Medicare Advantage (HMO) Appeals

A. The Initial Medicare Advantage decision:

1. Organizational Determination:  Medicare Advantage plans must issue written decisions, called Organizational Determinations, about Medicare coverage decisions.

a. Prospective Coverage decisions: A Medicare Advantage (MA) plan is required to issue a prospective decision as to whether to provide a Medicare-covered service within 14 days of a request.

b. Expedited Prospective Coverage Decisions: In situations in which adherence to the standard 14-day time-frame would “seriously jeopardize the life or health of the [MA] enrollee or the ability of the enrollee to regain maximum function” [1] an expedited organizational determination must be issued by the MA plan within 72 hours.

i. If the beneficiary’s treating physician asserts in writing that this standard is met by the beneficiary’s situation, the MA plan is required to expedite the issuance of the organizational determination.

ii. If the beneficiary makes this claim without the support of her treating physician, the MA plan decides if the standard has been met for expediting the decision.

c. Retrospective Coverage Decisions: A MA plan has 30 days to make a decision on a request to pay for a service that a Medicare beneficiary has already received.

B. The first stage of a Medicare Advantage appeal is Reconsideration:

1. Standard Reconsideration:  An aggrieved enrollee may request Reconsideration within 30 days of receiving an adverse Organizational Determination.[2] 
   

   a. MA staff who were not involved in the Organizational Determination decision making process review the beneficiary’s medical record and reach a decision.

   b. If the MA affirms its denial, it must send the case to the Center for Dispute Resolution, (CHDR.).  The CHDR reviews the medical records and issues a Reconsideration decision.

   c. The CHDR must solicit the beneficiary’s input and the beneficiary may submit additional evidence, such as letters from medical providers and additional medical evidence to the CHDR.

2. Expedited Reconsideration: An expedited Reconsideration may be requested by the beneficiary’s treating physician, or by the beneficiary, if the standard process would “seriously jeopardize the life or health of the [MA] enrollee or the ability of the enrollee to regain maximum function”.[3] An Expedited Reconsideration must be issued by the MA plan within 72 hours.

a. If the MA reconsideration decision affirms the denial, the MA must send the case to the CHDR.

b. The CHDR reviews the medical record and any additional evidence that has been submitted by the MA or the beneficiary and issues a Reconsideration decision.

c. The CHDR must solicit the beneficiary’s input and the beneficiary may submit additional evidence, such as letters from medical providers and additional medical evidence to the CHDR.

d. While the CHDR is not required to issue a Reconsideration decision within any specified deadline, it usually issues Expedited Reconsideration decisions within 10 days of receiving a case from the MA.

C. The second stage of a Medicare Advantage appeal is an Administrative Law Judge Hearing, (ALJ):

1. If a beneficiary is dissatisfied with the CHDR Reconsideration decision, she may appeal by requesting an ALJ hearing within 60 days after receipt of the CHDR Reconsideration decision.
   
   
2. There must be at least $100 in issue to be eligible to bring a MA case to an ALJ hearing.
   
   
3. A request for an ALJ hearing must be made in writing to the MA plan.
   
   
4. The ALJ holds a hearing at which the beneficiary is given an opportunity to offer testimony and other relevant evidence to establish that Medicare should have covered the skilled nursing facility stay after the date on which the SNF notified the beneficiary that Medicare coverage would cease.  After the hearing, the ALJ issues a decision on Medicare coverage for the beneficiary’s hospitalization.

a. The beneficiary can waive the right to a hearing.  In that case, the ALJ reviews all of the evidence in the appeal record and issues an “on-the-record” decision.

b. There are no deadlines in effect for issuance of ALJ decisions and beneficiaries often wait months to receive an ALJ decision.

D. The third stage of a Medicare Advantage appeal is Departmental Appeals Board (DAB) Review

1. If a beneficiary is dissatisfied with an ALJ decision, she may file an appeal with the DAB.
   
   
2. DAB review must be requested within 60 days of receipt of an adverse ALJ decision.
   
   
3. There must be $100 in issue to request DAB review of an ALJ decision in a MA case.
   
   
4. Requests for DAB review must be filed in writing with the ALJ office.
   
   
5. The beneficiary or representative may submit a written memorandum explaining the case. The DAB does not hold in-person hearings.
   
