Section 6E: What to do When You Have a Complaint About Your Medicare HMO

Last Updated: April 2005

The material in this chapter has been licensed by The Medicare Rights Center

Q. Why does your client need to know about grievances and appeals?

A. All Medicare private plans (such as HMOs and PPOs) are required to have grievance and appeal mechanisms for enrollees to make complaints about coverage and quality of care. If an individual is dissatisfied with his/her private plan, he/shecan use the grievance and appeal mechanisms to obtain better service or coverage.

Q. When should your client file a grievance?

A. An individual should file a grievance if he/she wishes to complain about the services the private plan offers. Some examples are:

• He/she feels that the facilities are inadequate or in poor condition.
• He/she did not like the way your doctor treated you.
• He/she could not get an answer you needed from the HMO’s customer service staff.

Q. How can your client find out how to file a grievance?

A. All Medicare private plans are required to have an internal grievance process. Information about how the process works should be included with in membership materials and available from the plan’s customer service by asking for it. . Many plans provide grievance forms to fill out. Your client can also write a letter to the plan to file a grievance.

Q. When should your client appeal?

A. Your client should appeal if he/she believes that medically necessary care that is covered by Medicare has been denied, reduced or ended when it should have continued, and he/she would like to receive care. He/she can also file an appeal to get his/herr private plan to pay for care he/she has already received, if it was medically necessary and covered by Medicare.

Some examples of when to appeal are:

• When a doctor does not:
  • order treatments or tests that are covered by Medicare
  • refer an individual to specialists
  • admit to hospital services that are neccessary
• A private plan does not approve referrals recommended by a primary care provider or will not provide tests or treatments that he or she suggests.
• A private plan does not approve or pay for a second opinion on the need for surgery. Second opinions are a Medicare-covered benefit.
• A private plan will not pay for claims for emergency care or out-of-area urgent care that your client received from a non-HMO doctor or hospital.
• Your client runs into an unreasonable delay or difficulty in arranging for surgery, hospitalization, tests, doctor visits or any other needed services, and he/shebelieves that this is a way of denying care.
• In general, any situation where a delay in providing, arranging for or approving the health care services will negatively impactyour client’s health.

Q. What can be done if the hospital does not want to admit an individual?

A. The individual must use the plan’s appeals process to contest hospital admission denials. He/she should file an expedited appeal if he/she believes that you are wrongfully denied admission to a hospital.

Q. Can someone else file an appeal for your client?

A. Yes. If your client is unable to file an appeal for himself or herself,, a representative authorized under state law (such as a court appointed legal guardian, an individual who has durable power of attorney or a health care proxy) or anyone whom an individual has designated as his/her “representative” may do it for that person.. The representative may be the enrollee’s relative, friend, advocate, attorney or physician. In order to appoint a representative, the enrolleeneeds to write a letter showing that he/she has given the representative the right to act on his/her behalf. Be specific in the letter about the decision that is being appealed The letter must also contain the representative’s signature, the enrolle’s signature, the date, the enrollee’s Medicare number and his/her name. If he/she prefers, he/she can request an Appointment of Representative form from your local Social Security Office. Note that a separate Appointment of Representative form or statement is required for each appeal.

Q. If your client is not happy with the private plan’s reconsideration of an appeal, can he/she appeal to a higher level?

A. Yes. He/she may need to go through several levels of appeal in order to get the decision he/she deserve. The first level of appeal takes place at the private plan. The second level of appeal takes place through Medicare at the Center for Health Care Dispute Resolution (CHDR). The third level of appeal takes place at the Social Security Administration before an Administrative Law Judge (ALJ). The fourth level of appeal takes place at the Department of Health and Human Services Departmental Appeals Board, and the fifth level of appeal takes place in federal district court. In addition to appeal rights, an individual may request that his/her case be reopened if he/she has new material evidence to submit, there is a clerical error in the case file, or the decision was based on fraudulent statements. you’re a case can be reopened at the HMO reconsideration, CHDR, ALJ, or departmental appeals board levels. A reopening is not an appeal right. It is an administrative procedure under which the entity that made the appeal decision re-examines that decision for a specific reason. Usually a reopening is requested only after all appeal rights have been exhausted; however, it is possible to request a reopening even if an enrollee still have appeal rights.

