The Law in Your Life


Do I Always Need a Lawyer In Medicare Disputes?

Of course not, and in fact, we recommend that for certain problems you do not incur the cost of an attorney. Remember to use a cost-benefit analysis in this area, as well as others, in deciding to retain an attorney. Examine the amount of the dispute and make a determination of whether it would be worth the cost of an attorney, even if you are a member of our reduced fee legal plan.

A Look At Some Kinds of Disputable Situations

What if Healthcare Services Received Are A Problem? If you believe that the healthcare services that you were provided by a physician or other Medicare specialist were insufficient, deficient, or otherwise below an acceptable level of medical care, you are entitled to a review of your situation. Generally, Medicare has specific provisions which govern a review of the care you were provided. These review organizations are called Peer Review Organizations and are specifically paid by Medicare to audit and review the services provided by the Medicare health professionals.

To institute a complaint or inquiry under this system, you should call the local Medicare office and make a formal request in writing of your desire to have the services reviewed. The specifics are subject to statutory changes and as such, any outcome of potential disputes cannot be predicted with accuracy in this booklet. You should make sure that you remember two important points which will likely influence the Peer Review Organization in its determination of your case.

First, the standard of review is not whether you think that you were not provided certain services or a certain level of care. Rather, the standard is whether the services provided met a reasonable standard of care available in the medical community. This means that you should give serious consideration to your situation before you even think about instituting a review, since the care which you were provided may meet this standard, even if you do not believe the care was proper.

Second, you should remember that you need to be sure that, prior to your review, every piece of information available to support your case is in your file. Often patients will complain about services, because, for example, a nurse tells a patient that a doctor should have done a specific procedure when she did not. As a patient, you agree and become quite agitated that your physician did not provide certain care. You appeal for a review and during the review, it becomes clear that the nurse's statement is not anywhere to be found in your file. As a result, the peer review group cannot consider the nurse's statement and will not measure the standard of care in this manner.

Most important to this entire area is that you should seriously consider obtaining a second opinion about whether the care you were provided actually fell below the level of care which physicians are supposed to provide. If you believe that the care provided to you might fall below such a standard, you ought to investigate further. You might seek another opinion to determine if another doctor believes that your suspicion is correct. If you can obtain a statement from this second or third doctor, you would want to be sure to bring this to the attention of the Medicare Review Organization. You might also want to discuss this with an attorney, in many instances, even before the Peer Review Organization. You might review the details of substandard medical care, and that section should be consulted before you proceed further.

What if I Was Overcharged By A Physician? Medicare has a system of reviewing charges by physicians. You can contact either Medicare or your Medicare carrier and file a complaint with them if you believe that you have been overcharged. They will set up an inquiry to determine if the charges meet their schedule of charges. Medicare has a published list of charges and you may wish to consult this list. Remember that this list will vary by state in many instances, and will also vary by state law.

What If the Hospital Will Not Admit? Often, this might be a serious problem. Many hospitals may have various procedures for admission which may make it difficult for you to be admitted. Also, many hospitals may seek to interpret their own rules, or Medicare rules, so that they do not have to admit certain patients. You should be on the lookout for this possibility whenever you enter the hospital.

In almost every serious illness case, not including a situation where one might be attempting to be admitted to the emergency room for treatment of a cold, you may wish to consult with a lawyer. Whether you consult with the lawyer before or after you have been denied admission can make a difference in many cases. Documentation of your denial of admission and the reasons therefore should always be in writing, and you should always insist that they be in writing. Your attorney can evaluate these to determine if you have been wrongfully denied admission.

Also, this is an area in which you may seek to invoke the Appeals Process discussed below and you may want to review those procedures here.

What If There Is A Denial of Payment? Once Medicare denies a coverage or a payment, you are entitled to invoke the procedures in the Medicare system. While these measures are designed to protect you, you must remember that these are legal rules that may require legal interpretation at times. Also, remember that everything has time limits, which if waived, may force you to lose your rights no matter how correct your position is. It might be wise, depending upon the seriousness of your case, to seek the advice of counsel.

For example, if you have been denied a specific treatment for a cancerous growth, you may need to employ the services of an attorney to find out the basis for your denial and whether there is anything an attorney can do to overturn such a denial. However, if you are complaining that Medicare did not pay for a teeth cleaning during your oral surgery, you might be able to follow the appeal procedures yourself. Remember, we are not deciding the importance of medical problems. All medical problems can cause harm, problems, and irritation. The question is merely, when does it make sense to hire the services of an attorney?

