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NAELA News Journal - NAELA Journal Online

Medicare Appeal Navigation

By Terry Berthelot, MSW, JD
BerthelotMedicareAppeal

I. Introduction
Medicare appeals are complicated. They are complicated because there are different kinds of Medicare, different kinds of medical care, and different kinds of Medicare appeals. Consequently, when contemplating taking on a Medicare appeal, it’s easy to feel at sea. The intent of this article is to lessen this sense of uncertainty.

This article will not walk readers through every step of every kind of appeal. I’m afraid that such an undertaking would result in a book rather than an article. However, after reading this article, attorneys will know the right questions to ask in order to determine which law and/or policy is pertinent. With this information, they will have the ability to determine how to conduct an appeal and given the facts of the particular case, whether the appeal is winnable. To assist with conducting an actual appeal, relevant contact information and the forms referred to in this article are found in the links associated with the footnotes.

II. Medicare
Medicare is federally funded health insurance for people who are 65 and older, people the Social Security Administration has determined to be disabled, and people with end-stage renal disease (ESRD).1 As it is health insurance, Medicare pays for reasonable and necessary medical care.2 Generally speaking, it does not pay for care, items, or services that are not medical in nature.3 Since Medicare is a federal program, its coverage rules apply nationally. This means a person in Alaska with Medicare has essentially the same health insurance coverage as a person with Medicare anywhere else in the country. Sometimes, Medicare coverage is denied inappropriately. When this happens, Medicare beneficiaries have appeal rights.

III. Five Questions
Attorneys considering representing a client in a Medicare appeal should answer five questions to determine whether the claim is meritorious and to determine how to proceed with the claim. The questions are:

1. Is the client enrolled in traditional Medicare or a Medicare Advantage plan?
2. What is the relevant coverage rule?
3. Will a successful appeal require the assistance of a medical professional?
4. What is the appropriate appeal process for the case at issue? and
5. Is it possible to get paid for the work?

A. First Question: Traditional Medicare or Medicare Advantage?
As discussed above, Medicare is a federal program and thus coverage rules are the same for all beneficiaries, regardless of where they live. However, despite the uniform coverage rules, there are several different kinds of Medicare appeals. What sort of appeal an attorney is handling depends in part on whether the client is enrolled in traditional Medicare or a Medicare Advantage plan.

1. Traditional Medicare
Traditional Medicare is also called original Medicare or fee-for-service Medicare. Generally speaking, beneficiaries enrolled in traditional Medicare, should be enrolled in Medicare Part A, Medicare Part B, have some type of Medicare supplement, and also be enrolled in a Medicare Part D plan.

Medicare Part A covers hospital care, including: acute; rehabilitative; psychiatric; and long-term care.4 Medicare Part A also covers skilled nursing facility care, home health care, and hospice care.5 Except for prescription medications, Medicare Part B pays for most of the rest of Medicare covered health care.6 This includes, but is not limited to: physician services; services and supplies incident to a physician’s professional services; outpatient hospital services; physical and occupational therapy services; speech therapy services; x-ray, laboratory, and other diagnostic tests; some preventive services; durable medical equipment; and prosthetic devices.7

Medicare Parts A and B are administered by the Centers for Medicare and Medicaid Services (CMS).8 They are designed such that there is significant cost sharing for the Medicare beneficiary.9 For instance, in 2020, the inpatient hospital deductible is $1,408.10 To avoid these costs, Medicare beneficiaries enrolled in traditional Medicare should have some form of supplemental insurance. This is often a Medigap policy,11 Medicaid,12 or insurance through a former employer.13 Finally, beneficiaries enrolled in traditional Medicare need to have insurance to cover the cost of their prescription medications. Many do this by enrolling in a Medicare Part D plan.14

2. Medicare Advantage
Beneficiaries in the Medicare Advantage program (Medicare Part C15) are enrolled in a Medicare Advantage plan.16 This means they have elected to have their Medicare benefits administered through a private insurance company rather than by CMS. Insurance companies that administer these plans include, but are not limited to: Anthem, Kaiser Permanente, UnitedHealthcare, and Humana.17

Medicare Advantage plan enrollees do not need a Medicare supplement, which saves the additional expense of a Medigap policy.18 Most often, Medicare Advantage enrollees’ obtain their prescription drug insurance through their Medicare Advantage plan.19

Here are three very important tips for an attorney handling an appeal for a Medicare Advantage enrollee.

1. Coverage criteria for medical care, items, and services are the same whether the beneficiary is enrolled in traditional Medicare or a Medicare Advantage plan.
2. The procedure for appealing a denial of coverage for medical care, items, or services for a client enrolled in a Medicare Advantage plan may differ from that for a client enrolled in traditional Medicare. I’ll discuss this point later in the article.
3. Medicare Advantage plans may limit coverage to a provider network or have other cost containment measures that may impact payment for care.20 To determine whether this is the case for a particular client, the attorney should consult the Medicare Advantage enrollee’s plan materials.21

B. Second Question: What’s the Coverage Rule?
To some extent, an attorney can figure out what is covered or not covered by Medicare by consulting the Medicare statute and regulations. However, these are sparsely written and often do not have the detail necessary for determining whether the denied coverage of medical care was erroneous. A more practical way to determine whether and under what circumstances Medicare covers particular medical care, items, or services is to consult the various Medicare Coverage Manuals. However, there is an important caveat. Sometimes, the policy manuals are inconsistent with the statute and/or regulations. When this happens, the statute and/or regulations are controlling.22

The Medicare Coverage Manuals are easily accessible as they are published online as the “Internet-Only Manuals (IOMs).23 There they are described as follows:

