Transcript Powerpoint - National Consumer Voice

MEDICARE AND SKILLED NURSING
FACILITIES: JIMMO AND APPEALS
CONSUMER VOICE
Toby S. Edelman
Senior Policy Attorney
CENTER FOR MEDICARE ADVOCACY
November 3, 2015
www.medicareadvocacy.org
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
INTRODUCTION
 This session is about Medicare coverage of
care in a skilled nursing facility (SNF).
• Medicare coverage rules
• An obstacle: the myth of improvement
• Jimmo, ending the myth of “medical improvement”
• Medicare appeals
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
2
MEDICARE RESOURCES
 Medicare statute, 42 U.S.C. §1395
 Medicare regulations, 42 C.F.R. Part 409
 Medicare Benefit Policy Manual (MBPM),
CMS Pub. 100-02, Chapter 8,
http://www.cms.hhs.gov/manuals/Downloa
ds/bp102c08.pdf
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
3
MEDICARE COVERAGE OF
SNFs UNDER PART A
 Basic Requirements
•
•
•
•
•
•
3-day qualifying hospital stay, 42 C.F.R. §409.30
Admission within 30 days of hospital discharge
Physician certification of beneficiary’s need for SNF
care
Beneficiary’s requiring daily skilled nursing or daily
rehabilitation services
Medicare-certified facility; Medicare-certified bed
Practical matter: inpatient care needed, 42 C.F.R.
§409.32
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
4
MEDICARE COVERAGE OF
SNFs UNDER PART A (cont’d)
 Care must be reasonable and necessary, 42 U.S.C. §1395y(a)(1)(A).
 Care must require the skills of technical or professional personnel,
such as registered nurses, physical therapists, occupational therapists,
and speech pathologists, 42 C.F.R. §409.31.
 Care must be provided daily, 42 C.F.R. §409.34.
• Nursing 7 days a week, or
• Rehabilitation 5 days a week, or
• Combination of nursing and rehabilitation 7 days a week, or
• Some per se (automatic) coverage (e.g., feeding tubes; extensive
decubitus ulcers [Manual says stage 3 or worse]), MBPM, Ch. 8,
§30.3.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
5
MEDICARE COVERAGE OF
SNFs UNDER PART A (cont’d)
 Up to 100 days in a benefit period (but often,
SNFs stop coverage on day 21, when large copayment [$161/day in 2016] begins).
 Part A provides all-inclusive coverage (room
and board, nursing care, medications, therapy,
etc.).
 Medicare Advantage plans also provide allinclusive coverage, but may have different costsharing obligations.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
6
MEDICARE COVERAGE OF THERAPY
IN SNFs UNDER PART B
 A Medicare beneficiary who is NOT IN A
PART A STAY may qualify for therapy
under Part B.
• Called outpatient therapy.
• No limit on the number of available days, but
•
subject to therapy caps.
May be appropriate for resident who needs
therapy fewer than 5 days/week.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
7
PART B THERAPY CAPS
 Balanced Budget Act of 1997 imposed caps on
outpatient therapy
• $1920 cap for physical therapy and speech therapy (combined)
• $1920 cap for occupational therapy
 Deficit Reduction Act of 2005 created exceptions
process (to get therapy above caps)
 Automatic exceptions when therapists attest therapy is reasonable
and necessary
 Beginning 2012, Medicare Contractors conduct mandatory medical
review for therapy over $3700
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
8
PART B THERAPY CAPS (cont’d)
 H.R. 2, Medicare Access and CHIP
Reauthorization Act (Pub. L. 114-10, signed
by President Obama on April 16, 2015)
• Extends the exceptions process until Jan. 2018.
