http://archive.nytimes.com/2003/03/16/politics/16HEAL.html
Bush Pushes Plan to Curb Medicare Appeals By ROBERT PEAR WASHINGTON, March 15 � The Bush administration says it is planning major changes in the Medicare program that would make it more difficult for beneficiaries to appeal the denial of benefits like home health care and skilled nursing home care. In thousands of recent cases, federal judges have ruled that frail elderly people with severe illnesses were improperly denied coverage for such services. In the last year, Medicare beneficiaries and the providers who treated them won more than half the cases � 39,796 of the 77,388 Medicare cases decided by administrative law judges. In the last five years, claimants prevailed in 186,300 cases, for a success rate of 53 percent. Under federal law, the judges are independent, impartial adjudicators who hold hearings and make decisions based on the facts. They must follow the Medicare law and rules, but are insulated from political pressures and sudden shifts in policy made by presidential appointees. President Bush is proposing both legislation and rules that would limit the judges' independence and could replace them in many cases. The administration's draft legislation says, "The secretary of health and human services may use alternate mechanisms in lieu of administrative law judge review" to resolve disputes over Medicare coverage. Under the legislative proposal, cases could be decided by arbitration or mediation or by lawyers or hearing officers at the Department of Health and Human Services. The department recently began testing the use of arbitration in Connecticut under a law that permits demonstration projects. Tommy G. Thompson, the secretary of health and human services, said the proposed legislative changes would give his agency "flexibility to reform the appeals system" so the government could decide cases in a more "efficient and effective manner." The department said there was an "urgent need for improvements to the Medicare claim appeal system," in part because the number of appeals was rising rapidly. Consumer groups, administrative law judges and lawyers denounced the proposals. Judith A. Stein, director of the Center for Medicare Advocacy in Willimantic, Conn., said, "The president's proposals would compromise the independence of administrative law judges, who have protected beneficiaries in case after case, year after year." Beneficiaries have a personal stake in the issue. When claims are denied, a beneficiary often must pay tens of thousands of dollars for services already received. In a typical case, an administrative law judge ordered Medicare to pay for 230 home care visits to a 67-year-old woman with breast cancer, heart disease and arthritis. Medicare officials had said the woman should pay the cost. But the judge ruled that because the woman was homebound, the services were "reasonable and necessary." When federal agencies issue rules or decide cases, they generally must follow the Administrative Procedure Act, a 1946 law intended to guarantee the fairness of government proceedings. Ronald G. Bernoski, president of the Association of Administrative Law Judges, said: "We see President Bush's proposals as a serious assault on the Administrative Procedure Act, a stealth attack on the rights of citizens to fair, impartial hearings. These hearings guarantee due process of law, as required by the Constitution." The American Bar Association and the Federal Bar Association, which represents lawyers who practice in federal courts and before federal agencies, have expressed similar concerns. Health care providers, which are involved in many of the appeals, share those concerns. Robert L. Roth, a Washington lawyer who has represented hospitals and suppliers of medical equipment, said: "The interests of providers and beneficiaries are aligned. Access to an independent decision maker, an administrative law judge, is quite valuable because it's often your first opportunity to get a fair review of government action." Medicare officials could adopt the proposed rules, regardless of whether Congress accepts Mr. Bush's recommendation for changes in the law. The proposed rules would require administrative law judges to "give deference" to policies adopted by Medicare and its contractors, which review and pay claims for the government. Beneficiaries would have to show why such policies should be disregarded. That would be a significant change. Administrative law judges are now required to follow Medicare statutes and regulations, but not the agency's policies. As a result, the judges often grant benefits previously denied by the Medicare agency or its contractors. In the Connecticut experiment, arbitration will be used to resolve some claims disputes, and beneficiaries may opt out. If this approach produces prompt, fair decisions with less paperwork, it could be a model for Congress in changing the appeals process. But Matthew L. Spitzer, dean of the University of Southern California Law School, said that consumers "should think long and hard before they agree to binding arbitration." It is, he said, extremely difficult to overturn an arbitrator's decision. Ms. Stein, who has represented Medicare patients in hundreds of cases, agreed. "The president proposes replacing administrative law judges with some form of dispute resolution," Ms. Stein said. "This puts beneficiaries at a disadvantage, with unequal bargaining power and inadequate expertise to do battle with the Medicare agency." The judges are full-time government employees who typically receive salaries of $95,000 to $140,000 a year. To ensure that federal agency hearings would be fair, Congress in 1946 protected the decision makers, providing that they could be dismissed or demoted "only for good cause." The judges who hear Medicare cases have extra protection because they are employed by the Social Security Administration, an independent agency. Congress revamped the appeals process in 2000, to enhance the rights of beneficiaries and to expedite decisions. The changes were supposed to take effect in October 2002. But Medicare officials said that without more money, they could not meet the new deadlines, so they have postponed many of the changes. Medicare officials said they wanted to end the arrangement under which Social Security judges decide Medicare cases. They have announced plans to transfer responsibility for hearing appeals to the Medicare agency from Social Security, and they hope to do so by Oct. 1. A bipartisan bill introduced by Representative Nancy L. Johnson, Republican of Connecticut, would make the transfer in 2005. The bill requires the secretary of health and human services to preserve the judges' role as independent decision makers. The potential for conflict seems to be inherent in the relationship between agency officials and administrative law judges, with tensions flaring periodically. In 1983, the Association of Administrative Law Judges filed a lawsuit, saying that Social Security officials appointed by President Ronald Reagan had put improper pressure on them to deny benefits to people with disabilities. A Federal District Court found that Social Security had engaged in practices "of dubious legality," which tended to encroach on the judges' independence. The agency halted the practices after the lawsuit was filed. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
