Provider Access to CMS Appeals in Medicare AdvantageEdward Hu, MD You might think it’s dogma that only non-contracted providers can appeal Medicare Advantage denials using the CMS 5-level appeal process. While some folks want you to think it’s dogma, it is actually neither Medicare Advantage law nor Medicare Advantage regulation. (As all of you know, I am not an attorney and cannot offer legal advice.) While a contracted provider often cannot access the CMS appeal process on his/her own behalf, let’s take a look at what the rules do allow. The CMS appeals process is primarily designed to protect Medicare Advantage members. In CMS parlance, a Medicare Advantage appeal is called a reconsideration, but I will just refer to it as an appeal. According to SSA 1852(g)(3)(A)(ii), any physician, regardless of affiliation with the MA organization or not, may request an expedited appeal. The federal regulations at 42 CFR § 422.584 clarify that an expedited appeal cannot be used to request payment for services already furnished. CMS regulations separate appeals into two categories: pre-service appeals and payment appeals. If the services are already furnished, the only CMS option is a payment appeal. If the services are not “already furnished,” then the member has the right to a pre-service appeal. Pre-service appeals come in two flavors – expedited and standard. The law referenced above guarantees that any physician has the right to request an expedited appeal on behalf of the member, as long as the services are not already furnished. No appointment of representative authority is needed. Technically, no notification to the member is needed either, though that remains a good practice. This right of the physician, any physician, comes directly from Medicare Advantage law and is not limited to non-contracted physicians. Keep in mind though, this right is on the member’s behalf, not the provider’s behalf. If a physician acts on behalf of the member, federal regulation requires that the physician receive notice of the decision, and explicitly prohibits any punitive action against the physician acting in support of the member. Medicare Advantage law does not address standard pre-service appeals in the same manner, so in 2009 CMS finalized the regulations at 42 CFR § 422.578 to create relative parity in standard pre-service appeals. This regulation states that a treating physician, upon providing notice to the enrollee, may request a pre-service appeal. Again, no representative authority is needed, and contractual status with the MAO is not relevant in terms of this right. Once the services are already furnished, that’s where the “dogma” that you may have heard may be applicable. But have you ever tried to find the Medicare law or regulation that says contracted providers do not have CMS appeal rights? I’ve yet to find it. The right to appeal a non-pre-service denial is limited to parties to the organization determination. This includes:
Reading those options, it isn’t so clear that a contracted provider cannot achieve party status through b) or d). This is where sub-regulatory guidance in the Medicare Managed Care Manual Chapter 13 limits the right to become the enrollee’s assignee only to non-contracted providers who sign a Waiver of Liability, agreeing not to charge the enrollee regardless of the appeal outcome. It is also this guidance that states that contracted providers do not have CMS appeal rights. However, this sub-regulatory guidance only applies to payment appeals, because the law and regulation protect the right of the physician, regardless of contractual status, to appeal denials of services not already furnished. There is also no federal law, regulation, or sub-regulatory guidance to my knowledge prohibiting the member from appointing the provider to be the member’s authorized representative. In fact, the provider that furnished services to the member is explicitly allowed to serve as an authorized representative but you just can’t charge the member a fee for the representation, according to the regulations at 42 CFR § 405.910. Finally, there is one last myth that I want to dispel, which is that the member cannot appeal a payment denial once the services are already furnished. Members can appeal adverse “organization determinations,” and the actions that can be appealed are outlined in 42 CFR § 422.566(b). Of the five categories of actions that represent organization determinations, four of them address payment for services, including the issues that we as physician advisors typically see. For further reading, I would direct you to https://www.cms.gov/medicare/appeals-and-grievances/mmcag which contains CMS’ most current sub-regulatory guidance on Medicare Advantage appeals. Let’s create a new dogma, one that is actually based on Medicare Advantage laws and regulations. Dr Hu is System Executive Director of Physician Advisor Services at University of North Carolina Health Care System |