Ten months after missing its mandated deadline, the Centers for Medicare and Medicaid Services proposed an appeals process for Medicare beneficiaries, but that won't halt a federal lawsuit demanding more immediate action.
The CMS late last month proposed a rule that would establish an appeals process that allows beneficiaries to appeal national coverage decisions to administrative law judges. On the same day, it responded to a lawsuit filed earlier in the month by beneficiaries and public interest groups seeking to force the agency to create an appeals process they said the CMS had avoided.
In its brief, the CMS said the plaintiffs' arguments were without merit. The lawsuit, filed Aug. 6 in U.S. District Court in Washington, still stands, said Gillian Wood, an attorney with Arnold & Porter in Washington, who represents the beneficiaries. "It does not put them in compliance with (the law), and it doesn't give our clients a hearing." The plaintiffs sued to appeal the CMS' denial of coverage for a particular vision therapy (Aug. 12, p. 14).
House Ways and Means Committee Chairman Bill Thomas (R-Calif.) has publicly supported the lawsuit, noting the agency missed its Oct. 1, 2001, deadline to create a process as mandated by Congress under the Beneficiary Improvement and Protection Act of 2000.
Under the CMS proposal, appeals of local coverage determination would be reviewed initially by an administrative law judge. The HHS Departmental Appeals Board would review appeals from national coverage determinations and from the administrative law judges. The board's decisions could be appealed in federal court.
The CMS published the proposed regulation in the Aug. 22 Federal Register and will accept public comments until Oct. 21. In a written statement, it said it plans to publish a final rule "as soon as practicable" after the public comment period is completed. The CMS also has asked private insurers who process Medicare claims to establish an appeals procedure for local medical review policies.
The CMS missed its deadline because of budgetary pressures since Congress did not provide additional funding to the Medicare program, said CMS Administrator Thomas Scully in a written statement. "Consequently, this has caused some delays . . . because CMS has had to reallocate funds from other high priority and congressionally mandated activities to underwrite the expanded appeals process," he said.
In their lawsuit, the three beneficiaries, the American Association of People with Disabilities, the American Council of the Blind and the Gray Panthers, asked the court to order the CMS to follow the law and grant a hearing by Aug. 31. At deadline, no hearing had been scheduled.