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1. PRESENTATION:  RE-REVIEW OF PREVIOUSLY DENIED CLAIMS PURSUANT TO THE JIMMO SETTLEMENT

In addition to revising Medicare manual provisions to now allow Medicare coverage for skilled maintenance care, the Settlement Agreement in Jimmo v. Sebelius provides that Medicare beneficiaries who were previously denied Medicare coverage may have claims re-reviewed under the revised manual provisions.  The process is not automatic: people who wish to take advantage of the re-review process must fill out and submit a form, known as a Request for Re-Review, which is now available on the Center for Medicare Advocacy's website and the CMS website.  This article explains the process and the form.

Medicare Claims Eligible for Re-review

A Medicare beneficiary may be eligible for re-review if she:

  1. Has received skilled nursing or therapy services in a skilled nursing facility, home health setting, or outpatient therapy setting, and
  2. Has received a partial or full denial of Medicare coverage for those services based on the lack of improvement potential, and
  3. The denial became final and non-appealable on or after January 18, 2011.

Let's look closely at that last requirement:

It means that the beneficiary had sought Medicare coverage for services provided and received a denial at some level of Medicare's decision-making process which, because the beneficiary did not seek further review, became final on or after January 18, 2011.  For example, if a beneficiary received a denial prior to January 18, 2011 and could have appealed that decision on or after that date, but chose not to, she would be eligible now for re-review of that claim.  Another way to think of it is: On January 18, 2011, was there still time to seek further review at the next level?  If so, the beneficiary would qualify for re-review of that claim.  On the other hand, if, prior to January 18, 2011, it was too late for the beneficiary to appeal that claim to the next level, the beneficiary would not qualify for re-review of that claim.

Claims Not Eligible for Re-review

Claims that became final and non-appealable after January 23, 2014 are not eligible for re-review.  Consequently, any denied claim that was still "alive" after January 23, 2014 should proceed through the normal Medicare administrative process.  The denial should be appealed to the next level of review, where it will be reviewed under the now-revised manual provisions.

Thus, the claims that are eligible for re-review are denials that were alive on or after January 18, 2011 (even though the services for which the claim was made could have taken place prior to that date) through January 23, 2014.

Deadlines for Filing Request for Re-Review Form

There are two different deadlines for filing the form and obtaining re-review.  If the claim became "final and non-appealable" from January 18, 2011 through January 24, 2013, the deadline for filing is July 23, 2014.  If it became "final and non-appealable" from January 25, 2013 through January 23, 2014, the deadline is January 23, 2015 (six months later than the first group's deadline).  The best practice, of course, is to file the re-review form as soon as possible so that there is no doubt about timeliness.

The Request for Re-Review Form

The form consists of two parts.  The first part asks six questions about the claim.  These questions represent a worksheet to help beneficiaries decide whether to seek re-review and need not be submitted as part of the Request for Re-review.  There are three possible answers to each question: Yes, No, and Don't Know.  The purpose of the form is to determine whether the individual meets the requirements for re-review, i.e., whether she has a claim that falls within the time guidelines.  If the answer to any question is No, then the individual is not eligible for re-review.  If the individual answers Yes or Don't Know (in any combination) to the six questions, then she is eligible to file the Request for Re-review.  That does not necessarily mean that the coverage denial will be reversed, but it is the first step toward that goal.

The second part of the form is a one-page request for information about the Medicare beneficiary and the claim, including a section labeled "Reason(s) for Disagreement with the Final Claim Decision" and the opportunity to submit additional evidence.  Once that part of the form is completed, the Request can either be faxed to a number listed on the form or sent by mail to the listed address.  The Request must be postmarked or faxed no later than the deadline applicable to the group in which the Medicare beneficiary belongs, either July 23, 2014 or January 23, 2015.

Faxing or mailing the completed Request will meet the filing requirement.  It will go to Q2 Administrators, which has been hired by Medicare to process the requests for re-review.  The company will then direct the Request to the level of decision-making where the last decision on the claim was made.  For example, if the beneficiary had received a denial at the reconsideration level, but had not requested further review, the Request for Re-Review would be sent on to the entity handling reconsiderations to make a new decision in light of the revised manual provisions.

If the claim is still denied, the Medicare beneficiary has the right to appeal the re-review decision to the next level of the Medicare appeals process, as she would with any denied claim.

Conclusion

The re-review process is intended to assist Medicare beneficiaries who were denied coverage in the past and who paid out-of-pocket for their skilled nursing or therapy, or who have an outstanding bill for the needed services.  Medicare coverage is not automatic, however.  To see whether Medicare coverage is a possibility, the individual or her advocate must start the process by filling out and submitting the Request for Re-Review.  That action begins with getting the form, which is available here.  Further information on the Jimmo re-review process is available on the Center's website.

2. LEGISLATIVE UPATE: PHYSICIAN PAYMENT & THE FEDERAL BUDGET

Medicare Physician Payment (Sustainable Growth Rate, aka SGR)

As discussed in previous issue briefs, Congress is currently taking steps towards repealing and replacing the Medicare physician payment formula (known as sustainable growth rate, or SGR).  Almost every year, Congress has temporarily prevented the SGR from going into effect by passing short-term "fixes."  Important “extenders” such as the Qualified Individual (QI) program and an exceptions process to the outpatient therapy caps have traditionally accompanied these short-term fixes.

