September 2016 – Progress In Impact Litigation & Other Issues
- Barrows v. Burwell (formerly Bagnall v. Sebelius), No. 3:11-cv-1703 (D. Conn.) (Observation Status). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a 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 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, a three-judge panel of 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 have completed discovery on the question of whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, such that they would have due process rights. 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, is providing pro bono assistance
Update: Briefing on cross motions for summary judgment and defendant’s supplemental motion to dismiss is scheduled to be completed by late October 2016.
- For more information about this decision, including a link to the opinion of the appeals court, see: http://www.medicareadvocacy.org/appeals-court-allows-hospital-patients-in-observation-status-to-continue-court-case/
- For more information about observation status, including pending legislation see: http://www.medicareadvocacy.org/medicare-info/observation-status/.
- 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.
Update: 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: firstname.lastname@example.org.
- For information about and a copy of the Exley settlement, see: http://www.medicareadvocacy.org/exley-v-burwell-settlement-in-medicare-appeals-delay-case-granted-final-approval/
- Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard). As reported during previous Alliance calls, the settlement in Jimmo was approved on January 24, 2013 during a fairness hearing. 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 have been meeting twice a year to discuss problems with implementation and possible solutions, and are in regular contact between meetings.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. Oral argument was held on May 26, 2016. 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.
If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage.
Update: The court announced its decision on the Motion for Resolution of Non-Compliance on August 18, 2016. The Order requires 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.” CMS must submit its proposed “corrective action” to plaintiffs’ counsel for consideration by October 3, 2016. If the parties cannot agree to that corrective action, they may petition the court for a resolution of their dispute.
- For more information, including a copy of the Court’s August 18th Order, see the Center’s website at: http://www.medicareadvocacy.org/medicare-info/improvement-standard/.
- 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.Update: 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, rejecting the Secretary of Health and Human Services’ argument that all administrative remedies must be exhausted. It also 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 a “secret policy” leading to the denial rate sufficiently plausible to allow the case to continue. This will allow the plaintiff class to obtain discovery responses relevant to that issue.
On plaintiff’s class motion, the judge held that the four factors under Federal Rule of Civil Procedure 23(a) and also Rule 23(b)(2) had been satisfied. He thus 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. Plaintiff now awaits the government’s written discovery responses, and discovery is expected to continue through May 2017.
- 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 has been served. Defendant’s counsel has approached plaintiffs’ counsel about possible settlement.
- For more information, including a copy of the complaint, see: http://www.medicareadvocacy.org/federal-court-class-action-challenges-medicares-practice-of-repeatedly-denying-home-health-coverage-for-homebound-beneficiaries/.
- Lodge v. Burwell, No. 3:15-cv-390 (D. Conn., filed 3/17/2015) (Medically necessary oral health care). This appeal filed in federal court, District of Connecticut, presents an opportunity for the court to review whether surgical treatment to a Medicare beneficiary’s teeth damaged by radiation therapy to the head and neck was 1) properly characterized by an Administrative Law Judge as a covered physician service that was medically reasonable and necessary as a part of an overall plan of care for cancer or 2) improperly characterized by the government contractor as excluded dental services. These competing interpretations depend upon how the specific treatment is characterized. The plaintiff amended the complaint on June 30, 2015 to add a claim under the Administrative Procedure Act (APA), stating that in 1974 the agency removed the word “routine” from the description of excluded dental services without following proper notice-and-comment procedure. Plaintiff requests that the court therefore read the relevant regulation as if the word “routine” had never been removed, which would allow for coverage of his extraordinary, non-routine oral health care.The government filed a partial motion to dismiss in October 2015. The motion sought to dismiss the APA claim as barred by the statute of limitations. However after the motion was briefed, the government requested and was allowed to withdraw the partial motion to dismiss. The parties also conducted limited written discovery.
Oral argument on the merits of the case is scheduled for September 23, 2016.
