Until Medicare and the healthcare insurance
industry understands the vital role of compression therapy as the
backbone of lymphedema treatment, and everyone has healthcare
insurance, there will be a need for help in covering the costs of
these items. I recently participated in on a CancerCare Telephone
Education Workshop on "Medical Update on Metastatic Breast Cancer"
and was gratified to hear Patricia Spicer, CancerCare Breast Cancer
Program Coordinator announce that CancerCare offers limited
financial help in obtaining lymphedema bandages and garments (for
lymphedema resulting from cancer treatment of all sites, not just
breast). Call 1-800-813-4673 or go to the
CancerCare website for further
information.
In the meantime,
if you have been denied coverage or reimbursement for your
compression bandages or garments within the last 45 days, contact me
and let me help you with your appeal. I recently had my third
Administrative Law Judge favorable determination and upset of a
Medicare denial, and am looking for more cases to pursue--especially
in the Central and Eastern U.S. No cost or risk to you.
Robert Weiss, M.S.
Lymphedema Treatment Advocate
Email: lymphactivist@aol.com
Tel: 818-368-6340
Fax: 818-368-6432
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October 2, 2007
Here are my
latest guidelines for making Medicare appeals of service denials for
treatment of lymphedema. I am not trained in medical or legal
matters and cannot give medical advice or legal advice. The
following expresses my personal understanding of Medicare law as it
applies to the treatment of lymphedema, and it deviates from the
views of the Centers for Medicare and Medicaid Services (CMS), the
government agency designated by Congress to administer the Medicare
system. Differences are being resolved on a case-by-case basis by
Administrative Law Judges (ALJs).
MEDICARE
(NON COVERAGE) OF LYMPHEDEMA TREATMENT
Medicare is
administered by the Centers for Medicare and Medicaid Services (CMS)
to interpret Titles XVIII and XIX of the Social Security Act (SSA)
and to implement the requirements of the SSA through a series of
publications. Local administration is through a network of Medicare
Contractors selected by CMS who either use the national publications
or create local policies further interpreting the national policy or
creating policy when a national policy does not exist.
Every service
covered by Medicare must be medically necessary and must fit into a
”benefit category”¯ defined in the SSA. A specific item is covered if it meets
the criteria set up for the specific benefit category, and it is
denied if it is deemed not to be medically required or if it does
not meet the coverability requirements for its benefit category.
APPROACH TO AN APPEAL
The approach I
have taken in appealing Medicare denials of lymphedema treatment is
to show that the treatment service or item are medically necessary,
that is it is part of a medically recommended treatment guideline
and is prescribed by the patient's physician, and that it falls into
a benefit category covered by the Social Security Act.
Specifically, I
show that manual lymph drainage (MLD) performed by a
specially-trained therapist in accordance with a physician-approved
treatment plan determines the frequency and duration of the clinical
treatment. The policies on treatment duration established for
rehabilitative therapy do not apply to this medical procedure, and
that the length of the treatment is determined by medical necessity.
Furthermore, I
show that compression bandages, garments and devices fall into the
“prosthetic devices” benefit category defined by Ā§1861(s)(8) of the
SSA.
CMS Publication
100-2, Chapter 15, Ā§120 defined a prosthetic device as follows:
General.--
Prosthetic devices (other than dental) which replace all or part
of an internal body organ (including contiguous tissue), or
replace all or part of the function of a permanently inoperative
or malfunctioning internal body organ are covered when furnished
on a physician's order.”
In this case the
inoperative or malfunctioning internal body organ is the lymphatic
system and the compression items replace all or part of its
function.
There are no
Medicare coverage determinations or policies dealing with
compression bandages, garments or devices used in the function of
treating lymphedema, so Medicare Contractors (and healthcare
insurers) select policies which deal with materials which look
similar but are used in a different function, and apply the coverage
criteria for the other use. They obviously fail and are denied.
Compression
bandages are denied for home use because the benefit criteria they
are placed into is “surgical dressings”¯, which are non-durable supplies used in an in-patient
procedure in conjunction with treatment of an open wound. This is
hardly the function of a short-stretch bandage, tubular sleeve or
gauze finger bandage in the treatment of lymphedema! My argument is
that the assemblage of these diverse materials every night on the
lymphedema patient's arm or leg is a prosthetic device which is
assembled to the exact medical requirements at that time by a
patient or an aide who has been instructed in the specific
techniques. It makes no more sense to deny a bandage system because
its components are not covered than it would be to deny a wheelchair
because its wheels or axle are not separately covered. What matters
is the function of this totality of parts in the treatment of
lymphedema that determines coverability.