The Internet-only Manuals (IOMs) are a replica of the Agency’s official record copy. They are CMS’ program issuances, day-to-day operating instructions, policies, and procedures that are based on statutes, regulations, guidelines, models, and directives. The CMS program components, providers, contractors, Medicare Advantage organizations and state survey agencies use the IOMs to administer CMS programs. They are also a good source of Medicare and Medicaid information for the general public.24

There are many IOMs. One of them, the Medicare Benefit Policy Manual,25 contains 16 chapters covering many areas of health care including, but not limited to: Home Health Services;26 Ambulance Services;27 and Comprehensive Outpatient Rehabilitation Services.28 This manual is wide-ranging; even containing a chapter on services not covered by Medicare.29 For instance, in Chapter 15, one finds that Medicare does not cover most dental care:

Items and services in connection with the care, treatment, filling, removal, or replacement of teeth, or structures directly supporting the teeth are not covered. Structures directly supporting the teeth mean the periodontium, which includes the gingivae, dentogingival junction, periodontal membrane, cementum, and alveolar process. However, payment may be made for certain other services of a dentist. (See the Medicare Benefit Policy Manual, Chapter 15, “Covered Medical and Other Health Services,” §150.)30

To illustrate use of the manuals, imagine an attorney receiving a phone call from a client regarding a Medicare denial of coverage for skilled nursing facility care. When considering how to advise the client, the attorney must first determine whether and under what circumstances Medicare covers skilled nursing facility care. To do this, the attorney can consult the Medicare Benefit Policy Manual. There the attorney will find that Chapter 8 is dedicated to skilled nursing facility coverage.31

Imagine that the client’s care in the skilled nursing facility (SNF) was denied Medicare coverage because it was determined that she did not require a “skilled nursing facility level of care.” This language means nothing in the abstract. However, the attorney can easily find the definition in Chapter Eight, § 30 of the Medicare Benefit Policy Manual:

Care in a SNF is covered if all of the following four factors are met:

• The patient requires skilled nursing services or skilled rehabilitation services, i.e., services that must be performed by or under the supervision of professional or technical personnel (see §§30.2 - 30.4); are ordered by a physician and the services are rendered for a condition for which the patient received inpatient hospital services or for a condition that arose while receiving care in a SNF for a condition for which he received inpatient hospital services;
• The patient requires these skilled services on a daily basis (see §30.6); and
• As a practical matter, considering economy and efficiency, the daily skilled services can be provided only on an inpatient basis in a SNF. (See §30.7.)
• The services delivered are reasonable and necessary for the treatment of a patient’s illness or injury, i.e., are consistent with the nature and severity of the individual’s illness or injury, the individual’s particular medical needs, and accepted standards of medical practice. The services must also be reasonable in terms of duration and quantity.

If any one of these four factors is not met, a stay in a SNF, even though it might include the delivery of some skilled services, is not covered. For example, payment for a SNF level of care could not be made if a patient needs an intermittent rather than daily skilled service.32

The attorney now knows the parameters for Medicare coverage of skilled nursing facility care. With this information, she can review the facts at hand and determine whether they meet Medicare’s coverage criteria. If they do, it is potentially a case worth appealing.

Not all coverage rules appear in the Medicare Benefit Policy Manual. For care, items, or services not covered in this manual, attorneys should consult the Medicare National Coverage Determinations (NCDs) Manual,33 which is defined as follows:

The NCD Manual describes whether specific medical items, services, treatment procedures, or technologies can be paid for under Medicare.34

C. Third Question: Is the Assistance of a Medical Professional Necessary?
Let’s imagine a client named Mary. Mary calls her attorney because Medicare denied coverage for a Positron Emission Tomography (PET) scan. Obviously, before the attorney can give Mary any advice, the attorney needs to figure out whether and under what circumstances Medicare will pay for a PET scan. As this information is not in the Medicare Benefits Policy Manual, the attorney consults the Medicare National Coverage Determinations (NCDs) Manual.35

The attorney now has her navigational chart. In theory, she can determine whether at the time the PET scan was administered, Mary’s medical situation was such that it met the requirements for Medicare coverage. However, Medicare’s coverage rules are not written to help attorneys prevail in appeals. They are mostly written to assist medical providers with determining proactively whether Medicare will cover particular care, items, or services and thus avoid Medicare denials of payment. And thus, it may be necessary to work with a medical provider to determine whether Medicare should have covered Mary’s PET scan.

1. Medical Expertise
The explanation given by the Medicare Administrative Contractor (MAC)36 for the denial of coverage for Mary’s PET scan was that it was not “medically reasonable and necessary.” When Mary’s attorney consults the National Coverage Determinations (NCDs) Manual, she will find that there are 20 different NCD’s for PET scans. She will, therefore, need the assistance of Mary’s doctor to determine which NCD is applicable. In Medicare speak; this person is called the attending physician.37

The first relevant question for Mary’s doctor is, “Why did you order the PET scan?” Let’s imagine he answers, “I ordered the PET scan to determine whether Mary is suffering from fronto-temporal dementia or from Alzheimer’s disease.” With this information, the attorney can consult the National Coverage Determinations (NCDs) Manual where she will find:

A … PET scan is considered reasonable and necessary in patients with a recent diagnosis of dementia and documented cognitive decline of at least 6 months, who meet diagnostic criteria for both AD [Alzheimer’s disease] and FTD [fronto-temporal dementia]. These patients have been evaluated for specific alternate neurodegenerative diseases or other causative factors, but the cause of the clinical symptoms remains uncertain.38

