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The Center recently submitted comments to the Centers for Medicare & Medicaid Services (CMS) regarding the following proposed rules.


Since 1986, the Center has represented thousands of Medicare beneficiaries seeking coverage of health care and services through the Medicare administrative appeals process.  As discussed in previous CMA Alerts, the Center has advocated for our clients in individual appeals, policy discussions, and, selectively, through strategic litigation aimed at enforcing due process and other health care rights.  Recently, the Department of Health and Human Services (HHS), which oversees both CMS and the Office of Medicare Hearings and Appeals (OMHA), which administers the third stage of the Medicare appeals process, Administrative Law Judge (ALJ) hearings, issued a proposed rule that would make number of changes to the Medicare administrative appeals system, primarily at OMHA.

While the proposed rule and related efforts have largely been aimed at easing the significant backlog of cases pending hearing at OMHA, in our view, scant attention has been paid to addressing the primary causes of the backlog.  These causes include the “rubberstamp” decisions at the lower levels along with increasing provider audits and resulting provider appeals, mostly related to CMS’ hospital observation status policies.

On the one hand, the proposed rule aims to streamline certain rules, terminology and processes in order to make the broader appeals system function better, which the Center supports. On the other hand, we strongly object to other proposals which appear to make things easier for both appellants and adjudicators, but would likely complicate and dilute the rights of beneficiaries pursuing appeals. 

The Center recently submitted comments, and a number of organizations signed on. In particular, the Center’s comments expressed strong concerns with proposals to:

  • Permit the Medicare Appeals Council Chair to decide that certain Council decisions will have precedential value;
  • Increase the burden on beneficiaries requesting ALJ hearings;
  • Remove the requirement that ALJ hearings “must” be conducted within 90 days;
  • Change the default mode of hearing from Video Teleconference (VTC) to telephone.
  • Restrict application of the appeal regulations (Part 405 of Title 42 of the Code of Federal Regulations) to Medicare parts C & D when alternative provisions are not articulated;

The Center’s comments are available at

Home Health

As discussed in last week’s Alert, the Center has been hearing about people who clearly meet Medicare criteria but are unable to access home health care ordered by their physicians. In particular, people living with long-term and debilitating conditions find themselves without necessary home care.  The Center submitted comments to proposed payment rules which, if finalized, will only exacerbate the problem.  The Center’s comments, with sign-ons from many other individuals and organizations, are available at


The Center also submitted comments on CMS’s Proposed Rule regarding the ESRD Prospective Payment System.  In addition to commenting on CMS’s proposal to cover the treatment of Acute Kidney Injury patients, the Center highlighted our concern with proposed quality measures that reward improvement among End-Stage-Renal-Disease patients. The Center noted that, while we generally support outcome-based measures if patient goals are met, not all patients, especially those with ESRD, have the ability to improve.  The ability to improve should never be the sole, or main, quality measure.  The Center’s comments are available at

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