• Senator Ben Cardin’s (D, MD) amendment to
repeal and replace the exceptions process (with
prior authorization process) was defeated.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
9
IDENTICAL STANDARD FOR
THERAPY UNDER PARTS A AND B
 Therapy is covered if it must be provided by
a professional therapist and is necessary to
improve or (maintenance standard) to
maintain a resident’s functioning or prevent
or slow decline or deterioration.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
10
RESTORATION POTENTIAL
 Restoration potential of resident is not the
deciding factor in determining whether skilled
services are needed. 42 C.F.R. §409.32(c)
• Statute refers to improvement only as to “malformed body
•
member,” 42 U.S.C. §1395y(a)(1)(A).
Coverage must be … “reasonable and necessary for diagnosis,
treatment, or rehabilitation of illness or injury or to improve a
malformed body member.”
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
11
MEDICARE MYTHS
 Medicare coverage is not available unless the
beneficiary shows continued improvement.
 Medicare will not cover physical therapy if it is
“only maintenance.”
 Medicare coverage is not available if patient has
“plateaued.”
 Medicare will not cover care for people with certain
diagnoses, chronic conditions (i.e., they won’t get
better).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
12
MEDICARE TRUTHS
 Individualized assessment required.
 Restoration potential is not the deciding factor.
 Medicare should not be denied because the
beneficiary has a chronic condition or needs
services to maintain his/her condition.
 Rather ask:
• Are the Medicare coverage criteria met?
• Is the care medically necessary and must it be provided
by/under supervision of skilled personnel?
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
13
THE MYTH OF IMPROVEMENT
 Pervasive belief among health care
professionals, providers, Medicare
reviewers, and contractors that Medicare
pays only if beneficiary is expected to
improve.
 Not true and has never been true.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
14
THE MYTH OF IMPROVEMENT
 Restoration potential is not a valid reason
for denial of coverage.
• “Even if full recovery or medical improvement
is not possible, a resident may need skilled
services to prevent further deterioration or
preserve current capabilities.”
42 C.F.R. §409.32(c)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
15
MAINTENANCE-LEVEL
REHABILITATION
 Maintenance rehabilitation therapy is a
covered service
“… when the specialized knowledge of a
qualified therapist is required to design and
establish a maintenance program based on an
initial evaluation and periodic assessment of a
resident’s needs…”
42 C.F.R §409.33(c)(5)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
16
CMS MANUALS
 CMS revised the Manuals as a result of
Jimmo. We’ll discuss them later.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
17
CASES PRE-JIMMO
 Individual administrative appeals of denial
of coverage.
 Individual cases
• E.g., Papciak v. Sebelius, 742 F.Supp.2d 765
(W.D. Pa. 2010)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
18
JIMMO v. SEBELIUS, Civ. No. 5:11-CV-17
(D. VT. 1/18/2011)
 Federal class action lawsuit to eliminate use of
improvement standard in SNFs, home health, outpatient
therapy (PT, OT, speech).




Filed Jan. 18, 2011 in federal District Court in Vermont.
Settled Oct. 16, 2012.
Court approved settlement Jan. 24, 2013.
Plaintiffs: 5 individuals and 6 organizations
•
•
•
•
•
•
Alzheimer’s Association
National Multiple Sclerosis Society
National Committee to Preserve Social Security & Medicare
Paralyzed Veterans of America
Parkinson’s Action Network
United Cerebral Palsy
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
19
WHAT JIMMO SETTLEMENT MEANS:
NO DENIALS BASED ON
IMPROVEMENT STANDARD
 Medicare coverage is improperly denied for
skilled nursing or rehabilitation services when the
denial is based on:
• Individual’s stable or chronic condition.
• No expectation of improvement in a reasonable
period of time.
 Services can be skilled and covered even when:
• Individual has “plateaued”
• Services are “maintenance only”
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
20
JIMMO CLARIFIES PROPER
STANDARD
 Is a skilled health care professional (nurse or therapist)
needed to ensure that nursing or therapy is safe and
effective?
 Is a qualified nurse or therapist needed to provide or
supervise the care?
 If yes, Medicare covers care, regardless of whether the
skilled care is needed to improve, maintain function, or
slow decline or deterioration.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
21
INDIVIDUALIZED ASSESSMENTS
REQUIRED
 What does this individual need?
