11 Medicare Health Insurance 1

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1 11 Medicare Health Insurance INTRODUCTION An attorney typically is called upon to review Medicare benefits when payment for health care has been denied, either in advance of services, so that the patient remains untreated, or after services, so that the patient receives an unexpectedly large bill. Traditional Medicare coverage has two parts: Part A, or Hospital Insurance (HI), which covers such institutional services as inpatient hospital and skilled nursing facility care; and Part B, or Supplemental Medical Insurance (SMI), which provides coverage for such costs as physicians fees, outpatient hospital diagnostic and therapeutic services, and durable medical supplies. 2 For an overview of benefits, see the web addresses listed in Appendix 11-A. An attorney can secure payment through informal or formal advocacy, so it is very useful to be familiar with the structure and benefits of the program. New services and delivery, sometimes called Medicare C (Managed Care) and D (Drug Benefits) have been added to the program. A minority of beneficiaries are enrolled in Medicare managed care (HMOs), but significant litigation has addressed services denials. Also, provisions in the Medicare Drug Benefit Legislation of 2003 provide higher payments to HMOs to induce them to participate in Medicare contracts and provide services to Medicare beneficiaries. 1 Codified at 42 U.S.C. 1395; 42 C.F.R U.S.C. 1395d (Part A), 1395k (Part B); Medicare & Medicaid Guide (CCH) (Part A), (Part B). 127

2 128 Counseling Older Clients ADMINISTRATIVE STRUCTURE The administration of the Medicare program consists of a hierarchy of quality improvement organizations (QIOs, formerly termed peer review organizations (PROs)), intermediaries (Part A) and carriers (Part B) and, finally, regional offices of the Center for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration (HCFA). QIOs employ physicians and nurses under a contract with CMS and review a sampling of cases in each hospital to correct those in which resources are not well used, as when a patient is thought to have remained too long in the hospital or been discharged too soon leading to adverse consequences and readmission. Each state has at least one QIO, and similar utilization review processes have been adopted by private health care providers and insurance companies. 3 Intermediaries (Part A) and carriers (Part B) usually are commercial insurance companies that have contracted with CMS to serve as fiscal agents for the Medicare program. These entities monitor utilization patterns and decide appeals of benefits denials. Regional CMS offices serve as the principal liaisons between local intermediaries and carriers for the federal agency. 4 The Medicare Integrity Program, based in CMS, exists to pursue various anti-fraud and abuse activities. 5 Authorized in 1998, the program may be carried out by any type of entity under contract with CMS. Potentially a great deal of the work of carriers and intermediaries may be assigned to contractors in the new program, but the change is going slowly. 3 Every hospital also has a utilization review committee (URC) which, like the QIO, determines what services the patient requires and whether Medicare will pay for them. The URC must consult the treating physician before determining that coverage will be denied and, if the physician and URC disagree on a Medicare case, may seek an opinion from the PRO. URCs, which are staffed by hospital personnel, often make decisions quickly and conservatively, based on limited information. 4 There are ten regions, with offices in Boston (I), New York (II), Philadelphia (III), Atlanta (IV), Chicago (V), Dallas (VI), Kansas City (VII), Denver (VIII), San Francisco (IX), and Seattle (X). The national office is in Baltimore U.S.C. 1395ddd.

3 11.03 Medicare Health Insurance REGULATION, GUIDELINES, AND CASE REPORTING Preparing a case on a claim denial is complicated by the fact that the Medicare statutes and regulations are an incomplete guide to the rules governing fiscal intermediaries and health care providers. Each of these entities has a manual of instructions from CMS for interpreting statutes and regulations. The manuals, in turn, are supplemented (or contradicted) by directives from the intermediary to the provider, which are sometimes based on unpublished letters (not unlike IRS opinion letters) prepared by CMS officials for individual intermediaries and circulated to other intermediaries for implementation. 6 Manuals include: (1) Carriers Manual (HCFA Pub. 14); (2) Provider Reimbursement Pub. 19); Manual (HCFA Pub. 15); (3) Intermediary Manual (HCFA Pub. 13); (4) Hospital Manual (HCFA Pub. 10); (5) Home Health Agency Manual (HCFA Pub. 11); (6) Hospice Manual (HCFA Pub. 21); (7) Skilled Nursing Facility Manual (HCFA Pub. 12); (8) Outpatient Therapy Provider Manual (HCFA Pub. 9); (9) Peer Review Organization Manual (HCFA) and 10) Provider Certification State Operations Manual (HCFA Pub. 7). Many relevant cases are reported only in the volumes of the Commerce Clearinghouse (CCH) Medicare and Medicaid Guide (MMG). CCH also publishes weekly updates on legislative, administrative, and judicial action. These materials are available in many law libraries and through major on-line legal databases. Fortunately, CMS materials now are largely available on the web. A variety of operational policy letters, manuals and updates, coverage decisions and coding manuals (as well as law and regulations) are available through If the needed material is not available on the web, the best way to gain access to applicable material is to form a cooperative relationship with a provider, who will have the current volume and updates, or to seek help from national or state advocacy groups. Providers generally are glad to have patients appeal denials because a reversal assures the provider will receive payment. 6 See, e.g., Duggan v. Bowen, 691 F. Supp (D.D.C. 1988) (reinterpretation of statutory language defines home health benefits based on letter from CMS official. The court noted that providers cannot afford to ignore even nonbinding CMS communications because they provide the bases for denials of coverage.)