With this information, the attorney now knows that Medicare does cover PET scans for the purpose of determining whether a beneficiary is suffering from Alzheimer’s disease or fronto-temporal dementia. However, that’s not all the attorney discovered. Followed by this, there are five paragraphs of conditions that must be met to establish Medicare coverage. All of which are written in medical language she is not likely to understand. For example, the first paragraph of the NCD states:

The patient’s onset, clinical presentation, or course of cognitive impairment is such that FTD is suspected as an alternative neurodegenerative cause of the cognitive decline. Specifically, symptoms such as social disinhibition, awkwardness, difficulties with language, or loss of executive function are more prominent early in the course of FTD than the memory loss typical of AD[.]39

To understand the meaning of this paragraph and each of the other four, the attorney will need Mary’s doctor to translate. Only with this assistance will Mary’s attorney know whether Mary’s particular case is winnable.

2. Access to Pertinent Medical Records
Most Medicare claims are submitted to Medicare without any medical records to support them. Therefore, when a Medicare claim is denied, the person appealing the claim must build the case for Medicare coverage with actual medical records. Thus, Mary’s attorney will need to get these records from Mary’s attending physician. Because Mary’s attorney is most likely not a medical professional, and therefore lacks medical expertise, she will need more than just access to Mary’s medical records. Additionally, she will need Mary’s attending physician to help her identify which particular medical documents are necessary to demonstrate that Mary’s PET scan was medically reasonable and necessary.

3. Physician Assistance
Without medical expertise, it is very difficult to win a Medicare appeal. Fortunately, it has been my experience that physicians generally care for their patients and are consequently helpful with the appeals. They also generally prefer to get paid by Medicare for the provided care, item, or services.

D. Fourth Question: What Kind of Appeal?
The type of Medicare appeal dictates how the attorney should proceed with a case. There are four kinds of Medicare appeals: discharge appeals; Medicare Advantage standard appeals; traditional Medicare standard appeals; and Medicare Part D appeals.

1. Confusing Names and Processes
Table 140 is a rough sketch of the various kinds of appeals and the various levels within the appeals processes for each type of appeal.

Here is an example that demonstrates why the appeal process is confusing. Let’s imagine that Carolyn has been receiving physical therapy in a skilled nursing facility. On Wednesday, the skilled nursing facility informs her that her physical therapy is no longer medically reasonable and necessary and she will consequently be discharged on Friday. She also receives a written notice that indicates that she has a right to appeal this decision and pertinent information about how to initiate the appeal process.41

If Carolyn decides that she is not ready to be discharged and wants to initiate an appeal, she does so by requesting an expedited determination.42 The determination is expedited, because the intent of the process is to prevent an inappropriate discharge. Thus, once Carolyn submits her request for an expedited determination, a decision must be issued within 72 hours.43 If Carolyn’s request is denied, she can request a reconsideration.44 Again, because this is a process intended to prevent an inappropriate discharge, the reconsideration is expedited and thus must also be issued within 72 hours.45 If the result of the reconsideration is another denial, Carolyn will receive:

(i) The rationale for the reconsideration decision;
(ii) An explanation of the Medicare payment consequences of the determination and [Carolyn’s] date of liability; and
(iii) Information about [Carolyn’s]right to appeal the…reconsideration decision to the [Office of Medicare Hearings and Appeals] for an [Administrative Law Judge] hearing…46

Note that within her reconsideration decision, Carolyn is specifically told that she has a right to an Administrative Law Judge (ALJ) hearing. Since the rest of the appeal process has been expedited, it is reasonable for Carolyn to believe that the ALJ hearing will be expedited. However, ALJ hearings are not expedited.

Pursuant to the regulations, the issuance of an ALJ decision could take up to 90 days after Carolyn’s request for the hearing.47 Sadly, an ALJ decision, even a favorable one, made three months after a decision to discharge Carolyn from the skilled nursing facility will be essentially useless. In the intervening time, unless circumstances changed, no doctor’s orders will have been issued to continue Medicare covered physically therapy and Carolyn will most likely have gone home, rather than risk further financial liability. Even if a hearing was held and the ALJ found that the discharge was not medically appropriate, within the Medicare appeal system, there’s no recourse for Carolyn. Three months after her discharge from the skilled nursing facility, the ALJ will have no power to order her readmission or to reinstate her care.

The take home message is that elder law attorneys handling Medicare appeals must know which kind of appeals they are conducting or potentially end up engaging in appeals that may have a favorable decision, but ultimately result in no benefit to their clients.

2. Different Kinds of Appeals
As illustrated above, when considering a potential Medicare appeal, it is very important for an attorney to identify which kind of appeal rights may be exercised. To illustrate, let’s start with Jane. Jane is a Medicare beneficiary who was denied Medicare coverage for hospital care and would like to appeal. First, Jane’s attorney must determine whether Jane is enrolled in traditional Medicare or is in a Medicare Advantage plan. For purposes of this discussion, we will assume that she is in traditional Medicare. Next, the attorney must determine whether Jane received an admission denial, a continuing care denial, is on observation status, or received her denial of coverage via her Medicare Summary Notice (MSN). In the sections that follow, scenarios are presented that illustrate these Medicare coverage denials, followed by a scenario in which Jane receives a denial while enrolled in a Medicare Advantage plan.

a. Hospital Admission Denial
Jane is 80 years old. She was sick at home with an upper respiratory infection for three days. She fell and hit her head. Her daughter called 911 and an ambulance brought Jane to the hospital. Jane was evaluated in the emergency room. The emergency room doctor decided that Jane did not need to be admitted to the hospital. Jane believes she is dehydrated and at risk of another fall. She also has no way to get home from the hospital. Under these circumstances, the hospital doctor admits her to the hospital. First, however, the hospital gives Jane a notice. This notice is called a Hospital Issued Notice of Non-coverage (HINN).48 The HINN states that it is the hospital’s opinion that Medicare will not pay for Jane’s inpatient hospital stay.

