Typically denied claims:
If Medicare has denied a claim for drugs, and the nurse's notes show that the drugs could not be self-administered because of the resident's condition, you should appeal the decision. Similarly, if Medicare has denied a claim for treatment because the reviewing physician believes the treatment was unnecessary, but the doctor who saw the resident certified as to its medical necessity, appeal the claim denial. Two federal court decisions upholding assessments made by the doctor who has seen the patient are Schisler versus Heckler, [787 F 2d 76], and Klementowski versus Secretary, [801 Fed Supp 1022].

Following are the guidelines for requesting a review, a fair hearing, and an appeal to an administrative law judge:

Request a review. If your claim has been denied in whole or in part, immediately request a review. For example, if your claim is for $3,000 for 10 days of treatment, and Medicare reimburses you $600, they have denied $2400. Send a letter saying, "we request a review of your decision to deny the whole or part of our claim(s)."

Request a fair hearing. If the review denies the claim or grants only part of your claim, immediately request a fair hearing as to the part denied or ignored. Send a letter that says, "we request a fair hearing of your review decision that denies our claim in whole or in part."

Submit documentation. When requesting a review or a fair hearing, submit all documentation relevant to the claim, including, at a minimum, the invoices, the certificate of medical necessity, and the doctor's plan of treatment.

Give Medicare the reasons for the review or appeal. Although not required, it is best to give Medicare the reasons you are requesting a review or fair hearing --for example, "the resident could not self-administer the drugs," or "the treatment was medically necessary."

Sometimes the hearing officer will arrive at a decision on the basis of the documentation alone. But if a hearing is held, you should be represented by an attorney who knows Medicare cases. Often the hearing will be conducted over the telephone, so it may be convenient (and less expensive) to have your attorney present via a conference call. If the hearing is held on the telephone, the hearing officer usually will record the conversation.

Request an appeal to an administrative law judge. If the fair hearing decision goes against you in whole or in part, request an appeal to an administrative law judge. Do this immediately by letter, even if you have not yet found an attorney to handle your case. While the fair hearing officer often is not a trained lawyer, the administrative law judge is usually an attorney, so it is best at this stage to be represented by counsel.

Know the time constraints. You must make requests for a review and a fair hearing within six months of the adverse decision. But a request for an appeal to an administrative law judge must be made within 60 days of the adverse decision. If you exceed these time limits, you may jeopardize your case.

What is the likelihood of success in the Medicare review, fair hearing, and appeals process? According to an article by Anthony Szygiel in the December 1992 issue of the New York State Bar Journal, more than 50 percent of initial denials subsequently are reversed in whole or in part. Therefore there is no reason for nursing home administrators and operators to be intimidated by Medicare.

All you need to do is provide Medicare officials with the relevant documentation, and submit your requests for review, hearing, or appeal immediately upon receipt of the denial. While some Medicare people, especially the Medicare carriers, can be arbitrary, there are many who sincerely feel that if the health care provider can be paid under one rule or another, they will try to find a way within the rules to make the payment.

Mr. Wax is Of Counsel with Moldover Hertz Cooper & Gidaly, a New York law firm; Mr. DeBoer is an executive with a major health care agency.

Reprinted with permission by Manisses Communications Group, Inc.,
P.O. Box 9758, Providence, RI, 02940-9758; (401) 831-6020.