CMS Issues Final Rule Implementing Changes to Medicare Appeals Procedures

King & Spalding

On May 3, 2019, CMS issued its final rule implementing changes to the appeal procedures for Medicare claims and Medicare prescription drug coverage determinations (the Final Rule). The Final Rule will be published in the Federal Register on May 7, 2019.

The Final Rule revises regulations setting forth the appeals process that Medicare beneficiaries, providers, and suppliers must follow to appeal adverse determinations regarding claims for benefits under Medicare Parts A and B, or determinations for prescription drug coverage under Part D. The Final Rule includes the following changes, which will become effective 60 days after publication of the Final Rule in the Federal Register:

  • Removal of Requirement that Appellants Sign Appeal Requests – Noting inconsistencies in the signature requirements between appeal levels, the Final Rule revises CMS regulations to remove the requirement of the appellant’s signature for appeal requests of Medicare Parts A, B and D coverage determinations. CMS stated that eliminating the signature requirement would help promote consistency between appeal request requirements and reduce the burden of developing the appeal request and appealing dismissals of appeal requests for lack of a signature.
  • Change to Timeframe for Vacating Dismissals – CMS regulations currently allow adjudicators to vacate a dismissal of an appeal request for a Medicare Part A or B claim or Medicare Part D coverage determination within six months of the date of the notice of dismissal. In its Final Rule, CMS revises the regulations to express this timeframe as 180 calendar days rather than six months. CMS believes that this change will promote consistency with other regulations that express timeframes in calendar days, not months, and eliminate inconsistency in the actual timeframe for vacating a dismissal given variation in the number of calendar days in consecutive six-month periods.
  • Change to Timeframe for Referral to Medicare Appeals Council – CMS regulations currently give CMS or its contractors 60 calendar days after the date or issue date, respectively, of the decision or dismissal by the Office of Medicare Hearings and Appeals (OMHA) to refer the case to the Medicare Appeals Council (Council). The Final Rule revises the timeframe for referring a case to the Council to be 60 calendar days after CMS or its contractor receives the written decision or dismissal. The Final Rule also adds language to the regulations providing that the date of receipt of the decision or dismissal is presumed to be five calendar days after the date of notice of the decision or dismissal, unless there is evidence to the contrary.
  • Amount in Controversy – To account for situations when the amount of an overpayment specified in a demand letter does not reflect subsequent adjustments, the Final Rule revises regulations to provide that when an appeal involves an identified overpayment, the amount in controversy (AIC) is the amount specified in the demand letter, or the amount of the revised overpayment if the amount originally demanded changes as a result of a subsequent determination or appeal. The Final Rule also provides that for appeals involving an estimated overpayment amount determined through statistical sampling and extrapolation, the AIC is the total amount of the estimated overpayment determined through extrapolation, as specified in the demand letter, or as subsequently revised.

The Final Rule also makes certain regulatory changes concerning notices of hearings, notices of intent to participate in hearings, extensions of time to request hearings, dismissals of hearing requests, and notices of remand. Lastly, the Final Rule makes various technical corrections to regulations and eliminates redundant sections. To view the Final Rule, please click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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