Compression
garments are frequently denied either because they “are not
medically necessary” or because they do not meet the requirements of
“secondary surgical dressings.”¯ The first issue is easy to address by showing that these
are different from “support stockings”¯
which are worn as comfort or convenience items, not necessarily with
physician's prescription. These are required for daily use as part
of the medical standard of care of lymphedema. [reference to ISL,
ACS, NLN consensus recommendations]
The second
argument is more difficult to counter since 2006, when CMS moved the
coding of compression stockings from the prosthetic devices category
with HCPCS codes Lxxxx to the surgical dressing category with HCPCS
codes Axxxx. The criteria for coverage of a compression stocking as
a secondary surgical dressing is that it be used with one or more
primary dressing in the treatment of an open venous stasis wound.
Denied!
So my approach
has been to show that compression garments and devices meet the
prosthetic device requirements of the SSA, and are therefore not
subject to the surgical dressing coverage criteria. So far four
Medicare Administrative Law Judges have agreed and have ruled that
the Medicare patients must be reimbursed for their garments (upper
limbs and lower limbs).
Robert Weiss, M.S.
Lymphedema Treatment Advocate
Email: lymphactivist@aol.com
Tel: 818-368-6340
Fax: 818-368-6432
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of page
APPEALING
AN UNFAVORABLE MEDICARE DECISION
Compression is
the mainstay of lymphedema treatment and denial of the medical
materials which enable the patient to treat their lymphedema is
tantamount to denial of medical treatment. And this is a breach of
the insurance contract.
Medicare offers
five levels in the Part A and Part B appeals process. The levels,
listed in order, are:
-
Redetermination by the Fiscal Intermediary (FI), Medicare
Contractor or DMEPOS Contractor
-
Reconsideration by a Medicare Qualified Independent Contractor (QIC)
-
Hearing by an
Administrative Law Judge (ALJ)
-
Review by the
Medicare Appeals Council (MAC) within the Departmental Appeals
Board
-
Judicial
review in U.S. District Court
I have had
success with the following arguments:
1. Lymphedema
is a diagnosable medical condition, not a symptom. (The medical
record should note the appropriate ICD-9-CM diagnostic code.)
2. The
recognized medical treatment protocol for lymphedema from all
causes, primary and secondary is complex decongestive therapy,
the backbone of which is daily compression.
3. The
physician's prescription attests to medical necessity of
compression materials for this patient. (The prescription must
have the diagnosis of lymphedema with the appropriate ICD-9-CM
diagnostic code.)
4.
Compression characteristics required for day and night are
different, necessitating two different kinds of
bandages/garments (i.e. elastic for active periods-daytime,
exercise, and non-elastic for inactive periods-night time,
watching TV, aircraft flights, etc.)
5. Daily use
and need for frequent washing necessitates two sets of bandages
and garments, every 4-6 months as required by wear-out and
changes in patient's condition and measurements.
6.
Compression when used to treat lymphedema meets the definition
of "prosthetic devices and supplies" in Title XVIII section
1861(s)(8) of the Social Security Act.
7.
Compression bandages, garments and devices therefore are covered
by Medicare and Medicaid as medically necessary prosthetic
devices. They should also be covered in individual insurance
contracts which include prosthetics and orthotics (not all
contracts do).
8. Therefore,
denial of the bandages, garments or devices which are prescribed
by your physician for the treatment of diagnosed lymphedema
constitutes a breach of contract and law.
APPEAL
TIMELINES
(courtesy of Medicare Rights Center "Dear
Marcia" Column)
Your appeals
timeline depends on three different factors:
-
What type of
Medicare you have
-
How long ago
the Medicare Summary Notice (MSN) was filed
-
Why you were
"too busy"
If you have
traditional Medicare (Part B), your appeal must be submitted within
120 days of the date on the MSN denying coverage.
If you receive
your Medicare through a private plan, like an HMO or a PPO, you only
have 60 days to submit your request for reconsideration. The plan
then has 60 days to make a decision for post-service denials (but
only 30 days for pre-service denials).
If the plan
upholds the denial, the case is forwarded to an independent reviewer
called the Center for Health Dispute Resolution (CHDR). CHDR must
also make a decision to uphold or overturn the HMO's decision within
30 days for care or 60 days for payment. For more information on
CHDR, visit its web site listed in the Spotlight on Resources
below.
Medicare or your
Medicare private plan (HMO or PPO) must accept a late filing of an
appeal if you can show "good cause" of why you did not file an
appeal on time. "Good cause" reasons are judged on a case-by-case
basis. Therefore, there is no complete list of acceptable reasons
for filing an appeal late, but some examples include the following:
-
The coverage
notice you are appealing was mailed to the wrong address;
-
A Medicare
representative gave you incorrect information about the claim
you are appealing;
-
You or a
close family member you were caring for was ill, and you could
not handle business matters;
-
The person
you are helping appeal a claim is illiterate, does not speak
English or could not otherwise read or understand the coverage
notice.
