On August 26, 2014, the Center for Medicare Advocacy filed a nationwide class action lawsuit in United States District Court (Lessler et al. v. Burwell, 3:14-CV-1230, D. Conn.). The five named plaintiffs, from Connecticut, New York and Ohio, have all waited longer than the statutory 90-day limit for a decision on their Medicare Administrative Law Judge appeal. The current average wait time is over five times the congressionally mandated time limit.
Standard Medicare Appeals
The Medicare program's system of administrative review has four levels of appeal – Redetermination, Reconsideration, Administrative Law Judge (ALJ) Hearing and Medicare Appeals Council (MAC) review. Only the ALJ hearing, however, provides the right to an oral hearing before the adjudicator, including witness testimony. This is the only level, therefore, which allows a beneficiary to present his or her case with more than written evidence and argument, and provides the only opportunity for truly meaningful review. In fact, over the last five years, the rates at which Redetermination and Reconsideration decisions have reversed denials of coverage have fallen dramatically, and are now usually 5% or less. The Center for Medicare Advocacy processes 3,000 to 4,000 Redeterminations and Reconsiderations per year, and had a "success" rate for home health care cases from 2010 to 2013 of only 2.41%. The Center has initiated a separate case to challenge the lack of meaningful review at the Redetermination and Reconsideration levels.
The Medicare Act requires Administrative Law Judges (ALJs) to issue decisions within 90 days after a request for a hearing. The named plaintiffs in Lessler are Medicare beneficiaries who have waited more than 90 days to receive an ALJ decision. At present, virtually every Medicare beneficiary who requests an ALJ hearing waits more than 90 days for the decision. In fact, the time between receipt of the request for an ALJ hearing and issuance of the decision by the ALJ has been increasing dramatically since fiscal year 2009. As of July 2014, the current wait time for a decision, for all appellants, averaged 489 days. Part of this backlog is likely due to the "rubber stamp" denials at the first two levels of appeal, because so many more cases must be taken to the ALJ level for a meaningful review. This makes the need for efficient appeals at the ALJ level even more important.
Lessler et al v. Burwell
The Lessler case was initiated, according to Center for Medicare Attorney Gill Deford "because of a broken Medicare appeals system." The suit was filed on behalf of five named plaintiffs and a nationwide class of: "All Medicare beneficiaries who have pending a timely request, or will have pending a timely request, for an administrative law judge hearing, and for whom an administrative law judge has not rendered, or will not render, a decision on such hearing by the end of the 90-day period beginning on the date the request for hearing was filed."
The Center for Medicare Advocacy filed the Lessler suit in an effort to ensure the rights of these plaintiffs and the thousands of beneficiaries in similar circumstances who are struggling to pay health care bills, or going without needed care while their appeals are held up in an inefficient system. Given the almost total denial rates at the first two levels of appeal, beneficiaries must appeal to the ALJ level to have any real chance of obtaining Medicare Coverage. By definition, Medicare beneficiaries are older and /or disabled; most of them cannot afford the time or health risks required to wait years for a decision.
The Secretary of Health and Human Services must ensure that the Medicare appeals system provides legitimate reviews at the earliest levels – and timely, fair hearings and decisions for beneficiaries who must seek Administrative Law Judge hearings.
The full complaint is available at: http://cma.benfredaconsulting.com/wp-content/uploads/2014/08/00083998.pdf.
M. Shepard, 08/28/14