Appeals Process in Medicare

Medicare is governed largely by federal statutes and regulations. Of course, each state may have its own process of appealing a Medicare decision and these should be checked in each case. Because of the federal rules and regulations involved, the typical administrative law process is followed under Medicare. Thus, should you decide to seek legal assistance, you should locate an attorney with administrative law practice and background.

In the event you need to understand the process yourself, the following is a general discussion. Specifics may vary due to changes in federal law and the provisions of state law.

Typically, there are a number of steps which you can proceed through, when you disagree with an administrative action taken by a Medicare official or agent. Throughout all of these steps, you should keep one thing in mind: document your position at each step. Put It In Writing! You should also keep in mind that in each step there are specific time limits, which if not followed are waived. By waiving these time limits, you will likely render your case a loss, even if you otherwise might have won your appeal.

Step One: Request For Reconsideration

Steps in Appeal. Whenever you believe a wrong, or incorrect action was taken by a Medicare official, you should, in writing, request a reconsideration of this decision. You should put all of the supporting evidence and documents which you have into this letter of reconsideration. To help your case, you should provide documentation for any issue which might better help the officials at the administrative agency understand your position. Also, a request for reconsideration generally involves a person who has not yet been involved in your case, and simply may not have any knowledge of the points of your argument. To determine if you need additional documentation, you should engage in the following analysis:

Write down the specific problems with the agency decision. Then under each problem, if there is more than one, write all of the reasons why you disagree with the agency's decision. Then for each reason, ask yourself if there is documentation which supports this reason in your Medicare file. It's a simple analysis. Is there likely to be support for your position in your file? If you conclude yes, be sure you direct the agency administrator's attention to where they can find it. Providing copies, if possible, in your letter of reconsideration is helpful and even highlighting the relevant parts of your copies is extremely helpful.

Legal Issues: For example, if your question is about the recommended treatment prescribed by a physician which was denied by the Medicare agency, directing the administrator's attention to page 3 of Dr. Smith's report, third paragraph, where she recommends and insists on such treatment, may help your case, particularly where there are a number of physician reports to review.

If you are uncertain that there is documentation for your position in your file, make sure you take the steps to get it. For example, suppose there is a dispute about whether your treatment at a hospital for a lump in your leg, and your 10-day stay at a nursing home, was actually prescribed. How can you support your case that Medicare should pay for the 10-day nursing home stay? You can try several things. If you are not sure if your doctor's prescription for nursing home care is in your file, or if you do not know if it was prescribed for 10 days, you can attempt to secure statements, in writing, from other doctors, hopefully approved by Medicare, that they would have prescribed 10 or even 20 days, given your medical situation. Also, several doctors might disagree with your Medicare physician that your nursing home care was absolutely necessary for some medical reason, e.g., that if you put weight on your leg for the first 8 days after the treatment, that the condition would have returned, and worsened. [We are not concerned with the actual medical specifics, but are just using these facts to illustrate how to support your position.]

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 that is not correct or is 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. Assume that 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 the testimony of spouses and family members 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.

Step Three: Appeals Council Review

This is one of the last steps of your appeal. It is a last resort and involves a review of only the documents and other papers in your file. Usually this includes a review of the transcript of your hearing before the judge, along with any witness testimony who appeared before the judge.

If you discover that your file does not have certain information which would be helpful, you should review Step One which discusses how to think about providing certain information to the judge. It is critical that all information which is helpful to your case be in your file, including all relevant records, transcripts of testimony taken before the Administrative Law Judge, and any exhibits given to the Administrative Law Judge. All of these should be present so that this Council can review your case. Remember that there is no hearing or opportunity to appear before them in most instances. As a result, it is extremely unlikely that your decision by the Administrative Law Judge will be overturned. In fact, because of the necessity of preserving your earlier record, you may wish to present your case to an attorney, even before the Administrative Law Judge, to make sure everything is done properly.

Finally, you can always investigate your rights concerning a lawsuit with a lawyer if you are still not satisfied. Most lawsuits in administrative matters, require that you "exhaust your administrative remedies" before you file a lawsuit. This means that you must have carefully followed all of the administrative procedures, even if you did not think they were fair or right, in pursuing your claim. Your attorney can further discuss this with you.

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