- Bremby v. Burwell, No. 3:15-cv-1397 (D. Conn.) (per se skilled services). This case was filed on September 22, 2015, in the U.S. District Court for the District of Connecticut. It challenges the denial of Medicare home health coverage for a beneficiary who required monthly Vitamin B-12 intramuscular injections. Intramuscular injections are, by regulation, a per se skilled service, and the beneficiary in this case has a condition (Total Gastrectomy) for which Medicare policy expressly recognizes B-12 injections to be a medically necessary treatment. The Center is interested in hearing about similar problems that others are encountering with respect to denials of home health or SNF coverage for per se skilled services listed at 42 C.F.R. 409.33(b). Advocates and beneficiaries are encouraged to contact Wey-Wey Kwok at email@example.com.Other examples of health care services that are defined by Medicare as skilled in either a Skilled Nursing Facility or for Home Health care include:
(1) Intravenous or intramuscular injections and intravenous feeding.
(2) Enteral feeding that comprises at least 26 per cent of daily calorie requirements and provides at least 501 milliliters of fluid per day.
(3) Nasopharyngeal and tracheostomy aspiration;
(4) Insertion and sterile irrigation and replacement of suprapubic catheters;
(5) Application of dressings involving prescription medications and aseptic techniques;
(6) Treatment of extensive decubitus ulcers or other widespread skin disorder;
(7) Heat treatments which have been specifically ordered by a physician as part of active treatment and which require observation by nurses to adequately evaluate the patient’s progress;
(8) Initial phases of a regimen involving administration of medical gases;
(9) Rehabilitation nursing procedures, including the related teaching and adaptive aspects of nursing, that are part of active treatment, e.g., the institution and supervision of bowel and bladder training programs.
On December 28, 2015, the government filed a motion to remand the case to the Medicare Appeals Council. On April 29, 2016, the court granted the government’s motion to remand, but retained jurisdiction and ordered defendant to submit a status report on further action taken by the Secretary of Health and Human Services by August 15, 2016.
On June 13, 2016, the Medicare Appeals Council issued a new decision, favorable to the beneficiary. It decided that the monthly Vitamin B-12 injections should be covered, however its rationale was questionable. The Appeals Council stated that the medical records did not “clearly indicate the purpose for giving” the B-12 injections, “nor do most of the skilled nursing visit notes specifically reference the beneficiary’s gastrectomy.” It found coverage as warranted nonetheless because the beneficiary’s plans of care referenced the total gastrectomy. The decision made no reference to the serious problems with the original Appeals Council decision, which theorized that the beneficiary could have performed the intra-muscular injections herself. Despite the favorable ruling, the Center was not satisfied with the reasoning of the Appeals Council.
Update: On August 15, 2016, as required by the court, the government filed a status update which stated that since coverage had been granted the case is now moot. The Center responded with a filing explaining its continuing disagreement with the rationale used by the Appeals Council. On August 16 the court ordered the government to file a motion to dismiss based on its contention that the case is moot by September 16, 2016. Plaintiff awaits that filing and will respond.
HOME HEALTH BENEFIT – DIMINISHING ACCESS TO CARE
Overview of the Benefit – In Law and In Practice
The Center for Medicare Advocacy has been hearing from people who meet Medicare coverage criteria but are unable to access Medicare-covered home health care, or the appropriate amount of care.
In particular, people living with long-term and debilitating conditions find themselves facing significant access problems. For example, patients have been told Medicare will only cover one to five hours per week of home health aide services, or only one bath per week, or that they aren’t homebound (because they roam outside due to dementia), or that they must first decline before therapy can commence (or recommence). Consequently, these individuals and their families are struggling with too little care, or no care at all.
Home health access problems have ebbed and flowed over the years, depending on the reigning payment mechanisms, systemic pressures, and misinformation about Medicare home health coverage. Regrettably, if recent policies and proposed rules are fully implemented, it appears these access problems will only get worse.
- Medicare Covered Home Health Services
- Necessary and reasonable care so long as coverage criteria are met: Benefits can continue with no duration of time limit so long as Medicare coverage criteria are met.