 Not, what do people with similar disease or
condition need in general?
 Not, overall rule based on diagnosis or
treatment norm.
• E.g.:
People who can walk 50 feet without
assistance do not need physical therapy.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
22
EXAMPLES OF PROHIBITED
RULES OF THUMB
• Individual or condition is “stable” or “chronic.”
• Condition will not improve
• Lack of “restoration potential.”
• Care is needed for long period of time
• Unless a legal limit: e.g., SNF, 100 days in a
Part A benefit period.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
23
WHAT JIMMO SETTLEMENT MEANS:
REVISION OF CMS MANUALS
 CMS revised Medicare Benefit Policy Manual for SNF,
home health, outpatient therapy, and inpatient
rehabilitation facility.
 CMS clarifies skilled maintenance therapy and skilled
maintenance nursing are covered by Medicare; eliminates
conflicting provisions in Medicare Manuals. Transmittal
179 (Jan. 14, 2014), http://www.cms.gov/Regulations-andGuidance/Guidance/Transmittals/Downloads/R179BP.pdf
(replacing Transmittal 176 (Dec. 13, 2013)),
http://www.cms.gov/Regulations-andGuidance/Guidance/Transmittals/Downloads/R176BP.pdf.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
24
MANUAL GUIDANCE FOR SNFs
 “If the inherent complexity of a service prescribed for a patient is such
that it can be performed safely and/or effectively only by or under the
general supervision of skilled nursing or skilled rehabilitation
personnel, the service is a skilled service; e.g., the administration of
intravenous feedings and intramuscular injections; the insertion of
suprapubic catheters; and ultrasound, shortwave, and microwave
therapy treatments. . . . While a patient’s particular medical condition
is a valid factor in deciding if skilled services are needed, a patient’s
diagnosis or prognosis should never be the sole factor in deciding that
a service is not skilled.”
Medicare Benefit Policy Manual, Pub. No. 100-02, Chapter 8, §30.2.2
(scroll down to p. 23).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
25
MANUAL GUIDANCE FOR SNFs
 “A service that is ordinarily considered nonskilled could be considered
a skilled service in cases in which, because of special medical
complications, skilled nursing or skilled rehabilitation personnel are
required to perform or supervise it or to observe the patient. In these
cases, the complications and special services involved must be
documented by physicians' orders and notes as well as nursing or
therapy notes.”
Medicare Benefit Policy Manual, Pub. No. 100-02, Chapter 8, §30.2.2
(scroll down to p. 23).
• Example: “Whirlpool baths do not ordinarily require the skills of a qualified
physical therapist. However, the skills, knowledge, and judgment of a qualified
physical therapist might be required where the patient’s condition is complicated by
circulatory deficiency, areas of desensitization, or open wounds.” (p. 23)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
26
MANUAL GUIDANCE FOR SNFs
 Example: “An 81-year-old woman who is aphasic and confused,
suffers from hemiplegia, congestive heart failure, and atrial fibrillation,
has suffered a cerebrovascular accident, is incontinent, has a Stage 1
decubitus ulcer, and is unable to communicate and make her needs
known. Even though no specific service provided is skilled, the
patient’s condition requires daily skilled nursing involvement to
manage a plan for the total care needed, to observe the patient’s
progress, and to evaluate the need for changes in the treatment plan.”
Medicare Benefit Policy Manual, Pub. No. 100-02, Chapter 8, §30.2.2
(scroll down to p. 24).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
27
MANUAL GUIDANCE FOR SNFs
 Example: “The possibility of adverse effects from the improper
performance of an otherwise unskilled service does not make it a
skilled service unless there is documentation to support the need for
skilled nursing or skilled rehabilitation personnel. Although the act of
turning a patient normally is not a skilled service, for some patients the
skills of a nurse may be necessary to assure proper body alignment in
order to avoid contractures and deformities. In all such cases, the
reasons why skilled nursing or skilled rehabilitation personnel are
essential must be documented in the patient’s record.”
