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A MEDICARE BENEFICIARY HAS CERTAIN APPEAL RIGHTS CONCERNING A REDUCTION ,TERMINATION OR DENIAL OF HOME HEALTH SERVICE BENEFITS .

A.   A home health care agency is required to give written notice in advance about provisions of care and changes in care and treatment to be provided by the agency. A beneficiary has an opportunity to participate in planning future care and treatments or changes in care and treatment and the right to be fully informed orally and in writing of any changes in the charges for items or services to be provided and the beneficiaries rights and entitlements under Medicare . The Physician should not simply certify a Home Health Care Plan that he did not establish . He needs to be fully aware of his role and authority in the process of obtaining home health services. There needs to be a written Home Health Agency Beneficiary Notice (ie HHABN) pre deprivation statement as to why a HHA believes Medicare may not cover services – the explanation of the circumstances in which a beneficiary has right to a demand bill to be submitted to a Regional Home Health Intermediary , the right to have a demand bill submitted and to disclosure of information regarding a patient’s right to appeal .

A home health care agency is required to give written notice in advance about provisions of care and changes in care and treatment to be provided by the agency. A beneficiary has an opportunity to participate in planning future care and treatments or changes in care and treatment and the right to be fully informed orally and in writing of any changes in the charges for items or services to be provided and the beneficiaries rights and entitlements under Medicare . see 42 CFR Chapter 4 § 484.10 (a)-(f).

There needs to be a written pre deprivation statement as to why a home health care agency believes Medicare may not or may no longer cover the services – the explanation of the circumstances in which a beneficiary has right to a demand bill submitted- the right to have a demand bill submitted and to disclosure of information regarding a patient’s right to appeal . see Healey v. Shalala 200 WL 303439, see HCFA Program Memorandum, Transmittal Number A-99-37(August 1999) .

If an HHA wishes to deny services, the Medicare beneficiary has a right to insist that the home health agency submit a claim referred to as a demand bill to the Regional Home Health Intermediary (RHHI) for payment of the services in these instances. With respect to demand bills, unless the physician concurs in the reduction, termination or denial of services, via his or her certification of a plan of care generated by an HHA , Home Health Agency Beneficiary Notices ( ie HHABNs) must be provided by HHAs in any case where a reduction or termination of services is to occur, or where services are to be denied before being initiated . RHHI’s must not deny coverage solely on the basis of the HHA decision , but rather must provide a genuine initial determination decision. See HCFA Program Memorandum, Transmittal Number A-99-37 (August 1999).

Currently, HHAs often fail to notify physicians before making the initial decision to deny, reduce, or terminate services. Further, physicians are often not fully aware of their role and authority in the process of obtaining home health services, and many are afraid of being accused of fraud. They tend to go along with the HHA’s decision without question. Moreover, it is important that the beneficiary receive notice in any event so that she can assert a right to a review of the physician’s alleged concurrence. As written, the HHAs’ assertion that the physician concurs with the reduction or termination of services would negate the beneficiary’s entitlement to notice about appeal rights. See http://medicareadvocacy.org/News/Archives/HomeHealth_healeynotice.htm

B. A demand denial allows a beneficiary to request that Medicare review services that: their HHA advised them were not medically reasonable and necessary; or failed to meet the homebound or intermittent, or noncustodial requirements, and therefore, would not be reimbursed if billed. If medical review upholds the HHA’s decision that the services were not coverable, the HHA keeps the funds collected from the beneficiary. However, if medical review determines the HHABN notification was not properly executed, or some other factor changed liability for payment of the disputed services to the HHA, the HHA must refund any funds collected. HHAs must also refund any monies collected if medical review determines that the services were payable by Medicare.

The HHA must inform the beneficiary of their decision with an Home Health Advance Beneficiary Notice (HHABN), which also must be signed by the beneficiary or appropriate representative before any services are provided. The HHABN provides the beneficiary with the option to have a demand denial submitted to Medicare for review. The HHA must comply with the beneficiary’s request to submit a demand bill.

Demand denials must be submitted promptly once the last billable service is provided and the physician’s signature has been obtained for all orders. Beneficiaries may pay out of pocket or third party payers may cover the services in question. If medical review upholds the HHA’s decision that the services were not coverable, the HHA keeps the funds collected from the beneficiary. However, if medical review determines the HHABN notification was not properly executed, or some other factor changed liability for payment of the disputed services to the HHA, the HHA must refund any funds collected. HHAs must also refund any monies collected if medical review determines that the services were payable by Medicare.

