Last summer Senators Christopher Dodd, John Kerry, Edward Kennedy and Jeff Bingaman introduced the Justice for Medicare Beneficiaries Act of 2005 (S. 1335), a bill to ensure that Medicare beneficiaries who are denied health care benefits can appeal these denials in a meaningful way. By amending a mandated change in the Medicare Modernization Act of 2003 (MMA), this Act would help ensure that Medicare beneficiaries again have access to timely, impartial, and in-person hearings before Administrative Law Judges (ALJs). With the changes that took place last July, an ALJ hearing no longer guarantees these three qualities. This article provides some background to the current changes in ALJ hearings, a review of the proposed legislation S. 1335, and encouragement to promote its passage.
Sec. 931 of the MMA required the transfer of the Medicare appeals process from the Social Security Administration (SSA) to the Department of Health and Human Services (HHS), which became effective July 1, 2005. Many advocates argue that this transfer significantly and negatively affects Medicare beneficiaries’ ability to seek redress from the denial of benefits such as access to prescription medicines, home health services, and services provided at skilled nursing facilities.
Specifically, the appeals process transfer from SSA to HHS reduces the number of sites where these ALJ appeal hearings can take place to four from the more than 140 sites that were operating nationwide prior to July 2005. Before July 1, 2005, Medicare beneficiaries that had filed coverage appeals were granted an in-person hearing before an Administrative Law Judge. Under this transfer change, Medicare beneficiaries now have their hearings heard via video or teleconference and are only allowed to appear in person by request and if HHS determines that “special or extraordinary circumstances exist.” Moreover, due to recent changes, most cases must be addressed within a 90-day window, yet beneficiaries who are granted an in-person hearing have no assurance of such a timeframe.
Lastly, many advocates believe that this mandated transfer endangers the independence and impartiality of Administrative Law Judges by requiring them to defer to program guidance provided by the Centers for Medicare and Medicaid Services (CMS) rather than on the Medicare statute and regulations, as they had been doing prior to July 2005.
Summary of legislation
Senators Dodd, Kerry, Kennedy and Bingaman introduced the Justice for Medicare Beneficiaries Act of 2005 (S. 1335) as a way to undo these mandated changes and protect beneficiaries’ rights to a fair ALJ hearing. Specifically, the Justice for Medicare Beneficiaries Act of 2005 would:
- Allow Medicare appeals to be heard in person before an ALJ. Any beneficiary may alternatively choose to have their hearing heard via tele- or video conference.
- Require that all appeal hearings, regardless of whether a Medicare beneficiary appears in person or chooses to appear via video or teleconference, will be heard within 90 days of filing an appeal as mandated by the Benefits Improvement and Protection Act of 2000.
- Require at least one site for the hearing of in-person Medicare appeals in each state, the District of Columbia, and territories, plus an additional site in the nation’s five largest states geographically distributed in the state.
- Ensure the independence and impartiality of ALJs by relieving them of the transfer’s mandate to grant “substantial deference” to CMS program guidance.
Beneficiary access to timely, in-person and impartial ALJ hearings are a crucial part of protecting and promoting beneficiary appeal rights. In the past ALJ hearings have been the best chance for people with Medicare to win coverage to which they are entitled. California’s Health Insurance Counseling & Advocacy Program (HICAP), other State Health Insurance Programs (SHIPs) across the country, and numerous legal advocates have won thousands of ALJ hearings on behalf of beneficiaries under the old system. The changes to the appeals system now make it harder, not easier, for Medicare beneficiaries to get a fair and fast review.
Although this legislation was introduced last summer, it has remained inactive for months. It is time to help undo the current changes in ALJ hearings and encourage your senators to support S. 1335 and its passage through Congress.
Information for this article was contributed in part by: an information sheet from Senator Christopher Dodd on the Justice for Medicare Beneficiaries Act of 2005; and the Center for Medicare Advocacy’s June 30, 2005 press release, “Legislation Introduced to Preserve Medicare Beneficiaries’ Access to Timely Impartial, In-Person Hearings.”