42 USC §1861(m); 42 CFR §409.48(a)and (b)
Medicare Benefit Policy Manual (MBPM), Chapter 7, §70.1
- Intermittent Skilled Nursing: Nursing that is provided less than daily (seven days per week) or daily, for up to eight hours per day, for periods of 21 days or less (with extensions possible in exceptional circumstances, when the continued need for daily care will end in a predictable period of time.) Nursing and Home Health Aide services combined can be covered up to 28-35 hours per week.
42 USC §1395x(m), 42 USC §1395f(a)(2), 42 USC §1395n(a)(2)(A)
42 CFR §409.42(c)(1)
MBPM, Chapter 7, §40 to §40.1.3
Skilled nursing includes care to maintain an individual’s condition or slow decline. MBPM, Chapter 7, §20.1.2, §40.1, §40.1.1
- Part-Time Skilled Nursing: Nursing that is provided less than daily (seven days per week) and less than 8 hours per day. (Nursing can be covered up to 28-35 hours per week combined with Home Health Aide services.)
42 USC §1395x(m), 42 USC §1395f(a)(2), 42 USC §1395n(a)(2)(A)
42 CFR §409.42(c)(1)
MBPM, Chapter 7, §40 to §40.3, §50.1, §50.7
This includes skilled nursing to maintain an individual’s condition or slow decline. MBPM, Chapter 7, §20.1.2, §40.1, §40.1.1
- Home Health Aides: Personal care services for less than eight hours each day and less than seven days per week (up to 28-35 hours combined with Skilled Nursing services)
42 USC §1395x(m); 42 CFR §409.45(b)
MBPM, Chapter 7, §50.1, §50.2
- Physical Therapy (PT): Skilled therapy by or under supervision of a skilled physical therapist
42 USC §1395x(m); 42 CFR §409.42(c)(2)
MBPM, Chapter 7, §40.2 to §40.2.2, §50.1
This includes therapy to maintain an individual’s function or slow decline.
MBPM, Chapter 7, §40.2 to §40.2.2E
- Speech Language Pathology (SLP) (Also referred to as Speech Therapy (ST)): Skilled SLP by or under supervision of a skilled speech language pathologist.
42 USC §1395x(m); 42 CFR §409.42 (c)(4)
MBPM, Chapter 7, §40.2, §40.2.1, §40.2.3, §50.1
This includes services to maintain an individual’s condition or slow decline.
MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3)
- Occupational Therapy (OT): Skilled OT by or under supervision of a skilled occupational therapist.
42 USC §1395x(m); 42 CFR §409.42(c)(4) and §409.45(d)
MBPM, Chapter 7, §40.2, §40.2.1, §40.2.4 to 188.8.131.52, §50.1
This includes therapy to maintain an individual’s condition or slow decline
MBPM, Chapter 7, §40.2, §40.2.1, §40.2.1(d)(2) and (3)
- Medical Social Services: To resolve possible social/emotional impediments to effective treatment or rate of recovery.
42 USC §1395x(m); 42 CFR §409.45(c) MBPM, Chapter 7, §50.3
- Medical Supplies: Items that are essential to enable home health agency personnel to effectively carry out ordered care.
42 USC §1395x(m); 42 CFR §409.45(f)
MBPM, Chapter 7, §50.4.1, §184.108.40.206, §220.127.116.11, §18.104.22.168
- Durable Medical Equipment (DME): As in other situations, DME furnished by a home health agency is subject to a 20% coinsurance.
42 USC §1395x(m); 42 CFR §409.45(e)
MBPM, Chapter 7, §50.4.2
- Services Included in the Physician’s Plan of Care But Not Available from the Home Health Agency: Home health agencies that are not able to provide all the Medicare-coverable care included in the patient’s Plan of Care, are required to make arrangements with other providers to provide the care.
MBPM, Chapter 7, §10.11, §40
- Individuals who meet Medicare Home Health Criteria Have A Right To:
- Be fully informed of care and treatment: Individuals have the right to be informed in advance of care and treatment, changes and to care and treatment, and to participate in planning or changes of care and treatment.
42 USC §1395bbb(a)(1)(A); 42 CFR §484.10(c)
- Be fully informed of Medicare coverage and payment: Individuals have the right to be informed of items and services furnished under Medicare and of the coverage for such items and services.