Q. How long does it take to go through the appeals process?

A. A standard appeal can take a long time. After submiting a first-level appeal, it may take up to two months to obtain a decision. The second-level appeal, which occurs automatically if the private plan decides against the enrollee, may take up to two months. The third-level appeal may take a year or more.

If your client or your client’s physician believe that waiting for a decision under the standard timeframe will place your client’s life or health in serious jeopardy, he/she can request an expedited review of the first-or-second-level appeal. If expedited review is granted, he/she will receive a decision about theappeal within 72 hours of requested the expedited timeframe.

Q. What if your client need to get care before the appeal is decided?

A. If care is urgently needed your client can:

• Remain in the private plan and utilize the expedited appeals process if the lack of care will threaten his/her health.
• Remain in theprivate plan, get the treatment he/she need, and use the standard appeal to get the private planto reimburse him/her for the bills.
• Disenroll and obtain care under Original Medicare only if your client does not need care right away, since disenrollment could take up to a month. Also, make sure your client purchases Medigap insurance within 63 days of disenrollment from theprivate plan, if your client needs supplemental coverage. Otherwise he/she may have to wait 6 months for coverage for pre-existing conditions.
  

HOW TO FILE AN APPEAL WITH A PRIVATE PLAN?

Q. Who can help an individual with the appeals process?

A. Your client does not need a lawyer to appeal a denial from a private plan. Most appeals are straightforward enough to do without help until the the third level. At that level, your client may need legal advice, but may not necessarily need a lawyer to speak for him/her. For extra help he/she may try contacting the Legal Services office in his/herarea or the Medicare Rights Center-HIICAP Hotline at 1-800-333-4114. He/she may also call the Medicare HMO appeals hotline at 1-888-466-9050. With patience and persistence, it is possible to get the care and coverage that is needed from a private plan.

BEFORE THE APPEAL BEGINS:

It is best to begin a paper trail as early as possible. When a private plan denies payment for Medicare-covered services or refuses to provide Medicare-covered services that have beenrequested, it must give the enrollee a written notice with a full, written explanation of his/herappeal rights. If he/she does not receive this notice, he/she should demand it of the plan. When his/her doctor denies services, he/she can also request that his/herplan put it in writing, including an explanation of his/her appeal rights. While it is easier to contest a written denial, he/she may also contest a verbal denial.

FIRST LEVEL APPEALS -- RECONSIDERATION WITHIN THE PRIVATE PLAN:

Ask, in writing, for a “reconsideration” of the denial within 60 days from the date of the plan’s denial notice. Mail the request directly to the private plan, the local Social Security Office, or the Railroad Retirement Board, if the enrollee receives Medicare as a Railroad Retiree.

If the enrollee needs care:
The private plan has 30 days to reconsider its decision and either approve coverage for the service or uphold the denial (pre-service denial). The enrollee may get a fast (“expedited”) appeal if his/her life or health could be seriously jeopardized by waiting 30 days. Under the expedited appeals process, the plan must give the enrollee an answer within 72 hours, but has 14 extra days to gather information if it is in the enrollee’s best interest (e.g. if the plan needs more time to obtain documents for the case). The enrollee can always get an expedited appeal if a doctor requests it. The plan may or may not give the enrollee an expedited appeal ifhe/she requests it for himself or herself.

If an enrollee already received the care and need coverage for it:
The plan has 60 days to make a decision on the appeal if he/she is appealing a denial of coverage for care that has already been received (post-service denial).

SECOND LEVEL APPEALS -- RECONSIDERATION AT THE CENTER FOR HEALTH CARE DISPUTE AND RESOLUTION:

If the private plan does not find 100% in the enrollee’s favor, it must send the file to the Center for Health Care Dispute Resolution (CHDR), an independent agency that performs impartial reconsiderations. CHDR may uphold the plan’s decision, partially overturn it, or fully overturn it within 30 days if the enrollee is appealing a denial of care, or 60 days if the enrollee isappealing a denial of coverage. If the enrolle’s life or health could be seriously jeopardized by waiting 30 days, he/she may get a fast (“expedited”) appeal at CHDR. For expedited appeals, CHDR has 72 hours to make a decision on the case, but has 14 extra days to gather information if it is in the enrollee’s best interest.

