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One of the most fundamental rights set out in the Constitution is the right to due process of law when government action harms an individual. “Due process” means both notice and an opportunity to be heard. In other words, individuals are entitled to be informed about a government action, as well as their right to challenge such action.

As a government administered program, Medicare provides due process to Medicare beneficiaries through an administrative appeals system – a five level process through which an individual can challenge certain denials or terminations of coverage. In addition to providing due process to beneficiaries, the Medicare appeals process serves as an important check on providers, contractors and program rules that might work to unnecessarily and inappropriately restrict coverage and care.  

There are currently problems with the due process rights afforded to Medicare beneficiaries, both because of the structure of the appeals system and how the system works in practice. On the structural side, there are limits on one’s ability to appeal coverage denials.  For example, in many instances, in order to have an appeal right at all, an individual must first obtain the services or item in question and accept the related financial risk.  In addition, in certain circumstances, such as issues relating to the hospice benefit, there is no meaningful avenue to challenge disagreements about coverage.

On the practice side, experience shows that the decision-making by Medicare Contractors at the first two levels of review most frequently “rubber stamp” denials.  Beneficiaries do not have a fair shot at having their denial resolved until the third level of review, a hearing conducted by Administrative Law Judges (ALJs).  Further, due largely to an increase in provider Medicare audits there is a tremendous backlog of appeals at the ALJ level, leading to Medicare beneficiaries experiencing undue delays in having their cases heard and fairly considered. 

These issues must be resolved in order to provide Medicare beneficiaries access to the full and meaningful due process rights to which they are entitled.

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