Medicare Benefit Policy Manual, Pub. No. 100-02, Chapter 8, §30.2.2
(scroll down to p. 24).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
28
WHAT DOES THE MANUAL
REQUIRE?
 Specific, detailed description of resident and detailed
explanation of why a skilled person is needed to provide
care.
 CMS emphasizes documentation (documentation
requirements were added to Manuals, although they are not
required by Jimmo court decision and settlement).
 In practice, the care plan needs to describe maintenance
level of care (cannot just assume that after improvement
ends, the resident automatically transitions to maintenance
coverage).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
29
WHATJIMMO SETTLEMENT MEANS:
EDUCATIONAL CAMPAIGN
 CMS conducted nationwide Educational
Campaign (one call).
 CMS explained Settlement and new Manuals to
providers, Medicare Contractors, Medicare
adjudicators (one call).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
30
WHAT JIMMO MEANS:
ACCOUNTABILITY AND REVIEW
 CMS had to
• review random samples of Qualified
•
•
Independent Contractor (QIC) decisions;
address errors raised in reviews;
meet regularly with Plaintiffs’ counsel to
correct errors in individuals’ cases (up to 100).
• First in-person meeting, Jan. 6, 2014; with
additional e-mails and telephone calls.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
31
WHAT JIMMO SETTLEMENT MEANS:
RE-REVIEW
 Individuals had opportunity to request Re-review
of Medicare’s decisions made after Jan. 18, 2011.
 Re-review no longer available.
 Assumption is that providers and adjudicators are
now using the correct standards for coverage.
 Beneficiaries need to use standard appeals process.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
32
WE RETURNED TO COURT
 Motion for Resolution of Noncompliance
with Settlement Agreement (filed Mar. 1,
2016)
 Court granted Motion in part (Aug. 17,
2016); found educational activities
insufficient and inaccurate; ordered
Government to come up with a plan.
 We’re talking.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
33
BIGGEST OBSTACLES TO
IMPLEMENTATION SINCE COURT
APPROVAL OF SETTLEMENT
 Continuing belief among providers and
adjudicators that beneficiary must be
improving before Medicare will pay. (We
still get calls about patient who has
“plateaued”).
 SNFs refusing to provide therapy,
regardless of what surgeon or other
physician says.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
34
WHAT WE TELL PEOPLE TO DO IF
MEDICARE COVERAGE IS DENIED
 Physician is best, most important ally to order care
and keep services in place (but new Requirements
of Participation may be problem if physician
delegates “task of writing therapy orders” to
therapist, §483.30(e)(3)).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
35
WHAT WE TELL PEOPLE TO DO IF
MEDICARE COVERAGE IS DENIED
 Do whatever you can to get covered-services
ordered and provided.
 Use Jimmo Settlement, regulations, Manual, CMS
Jimmo materials, and CMA self-help packets to
educate Medicare contractor/
adjudicator and ask provider to continue services.
 Use the appeals process. But if services are not
provided, resident cannot win appeal.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
36
PHYSICIAN SUPPORT
 Ask primary care physician (PCP) or other
relevant physician to talk with SNF’s Medical
Director, explain why skilled care is necessary.
 Ask PCP or other physician to write specific,
detailed letter why resident needs skilled care
• Explain relationship to patient
• List all medical conditions and medical history
• Explain which specific services are needed and why.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
37
MEDICARE APPEALS
 Appeal from Notice of Medicare NonCoverage or Medicare Summary Notice
• Redetermination
• Reconsideration
• Administrative Law Judge
• Medicare Appeals Council
• Federal District Court
• Federal Court of Appeals
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
38
KEY BARRIER FOR MEDICARE
APPEALS
 Beneficiary must have actually received a
Medicare-covered level of care (either therapy 5
days/week or skilled nursing care 7 days/week or a
combination of the 2) to appeal.
