Medicare Change Will Limit Access to Claim Hearing

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From Carolyn Wolf . . .

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,mbrhttp://www.nytimes.com/2005/04/24/national/24medicare.html

Medicare Change Will Limit Access to Claim Hearing

By ROBERT PEAR

Published: April 24, 2005

ASHINGTON, April 23 - A new federal policy will make

it significantly more difficult for Medicare

beneficiaries to obtain hearings in person before a

judge when the government denies their claims for home

care, nursing home services, prescription drugs and

other treatments.

For years, hearings have been held at more than 140

Social Security offices around the country. In July,

the Department of Health and Human Services will take

over the responsibility, and department officials said

all judges would then be located at just four sites -

in Cleveland; Miami; Irvine, Calif.; and Arlington,

Va.

Under the new policy, Medicare officials said, most

hearings will be held with videoconference equipment

or by telephone. A beneficiary who wants to appear in

person before a judge must show that " special or

extraordinary circumstances exist, " the rules say.

But a beneficiary who insists on a face-to-face

hearing will lose the right to receive a decision

within 90 days, the deadline set by statute.

The policy change comes as Bush administration

officials are predicting an increase in the volume of

cases, with the creation of a Medicare drug benefit

expected to generate large numbers of claims and

appeals. But in a recent study, the Government

Accountability Office, an investigative arm of

Congress, questioned the heavy reliance on

videoconferences, saying that " beneficiaries are often

uncomfortable using videoconference facilities and

prefer to have their cases heard face to face. "

All beneficiaries are 65 or older or disabled. About 5

million of the 41 million beneficiaries are 85 or

older, and some are so sick they die while pursuing

appeals.

When claims are denied, beneficiaries and their health

care providers can challenge the decisions in an

appeals process that has several levels of review.

Their best chance to win coverage comes when they

appear before impartial, independent adjudicators

known as administrative law judges.

Over the last five years, beneficiaries and providers

prevailed in two-thirds of the 283,000 cases decided

by these judges.

The Department of Health and Human Services defended

its new policy, saying the use of videoconference

equipment would enable judges to " complete more cases "

within the 90-day deadline, because they would not

have to spend time traveling to remote sites. In a

summary of its plans, the department said it was " not

economically or administratively feasible " to station

judges around the country.

" Having fewer offices is more cost-effective in terms

of management, technology and training, " the

department said in a letter answering questions from

Congress.

O. Leavitt, the secretary of health and human

services, said, " Access to hearings for Medicare

beneficiaries will be as good as or better than " what

is now available. For some beneficiaries, he said,

video hearings could be more convenient.

" Video teleconferences will allow hearings to be

provided more timely, with vastly more access points

than Social Security currently provides through its

offices, " Mr. Leavitt said.

But lawmakers, judges, consumer groups and lawyers for

beneficiaries expressed concern.

Senator E. Grassley, the Iowa Republican who

is chairman of the Finance Committee, and Senator Max

Baucus of Montana, the senior Democrat on the panel,

said four hearing offices were not enough.

Mr. Grassley and Mr. Baucus were among the principal

authors of the 2003 Medicare law. The law, they noted,

says Medicare judges are to be distributed " throughout

the United States. "

Under the new arrangement, hearings for Medicare

beneficiaries in New York, New Jersey and all of New

England will normally be held by judges in Cleveland.

Hearings for people in Iowa, Kansas, Missouri and

Nebraska will be held by judges in Southern

California.

Judith A. Stein, director of the Center for Medicare

Advocacy, which has represented thousands of people in

hearings since 1986, said: " The videoconferences are

one of many changes that will reduce the

beneficiaries' ability to get fair, favorable

decisions. Sick, old and disabled people can be much

more effective in person because the judge can see

their illnesses and infirmities - how they walk, how

they get up from a chair, how their hands shake with

tremors. "

M. , director of the Commission on Law

and Aging, a policy and research arm of the American

Bar Association, said, " It's a travesty, what's

happening to the appeal rights of Medicare

beneficiaries. "

Videoconference equipment transmits a picture and

sound so that a Medicare beneficiary, a judge and

witnesses in different parts of the country can see

and hear one another over secure networks. Signals

will be encrypted to protect the privacy of medical

information. The judge will have the file, but a

beneficiary can send and receive additional documents

using a fax machine.

G. Bernoski, president of the Association of

Administrative Law Judges, said face-to-face hearings

were valuable for judges and beneficiaries alike.

" Video teleconferences will undermine the judges'

ability to assess the credibility and demeanor of

witnesses, " said Mr. Bernoski, a judge based in

Milwaukee. " And it could reduce the beneficiaries'

confidence in the proceedings. The intrinsic value of

a Medicare hearing is that citizens have an

opportunity to sit down in front of a high-ranking

official and tell their story to someone who listens

carefully and makes a reasoned decision. "

One person who benefited from a Medicare hearing is

Ethel L. Swarm, 76, of Bethel, Conn. She said she had

excruciating pain in her left leg, was unable to walk

and spent four days at Danbury Hospital. But Medicare

refused to cover her stay, saying it was not medically

necessary. Medicare also refused to pay for a

subsequent 37-day stay in a nursing home.

After reviewing the medical evidence, administrative

law judges ruled in favor of Mrs. Swarm. She won

$7,437 for her hospital care and $9,250 for the

nursing home stay, which helped her walk again.

The 2003 law shifted the responsibility for hearing

Medicare appeals from Social Security to the

Department of Health and Human Services, which is in

the process of hiring 50 judges.

The government is still working out details and lining

up sites with the necessary videoconference links.

A. , director of the transition team at

the department, refused to answer questions about the

new hearing and appeal procedures or the logistical

arrangements.

T. Osborn of Charlotte, N.C., who has been an

administrative law judge since 1974 and has

specialized in Medicare cases since 1996, said he had

no interest in moving to the Department of Health and

Human Services.

" Under the department's procedural rules, " Mr. Osborn

said, " judges will have less freedom to handle

individual cases as they see fit. "

Ms. Stein said that under the rules " it will be easier

for Medicare officials to participate in hearings and

to influence decisions, often to the detriment of

beneficiaries. "

Bill Hall, a spokesman for the department, said such

concerns were unfounded because the judges would

report to the health secretary, not the Medicare

program chief.

Medicare and Social Security officials have long

contended that some administrative law judges were

improperly favoring beneficiaries. For their part, the

judges have periodically complained that officials put

pressure on them to approve fewer claims. In the early

1980's, the tension became so acute that the judges

filed suit against the secretary of health and human

services to preserve their independence.

Under the new rules, issued in March by the Centers

for Medicare and Medicaid Services, administrative law

judges must follow the Medicare law and regulations

and must " give substantial deference " to manuals and

guidelines issued by Medicare officials. In a

particular case, a judge can decline to follow a

Medicare policy but must explain why.

Healey for The New York Tim