The Center for Medicare Advocacy, Inc. alerts you to a possible infringement upon the due process rights of individuals with Medicare.

The agency that regulates Medicare, the Centers for Medicare & Medicaid Services (CMS), has begun discussions with members of Congress and other organizations concerning the possibility of seeking legislation to eliminate the administrative law judge (ALJ) and Departmental Appeals Board (DAB) levels of review for Medicare claims. Instead, people with Medicare would be limited to review by a new entity, the Qualified Independent Contractor (QIC), created by Section 521 of the Benefits Improvement and Protection Act of 2000 (BIPA). CMS’ rationale appears to be that the backlog of ALJ cases is too great and that CMS does not know how they will be able to hold ALJs accountable to new time lines that were enacted as part of BIPA. Unfortunately, the QIC review does not meet the basic due process standards for hearings established by the Goldberg v. Kelly and Mathews v. Eldridge line of Supreme Court cases and their progeny.

The ALJ level of appeal has been extremely valuable to people with Medicare. ALJs are not bound by CMS policy, as are decision makers at initial determination, redetermination, reconsideration, review, and carrier fair hearings. Historically ALJs have granted coverage to beneficiaries, overturning lower level appeal denials in the vast majority of cases. The Office of Inspector General (OIG) reported that ALJs reversed 81% of home health appeals in 1986 and 78% of durable medical equipment appeals in 1997.

QICs are not clearly defined by the statute, and no QIC currently exists. However, QICs are private entities, as are PROs and fiscal intermediaries and carriers, that enter into a contract with CMS to provide the review function. Currently, the ALJs who conduct Medicare hearings are federal government employees who are independent from CMS. Although QICs must have "sufficient training and expertise in medical science and legal matters..," the statute focuses more on a medical model of review. It does not require that the QIC have any expertise in conducting a fair hearing. Finally, and perhaps most importantly, unlike an appeal to an ALJ, an appeal to a QIC does not entitle an individual to a hearing before an impartial decision-maker. The statute only requires that the QIC "solicit the views of the individual involved."

Advocates for people with Medicare beneficiaries have worked for over twenty years to assure that they have adequate protection when their Medicare benefits are denied, reduced or terminated. A move to eliminate ALJ hearings, regardless of the authority given to a QIC, would dramatically undermine past efforts. We encourage all advocates and organizations interested in due process to contact CMS Deputy Director Michael McMullan and explain that any effort to eliminate ALJ hearings is a step in the wrong direction. Ms. McMullan can be reached at McMullan@cms.hhs.gov.