4 130 Counseling Older Clients ELIGIBILITY AND ENROLLMENT Part A hospital insurance (HI) and Part B supplemental medical insurance (SMI) have somewhat different eligibility standards and enrollment procedures (a) Medicare Part A Over 90 percent of U.S. citizens of standard retirement age of 65 are eligible for Medicare benefits. The individual need not stop working to qualify. Spouses and former spouses of persons eligible for Social Security (not necessarily receiving benefits) also are eligible. In addition, clients under the age of retirement are eligible if disabled for more than 24 months. 7 These eligibility categories are codified at 42 U.S.C. 426, with provisions relating to eligibility for income benefits. 8 An application for Social Security Disability Income is considered an application for Medicare. 9 A person with end-stage renal disease (ESRD) who requires dialysis treatment or kidney transplant also is eligible. 10 Other requirements include being a U.S. citizen or a permanent resident alien with continuous residence in the United States for at least five years. 11 Appeals of eligibility denial follow the Social Security procedures outlined in Chapter 5. A client of retirement age and over with insufficient work history to qualify for Social Security benefits (that is, less that 40 quarters of work credits) can usually purchase coverage. Thus, an individual who is eligible for Part B (available regardless of work history, as described below) can acquire Part A. An individual or spouse with less than 30 quarters must pay a Part A premium of $375 per month in 2005; those with 30 to 39 quarters must pay $206 per month. The individual can enroll between January 1 and March 31 for coverage beginning the following July 1. Surcharges for enrollment delayed past retirement age are the same as for Part B, described next U.S.C. 1395o, 42 C.F.R See Chapter 5, which discusses Social Security applications. 9 Id U.S.C C.F.R (a)(2).

5 11.05(a) Medicare Health Insurance (b) Medicare Part B Individuals of retirement age and over are eligible for Medicare Part B regardless of employment history, and all must pay premiums set (and subsidized about 30 percent) by the federal government. 12 The premium in 2005 was $78.20 per month, a jump from $66.60 per month in Individuals must apply with the Social Security Administration (SSA) during enrollment periods defined by the date of their eligibility for standard Social Security benefits (formerly a 65th birthday, and now moving later month by month). Application forms are available at For those who are working and have employee health benefits, Medicare pays only for costs that an employee plan does not cover. 14 For persons with employee health coverage (and their spouses), the enrollment period begins when employment ends and continues for seven months. For those who delay enrollment after initial eligibility, premiums are 10 percent higher BENEFITS Specific benefits under Medicare can be found at the web sites listed in Appendix 11-A 15 To determine whether a denial is likely to be upheld, the attorney must consider restrictions on coverage. The specific standards for home health and skilled nursing facility coverage, developed from the general rules described infra, are discussed in Chapters 22 and 25 respectively. Hospice care and mental health benefits are discussed below in this chapter (a) Part A Benefits And Issues Part A covers inpatient and outpatient hospital costs, skilled nursing care, and some home health and hospice care. Covered services are limited to care that is reasonable and medically necessary, with- 12 Disabled persons under age 65, including those with end-stage renal disease, also qualify for benefits if they are eligible for Part A. 42 U.S.C. 1395c. 13 See 42 U.S.C. 1395r C.F.R Part A benefits: 42 U.S.C. 1395d, 1395x; Part B benefits: 42 C.F.R

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