After Jane leaves the hospital, the hospital will bill Medicare using a code indicting the stay was non-covered.49 Jane will eventually receive a Medicare Summary Notice (MSN). MSN’s are sent to beneficiaries every three months and are available electronically. They provide:

• A list of services or supplies that providers and suppliers billed to Medicare using the beneficiary’s Medicare number;
• What Medicare covered;
• What Medicare denied; and
• The maximum amount the beneficiary owes to the provider for the uncovered care.50

The MSN is Jane’s initial determination for purposes of a Medicare appeal.51 Since Jane received the HINN, and the hospital billed her care as non-covered, the MSN indicates that Medicare denied payment for the hospitalization and that Jane is financially responsible for the cost of the care.52 The MSN will also notify Jane that she may appeal the denial.53 Jane has 120 days from the date she received the MSN to request a redetermination.54 Jane must make the request in writing using the CMS Medicare Redetermination Request Form — 1st Level of Appeal, which is available online.55 A successful Medicare redetermination request, must include:

1. The beneficiary’s name;
2. The Medicare number;
3. Specific service(s) and/or item(s) for which the redetermination is being requested and the specific date(s) of the service; and
4. The name of the party or the representative of the party.56

Jane must send her redetermination request to the MAC within 120 days of the day she received her MSN. The relevant address is located on the MSN.57 Again, the MAC is the entity that issued the initial determination — it will also issue the redetermination.

With the redetermination request, the attorney should send the evidence necessary to support Jane’s need for hospital coverage. This is because, pursuant to the regulation:

When filing the request for redetermination, a party must explain why it disagrees with the contractor’s determination and should include any evidence that the party believes should be considered by the contractor in making its redetermination.58

To determine what medical records should be submitted, Jane’s attorney should consult the Hospital Chapter in the Medicare Benefit Policy Manual.59 As was discussed earlier, generally speaking, when attorneys are engaged in a Medicare appeal, they should consult with their client’s attending physician. However, in this case the attending physician would not be helpful because Jane is challenging her attending physician’s decision not to admit her to the hospital. Therefore, assistance would have to come from another medical professional, for instance, Jane’s general practitioner.

In response to Jane’s request, the MAC will issue a redetermination.60 The redetermination must be issued within 60 calendar days of the request.61 If the redetermination is a denial, the attorney should consult the Medicare reconsideration request regulations.62

b. Hospital Observation Status
Now let’s imagine another scenario for Jane. After she is evaluated in the emergency room, the doctor decides that due to her dehydration and consequent risk of another fall or possible cardiac event, he will admit her to the hospital for observation. Jane is sent upstairs and assigned a room. However, at the time of her admission or soon thereafter, Jane is given a Medicare Outpatient Observation Notice (MOON).63 The MOON notifies Jane that her admission to the hospital for observation is outpatient care rather than inpatient care. This means that the hospital will bill Medicare Part B rather than Part A for her hospital care.64 Later, when Jane receives her MSN reflecting the hospital care in question, Medicare will have covered it, and thus Jane will have no right to appeal the fact that the hospital billed Medicare Part B rather than Part A, as there will be nothing in controversy.

Despite the fact that there is no Medicare denial of coverage for Jane’s hospital care, the designation of observation status rather than inpatient status may still cause harm. This is because, should she need it, Medicare will not pay for Jane’s subsequent care in a skilled nursing facility. Medicare Part A will only cover such care if prior to admission to the skilled nursing facility, Jane had a three-day Medicare covered inpatient hospital stay.65 Jane’s admission to the hospital under observation status does not count as a Medicare covered inpatient hospital stay.

Let’s say that Jane will need skilled nursing facility care after her hospitalization. Since Jane is on observation status, if that care is to be covered by Medicare Part A, her attorney must act before Jane is discharged from the hospital. Jane’s attorney will prevail if she convinces Jane’s attending physician (the doctor treating Jane in the hospital) to formally admit her as an inpatient for three days. Since this is a medical decision, success may entail enlisting the support of Jane’s general practitioner.

c. Hospital Continuing Care Denial
This time, imagine that due to Jane’s dehydration, need of an infusion, and risk of another fall, the attending physician admits Jane to the hospital as an inpatient. When this happens, Jane is given a document called the Important Message from Medicare (IM).66 The IM tells Jane she is admitted to the hospital. It also tells her that should she disagree with the hospital’s decision to discharge her from care later, she has the right to appeal.

Jane is hospitalized for two days. She is rehydrated and the doctor writes an order for discharge. However, Jane is still very dizzy and wants to be evaluated by a neurologist before she leaves the hospital. The doctor refuses to revoke the discharge order, telling Jane she is no longer at an inpatient hospital level of care.

