How to Handle Your Medicare Hearing

By Bob Soltis

Get a retired ALJ who decided over 4,500 American Medicare cases in eight years as your personal mentor while you appeal and present your Medicare case to the ALJ. Want to learn how to get the ALJ's attention with a proposed decision? Wonder if you should make an opening statement and what you should say? Find out about the red herrings CMS contractors throw at ALJs to bamboozle them into denying your case. Would practice pointers help you persuasively present your #MedicareAppeal? Do you want to be a more effective representative? This turnkey guide teaches you all this, and how to stand apart from the pack with proposed decisions. NOTE: This edition does NOT cover the 2017 changes to the hearing process.

• Language: English
• Publisher: Lulu Publishing Services
• Release date: Jan 12, 2017
• ISBN: 9781483452203

Book preview

letter.

CHAPTER 1

The Denial Letter

Read everything before doing anything.

– First line of primary school test

Read Every Word

When you get a letter from CMS refusing to pay you, every word counts. During over twenty years representing clients before administrative agencies and another eight presiding over Medicare hearings, too many litigants said they didn’t read everything in the letters they received from the agency.

If you’re a provider / supplier and skip the part saying evidence must be introduced no later than reconsideration, and later offer evidence with your request for hearing, the ALJ cannot consider it².

The rest of the letter is just as important, because it says why the contractor denied your case. The initial denial is providers’ and suppliers’ first chance to learn about possible deficiencies in your records and the case file, and is their first and best opportunity to fix it. Remember Steve Winwood? When you see a chance, take it.

How do you improve your chances? If you’re the provider, review the chart, the DME information form, the order form, certificate of medical necessity, or other documents mentioned in the denial letter for accuracy and completeness. If something was not accurate or missing an entry, copy the original and mail the revised document along with a copy of the original, explaining what errors you corrected. Because you’re dealing with the government, send it certified mail, return receipt requested.

Your cover letter should contain the following information:

Date

Contractor name

Address,

city, state, zip code

Certified Mail, return receipt, No ____

Re: Beneficiary, Appeal #, HICN

Ladies and Gentlemen:

Attached please find:

      Document name   Dates of service   # pages

      Item name          Dates of service   # pages

Explanation / argument

Thank you.

Your signature

Why so serious? If you have to submit those documents again to the ALJ, you have a return receipt card whose number matches the one in your submission letter describing what you earlier submitted. Submitting it with your Request for Hearing or to the ALJ, that green return receipt card proves you’re not submitting new evidence and overcomes any 42 C.F.R. § 405.1018 and § 1028 new evidence hurdles to having the ALJ consider your submission.

Now that you’ve established your submission is not new evidence, you’ll avoid the automatic remand that section four of the pending AFIRM (Audit & Appeal Fairness, Integrity and Reforms in Medicare) Act of 2015 would require the QIC, Medicare Magistrate, ALJ, and Medicare Appeals Council to do when an appellant introduces new evidence at a subsequent level of appeal.

As we’ll see in the next chapter, it’s time to start preparing for your hearing.

CHAPTER 2

Be prepared

Preparation is the be-all of good trial work. Everything else–felicity of expression, improvisational brilliance–is a satellite around the sun. Thorough preparation is that sun.

– Louis Nizer

The time is now.

The Boy Scout motto is a good starting point. Hearings before the Office of Medicare Hearings and Appeals (OMHA) are about whether the documentation supports payment for what you did, and you need to be prepared to tell the ALJ where the record shows what you did or what you supplied, and why the patient needed it. If you’re a beneficiary, the hearing is about what’s in the denial letter.

Providers’ preparation begins with writing the treatment note. Write what you did and the reason why, e.g. Admitting __ for __ because / and to __ … or "Patient has a medical history including ___ and I am prescribing (equipment/ therapy, test, etc.) to relieve (symptoms). As you know from your medical training, if you didn’t chart it, you didn’t do it - and if it’s not in the patient’s chart, Medicare won’t pay for it.

As discussed in the previous chapter, begin preparing for your hearing the day you get the first denial letter. If the denial letter asserts there are no medical records and you have the records in hand, submit them immediately. If you’re an outside representative³ who does not have records, ask for them now, mentioning the date(s) of service.

Keep a copy of your signed letter asking for the records, which you should send certified mail with return receipt service to document when you asked for them. Why? As we saw in the last chapter, the copy and the return receipt card will help you establish good cause pursuant to 42 CFR §§ 405.1018 and -1028 if you have to submit those records for the first time to the ALJ.

Your preparation depends on whether the dispute is factual or legal. If the contractor asserted medical records are missing or that the record doesn’t explain why you did the procedure, the dispute is factual and you must obtain and submit medical records.

You may also need to provide testimony to support your version of a factual dispute. Now is the time to find out how the beneficiary is doing – is she still independent at home? And so forth.

Now is also the time to send for a certified copy of your tax return if you’re appealing an Income Related Monthly Adjustment Amount (IRMAA) to your Medicare Part B and Part D premiums. For more on IRMAA cases, please refer to Chapter 30.

A legal dispute arises out of interpretation of a policy manual provision, a regulation, or a statute. Look up the LCD or policy manual provision the contractor cited in its denial. Not so surprisingly, contractors often make mistakes here, or even worse, misstate the law. Submit a copy of the correct policy with your appeal, and be prepared to explain the difference to the ALJ.

Hearing preparation includes reading the entire Notice of Hearing, including any Standing Order the ALJ’s team sent with the notice of hearing. Those Standing Orders let you know what the ALJ expects vis a vis submitting briefs, how she wants any new evidence submitted, and how long you can expect the hearing to last.

Reading everything before doing anything is your chance to stand apart from the rest of the herd who do not read their mail – in over eight years hearing Medicare appeals, the majority of those appearing before me had not read the entire Notice of Hearing and had not read the entire Standing Order.

The proactive representative understands that ALJs issue those Standing Orders to make the best use of the limited time available and better serve the public. Representatives have complained: I can’t keep track of 75 ALJ’s! That’s the victim’s song.

Do you want to be a winner or a whiner? And what will you do if OMHA appoints 119 more ALJ’s? Finally, as one of my Navy commanding officers told offender at Captain’s mast⁴: Wrong answer!

The successful representative’s mantra is Know the facts, know the law, know the judge. You know the facts because you treated the patient, or because you actually read the records before the hearing. You know the law because you’ve read the Local Coverage Determination (LCD) that the Medicare Administrative Contractor or the Qualified Independent Contractor cited in its denial. Why skip one-third of what you need to be a winner?

Practice pointer for representatives: Because every ALJ does things differently, be proactive, and make notes in a notebook or binder for future reference about each ALJ’s procedures and expectations. After more hearings with each ALJ, you’ll remember because writing with a pen focuses your attention on what you’re doing, and as the Russian proverb teaches: Повторение мать учение (Repetition is the mother of learning).

Once the hearing is scheduled, the team will send an exhibit list telling you what’s in the file; check it carefully. If you want a copy of the file, there’s a form for that on OMHA’s website.

As for know the facts, your initial case review considers whether the facts even support filing an appeal.

Ethics tip: File only meritorious cases. Just because your client wants to appeal doesn’t mean you have to file it. As the Court of Appeals of California wrote, An attorney in a civil case is not a hired gun required to carry out every direction given by the client, Coszena v. Kramer, 152 Cal. App. 3d 1100, 200 Cal. Rptr 18 (1984). It continued: As a professional, counsel has a responsibility to not pursue an appeal that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so. Under such circumstances, the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client.

Filing every case that comes across the desk and waiting until the day before the hearing to withdraw meritless ones damages your credibility; wastes time, paper, and money;