THIRD LEVEL APPEALS -- SOCIAL SECURITY ADMINISTRATIVE LAW JUDGES:

If CHDR decides against the enrollee, and the case involves a dispute over more than $100, the enrolleemay appeal to an Administrative Law Judge (ALJ). He/shemust request an ALJ hearing within 60 days of receiving the decision from CHDR. A hearing usually takes between 6 to 12 months to schedule.

FOURTH LEVEL OF APPEAL:

The fourth stage is appealing to the Department of Health and Human Services Departmental Appeals Board. The enrollee can request that the Board review the ALJ’s decision. The enrollee must request the review in writing within 60 days of receiving an unfavorable decision from the ALJ.

FIFTH LEVEL OF APPEAL:

The final stage is an appeal in federal district court, which requires that the dispute involve an amount of at least $1000. The enrolllee must request the review in writing within 60 days of receiving an unfavorable decision from the Departmental Appeals Board.

Q. What should an individual do if he/she feels that she is being asked to leave the hospital early?

A. Before an individual is discharged, ask the hospital for a notice explaining why he/she is being discharged and what his/her appeal rights are. If he/she has Original Medicare, this notice is called a Hospital Issued Notice of Non-coverage (HINN). If the individual is enrolled in a private plan (HMO or PPO), it is called a Notice of Discharge and Medicare Appeal Rights (NODMAR). Once an individual asks for it, the hospital must give it tohim/her.

If an individual thinks he/she is being asked to leave the hospital too soon, he/she can request an immediate review of the decision from the Quality Improvement Organization (QIO), formerly known as the PRO (Peer Review Organization).

A QIO is an independent group of doctors and other professionals that contracts with Medicare to ensure that individuals receive quality care. An individual must receive a HINN or NODMAR before the QIO reviews his/her case.

To get an immediate review, call or write the QIO by noon the day after receipt of the notice. An individual may be able to stay in the hospital at no charge while the QIO reviews the case. The hospital cannot force an individual to leave before the QIO makes a decision.

The QIO for New York is called IPRO ( Island Peer Review Organization) Call IPRO at 1-800-331-7767.

The QIO will inform an individual of the decision by phone or in writing. If an individual is unable to advocate for him/herself, the QIO will speak to a friend, relative, or anyone else that he/she has designated to act on his/her behalf when he/she was admitted into the hospital.

If the QIO decides against the individual, he/she can either leave by noon the next day or stay and ask the QIO for a Reconsideration. If he/she stays, he/she may have to pay all costs starting from three days after receiving the notice. If the QIO decides against the individual again, he/she may have other appeal options.

NOTE: If an individual is not notified of his/her discharge and appeal rights, andhe/she decides to stay in the hospital after his/her discharge date, he/she cannot be charged for the costs of his/her care.

How to appeal a hospital discharge?

1.	Hospital ready to discharge
2.	Doctor agrees with hospital and wants to discharge the individual. He/she receives Hospital Issued Notice of Non-coverage (HINN) / Notice of Discharge and Medicare Appeal Rights (NODMAR).		Doctor disagrees with hospital. Hospital needs approval from Quality Improvement Organization (QIO), to issue HINN/NODMAR
3.	Appeal to QIO by noon the next day		QIO reviews
4.	QIO overturns HINN/NODMAR. The individual can stay in the hospital	QIO upholds HINN/NODMAR	QIO agrees with hospital. The individual receives HINN/NODMAR	QIO disagrees with hospital. The individual can stay in the hospital
5.		The individual can either leave by noon the next day or stay and request a Reconsideration from the the QIO. If he/she stays, he/she may have to pay all costs starting from three days after receiving the HINN/NODMAR.
6.		QIO agrees with hospital.The individual can either leave (and he/she will have to pay all hospital costs starting from three days after receiving HINN/NODMAR) or stay and agree to pay for all costs. If the individual stays, he/she can appeal the denial of coverage later.	QIO disagrees with hospital. The individual can stay and Medicare pays.
7.		Request ALJ (Administrative Law Judge) Hearing within 60 days of receiving denial of coverage from Medicare
8.		Request Department Appeals Board Hearing within 60 days of receiving denial from ALJ
9.		Appeal to Federal Court within 60 days of receiving denial of coverage from Appeals Board if more than $1,000 in dispute

