Medicare: Do You Know All You Should?
Appeals - Step Two: Administrative Law Judge
If your request for reconsideration is again denied, you can then request, in writing, a hearing on your case. This hearing will be before an Administrative Law Judge. This process enables you to appear and to testify in person, and to make a more detailed presentation of your case to this judge. There are certain things you should know about this part of the process, so that you can properly prepare your case.
Prior to Presentation Before Judge: You can request a copy of your entire file. This will enable you to make a determination of exactly what information is in your file, which may be influencing a decision by the agency officials in your case. If you discover certain information in your file, which is incorrect or improper, you should carefully consider how to correct this information. For example, let's assume your file indicates that you have a hospital stay of 61 days and the agency is requiring that you pay a daily deductible for the 61st day. But you know that the timeclock at the hotel which is stamped on your medical records says only 60 days were spent and therefore you do not owe this fee. Also, you note that a clerk entered the wrong date and time of your admission, which by itself gives the impression that there are 61 days. You can point this out to the judge.
Or, assume a more serious problem. You may be suffering from a condition which is almost always terminal. However, your request for hospice treatment, after several days of being admitted, is rejected by Medicare, since your physician's report contains an entry which suggests, although it is unclear, that your condition is not terminal. As a result, you have already incurred the hospice care, and you have been told by your physician that your condition is terminal. If you cannot locate the hospital physician who wrote the report in a timely manner, you might attempt to provide two or three physician certifications that your condition is terminal.
Also, before the judge, you have a right to call certain relevant witnesses. These witnesses can include anyone and by following the administrative law process, you can actually have them subpoenaed into the hearing. Needless to say, it is advisable only to subpoena witnesses who would be favorable to your side. Remember that spouses and family members testimony is unlikely to sway most judges. If you are planning to subpoena a witness, it is advisable in most cases to have a conversation with them, since they may help you decide that your position is either strong, or quite possibly, weak. Approaching witnesses is a delicate task and you ought to consider the advice of counsel to prepare this entire portion of your appeal.
Be sure also, to have available copies of all documents necessary to support your case. You must undertake to do the research and preparation before going before the judge in your hearing. Proper preparation may help to greatly influence the judge in your favor. To properly prepare, try to think about what will support your position, and what a judge will have questions about on your case.
Remember that in the hearing, the agency can also bring a representative and can also have witnesses and documents which present the agency's side of the case. You ought to review your notes of your discussion with the Medicare agency officials to make a determination of what they seem to be considering important to their decision in your case. This will give you some idea of who, or what, might be presented at your hearing. Once you decide this, you can prepare to counter any testimony or any documents with your own questions or documents.
Also, you are permitted to cross-examine witnesses during the hearing and you should not hesitate to do so, if you believe a witness is not telling the truth. Also, it is tricky, but you can subpoena a witness who might not be favorable to you and cross-examine them to show the judge their bias or the lack of information relied upon in making their decision. You should avoid the temptation to call a hostile witness, just to embarrass them, since they may end up hurting your case with their testimony. This is an area that requires great care and planning, but which sometimes is necessary to undertake.