See the Medicare Claims Processing Manual (Pub. 100-04, Ch. 10, § 50) for additional information on demand billing under the Home Health Prospective Payment System (HH PPS). The link to access this resource is at the bottom of this page. See http://www.cgsmedicare.com/hhh/education/materials/hh_denials_code_20.html

Generally, an official notice from Medicare must be obtained before a beneficiary has a right to appeal. The Medical Summary Notice ( MSN ) constitutes the “initial determination” or written notice that that briefly explains what Medicare will pay on the claim . The MSN is prepared by the Medical Contractor ( fiscal intermediary) that reviews the claim. For all Part A claims, the first notice Medicare beneficiaries should receive informing them that care will not be covered by Medicare is from the health care provider. Before they can charge a beneficiary , providers who participate in the Medicare program must first issue a written notice to the patient informing him or her that Medicare coverage will not be available . Providers have a financial incentive to issue denials notices because they have to absorb the cost of the care that they provide if they erroneously inform the beneficiary that the care will be covered but not if they erroneously deny coverage .  Notice from providers, however, do not form the basis of an appeal . Elder Law Institute, Volume 1, Page F-1-F-4 Pennsylvania Bar Institute 2008 The beneficiary must obtain a formal Medicare coverage determination or “initial determination” from the appropriate Medicare Contractor (i.e the fiscal intermediary for Part A) . Medicare Claims Processing Manual , 100 Ch.4 Section 40.7B; Sarrassat v. Bowen , No,C88-20161 (RPA) (N.D.Cal.1989) . Patients who receive denial notices from a provider must, therefore, request that a claim for payment be submitted to Medicare if they want to obtain an initial determination that can then be appealed . In addition, the initial determination does sometimes grant coverage that was denied by the provider . If the beneficiary or representative requests a provider to submit a claim to Medicare, the provider must do so. Medicare Claims Processing Manual 100 Ch.1 Section 50.1.5. If the claimant remains dissatisfied with the initial determination , a redetermination may be requested . The redetermination is the first formal appeal stage for Medicare Part A and B claims. The request for redetermination must be filed within 120 days of the receipt of the MSN initial determination. The redetermination is performed by the entity that issued the initial determination denying the benefits: the fiscal intermediary for PART A Home Health claims., the carrier for Part B claims. Generally these appeals simply entail submitting a written request . If possible , the claimant should attach a denial notice issued by the health care provider and a supporting letter or documentation from the treating physician . Assistance from the treating physician is always the key to a successful appeal. Be certain to keep copies of all appeal requests and all supporting data. These steps are prerequisites to receiving a hearing.

A beneficiary then has 120 days after receipt of an unfavorable redetermination by the fiscal intermediary to request a qualified independent contractor QIC reconsideration paper review, The QIC must issue a decision within 60 days , with certain exceptions see Pub. L No.-106-54, section 521 see also 42 CFR 405-960.-405.978. Beneficiaries may appeal an unfavorable reconsideration decision to an Administrative Law Judge ( ie ALJ.) Beneficiaries are to file requests for appeal to the next level of review with the entity named in the initial determination , redetermination, reconsideration or ALJ decision see 42 CFR 405.944, 405.964, 405.1014

C. Expedited Appeal Of Home Health Discharges Or Terminations

A beneficiary may seek expedited review of a home health discharge or termination See 42 C.F.R. 405.1200—405.1204 to implement 42 USC 1395ff(b)(1)(F) A beneficiary must request expedited review , orally or in writing , by noon of the next calendar day after receiving notice of home health services discharge or denial . At that time the beneficiary is given a more detailed explanation of why services are being terminated . The beneficiary is not financially liable for continued services until the later of two days after receiving the notice of termination date specified on the notice 42 CFR 405.1202(b) . Expedited review is available in cases of discharge or termination of services where “a physician certifies that failure to continue the provision of such services is likely to place the individual’s health at risk “. 42USC 1395ff(b)(1)(F) . The expedited request for determination must be submitted to the QIC in the state in which the beneficiary is receiving the services in question . If the QIC sustains the decision to terminate home health services , the beneficiary may request expedited reconsideration , orally or in writing, by noon of the calendar day . The reconsideration will be conducted by the QIC, which must issue a decision within 72 hours of the request. If the QIC does not comply with the time frame, the beneficiary may escalate the case to the ALJ level.

D. Attorneys Fees At ALJ Hearing Level

42 USC § 405.910 Appointed representatives.

(f) Appointed representative fees—(1) General rule. An appointed representative for a beneficiary who wishes to charge a fee for services rendered in connection with an appeal before the Secretary must obtain approval of the fee from the Secretary. Services rendered below the ALJ level are not considered proceedings before the Secretary.
(5) Reasonableness of representative fees. In determining the reasonableness of a representative’s fee, the Secretary will not apply the test specified in sections 206(a)(2) and (a)(3) of the Act.

SSA-POMS GN 03940.003 Fee Agreement Evaluation

A. Policy – statutory conditions for approval
3. The fee specified in the agreement does not exceed the lesser of 25 percent of the past-due benefits or:
o $6,000 if the fee agreement is approved on or after June 22, 2009.

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