Last December, the Centers for Medicare and Medicaid Services (CMS) issued final regulations for the Medicare Part A and B appeals process and some provisions to the Part D appeals process. All provisions became effective January 8, 2010. Below is a brief summary of changes. For a detailed outline of each change with a reference to the relevant legal citation, see the Center for Medicare Advocacy’s weekly alert on this topic.
Many of Medicare Part A and B appeals process changes are clarifications from CMS on existing regulations. Some clarifications include:
- The difference between assigning one’s appeal rights and appointing a representative. Beneficiaries may assign their appeal rights to the provider or supplier who provided the service or item, or may appoint a representative to act on their behalf during the appeal.
- The definition of a contractor as an entity that has a contract with the Federal government to review and/or adjudicate claims, determinations and/or decisions. Examples include the Medicare Administrative Contractor, which is Palmetto GBA for California, and the Quality Improvement Organization, which is Health Services Advisory Group (HSAG) for California.
- Claims that are NOT considered “clean claims” because they lack sufficient documentation and require special handling.
- Provider notices of non-coverage NOT being counted as an intial determination in the appeals process because these notices are not issued by Medicare.
- State Medicaid agencies not being a party to an initial determination. After Medicare has issued its initial determination, however, a state Medicaid agency can be a party to a redetermination, reconsideration, hearing or Medicare Appeals Council review.
- Two issues in the process for appointing a representative for a beneficiary’s appeal request:
- If an individual submits an Appointment of Representative (AoR) form to represent a beneficiary but did not provide all the information requested on the AoR form, the adjudicator must notify the individual about the missing information and give him/her time to send in a properly completed form. It is not mandatory to use the AoR form (CMS-1696) to appoint a representative; a beneficiary or representative may submit a written request to appoint a representative if it contains information requested on the AoR form.
- An appointment is valid for 1 year from the date on the form or written request and signed by the beneficiary and representative. A representative must sumbit a copy of a valid, effective AoR or written request for each appeal request in order to request a redetermination or other appeal on behalf of the beneficiary he or she is representing.
Part D Appeals Provisions
The Part D provisions change the Part D appeal procedures and timeframes for Administrative Law Judge (ALJ) and Medicare Appeals Council (MAC) issued decisions to be the same as the procedures and timeframes used in Medicare Part A and B appeals. The provisions also add the option to request an expedited appeal and clarify the role of Part D plans, CMS, and the Independent Review Entity (IRE) at ALJ and MAC hearings.
Previously, ALJs and the MAC had no mandatory timeframe within which to issue their decisions for Part D appeals. Now, similar to Part A and B appeals, ALJs and the MAC must issue their decision within the same 90-day timeframe. The 90–day period begins on the date the request for review is received. Note: although ALJ hearings most often are conducted by video or telephone conference, people do have the right to request an in-person hearing. If they do, the provisions clarify that this 90-day timeframe still applies.
As mentioned, the Part D appeals process now includes the option of having an expedited appeal, except in those cases dealing solely with payment for drugs already received. Beneficiaries will automatically qualify for this type of appeal if their prescribing provider or the ALJ or MAC agrees that using the standard 90-day timeframe to issue a decision would seriously jeapordize their life, health or ability to recover to maximum function. Also, if an expedited appeal is granted in an earlier stage in the appeals process, it will now be granted in the ALJ and MAC review as well. Beneficiaries can make an oral request for an expedited appeal, yet they can only do so after they receive a written decision from the IRE (for an ALJ hearing) or from the ALJ (for a MAC review). An ALJ or MAC must tell a beneficiary within 5 days of receiving their request for an expedited review whether it is granted, and if it is, they must issue their decision within 10 days. See our section on Part D appeals for general information on the different levels/stages of the Part D appeals process.
CMS has also determined that Part D plans cannot be represented as a party in a hearing. Similarly, CMS and the IRE cannot be parties in a hearing. All 3 (Part D plans, CMS and the IRE) can, however, participate in an ALJ hearing if the ALJ allows it or requests their participation.
For more details on these discussed provisions and other changes, see the CMA weekly alert.