If you think you
have a good reason for not appealing on time, send in your appeal
with a clear explanation of why it is late.
HELP
AVAILABLE IN YOUR APPEAL
I help patients
appeal denial of compression bandages, garments and devices. It is a
lengthy process, taking 1-4 years, with not at all an assured
outcome, but it is worth the trouble since I am using the successful
cases to convince CMS to change their interpretation of the Social
Security Act and to cover lymphedema treatment materials.
I do not charge
any fees for the work I do. I expect that the patient, therapist or
provider to appeal the first denial, and when that appeal is upheld
(and it will be) then I will help writing the Redetermination
Request. For Medicare cases, when that is denied, I will ask to be
designated the Authorized Representative and I will write and submit
the Reconsideration Request for an "independent determination" by a
Medicare Quality Independent Contractor. I will at that time
generate an evidence package for use at a Medicare Administrative
Law Judge hearing. This is the first level of appeal at which we
have a chance of winning the appeal and being reimbursed.
Contact me when
you are denied reimbursement.
Robert Weiss, M.S.
Lymphedema Treatment Advocate
Email: lymphactivist@aol.com
Tel: 818-368-6340
Fax: 818-368-6432
September 3, 2008
Dear Lymphedema
list readers,
I'm passing this
Medicare Rights Center (MRC) notice on for
your information.
The MRC is one of
the most active Medicare rights organizations that advocates for the
patient/beneficiary. They are not associated with Medicare, and can
help you in your Medicare problems.
I consult with
them when they receive inquiries on lymphedema claims, and you can
continue to contact me either privately or through this list on your
garment appeals.
Robert Weiss, M.S.
Lymphedema Treatment Advocate
Email: lymphactivist@aol.com
Tel: 818-368-6340
Fax: 818-368-6432
The
Medicare Rights Center is pleased to
announce that they will be hosting monthly free web seminars on
important Medicare topics. The monthly seminars will be held on
the second Thursday of each month.
To register for these seminars, please
visit
Medicare Rights Center - Webinars" Medicare Appeals."
Whether you
get your Medicare benefits through Original Medicare or through
a Medicare private health plan, you have right to get the
medical care and coverage to which you are entitled. By knowing
what Medicare covers and how to exercise your rights, you can
take steps to get the health care you need.
To educate professionals, caregivers and
people with Medicare about Medicare rights and appeals
processes, the
Medicare Rights Center will be
providing a free educational web seminar that will explain:
-
What is
an appeal?
-
Why and
how do you appeal if you have Original Medicare?
-
Why and
how do you appeal if you have a Medicare private health
plan?
-
Why and
how do you appeal if you have a Medicare Part D plan?
-
How do
you appeal a hospital discharge?
-
How do
you appeal a termination or a reduction of care (home
health, SNF, outpatient rehabilitation facility)?
When:
The monthly seminars will be held on the
second Thursday of each month
1:00 pm Eastern Time. (Presentations usually last for 90
minutes, including the Q&A session.)
How: All you
need is a computer with an Internet connection at 56K or better
and a phone (preferably with a high quality speaker). You will
be viewing the visual portion of the presentation over the
Internet and listening to the audio portion via a toll-free
phone line.
Note: Registration for the live seminars
is limited. If you are unable to participate in the live
seminar, a free recording will be made available on the
following Friday. Please check back at
Medicare Rights Center - Medicare Basics
to access the recording.
To register for these seminars, please
visit
Medicare Rights Center - Medicare Basics
You can access recordings of recent web
seminars on the website at:
Medicare Rights Center - Medicare Basics
And, for
those of you with questions about Medicare, we would like to
share all of our online resources with you:
-
To learn more
about the ins and outs of Medicare, please visit
Medicare Interactive Counselor, the Medicare Rights Center's
online resource for independent information and expert advice on
Medicare.
-
For helpful
information on the Medicare
prescription drug benefit (Part D), please visit
Medicare Prescription Drug Coverage (Part D)
-
If you need
help with an individual Medicare problem, please call our
Consumer Hotline at 800-333-4114.
-
If you need
to appeal your Medicare drug plan, please call our Appeals
Hotline at 888-466-9050.
We hope you
can join us for these informational seminar.
All the best,
The Web Seminar Team
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page
Medicare has found a new method
of denying covered compression therapy items without actually
denying them.
Medicare
Summary Notices are now noting "Medicare will process your first
claim only. In the future you must use a Medicare-Enrolled
supplier and provide the supplier identification number on
your
claim." and "Medicare cannot process this claim as you were
previously notified that you must use a supplier who has a
Medicare supplier identification number."