At this juncture, Jane must exercise her right to an appeal or she will be sent home without the neurological evaluation. The IM lists the telephone number for a Medicare Appeals Contractor called a Quality Improvement Organization (QIO). To initiate her appeal, Jane must call the QIO,67 “no later than the day of discharge from the hospital.”68 The QIO must issue its decision regarding whether the discharge is appropriate “within one calendar day after it receives all requested pertinent information.”69 If Jane is still in the hospital when she receives the QIO’s decision, she has a right to an expedited reconsideration.70 Before going further with an expedited reconsideration, Jane’s attorney should review the regulations,71 most importantly noting that any stay beyond noon of the calendar day after receipt of the QIO’s decision could result in financial liability to Jane.72

The key point to understand here is that the goal of the discharge appeal is to prevent the discharge so that Jane can get medically necessary care. Once Jane leaves the hospital, the discharge appeal is moot, as appeal adjudicators do not have the authority to reinstate care or punish the hospital for inappropriate discharges. If Jane wishes to register a complaint regarding the quality of care she received while hospitalized, she can do so by contacting Medicare’s Beneficiary and Family Centered Care Quality Improvement Organization (BFCC-QIO).73

d. Hospital Outpatient Denial
Thus far we’ve imagined Jane in a hospital setting where she was admitted as either as an inpatient or on observation status. Hospitals in the United States not only provide inpatient care, they also provide a great deal of outpatient services.74 For instance, it is common to go to a hospital for various forms of imaging, such as MRIs, CT scans, and X-rays. When the hospital bills Medicare for these kinds of services, it bills Medicare Part B rather than Medicare Part A.75

Let’s imagine that Jane has lung cancer. Her oncologist periodically orders an MRI to evaluate the effectiveness of her cancer treatment. Jane then goes to her local hospital for the MRI. There are, of course, Medicare coverage rules for MRIs. Knowing these coverage rules is not Jane’s responsibility; it is the responsibility of the hospital.76 Prior to administering the MRI, it is the hospital’s responsibility to determine whether there is appropriate documentation to support the medical necessity of the MRI. If there is not, prior to administering the MRI, the hospital will give Jane an Advance Beneficiary Notice of Non-coverage (ABN).77

The ABN informs Jane that, in the hospital’s opinion, Medicare will not cover the MRI because it is not medically reasonable and necessary. Despite receiving the ABN, should Jane decide to have the MRI, the ABN shifts financial responsibility for the non-covered MRI from the hospital to Jane.78 In other words, when Medicare issues its denial, it will find Jane financially responsible for the non-covered MRI.

After the MRI is administered, the hospital will bill the claim as uncovered.79 When Jane receives her MSN, it will indicate that the hospital billed for the MRI, that the claim was denied, and that Jane is financially responsible for the MRI. Jane will then have the right to request a redetermination to appeal this denial.80 To file this request, Jane will follow the same steps discussed in Section III(D)(2)(a) of this paper.

Let’s imagine a different scenario. Jane went to the hospital, received no ABN, got the MRI, and then later received an MSN denying Medicare coverage for the MRI. If this were to happen, the MAC would hold Jane financially harmless. In other words, the hospital would not be legally permitted to bill Jane for the MRI because it failed to give her the necessary ABN informing her that Medicare would not cover the MRI.81 Under this second set of circumstances, Jane may choose not to appeal the denial, as she has no financial liability.82

e. Medicare Advantage Hospital Denial
Now we’ve seen that there are several kinds of hospital appeals. Depending on the circumstances, a given hospital appeal might be based on: a denial at the time of admission; an inappropriate discharge; or an uncovered outpatient service. And we’re not done yet.

Imagine that Jane is a Medicare Advantage enrollee. She has lung cancer. Periodically, her oncologist orders an MRI to evaluate the effectiveness of her cancer treatment. As we saw above, in traditional Medicare, determinations of coverage for Part B services occur after the medical service is provided and billed to Medicare. When beneficiaries are enrolled in Medicare Advantage plans, the process is different.

As a general rule, for Part B covered care, the insurance companies that administer Medicare Advantage plans approve coverage of care prospectively. Consequently, when the hospital gets the order for the MRI, prior to performing the test, the hospital contacts the insurance company that administers Jane’s Medicare Advantage plan for pre-approval. If the care is pre-approved, the MRI will be administered and most likely paid for (absent beneficiary cost sharing) by the Medicare Advantage plan.83 If, on the other hand, the insurance company denies the pre-approval, an appeal may be appropriate.

As Jane is enrolled in a Medicare Advantage plan, she will initially get no notice from the insurance company regarding this denial. In fact, the hospital may fix the problem and Jane may never know there was a problem. This is because such denials are often based on a lack of sufficient documentation to support the need for the prescribed procedure. To cure the problem, the hospital might contact the physician who ordered the MRI to obtain the information necessary to address the problem then contact the insurance company again for pre-approval. Once pre-approval is obtained, the hospital will administer Jane’s MRI.

In the event the hospital fails to cure the problem, Jane can appeal the denial.84 She will first need to consult her Medicare Advantage plan’s materials regarding how to initiate the appeal.85 In those materials, there will be a telephone number to call.86 Once Jane makes the phone call, she will be initiating a standard Medicare Advantage appeal. After Jane’s phone call, the insurance company must make its determination “as expeditiously” as her health requires, but no later than 14 calendar days after receiving the request.87 If the insurance company again denies approval for the MRI, it must send Jane a written notice explaining why and describing her next step for appeal.88 This document is called an organization determination.89

Sometimes, patients cannot wait 14 days for a decision. If the 14-day timeframe could jeopardize Jane’s life or health or her ability to regain maximum function, there is an expedited appeals process.90 To trigger this process, she or her oncologist must make a request for an expedited determination and to be successful, the oncologist should provide (either orally or in writing) justification as to why the determination must be expedited.91 The insurance company must make its decision regarding the expedited determination as expeditiously as required by Jane’s health condition, but no later than 72 hours after receiving the request.92