•
•
Essentially, pay-and-chase situation.
If beneficiary does not receive Medicare-covered care,
cannot win appeal.
• Therapy 5 days/week: good case to appeal
• Skilled nursing 7 days/week: more difficult to win
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
39
KEY BARRIER FOR MEDICARE
APPEALS (cont’d)
 When SNF decides that Medicare won’t
pay, it stops providing Medicare-covered
services.
• Discontinues therapy
• Stops doing Medicare-related MDS
assessments
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
40
TRANSFER/DISCHARGE
RIGHTS
 Denial of Medicare coverage is not the same as
discharge from SNF.
 Resident also has rights under the Nursing Home
Reform Law
• Limited permissible reasons for transfer/discharge
• Notice
• Opportunity for administrative hearing
42 U.S.C. §1395i-3(c)(2)
42 U.S.C. §483.12, effective Nov. 28, 2016, §483.15(c)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
41
TRANSFER/DISCHARGE
RIGHTS
 Center for Medicare Advocacy, “‘Discharge
from a Skilled Nursing Facility: What Does
It Mean and What Rights Does a Resident
Have?” (Alert, Jan. 13, 2016),
http://www.medicareadvocacy.org/discharg
e-from-a-skilled-nursing-facility-what-doesit-mean-and-what-rights-does-a-residenthave/.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
42
APPEALS
 Different ways to get into appeals process,
depending on whether SNF denied coverage
or whether SNF submitted claim for Part A
reimbursement, which was denied by
Medicare.
 Need formal denial by CMS to get into
appeals system.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
43
APPEALS OF SNF DETERMIINATIONS
OF NON-COVERAGE
 If SNF determines Medicare Part A will not pay, appeal.
• Expedited Appeal
• Standard Appeal
 Different Notices and purposes of these two appeals.
Beneficiaries are entitled to, and must do, both. CMS,
“Survey and Certification Issues Related to Liability
Notices and Beneficiary Appeal Rights in Nursing
Homes,” S&C-09-20 (Jan. 9, 2009),
http://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/SCL
etter09-20.pdf.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
44
EXPEDITED APPEAL
42 CFR §405.1202
 Purpose: to keep services in place.
 SNF gives notice at least 2 days prior to discharge from
Medicare (i.e., termination of all Part A services), Notice
of Medicare Provider Non-Coverage, Form CMS-10123.
 Resident/family must call Quality Improvement
Organization (QIO) (now called Beneficiary and Family
Centered QIO) by no later than noon the following day.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
45
EXPEDITED APPEAL (cont’d)
 Medicare-covered care continues until day of discharge
identified in SNF notice, unless QIO reverses decision.
 If SNF does not provide timely information to QIO, it may
be financially responsible for providing covered care.
 If QIO finds SNF’s notice was not valid, coverage
continues until at least 2 days after valid notice is provided.
42 C.F.R. §405.1202(c)
 Burden of proof on SNF to prove termination of services
was correct.
42 C.F.R. §405.1202(d)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
46
EXPEDITED APPEAL (cont’d)
 QIO procedures
• Determining whether SNF notice was valid.
• Examining records submitted by SNF.
• Soliciting views of beneficiary who requested
•
•
expedited hearing.
Providing opportunity for provider/practitioner to
explain why termination of services was appropriate.
Within 72 hours, notifying beneficiary, beneficiary’s
physician, and SNF of its determination.
42 C.F.R. §405.1202(e)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
47
EXPEDITED APPEAL (cont’d)
 SNF responsibilities
•
When QIO notifies SNF of expedited appeal, SNF must
send detailed notice to beneficiary by close of business
day, including
• “A specific and detailed explanation why services are either no
longer reasonable and necessary or are no longer covered.”
• Description of applicable Medicare policy.
• “Facts specific to the beneficiary and relevant to the coverage
determination . . . .”
