May 1, 2008

MEDICARE REQUIREMENT OF EARLY EVIDENCE SUBMISSION

IS A BARRIER TO BENEFICIARY APPEALS

Medicare beneficiaries who wish to appeal when their claims are denied face a daunting obstacle: the Medicare agency, the Centers for Medicare & Medicaid Services' (CMS), demand that beneficiaries submit evidence supporting their claims early on in the appeals process.    The application of this requirement to beneficiaries is contrary to the Medicare appeals regulations, which expressly limit the requirement of early submission of evidence to appeals by providers, suppliers, and to those beneficiaries who are represented by providers or suppliers.

Medicare Appeals Process

The Medicare appeals process contains many levels of appeal.   In traditional Medicare Parts A and B, an Initial Determination is made by a private contractor.[1]  The first level of appeal is a Redetermination by the private contractor that made the Initial Determination.[2]  If this decision is adverse, the beneficiary can go on to a second level of appeal, a paper Reconsideration by a Qualified Independent Contractor (QIC).[3]  If this is still unsatisfactory, the beneficiary has the right to a hearing (usually by telephone or video teleconference) with an Administrative Law Judge (ALJ).[4]  Further appeals are possible, to the Medicare Appeals Council (MAC),[5] and to federal district court.[6]  Most unsuccessful beneficiaries do not appeal beyond the first few levels, and it is believed that discouragement and the burdensome nature of the many levels of appeal are significant factors in this failure to pursue appeals to the fullest.

Submitting Evidence

CMS states in the appeal instructions posted on its website that evidence should be submitted with the request for Reconsideration, and that "[e]vidence not submitted at the reconsideration level may be excluded from consideration at subsequent levels of appeal unless you show good cause for not submitting the evidence."[7]

This message requiring supporting evidence to be mailed along with the appeal request is also conveyed clearly on the CMS forms for requesting the various stages of appeal.  These forms contain boxes to be checked by the beneficiary that state either "I have evidence to submit. (Attach such evidence to this form)" or "I do not have evidence to submit."  There is no box provided for a beneficiary who may wish to submit evidence after requesting appeal.[8]

The demands for early submission of evidence pose a problem for beneficiaries because at this point in the appeal process they may have no good idea of the specific factual or legal reasons for the Medicare Contractor’s denial of coverage.  The written notices of Initial Determination and Redetermination prepared by Medicare Contractors provide only minimal explanation concerning the reasons for denials of coverage. Later on in the appeal process, subsequent notices may clarify the reasons for denial, or the beneficiary may have learned about and contacted advocates for help in understanding the decisions, and the evidence they should submit.  Furthermore, even when beneficiaries know what evidence will support their appeal, it may take considerable time to obtain that evidence from physicians, hospitals, and others.  For these reasons, the CMS demand that beneficiaries provide evidence together with their requests for appeal is an inhibitor to requesting the appeal at all.

CMS Practice Conflicts with Regulations

Surprisingly, this practice by CMS is contrary to the agency’s own regulations.  The section of the regulations addressing submission of evidence with reconsideration requests does indeed begin by stating that evidence should be submitted with the request and, if not submitted until after the reconsideration decision notice, will not be considered "absent good cause" for the late submission.[9]  However, the section then goes on to specifically exempt beneficiaries who are not represented by providers or suppliers from this requirement of early submission of evidence.[10]  Similarly, beneficiaries are not included in the regulations that require parties to ALJ hearings to submit written evidence at the time of requesting hearings, or at a time specified in the hearing request, or within 10 days of receiving the notice of hearing.[11]  Instead, the regulations specifically provide that "[t]he requirements of this section do not apply to… evidence submitted by a beneficiary.[12]  

Conclusion

The incorrect requirement that beneficiaries immediately submit evidence supporting appeals is posted on the CMS website and set out in its forms for requesting appeals.  This is likely to discourage appeals by beneficiaries and is contrary to specific protections for beneficiaries spelled out in the agency’s own regulations.  Beneficiaries and their advocates should be aware that this requirement is not valid  The Center for Medicare Advocacy urges CMS to correct its on-line public information as well as its appeal forms.

Copyright © 2010 Center for Medicare Advocacy, Inc.