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  1. Review the Center for Medicare Advocacy’s Self-Help packets for Medicare appeals of nursing home, home health and outpatient therapy cases, available on our website at www.medicareadvocacy.org.
  2. Note: if you are a Medicare beneficiary or a person representing a Medicare beneficiary requesting an ALJ hearing (a family member, friend, attorney, etc.), the envelope and all correspondence and forms should state clearly: Mail Stop: Beneficiary Appeal.
    Appeals on behalf of beneficiaries are handled first by Medicare and ahead of providers, suppliers and state agencies. However, you have to let Medicare know upfront that the appeal concerns a Medicare beneficiary! Please see: http://www.hhs.gov/omha/tips_for_filing_requests_for_hearing.pdf  
  3. The ALJ hearing is the best chance for success. Concentrate advocacy efforts at this level of appeal.
    1. Medicare beneficiaries go to the “front of hearing line” for hearings to be scheduled.  Providers and Medicaid Agencies have to wait. See Office of Medicare Hearing and Appeals (OMHA) website for details about how to get an ALJ hearing scheduled faster if representing an individual: http://www.hhs.gov/omha/tips_for_filing_requests_for_hearing.pdf   
    2. Generally, you should insist on a Video Teleconference (VTC) hearing; otherwise the hearing will be by telephone
    3. The ALJ hearing is informal. Hearings are  recorded, but the “rules of evidence” are not strictly enforced
    4. Request a copy of the OMHA official case file and ALJ Exhibit List when an ALJ is assigned to your case
      • Beneficiary/advocate is legally entitled to a copy record – may have to insist
      • It is easier to make references to the ALJ’s record during hearing than to have different versions
      • See what is missing from OMHA file and submit missing documentation if helpful to your appeal (provider needs good cause to submit new evidence, but beneficiaries/advocates do not)
    5. Submit additional evidence
      • Number the pages of the document(s) being submitted
        • Submit via fax or overnight mail. Get and keep a receipt.
        • Send copies to any other parties
      • Beneficiaries do not have to show good cause to submit additional documentation after the Reconsideration (aka QIC) level of     appeal
        • Providers are required to submit evidence before the QIC level of appeal unless they have good cause
      • “Unrepresented” beneficiaries may submit more evidence at ALJ without good cause
        • “Unrepresented” means a beneficiary not represented by a provider or supplier
        • “Unrepresented” applies even to a beneficiary with an attorney
        • If ALJ still objects, argue good cause anyway
        • Example of good cause: Recently received information from physician, provider, etc.
          • Recently received case, etc.
          • Medicare beneficiary has been ill, injured, unable to assist business matters
        • If evidence submitted 10 days after Notice of Hearing, no real penalty; ALJ has more time to issue decision (i.e., no real penalty and ALJ can’t dismiss case)
    6. Submit a Brief – Not required, but helpful
      • No particular format required.  Letter or memo is ok.
      • No formalities for submission
      • Don’t be intimidated by ALJ’s directions or timetable
    7. Submit a Statement from the Beneficiary’s Doctor!
      • Having the physician’s support is the best road to success
      • Need doctor to say treatment is medically reasonable and necessary
      • Have doctor testify at the hearing if possible (and, as appropriate, nurse and/or therapist), but often need to rely on a written statement
      • Work with doctor’s staff to generate statement
      • Don’t worry about formalities of statement (sworn affidavit not required); simple letter from doctor is fine
      • Doctor need not worry about extensive  preparation
        • The hearing process is informal – just state what the patient needed medically
        • Some deference given to “treating” physician
    8. Video Teleconference (VTC) vs. Phone Hearing
      • In person hearings essentially no longer available
      • Insist on VTC hearings if possible. It’s next best to in person – helpful to see ALJ
      • Individual has right to a VTC hearing under federal regulation (as the default mode of hearing)
      • Telephone is ok if VTC really difficult for patient or family
    9. Witnesses
      • ALJ can and likely will interview your witnesses
    10. Adversarial participants/witnesses
      • Medicare Advantage (MA) plans often represented by attorney and/or Medical director (request CV/resume prior to hearing)
      • On cross-exam point out the MA doctor’s testimony is not an independent opinion
      • Show bias of MA doctor/ other witnesses
        • Employed by Medicare Advantage Plan?
        • Own stock in Plan?
        • Is the doctor defending his/her own prior decision regarding the case at issue?
      • Is doctor’s / Medical Advisor’s specialty relevant to the beneficiary’s case (some pediatricians testify!)?
      • Note: Advising doctor never examined the patient (vs. opinion of the beneficiary’s treating physician who ordered the care/services at issue
    11. Obligations of ALJs
      • ALJ is required to provide independent “de novo “ review
      • Assist unrepresented beneficiaries
      • Law requires an “individualized assessment” of  this “individual”    beneficiary’s conditions and needs, not diagnosis or other norms or general “rules of thumb”
        • Medicare Act  is to be liberally construed, in favor of beneficiaries
        • “Common sense, non-technical consideration of the individual patient’s condition as a whole.” 
        • Consider patient’s “total condition,” not just services received
  4. After ALJ – Next Steps if Coverage Denied
    1. Can appeal case to Medicare Appeals Council
      • Written appeals only – submit a written statement
      • No oral argument
    2. If denied by Appeals Council, next step is federal court

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