Q. What if a home health agency, skilled nursing facility, or comprehensive outpatient rehabilitation facility wants to end care?

Starting January 1, 2004, if an individual is enrolled in a Medicare private plan (like an HMO) and will lose coverage of services from a skilled nursing facility, home health agency or comprehensive outpatient rehabilitation facility, the provider must give him/her a written notice called an Advance Beneficiary Notice (ABN) two days before the day his/her health services are supposed to end. If he/she is getting home health care, the ABN must be given no later than the next to the last time services are provided. The ABN must explain when coverage will end, the date when the enrollee will be responsible for paying for services and his/her rights to appeal, including how to contact the Independent Review Entity (IRE) to start an appeal. (The IRE is any independent entity that has a contract with CMS to make coverage decisions.)

When he/she requests an appeal, the HMO must provide the client with a detailed notice explaining why the services no longer will be provided and any applicable Medicare coverage rules and regulations. Use the following guideline when appealing:

Step 1:

• Once an ABN is received, the client should notify the IRE that he/she wants to appeal by noon the next day the IRE is open for business. If he/she misses the deadline, he/she can request an expedited (72-hour) appeal through the HMO.

Step 2:

• After IPRO receives your request, it notifies an individual’s health plan and his/her provider that he/she is appealing the noncoverage decision. IPRO also informs the plan about its responsibility to submit documentation about its decision. By the end of the business day when it received notification, the plan must submit evidence and provide the individual with the DENC explaining why his/her services are terminating.
• An individual can submit his/her own evidence, but it is not required.
• An individual has the right to request a copy of the evidence that his/her health plan submits to the IPRO.

Step 3:

• The IRE must make its decision and notify the individual , the provider and the HMO by the end of the business day after it received the HMO's evidence.
• If the IRE agrees with the HMO, the individual has until the date and time indicated on the ABN to leave and/or stop getting care.
• If the IRE's decision was delayed because the HMO did not submit evidence in a timely manner, the HMO is responsible for the cost of any additional coverage resulting from the delayed decision.
• If the individual did not receive an ABN in time, the HMO must cover services until at least two days after he/she receives the notice.

Step 4:

• If IPRO agrees with your client’s health plan’s noncoverage decision, he/she may appeal the IPRO’s decision no later than 60 days after he/she receives notice from IPRO. IPRO must issue a reconsideration decision as quickly as an individual’s health condition requires but no later than 14 days after receiving the request for reconsideration.

Step 5:

• If the QIO upholds its decision after reconsideration, an individual may appeal to an Administrative Law Judge (ALJ), the Departmental Appeals Board (DAB) or a federal court (see steps 4 through 6 in the previous question for details).
• If appeals are not found in the enrollee’s favor, he/she is responsible for the costs of continued care after the termination date indicated in the IPRO decision. If the IPRO's decision is reversed upon appeal, the plan must reimburse the individual for the costs of any covered services that he/she already paid to the plan or provider.

RESOURCES TO CALL WHEN YOU WANT TO KNOW:

When and how to file a grievance or appeal about Medicare managed care:

• Island Peer Review Organization (IPRO) Hotline: 1-800-331-7767
• NYC Department for the Aging -- HIICAP 212-333-5511
  (Health Insurance Information, Counseling and Assistance Program)
• Medicare Rights Center -- HIICAP 1-800-333-4114 ext. 1
• NY State Dept. of Health Managed Care Hotline 1-800-206-8125
• Attorney General’s Health Care Bureau 1-800-771-7755 ext. 3