42 USC §1395bbb(a)(1)(E); 42 CFR §484.10(e)
- Voice grievances against the home health agency (HHA) regarding treatment or care: Individuals may voice grievances for treatment or care that is (or fails to be) furnished. 42 42 USC §1395bbb(a)(1)(B); 42 CFR §484.10(b)(4)
- A Home Health Agency Must:
- Administer drugs and treatments only as the physician has ordered.
42 CFR §484.18(c)
- Not discriminate against an individual due to his/her Medicare status.
42 CFR §489.53(a)(2)
- Comply with the Medicare Conditions of Participation or be subject to sanctions or termination from Medicare: The Centers for Medicare & Medicaid Services (CMS) may sanction or terminate a HHA when a survey reveals that the HHA has been noncompliant with one or more Conditions of Participation.
42 USC §1395bbb(e); 42 CFR §488.810(b)
Surveys are conducted periodically, following changes in HHA information, or when a significant number of complaints against an HHA are reported to CMS, the State, or any other appropriate federal, state, or local agency.
42 USC §1395bbb(c)(2)(A) and (B); 42 CFR §488.730
Recent Policy Changes
The Center has been hearing about people who clearly meet Medicare criteria but are unable to access home health care ordered by their physicians. In particular, people living with long-term and debilitating conditions find themselves without necessary home care. For example, they have been told Medicare will only cover 1 to 5 hours per week of home health aide care, or only one bath per week, or that they aren’t homebound (because they roam outside due to dementia), or that they must first decline before therapy can commence (or recommence). These individuals and their families are struggling as a result of these inappropriate limitations with too little care or no care at all.
Home health access problems have ebbed and flowed over the years, depending on the reigning payment mechanisms, systemic pressures, and misinformation about Medicare home health coverage. Regrettably, if proposed payment rules are finalized, it appears these access problems will only get worse.
The Center submitted comments expressing our concerns that the proposed changes will result in drastically reduced access to Medicare home health care coverage, particularly for people who are clinically complex or who have poorly controlled chronic conditions.
We are also deeply concerned about, and urge reconsideration of, the proposed measure set for the “Home Health Value Based Purchasing (HHVBP) Model and Quality Reporting,” which is based largely on a discredited Improvement Standard, in conflict with the federal Jimmo v. Sebelius settlement. (CA No. 5:11-CV-17-CR; D. VT, January 2013.) Contrary to CMS’ stated desire that the HHVBP Model improve the quality and delivery of home health care to Medicare beneficiaries, the Model will actually reduce home health access to vulnerable people who cannot “improve,” but who require skilled care to maintain their conditions, or slow or prevent further deterioration.
The Center’s comments, with sign-ons from many other individuals and organizations, are available at http://www.medicareadvocacy.org/center-comments-on-proposed-home-health-payment-changes/.
Medicare home health pre-claim review demonstration project began in Illinois on August 3, 2016. One Illinois home health agency that averages 500 home health episodes a month states that it has seen a “fifty-fold” increase in their administrative work, mostly at a nursing level due to skilled file review.
Other difficulties being encountered with the Medicare Contractor, Palmetto, are reported to include: continuous “non-affirmations” (denials) of pre-claim reviews; indications that documents are missing when they were previously confirmed by Palmetto to have been uploaded; Palmetto “moves the ball around” about contents they require to be included in progress notes; and, post start-of-care 100% claim reviews are creating a lag-time that Palmetto may take multiple months to determine if a home health agency may receive payment for services agencies have, in some cases, already provided.
Implementation of pre-claim review may begin as early as October 1 in Florida, December 1 in Texas, and January 1, 2017 in Michigan and Massachusetts. Advocates should monitor access problems this demonstration project may result in for beneficiaries.
