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 an Example
Mrs. Smith was hospitalized for 5 days as an inpatient, after which she entered a SNF. For the first 20 days of her SNF stay she received daily skilled therapy services, with coverage under Medicare Part A. After being discharged from therapy the SNF determined that Medicare coverage should end as she no longer required daily skilled nursing or therapy care. On August 29, Mrs. Smith was given a Notice of Medicare Provider Non-Coverage informing her that Medicare coverage for SNF services would end on September 1. Mrs. Smith requested an expedited appeal of this determination with the BFCC-QIO, an independent Medicare reviewer. The BFCC-QIO affirmed that coverage for the services would end effective September 1. Mrs. Smith then requested an expedited reconsideration. The QIC also issued a decision upholding the termination of coverage. Mrs. Smith then timely filed a request for an ALJ hearing.
As Mrs. Smith filed these appeals, she continued to receive services in the SNF for an additional 60 days. Mrs. Smith believed that the hearing would address her SNF stay from September 1 through October 31. An ALJ hearing was held in December. The ALJ listened to Mrs. Smith’s argument as to why she believed Medicare should have covered the services she received from September 1 through October 31.
Two months later, Mrs. Smith received the ALJ decision. The decision made it clear that the only issue considered in the case was whether termination of Medicare coverage on September 1 was appropriate. The ALJ pointed out that the appeal rights following the issuance of the Notice of Medicare Non-Coverage were with respect to the provider’s decision to terminate coverage. The ALJ further noted that any services provided after September 1 were new claims that the ALJ lacked the authority to look at. The ALJ explained that in order to exercise jurisdiction over those subsequent services, there would need to be previous decisions (a Medicare Summary Notice, a redetermination and a reconsideration decision) addressing a claim for the dates of service from September 1 through October 31.
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.
Here’s What We’re Doing About It
The confusion among beneficiaries and those assisting beneficiaries, including attorneys, is very common and highlights the lack of information about the distinction between expedited and standard appeals. The Center for Medicare Advocacy believes that more effective notice and beneficiary communication about the limited scope of expedited appeals is needed early on to help avoid confusion. Beneficiaries must be explicitly informed that if they want to pursue Medicare coverage for any services received after the coverage termination date, they need to make sure a claim is submitted to obtain an appealable Medicare determination on those services. Moreover, expedited decisions conveyed verbally and/or in writing should reinforce this information, letting beneficiaries know that by appealing an expedited decision they are only appealing the termination decision.
On August 29, 2016 the Center for Medicare Advocacy submitted comments on the Centers for Medicare & Medicaid Services (CMS) proposed rule regarding the Medicare Program: Changes to the Medicare Claims and Entitlement, Medicare Advantage Organization Determination, and Medicare Prescription Drug Coverage Determination Appeals Procedures. In our comments we specifically raised this issue. In the final rule CMS stated that our concerns were outside the scope of the rulemaking but indicated that they “may take them [our concerns] into consideration when making any future revisions to the provider service termination process.” F.R. Vol. 82, No. 10 page 5014 (January 17, 2017).
We intend to follow-up with the Medicare Beneficiary Ombudsman regarding this issue to provide recommendations for improving the various notices that Medicare beneficiaries receive. We will continue to pursue this issue until there is clarity in the appeals process.
We would like to hear if anyone has had an experience similar to the one described in the example above. Please share your experience with us at firstname.lastname@example.org.
M. Ashkar, 2017
 According to the regulations “[t]he issues before the administrative law judge include all the issues brought out in the initial, reconsidered or revised determination that were not decided entirely in the Appellant’s favor.” 42 C.F.R. § 405.1032(a). An ALJ may consider a new issue at the hearing if it could have a material impact on the underlying claim and it is permissible under the rules governing reopening determinations and decisions. 42 C.F.R. § 405.1032(b). However, an ALJ “cannot add any claim, including one that is related to an issue that is appropriately before an ALJ, to a pending appeal unless it has been adjudicated at the lower appeals levels and all parties are notified of the new issue(s) before the start of the hearing. 42 C.F.R. § 405.1032(c). These regulations have been cited by ALJ’s as reasons why a claim involving subsequent services cannot be added to a claim involving the termination of covered Medicare services – because the claim involving subsequent services has not been adjudicated at the lower levels.