If you
plan to appeal the denial of compression bandage systems,
garments or devices, it would be prudent for you to purchase
them from an enrolled supplier. Since these items will be
denied, the supplier will ask you to pay up front and sign an
Advance Beneficiary Notice of Nonpayment (ABN) form signifying
that you understand that Medicare may not reimburse you for the
purchase. This gets the supplier off the hook when it is denied.
The supplier is then obliged BY LAW to file the initial claim
for you.
It seems
that Medicare will process one claim and one claim only from a
beneficiary who has purchased a medical item from a non-enrolled
supplier or from the manufacturer. In this case the beneficiary
files a Patient's Request for Medicare Payment and the claim is
processed by hand, instead of by computer, and takes a longer
time to process.
The
following is a recent CMS clarification on participating and
non-participating suppliers:
"**Updated February 10, 2009- Clarification from January's
DMEPOS Special Open Door Forum. Participating Provider/Supplier
and Accreditation requirements
Medicare
enrolled participating providers and suppliers must always
accept assignment. Assignment is an agreement between
beneficiaries, their providers/suppliers, and Medicare where the
beneficiary authorizes the provider/supplier to request direct
Part B payment from Medicare for health care services,
equipment, and supplies. When the provider/supplier agrees to
(or is required by law to) accept assignment from Medicare, then
the provider/supplier is prohibited from attempting to collect
more than the applicable Medicare deductible and coinsurance
amounts from the beneficiary, the beneficiary's other insurance,
or anyone else. Providers/suppliers that enter into a Medicare
Participating Physician or Supplier Agreement (OMB No.0938-0373)
agree to accept the Medicare-approved amounts as payment in full
for all Part B services and supplies. A beneficiary should only
pay the 20% co-pay (and any remaining Part B deductible) when
they receive their equipment or supplies or when the equipment
is repaired.
A
Medicare enrolled non-participating provider/supplier, can
choose which services to accept assignment for (unless mandatory
assignment applies to the service; e.g., for drugs or
biologicals, ambulance services, etc.). Therefore, the
provider's/supplier's charges for DME supplies may be higher
than the Medicare approved amount and the beneficiary has to pay
the entire charge for the Part B services and supplies at the
time of service. (NOTE: Medicare's limiting charge does not
apply to DME supplies.)
In either
case, participating and non-participating, Medicare
providers/suppliers must bill Medicare on behalf of the
beneficiary and must be accredited by September 30, 2009 in
order to retain their Medicare Part B billing privileges.
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I have been advising lymphedema
patients to appeal every denial of reimbursement for the
compression bandages and garments used in the treatment of
their lymphedema. Some suppliers do not file claims,
claiming that these items are not covered by Medicare.
This refusal is illegal since these items have been found to
meet the coverage criteria for "prosthetic devices" by
several Administrative Law Judges, and the decision that
they are not covered is not a decision that a supplier can
make. CMS has recently published a clarification of the rule
that requires Medicare-enrolled Suppliers to file a claim on
behalf of a Beneficiary. This educational article can be
downloaded as follows:
Mandatory Claims Submission and its Enforcement
http://www.cms.hhs.gov/MLNMattersArticles/downloads/SE0908.pdf
The Social Security Act (Section 1848(g)(4)) requires that
claims be submitted for all Medicare patients for services
rendered on or after September 1, 1990. This requirement
applies to all physicians and suppliers who provide covered
services to Medicare beneficiaries, and the requirement to
submit Medicare claims does not mean physicians or suppliers
must accept assignment.
Compliance to mandatory claim filing requirements is
monitored by CMS, and violations of the requirement may be
subject to a civil monetary penalty of up to $2,000 for each
violation, a 10 percent reduction of a
physician’s/supplier’s payment once the physician/supplier
is eventually brought back into compliance, and/or Medicare
program exclusion. Medicare beneficiaries may not be charged
for preparing or filing a Medicare claim.
For the official requirements, see the following:
Social Security Act (Section 1848(g)(4)(A); "Physician
Submission of Claims" at
http://www.ssa.gov/OP_Home/ssact/title18/1848.htm
on the Internet.
Requirement to file claims – The Medicare Claims Processing
Manual, Chapter 1, Section 70.8.8:
http://www.cms.hhs.gov/manuals/downloads/clm104c01.pdf
on the CMS website.
Robert Weiss
Lymphedema Patient Advocate
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The above material is the
undersigned's interpretation of Medicare policy and
procedures. It is my opinion only and is not authorized or
approved by Medicare. This information is not to be used for
medical or legal purposes, and is offered only as an aid in
navigating the Medicare labyrinth.
Robert Weiss
Lymphedema Patient Advocate
Additional Websites Regarding Medicare and Disability