E. Fifth Question: Can the Attorney Get Paid?
Pursuant to the Medicare statute, no award of attorney fees or any costs in connection with an appeal may be made against the Medicare trust fund.93 An appointed representative for a beneficiary who wishes to charge a fee for services rendered in connection with an appeal before the Secretary [of Health and Human Services] must obtain approval of the fee from the Secretary. Services rendered below the [hearing] level are not considered proceedings before the Secretary.94 A form OMHA-118, which is available online, must be completed to obtain approval of a fee for representing a beneficiary.95

III. Summary
Medicare is complicated enough to be called disorienting. To get oriented, attorneys considering handling a Medicare appeal need navigational tools. These tools are the following steps:

• Determine whether the client is enrolled in traditional Medicare or a Medicare Advantage plan;
• Locate the appropriate coverage rule;
• Determine whether assistance from a medical professional is necessary;
• Identify the correct appeal process; and
• Determine how to get paid.

With these navigational tools, future Medicare appeals should bring calm seas and fair winds.

Citations
1 42 U.S.C. § 1395(c); see also Ctrs. for Medicare and Medicaid Servs., Medicare Program – General Information (page last Modified Nov. 13, 2019), https://www.cms.gov/Medicare/Medicare-General-Information/MedicareGenInfo/index.html (accessed Dec. 19, 2019).

2 42 U.S.C. § 1395y(a)(1)(A).

3 Beginning in 2020, pursuant to the Bipartisan Budget Act of 2018, Medicare Advantage plans may offer chronically ill individuals benefits that are not primarily health related if the benefit has a reasonable expectation of improving or maintaining the health or overall function of the individual. Pub. L. No. 115-123, 132 Stat. 64 (2018), https://www.congress.gov/115/plaws/publ123/PLAW-115publ123.pdf (accessed Dec. 19. 2019).

4 42 U.S.C. § 1395d.

5 Id.

6 Id. at § 1395k.

7 42 C.F.R. § 410.10.

8 Ctrs. for Medicare & Medicaid Svs., https://www.cms.gov/ (accessed Dec. 19, 2019).

9 Ctrs. for Medicare & Medicaid Svs., 2020 Medicare Parts A & B Premiums and Deductibles, (November 8, 2019) https://www.cms.gov/newsroom/fact-sheets/2020-medicare-parts-b-premiums-and-deductibles (accessed January 18, 2020).

10 Id.

11 42 U.S.C. § 1395ss, see also Medicare.gov, What’s Medicare Supplemental Insurance (Medigap), https://www.medicare.gov/supplements-other-insurance/whats-medicare-supplement-insurance-medigap (accessed Dec. 19, 2019).

12 Medicare.gov, Medicaid, https://www.medicare.gov/your-medicare-costs/get-help-paying-costs/medicaid (accessed Dec. 19, 2019).

13 Ctrs. for Medicare & Medicaid Svs., Medicare & Other Health Benefits: Your Guide to Who Pays First, Centers for Medicare & Medicaid Services, pp. 11 -15, https://www.medicare.gov/Pubs/pdf/02179-Medicare-Coordination-Benefits-Payer.pdf (accessed Dec. 19, 2019).

14 42 U.S.C. § 1395w-101 and 102, see also Medicare.gov, What Drug Plans Cover, https://www.medicare.gov/drug-coverage-part-d/what-drug-plans-cover (accessed Dec. 19, 2019).

15 42 U.S.C. § 1395w-21.

16 Medicare.gov, Medicare Advantage Plans, https://www.medicare.gov/sign-up-change-plans/types-of-medicare-health-plans/medicare-advantage-plans (accessed Dec. 19, 2019).

17 Medicare.gov, Find a Medicare Plan, https://www.medicare.gov/find-a-plan/questions/home.aspx (accessed Dec. 19, 2019).

18 In fact, insurance companies are prohibited from selling Medigap policies to Medicare Advantage enrollees because the Medigap insurance is considered duplicative. 42 U.S.C. § 1395ss(d)(3).

19 Gretchen Jacobson, Anthony Damico, and Tricia Neuman, A Dozen Facts About Medicare Advantage (Nov 13, 2018) KFF, https://www.kff.org/medicare/issue-brief/a-dozen-facts-about-medicare-advantage/ (accessed Dec. 19, 2019).

20 Ctrs. for Medicare & Medicaid Servs., Publication #100-16, Medicare Managed Care Manual, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS019326.html (accessed Dec. 19, 2019).

21 Medicare.gov, Evidence of Coverage (EOC), https://www.medicare.gov/forms-help-resources/mail-you-get-about-medicare/evidence-of-coverage-eoc (accessed Dec. 19, 2019).

22 This issue is addressed in the Medicare appeals regulations. However, not until the beneficiary’s appeal has reached the hearing level. “[Administrative Law Judges] and the [Medicare Appeals Council] are not bound by [Local Coverage Determinations], Local Medical Review Policies, or CMS program guidance, such as program memoranda and manual instructions, but will give substantial deference to these policies if they are applicable to a particular case.” 42 C.F.R. § 405.1062(a). Despite this regulation, sometimes bad language in policy manuals requires judicial action to eradicate. For instance, see Ctr. for Medicare Advocacy, Improvement Standard and Jimmo News, http://www.medicareadvocacy.org/medicare-info/improvement-standard/ (accessed Dec. 19, 2019).

23 Ctrs. for Medicare & Medicaid Servs., Internet-Only Manuals (IOMs), (page last modified April 5, 2012) https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs.html (accessed Dec. 19, 2019).