42 C.F.R. §405.1202(f)(1)(i)-(iv)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
48
EXPEDITED APPEAL (cont’d)
 SNF responsibilities
• Providing QIO with information it needs.
• At beneficiary’s request, providing beneficiary
with copy of, or access to, information it
provided to QIO.
42 C.F.R. §405.1202(f)(2), (3)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
49
QIO DECISION IN EXPEDITED
APPEAL
 Initial notification (may be by telephone, followed
by written notice) that describes
• Rationale for decision
• Explanation of Medicare payment consequences
• Information about how to request Reconsideration (next
level of appeal).
42 C.F.R. §405.1202(e)(8)(i)-(iii)
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
50
EXPEDITED APPEAL (cont’d)
 Stress again: Unlikely to win without
physician support.
• Try to get physician letter that is detailed,
•
specific, and personal about resident’s needs
and why, for example, therapy is medically
necessary.
Physician letter saying care is medically
necessary is insufficient.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
51
EXPEDITED RECONSIDERATION
42 C.F.R. §405.1204
 Expedited reconsideration by appropriate
Qualified Independent Contractor (QIC).
• Procedures similar to those required for
expedited appeal.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
52
STANDARD APPEAL
 As result of Sarrassat v. Sullivan, No. C88-20161 (N.D.
Cal. 1989), SNF must give beneficiary written notice if it
believes Medicare Part A will not pay for care as
reasonable and necessary.
•
•
•
Either SNF Advance Beneficiary Notice (SNF ABN), Form CMS-10055,
or one of five uniform denial letters,
http://www.cms.gov/Medicare/Medicare-GeneralInformation/BNI/FFSSNFABNandSNFDenialLetters.html.
These notices inform beneficiary that he/she can require SNF to submit a
demand bill to Medicare (to get initial determination by Medicare).
SNF may not bill beneficiary until Medicare makes initial determination.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
53
LATER LEVELS OF APPEAL
 Possible, but worthwhile only if resident
continued to receive Medicare-covered
level of care at SNF.
 Resident/family will likely be required to
pay out-of-pocket for continued care (e.g.,
therapy covered by Medicare Part B) and
try to win on appeal.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
54
REDETERMINATION
42 C.F.R. §§405.940-.958
 Beneficiary must request reconsideration
within 120 calendar days of initial
determination.
 Good cause for late filing
 Submit evidence (e.g., physician letter).
 Decision to be issued within 60 calendar
days, include information about how to
appeal.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
55
RECONSIDERATION
42 C.F.R. §§405.960-.978
 Appeal to Qualified Independent Contractor (QIC).
 Appeal must be filed within 180 days of Redetermination
decision.
 Submit evidence with request.
 Again, worthwhile to appeal only if resident received
Medicare-covered level of care.
 Written decision to be issued within 60 calendar days,
including information on how to appeal.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
56
ADMINISTRATIVE LAW JUDGE
42 C.F.R. §§405.1000-.1048
 Appeal to ALJ within 60 days of receiving unfavorable
reconsideration decision or, if QIC has not issued a
decision within 60 days, “escalate” to ALJ.
 Submit evidence.
 Write “beneficiary appeal” on envelope.
 Request videoteleconference hearing (not telephone).
• SNF may participate in hearing.
 ALJ to issue written decision within 90 calendar days.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
57
MEDICARE APPEALS COUNCIL
(MAC), 42 C.F.R. §§405.1102-.1130
 Appeal within 60 calendar days of adverse ALJ
decision or, if ALJ has not issued a decision
within 90 days, “escalate” to MAC.
 MAC to issue decision within 180 days.
 No hearing; oral argument may be permitted.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
58
JUDICIAL REVIEW
 File in federal District Court.
42 C.F.R. §405.1136
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
59
APPEALS OF MEDICARE
DENIALS OF PART A COVERAGE
 SNF’s bill to Medicare for Part A payment may be
denied.
 Beneficiary receives Medicare Summary Notice
(MSN) from CMS as initial determination.