   
6. The DAB reviews all of the evidence in the Medicare appeal record makes a decision about Medicare coverage for the beneficiary’s SNF care and mails it to the beneficiary. There are no deadlines for issuance of a DAB decisions and beneficiaries often wait years to receive a DAB decision.

E. Judicial Review

1. A case may be filed in federal court to contest an adverse DAB decision in a MA case.
   
   
2. There must be at least $1,000 in issue to file suit in a MA case.
   
   
3. While it is not necessary to retain a lawyer to file a federal court case and the court clerks are generally very helpful to unrepresented litigants, it is advisable to have legal representation in a court case.

F. Special Rules for Appealing Medicare Advantage Termination of Medicare Coverage for Hospital Care

1. The hospital must inform a MA patient that the MA plan has decided that Medicare coverage will cease. A patient who disagrees with the discharge decision must call the Quality Improvement Organization (QIO) to request Immediate Review. 
   
    
2. The Notice of Discharge and Medicare Appeal Rights (NODMAR): The MA plan is responsible for providing this written notice to a hospitalized MA enrollee who disagrees with a discharge decision.
   
   
3. The NODMAR must be delivered the day before the MA plan has decided to terminate Medicare coverage.
   
   
4. The NODMAR must include:
   

   a. An explanation as to why the MA plan believes Medicare coverage should end;

   b. The day when the MA enrollee will become liable for the cost of her care if she appeals and leaves the hospital. This date must be no earlier than noon of the day following delivery of the NODMAR; and

   c. An explanation of how to appeal if the MA enrollee disagrees with the MA discharge decision.

5. An aggrieved MA enrollee must appeal by calling the Quality Improvement Organization (QIO) by noon of the day following receipt of the NODMAR.

6. The QIO reviews the medical evidence and any additional evidence submitted by the beneficiary or by the MA plan and makes a decision about Medicare coverage of the hospitalization.  The decision must be in writing.

7. If the QIO affirms the Medicare coverage denial, the enrollee becomes personally liable for the cost of the care if she does not leave the hospital by noon of the day following an adverse QIO decision.

G. Special Rules for Certain Medicare Advantage Service Terminations:  Effective January 1, 2004.

1. “Fast track” appeal process: A special notification and appeal process is implemented in cases of termination of a course of treatment by a skilled nursing facility, (SNF), home health agency or comprehensive outpatient rehabilitation facility, (CORF). The process includes a rapid review of the MA termination decision by an “Independent Review Entity” (IRE), and two new notices.
   
   
2. A new “Important Message of Medicare Non-Coverage” notice must be  provided in writing to a MA enrollee at least 2 days before the MA plan has decided to cease Medicare coverage for the service. 
   
   
3. The Important Message of Medicare Non-Coverage will be given to the MA enrollee by the provider.
   
   
4. The Important Message must state:
   
   

   a. The date Medicare coverage will end. (This date must be at least two days after the date the notice is given to the enrollee);

   b. The date on which the enrollee will be liable for the cost of the care. (This date must be at least two days after the date on which the Important Message was given to the enrollee);

   c. How to get a more detailed notice explaining why the MA plan decided to terminate Medicare coverage; and

   d. How to exercise the enrollee’s right to a new “fast track” appeal process.

5. If the enrollee disagrees with the termination decision, the enrollee must follow the instructions in the Important Message and request a “fast track” appeal by noon of the day after receiving the Important Message.

6. Detailed Notice of Non-Coverage: The MA plan must give the enrollee a more detailed written explanation that includes:
   
   a. A specific explanation of why the MA plan will terminate Medicare coverage; and

   b. A description of the relevant Medicare rule that justifies the MA plan termination decision OR information as to how the enrollee can get the rule from the MA plan.

7. The MA plan must also transmit the enrollee’s medical records to the IRE by the day after the enrollee asks for the Fast track review.

8. The IRE must reach its decision on the fast track appeal by the day after the records are received from the MA plan.

9. If the IRE agrees with the enrollee, the IRE may set a new termination date, or may direct the MA plan to start the process again if it decides to terminate Medicare coverage in the future.

10. If the IRE agrees with the MA plan, the enrollee is liable for the cost of the care as of the day the IRE decision is made.

[2] Forms that may be used to submit Medicare appeals are available at http://www.medicare.gov/Basics/forms/default.asp.

[3] Id.

11/19/03
Rev’d 7/16/04