MEDICARE ADMINISTRATIVE APPEALS PROCESS
Overview of Recent Proposed Rule
Since 1986, the Center has represented thousands of Medicare beneficiaries seeking coverage of health care and services through the Medicare administrative appeals process. As discussed in previous CMA Alerts, the Center has advocated for our clients in individual appeals, policy discussions, and, selectively, through strategic litigation aimed at enforcing due process and other health care rights. Recently, the Department of Health and Human Services (HHS), which oversees both CMS and the Office of Medicare Hearings and Appeals (OMHA), which administers the third stage of the Medicare appeals process, Administrative Law Judge (ALJ) hearings, issued a proposed rule that would make number of changes to the Medicare administrative appeals system, primarily at OMHA.
While the proposed rule and related efforts have largely been aimed at easing the significant backlog of cases pending hearing at OMHA, in our view, scant attention has been paid to addressing the primary causes of the backlog. These causes include the “rubberstamp” decisions at the lower levels along with increasing provider audits and resulting provider appeals, mostly related to CMS’ hospital observation status policies.
On the one hand, the proposed rule aims to streamline certain rules, terminology and processes in order to make the broader appeals system function better, which the Center supports. On the other hand, we strongly object to other proposals which appear to make things easier for both appellants and adjudicators, but would likely complicate and dilute the rights of beneficiaries pursuing appeals.
The Center recently submitted comments, and a number of organizations signed on. In particular, the Center’s comments expressed strong concerns with proposals to:
- Permit the Medicare Appeals Council Chair to decide that certain Council decisions will have precedential value;
- Increase the burden on beneficiaries requesting ALJ hearings;
- Remove the requirement that ALJ hearings “must” be conducted within 90 days;
- Change the default mode of hearing from Video Teleconference (VTC) to telephone.
- Restrict application of the appeal regulations (Part 405 of Title 42 of the Code of Federal Regulations) to Medicare parts C & D when alternative provisions are not articulated;
The Center’s comments are available at http://www.medicareadvocacy.org/center-comments-on-proposed-rule-that-would-significantly-alter-the-medicare-administrative-appeals-process/.
There have been various proposals to address the significant backlog at OMHA, also discussed on previous calls, including those outlined in recent budgets offered by Obama Administration, and a bill introduced by the Senate Finance Committee (see, e.g., our June 2015 Alliance brief at: http://www.medicareadvocacy.org/june-2015-reforming-medicares-appeals-system-other-issues/; also see our January 2016 brief at: http://www.medicareadvocacy.org/january-2016-senate-finance-request-for-comments-on-chronic-care-other-issues-2/).
ADMINISTRATION ON COMMUNITY LIVING GRANT – FOR MEDICARE BENEFICIARIES UNDER AGE 65
An update on the activity generated by Center’s Administration for Community Living grant to expand SHIP/SMP outreach opportunities to Medicare beneficiaries Under Age-65:
The Center has a web-page on the Center’s website (www.MedicareAdvocacy.org) dedicated to issues for people who are under the age of 65 and who are eligible for Medicare benefits. This web-page is available to SHIPs and SMPs and all beneficiaries and advocates of beneficiaries who are looking for information to Medicare beneficiaries who are under age 65. Currently the web-page includes resources and events that will benefit this hard-to-reach population. It also includes information on past webinars and upcoming webinars on topics of particular interest or need for individuals who are under 65 and eligible, or becoming eligible, for Medicare.
Next Webinar: This Thursday, September 15, 2:00 pm – Transitions Onto (and Off Of) Medicare for Individuals Under Age 65
The free webinar, supported by a grant by the U.S. Administration for Community Living, will include an overview of:
- Successfully avoiding pitfalls during transitions from Marketplace plans to Medicare;
- Transitions from Medicaid coverage alone to becoming a dual eligible;
- Special considerations for transitions from employer plans, SHOP plans and COBRA;
- Transitions off Medicare for people with disabilities returning to work.
In addition, the webinar entitled “An Overview of Eligibility, Enrollment and Payment” has been translated into Spanish and will be posted to the project web page in the near future. We are also seeking a Vietnamese translation of the presentation.
The Center is developing a new survey with the American Association of People with Disabilities (AAPD) to reach the individuals the project seeks to serve and address their needs. If any organizations would like to participate in this survey process or provide feedback, please contact Communciations@MedicareAdvocacy.org.
For more information, see: http://www.medicareadvocacy.org/under-65-project/.