 Beneficiary appeals from MSN for
redetermination.
 Then reconsideration, ALJ, Medicare Appeals
Council, federal court.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
60
ADDITIONAL CHALLENGES IN
MEDICARE APPEALS
 Lower levels (redetermination and
reconsideration) seem to “rubber stamp”
noncoverage decisions.
 Long delays in administrative appeals
process.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
61
HULL v. SEBELIUS,
No. 3:14-cv-801 (JAM) (D. Conn. Filed June 4, 2014)
 Challenged high denial rates (98%) at
redetermination and reconsideration levels
for home health care in Connecticut.
 Judge dismissed case, 66 F.Supp.3d 278 (D.
CT 2014) (holding dual-eligible
beneficiaries did not have an injury when
Medicaid paid for their home health care).
 Case dismissed June 7, 2016.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
62
EXLEY v. BURWELL,
No. 3:14-cv-01230 (JAM) (D. Conn. Filed Aug. 26, 2014)
 Complaint alleges failure of ALJs to issue
decisions within 90 days (average delay
now about 500 days) violates Medicare
statute and Due Process.
 Court denied government’s Motion to
Dismiss (Jan. 27, 2015).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
63
EXLEY
 Settlement approved (May 24, 2016)
 Write “Beneficiary Mail Stop” on appeal
and envelop to get appeal heard quickly.
 Office of Medicare Hearings & Appeals
Beneficiary Help Line, (844) 419-3358
(8:00 a.m. – 4:30 p.m., ET)
 More information will be available at
MedicareAdvocacy.org.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
64
SENATE FINANCE COMMITTEE
HEARING
 “Creating an Efficient and More Level Playing
Field: Audit and Appeals Issues in Medicare”
(Apr. 28, 2015),
http://www.finance.senate.gov/hearings/hearing/?i
d=d29af43d-5056-a032-526a-1de427f91aeb.
•
•
Chairman Hatch: 2009, appeals at ALJ level resolved in
94 days, in 2012, 547 days.
FY 2010, high reversal rate at ALJ level (60% of
41,000 provider appeals were reversed).
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
65
SENATE FINANCE COMMITTEE
HEARING (cont’d)
 Nancy J. Griswold, chief ALJ, testified
•
•
Beneficiaries file 1% of appeals; 99% of appeals are
filed by providers and state Medicaid agencies.
FY 2013, received 384,000 appeals; FY 2014, 474,000
appeals.
http://www.finance.senate.gov/imo/media/doc/SFC%20GriswoldOMHA%20updated%20testimony%20%204%2028%2015.pdf.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
66
UPDATES ON JIMMO
See CMA website:
Improvement:
http://www.medicareadvocacy.org/?s=improvement&op.x=0
&op.y=0
 Jimmo:
http://www.medicareadvocacy.org/?s=Jimmo&op.x=0&op
.y=0
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
67
CMA SELF-HELP PACKET FOR
SNF APPEALS
 Available at
http://www.medicareadvocacy.org/selfhelp-packet-for-expedited-skilled-nursingfacility-appeals-including-improvementstandard-denials/
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
68
MORE INFORMATION FROM
CMA
 Weekly Alerts, e-mailed on Thursdays, free, covering
variety of Medicare issues. Sign up at
https://org.salsalabs.com/o/777/p/salsa/web/common/publi
c/signup?signup_page_KEY=1411.
 Enforcement, monthly mailing on nursing home
enforcement issues, available by subscription ($250/year).
Subscribe at
https://org.salsalabs.com/o/777/t/13870/shop/shop.jsp?stor
efront_KEY=1052.
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
69
CMA
Toby S. Edelman
Senior Policy Attorney
Center for Medicare Advocacy
1025 Connecticut Avenue, NW
Washington, DC 20036
(202) 293-5760
[email protected]
www.medicareadvocacy.orgwww.medicareadvocacy.org
Copyright © Center for Medicare Advocacy, Inc.
70