24 Id.

25 Ctrs. for Medicare & Medicaid Servs., Publication # 100-02, Medicare Benefit Manual, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS012673.html?DLPage=1&DLEntries=10&DLSort=0&DLSortDir=ascending (accessed Dec. 19, 2019).

26 Id. at Chapter 7 — Home Health Services, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c07.pdf (accessed Dec. 19, 2019).

27 Id. at Chapter 10 — Ambulance Services, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c10.pdf (accessed Dec. 19, 2019).

28 Id. at Chapter 12 — Comprehensive Outpatient Rehabilitation Facility (CORF), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c12.pdf (accessed Dec. 19, 2019).

29 Id. at Chapter 16 — General Exclusions from Coverage, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c16.pdf (accessed Dec. 19, 2019).

30 Id.

31 Id. at Chapter 8, Coverage of Extended Care (SNF) Services Under Hospital Insurance, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c08.pdf (accessed Dec. 19, 2019).

32 Id. at § 30 Skilled Nursing Facility Level of Care – General.

33 Ctrs. for Medicare & Medicaid Servs., Publication #100-03: Medicare National Coverage Determinations Manual, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS014961.html?DLPage=1&DLEntries=10&DLSort=0&DLSortDir=ascending (accessed Dec. 19, 2019).

34 Id. at Chapter 1, Part 1 – Coverage Determinations, Forward – Purpose for National Coverage Determinations (NCD) Manual, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/ncd103c1_Part1.pdf (accessed Dec. 19, 2019).

35 Id. at Chapter 1, Part 4, s 220.6, Positron Emission Tomography (PET) Scans, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/ncd103c1_Part4.pdf (accessed Dec. 19, 2019).

36 “Since Medicare’s inception in 1966, private health care insurers have processed medical claims for Medicare beneficiaries. Originally these entities were known as Part A Fiscal Intermediaries (FI) and Part B carriers. In 2003, the Centers for Medicare & Medicaid Services (CMS) was directed via Section 911 of the Medicare Prescription Drug Improvement, and Modernization Act (MMA) of 2003 to replace the Part A FIs and Part B carriers with A/B Medicare Administrative Contractors (MACs) in accordance with the Federal Acquisition Regulation (FAR).” Ctrs. for Medicare & Medicaid Servs., Glossary, https://www.cms.gov/Medicare/Medicare-Contracting/Medicare-Administrative-Contractors/MedicareAdministrativeContractors (accessed January 20, 2020).

37 Id.

38 Ctrs. for Medicare & Medicaid Servs., supra n. 33, at Chapter 1, Part 4, § 220.6.13(B)(1).

39 Id. at 220.6.13(B)(1)(a).

40 42 C.F.R. §§ 405.1205 – 405.1208 (traditional Medicare, hospital discharge appeals), 42 C.F.R. §§ 405.1200 – 405.1204 (traditional Medicare SNF, home Health, and hospice discharge appeals), 42 C.F.R. § 422.619 (Medicare Advantage expedited reconsiderations), 42 C.F.R. §§ 422.620 and 422.622 (Medicare Advantage hospital discharge appeals), 42 C.F.R. §§ 422.576, 422.578, 422.592, 422.594, 422.600, and 442.612 (Medicare Advantage standard appeals), 42 C.F.R. §§ 405.920 – 405.1140 traditional Medicare standard appeals), 42 C.F.R. §§423.566 –423.638 (Medicare Part D appeals).

41 Id. at § 411.404.

42 Id. at § 1202(b).

43 Id. at § 1202(e)(6).

44 Id. at § 405.1204.

45 Id. at § 405.1204(c)(3).

46 Id. at § 405.1204(c)(4).

47 Id. at § 405.1016(b).

48 Ctrs. for Medicare & Medicaid Servs., HINNs, (page last modified Sept. 19, 2019), https://www.cms.gov/medicare/medicare-general-information/bni/hinns.html (accessed Dec. 25, 2019).

49 Ctrs. for Medicare & Medicaid Servs., Publication 100-04, Medicare Claims Processing Manual, Chapter 3, https://www.cms.gov/media/136316 (accessed Jan. 20, 2020).

50 Ctrs. for Medicare & Medicaid Servs., Medicare Summary Notice (MSN), https://www.medicare.gov/forms-help-resources/mail-you-get-about-medicare/medicare-summary-notice-msn (accessed Dec. 25, 2019).

51 42 C.F.R. § 405.920.

52 Beneficiaries are protected from financial liability for charges for claims denied by Medicare for services provided to beneficiaries who were not aware that Medicare would not cover the services. 42 U.S.C. § 1395pp(g).

53 42 C.F.R. § 405.921(2)(iii).

54 Id. at § 405.942.

55 Ctrs. for Medicare & Medicaid Servs., First Level of Appeal: Redetermination by a Medicare Contractor, https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/RedeterminationbyaMedicareContractor.html (accessed Dec. 25, 2019).

56 42 C.F.R. § 405.944(b).

57 42 C.F.R. § 405.944(a).

58 42 C.F.R. § 405.946(a).

59 Ctrs. for Medicare & Medicaid Servs., supra n. 25 at 100-02 Chapter One — Hospital Services Covered Under Part A, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c01.pdf (accessed Dec. 19, 2019).

60 42 C.F.R. § 405.942.

61 Id. at § 405.950(a).

62 Id. at § 405.962 et seq.

63 Ctrs. for Medicare & Medicaid Servs., Medicare Outpatient Observation Notice (MOON) (page last modified Dec. 3, 2019) https://www.cms.gov/Medicare/Medicare-General-Information/BNI/MOON.html (accessed Dec. 26, 2019). In this situation, because Medicare will cover the care in question, were the hospital not to give the MOON, the beneficiary would still have no appeal rights.