In December 2013, the Senate Finance Committee and House Ways & Means Committee approved legislation that would replace the SGR.  These proposals joined an earlier SGR repeal and replace bill approved by the House Energy & Commerce Committee.  Also in December, Congress passed a budget that included a 3 month patch of the SGR (meaning the cuts did not go into effect in January 2014), which includes the extenders referenced above.  Without further Congressional action, significant physician payment cuts will go into effect after March 31, 2014, and the extenders will expire.

On February 6, 2014, the Senate Finance, House Ways & Means and House Energy & Commerce Committees released a bipartisan, bicameral policy agreement to repeal and replace the SGR.  The agreement addresses physician payment, including a payment increase over 5 years, encourages participation in alternate payment models, and increases focus on improving quality.  The agreement does not address extenders, nor does it articulate how SGR replacement will be paid for.

The debate in Congress now turns to how SGR replacement may be paid for, and whether or not critical extenders such as the QI program and therapy caps exceptions will be addressed.  As noted in previous issue briefs, many advocates would like to see a "fix" for SGR but not if it is paid for by shifting additional costs onto beneficiaries. 

3.  REGULATORY UPDATES

CMS Proposed Rule re: Parts C and D 

On January 6, 2014, CMS released a Proposed Rule relating to “Contract Year 2015 Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Program.”

This proposed rule addresses a range of Part C and D program issues, and includes some proposals that could improve certain consumer protections.  Of significant concern, however, is a proposal to restrict the criteria under which certain drugs are determined to be “protected classes” in Medicare Part D.  As a result, fewer classes of drugs would be treated as protected (drug categories or classes of clinical concern), meaning plan sponsors would not have to offer “substantially all” drugs under that category or class, and would have more flexibility to impose utilization management tools.  Comments on the proposed rule are due March 7, 2014.

Medicare’s National Mail Order Program for Diabetic Testing Supplies

On July 1, 2013, Medicare Part B began implementation of its national mail-order competitive bidding program for diabetic testing supplies.  As a result, beneficiaries in traditional Medicare must purchase diabetic testing supplies using a mail order option or a non-mail order option. 

Equipment such as blood glucose test strips, lancet devices, lancet, and glucose control solutions for checking the accuracy of testing equipment and test strips and other Medicare Part B covered diabetic testing supplies are included.  Medicare Part D-covered supplies such as syringes, needles and inhaled insulin devices are not included in the national mail-order program.

Under the national mail-order competitive bid program, traditional Medicare beneficiaries will purchase their diabetic testing supplies through a national mail-order contract supplier ("Mail Order Option") or in person from any Medicare-enrolled supplier of Medicare testing supplies ("Non-Mail Order Option").

For more information, see the Center’s Alert “Medicare’s National Mail Order Program for Diabetic Testing Supplies” (June 21, 2013)

State High Risk Pools and Recent CMS Policy Issuance

Approximately 6,000 people with Medicare are enrolled in state high-risk pools, which were slated to close January 1, 2014 due to ACA reforms of the private marketplace.  Many of these people, including those with hemophilia, ESRD and HIV purchased high-risk pool coverage in addition to Medicare to help cover very high out-of-pocket expenses associated with Medicare’s co-insurance and deductibles. With the high risk pools closing, these individuals must find supplemental coverage to help pay for these out-of-pocket costs. Many are under 65 and do not have access to Medigap insurance or are unable to enroll in a Medicare Advantage Plan. CMS recently released guidance to address problems faced by Medicare beneficiaries in closing high risk pools. 

4.  DUE PROCESS AND MEDICARE APPEALS

Denial rate of beneficiary appeals

As discussed on previous Alliance calls, the Center’s experience with diminishing success rates concerning beneficiary appeals – better viewed as denial rates – at the lower levels of review are quite staggering, and have been getting progressively worse.

ALJ Scheduling Backlog

Problems relating to the success rate of beneficiary-initiated appeals have been exacerbated by increased scheduling delays for administrative law judge (ALJ) hearings, where beneficiaries typically have a greater chance of success.  Recently, the Office of Medicare Hearings and Appeals (OMHA) issued a notice concerning the growing backlog, resulting in a temporary suspension of most new non-beneficiary requests for hearing. 

In a letter dated December 24, 2013, Chief ALJ Nancy Griswold of OMHA stated, in part, that “effective July 15, 2013, OMHA temporarily suspended the assignment of most new requests for an Administrative Law Judge hearing […] Although assignment of most new requests for hearing will be temporarily suspended, OMHA will continue to assign and process requests filed directly by Medicare beneficiaries, to ensure their health and safety is protected. Assignment of all other new requests for hearing will resume as Administrative Law Judges are able to accommodate additional workload on their dockets. However, with the current backlog we do not expect general assignments to resume for at least 24 months and we expect post -assignment hearing wait times will continue to exceed 6 months.”

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