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By: Robert Weiss, M.S., Chair NLN Legislative Committee
In my July-September, 2011 column, I dealt with Medicare rules for filing an initial claim for reimbursement for Medicare lymphedema services, with hints I have found useful in facilitating subsequent successful appeals of claim denials. In this follow-up column I will outline the statutory Medicare appeals process and focus on hints to maximize your chances of overturning lymphedema coverage denials
Authority for the Medicare Appeal Process
The Medicare Program is administered by the Centers for Medicare and Medicaid Services (CMS) to interpret Titles XVIII and XIX of the Social Security Act (SSA) and to implement the requirements of the SSA through a series of publications. Local administration is through a network of Medicare contractors selected by CMS who either use the national publications or create local policies, further interpreting the national policy or creating policy when a national policy does not exist.
The Five Levels of Appeal
Medicare offers five appeal levels in the Part A and Part B appeals process. The levels, listed in order, are:
Similar appeal levels are used in non-Medicare insurance settings. A useful brochure summarizing the Medicare appeals process created in January, 2011 by Medicare for its contractors may be downloaded from https://www.cms.gov/MLNProducts/downloads/MedicareAppealsprocess.pdf and an excellent process flow chart is available at http://www.cms.gov/OrgMedFFSAppeals/Downloads/AppealsProcessFlowchartAB.pdf.
Beneficiaries are given statutory protection when they do not agree with a decision rendered by a Medicare Contractor. An appeal of all or a part of a coverage decision may be initiated by the Beneficiary either by letter or by filing an appropriate appeal request form. My recommendation is to always use the prepared form since that will avoid inadvertent omission of required information and necessitate resubmission. Appeal initiating forms may be downloaded from http://www.medicare.gov/MedicareOnlineForms/, http://www.medicare.gov/basics/forms/default.asp and http://www.hhs.gov/dab/DAB101.pdf
| LEVEL OF APPEAL | INITIATING FORM | DECISION DOCUMENT |
|---|---|---|
| Claim: Provider Submitted | CMS-1500 | Remittance Advice (RA), MSN |
| Beneficiary Submitted | CMS-1490S | Medicare Summary Notice (MSN) |
| Redetermination by MAC | CMS-20027 | Medicare Redetermination Decision |
| Reconsideration by QIC | CMS-20033 | Medicare Reconsideration Decision |
| ALJ Hearing | CMS-20034A/B | OMHA Notice of Decision |
| Appeals Council Review | DAB-101 | DAB Notice of Decision |
Decisions rendered by MACs are documented in a letter which is required to state the decision, explain the rationale for the decision, cite the statute, policy or coverage article used to make the decision, and outline the procedure for appealing to the next level. Usually an appeal form is included together with instructions for filing the appeal.
Conditions for Coverage
Every service covered by Medicare must be "reasonable and medically necessary" and must fit into a "benefit category" defined in the SSA. A specific item or service is covered if it meets the criteria set up for the specific benefit category [defined in §1861(s)]. It is denied if it is deemed "not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member" [per §1862(a)(1)(A)] or if it does not meet the coverability requirements for its benefit category [per CMS Publications 100-02 Benefit Policy Manual, Chapter 15, 100-03 National Coverage Determination Manual and 100-04 Claims Processing Manual].
Effective Appeal Strategy
The approach I have taken in appealing Medicare denials of lymphedema treatment are to show that: 1) the treatment service or item is reasonable and medically necessary; 2) it is part of the patient's physician-approved treatment plan and is prescribed by the patient's physician; and 3) it falls into a benefit category covered by the Social Security Act.
Specifically, I show that manual lymph drainage (MLD) performed by a specially-trained therapist in accordance with a physician-approved treatment plan determines the frequency and duration of the clinical treatment.
Furthermore, I show that compression bandages, garments and devices fall into the "prosthetic devices" benefit category defined by §1861(s)(8) of the Social Security Act. CMS Publication 100-2, Chapter 15, §120 as follows:
"A. General.-- Prosthetic devices (other than dental) which replace all or part of an internal body organ (including contiguous tissue), or replace all or part of the function of a permanently inoperative or malfunctioning internal body organ are covered when furnished on a physician's order."
In this case the inoperative or malfunctioning internal body organ is the lymphatic system and the compression items replace all or part of its function.
There are no Medicare coverage determinations or policies dealing with compression bandages, garments or devices when used in the function of treating lymphedema, so Medicare Contractors (and healthcare insurers) select policies which deal with materials which are similar in form but are used in a different function, and apply the coverage criteria for the other use. They obviously fail and are denied.
So my approach has been to show that compression garments and devices meet the prosthetic device requirements of the SSA, and are therefore not subject to the surgical dressing coverage criteria. To my knowledge, eighteen U.S. Administrative Law Judges have agreed and have ruled that the Medicare patients must be reimbursed for their covered garments (upper limbs and lower limbs) in 32 cases.
Help is Available with Your Appeal
For free help with your appeal you may contact the author of this column.
Robert Weiss
LymphActivist@aol.com
CAVEAT
The above is solely the opinion of a lay patient advocate, and does not represent the opinion of CMS or any other Medicare contractor or organization. It is not to be interpreted as legal or medical advice. Please consult a properly qualified professional before taking legal or medical action in your specific case.
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