64 Ctrs. for Medicare & Medicaid Servs., supra n. 25, at Chapter 6 — Hospital Services Covered Under Part B § 20.6, Outpatient Observation Services, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c06.pdf (accessed Jan. 20. 2020).

65 42 C.F.R. § 409.30(a)(1).

66 Ctrs. for Medicare & Medicaid Servs., Hospital Discharge Appeal Notices, (page last modified Oct. 30, 2019), https://www.cms.gov/Medicare/Medicare-General-Information/BNI/HospitalDischargeAppealNotices.html (accessed Dec. 26, 2019).

67 42 C.F.R. § 1206(a).

68 Id. at § 1206(b)(1).

69 Id. at § 1206(d)(6)(i).

70 Id. § 1206(g)(1).

71 Id.

72 If a beneficiary files a request for an expedited determination by the QIO [in a timely manner], the beneficiary is not financially responsible for inpatient hospital services (other than applicable coinsurance and deductible) furnished before noon of the calendar day after the date the beneficiary (or his or her representative) receives notification (either orally or in writing) of the expedited determination by the QIO. 42 C.F.R. § 1206(f)(2).

73 Ctrs. for Medicare & Medicaid Servs., Quality Improvement Organizations, (page last modified June 10, 2019), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityImprovementOrgs/index.html (accessed Dec. 26, 2019).

74 Ctrs. for Medicare & Medicaid Servs., supra n. 25, at Chapter 6, Hospital Services Covered Under Part B § 20.6, Outpatient Observation Services, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c06.pdf (accessed Dec. 26, 2019).

75 42 C.F.R. § 410.10.

76 42 U.S.C. § 1395pp(g).

77 Ctrs. for Medicare & Medicaid Servs., FFS ABN, (page last modified Sept. 19, 2019), https://www.cms.gov/medicare/medicare-general-information/bni/abn.html (accessed Dec. 26, 2019).

78 To avoid an appeal, rather than getting the service after receiving an ABN, beneficiaries like Jane should contact the physician who ordered the service and ask that doctor to contact the entity issuing the ABN to resolve the problem before the service is rendered.

79 Ctrs. for Medicare & Medicaid Servs., supra n. 49 at Chapter 30 — Financial Liability Protections, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c30.pdf (accessed Dec. 26, 2019).

80 42 C.F.R. § 405.940.

81 42 U.S.C. § 1879(a)-(g) and Ctrs. for Medicare & Medicaid Servs., supra n. 49 at Chapter 30, Financial Liability Protections, §§ 50.2, 50.2.1, and 50.2.2 https://www.cms.gov/Medicare/Medicare-General-Information/BNI/Do
wnloads/ABN-CMS-Manual-Instructions.pdf
(accessed Jan. 26, 2020).

82 Id.

83 It is possible the MA plan will not pay for the MRI. However, such a denial is usually due to a billing error on the part of the provider; therefore, the beneficiary will be held harmless and thus will not be responsible for payment of the provided care. Ctrs. for Medicare & Medicaid Servs., supra n. 20 at Chapter 4 — Benefits and Beneficiary Protections, § 170 Balance Billing, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/mc86c04.pdf (accessed Dec. 26, 2019).

84 84 42 C.F.R. § 422.566(c)(1).

85 Medicare.gov, Evidence of Coverage (EOC)https://www.medicare.gov/forms-help-resources/mail-you-get-about-medicare/evidence-of-coverage-eoc (accessed Dec. 26, 2019).

86 42 C.F.R. § 422.568.

87 Id. at § 422.568(b).

88 Id. at § 422.568.

89 Ctrs. for Medicare & Medicaid Servs., Organization Determinations, (page last modified Mar. 7, 2019,) https://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/ORGDetermin.html (accessed Dec. 26, 2019).

90 42 C.F.R. § 422.570.

91 Id. at § 422.570(b).

92 Id. at § 422.572.

93 Id. at § 405.910(f)(2).

94 Id. at § 405.910(f)(1).

95 Dept. of Health & Human Servs., Off. of Medicare Hrgs. & Apps., Petition to Obtain Approval of a Fee for Representing a Beneficiary (Oct. 2017), https://www.hhs.gov/sites/default/files/OMHA-118.pdf (accessed Dec. 26, 2019).

Table 1 illustrates that the appeals process is complicated by the confusing terminology, which often refers to different appeal stages by the same name, and by the byzantine process, in which separate appeal tracks appear to, but don’t always morph into one appeal process.

Table 1. Types of Medicare Appeals

Discharge Appeals

Medicare Advantage Standard Appeals

Traditional Medicare Standard Appeals

Medicare Part D Appeals

Discharge Notice

Organization Determination

Initial Determination

Coverage Determination

Expedited Determination

Reconsideration

Redetermination

Redetermination

Expedited Reconsideration

Reconsideraton by Independent Review Entity

Reconsideration

Reconsideration

Hearing

Hearing

Hearing

Medicare Appeals Council Review

Medicare Appeals Council Review

Medicare Appeals Council Review

Judicial Review

Judicial Review

Judicial Review

About the Author
Terry Berthelot is an assistant professor in residence at the University of Connecticut. She earned her JD from the University of Mississippi, graduating cum laude, in 2001. She earned her master’s degree in social work (MSW) from Syracuse University in 1993. Her research interests include Medicare benefits and appeals, end-of-life care, and health care decision-making. She is a former chair of NAELA’s Health Care Section and is currently the director of the Aging Research Interest Group at the University of Connecticut.