of a settlement agreement and notice to the class. The proposed settlement applies to all beneficiaries whose appeals for coverage of home health services have been or will be denied at the first two levels of review and who received an initial determination or notice of termination of coverage for those services dated on or after January 1, 2012. Under the agreement, the Medicare agency will transmit four memoranda containing important principles for deciding home health appeals to the Medicare contractors that handle those decisions at the first and second levels of review. Class counsel, believes that the principles expressed in the transmittals are key to fair decision-making and will reinforce compliance with beneficiaries’ due process protections in the administrative appeal system. The court granted preliminary approval of the settlement and set a Fairness Hearing for February 26, 2018. Any class member wishing to file objections to the proposed settlement must follow instructions listed in the notice to the class (link below) and all objections must be received by class counsel no later than February 5, 2018. The notice to the class, with instructions on filing objections, and the proposed settlement can be found here.

  • Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015.

Written discovery was served. The government filed a motion for summary judgment in November 2016 and plaintiffs filed a cross motion and responded in December.  However the parties then entered settlement talks and postponed further briefing while those negotiations proceeded.

On October 11, 2017, the parties filed a joint motion for preliminary approval of a proposed settlement agreement and notice to the class, which the court approved on October 27, 2017. Notice to the class was posted and is available here. The notice explains that The proposed settlement applies to Medicare beneficiaries in the northeast United States whose appeals for coverage of home health services were denied between January 1, 2010 and March 5, 2015 on the basis of not being homebound, and who had previously received a favorable appeal decision determining that they were homebound. More details on the class definition can be found in the notice to class members. The agreement will allow class members to have their eligible claims for home health services reviewed under the Prior Favorable Homebound provision, which directed that when a beneficiary had previously been found to be homebound in a Medicare appeal, that conclusion should be given “great weight” in any subsequent appeal for home health services, provided there had not been a significant change in the beneficiary’s condition.

Update: A final fairness hearing was held at the court in Rutland, Vermont on January 11, 2018. No objections were received, and the court granted final approval of the settlement. CMS will be publishing on their website an application process for eligible class members to have their claims re-reviewed under the correct standard. Eligible class members will be required to identify themselves and their eligible claim to CMS no later than one year after the settlement application process is published. The settlement, available here, contains details on which beneficiaries are eligible for re-review and the procedural requirements. Class counsel will alert advocates when CMS has published the application process on its website.