Appeals 101

As I have mentioned elsewhere on this website, the appeals that I have filed pertain to my Medicare Advantage (Medicare Part C) insurance plan. It is my understanding that there may be some differences between traditional Medicare appeals and those for Medicare Advantage. Therefore, it is important that you know that what I tell you concerns Medicare Advantage.

On this page, I will list the five different levels of appeals. They are: (1) redetermination, (2) reconsideration, (3) Administrative Law Judge hearing, (4), Medicare Appeals Council review, and (5) judicial review in U.S. District Court. Fortunately, I have only had to deal with the first three levels and will limit my discussion to those levels.

Level 1 Appeal (Redetermination)

Here’s how you begin the appeal process. The first step is that some nice person from your facility’s discharge planning or business office hands you a piece of paper called the Notice of Medicare Non-Coverage. You are asked for your signature as proof that you have received this document. This paper states the date of your last day covered by the insurance plan. You are given this paper 48 hours before this date. After this date (your last day covered) you may be financially liable if you either don’t file an appeal or you file the appeal but lose it. You are told you have a right to file an immediate 48-hour appeal. During that time period you have the right to stay in the facility and to receive services, including therapy. Within the 48 hours, you are informed by phone of your appeal results. If the answer is “no,” you may file a second level reconsideration appeal, leave the facility, or if you don’t leave, go private pay. This document lists a phone number to call to file your appeal. You have until 12 noon the following business day to make the call. I was always advised to file the appeal as soon as possible. When you call, you speak with a representative from what is called a QIO or quality improvement organization. These are the people who handle the lower level appeals. In my geographic area, a company called Kepro is the QIO. The QIO representative will ask for basic information from you, ask if you want to make a verbal statement of why you should stay, give you the opportunity to do so, and assign you an identifying case number. Please remember to write down this case number and keep it. You may also submit a written statement for your appeal after your phone call. Make sure that your appeal case number is on all written communication regarding your appeal. Be sure to ask the QIO about deadlines for submitting letters or other documents in support of your appeal. I have never submitted a written statement at the 1st level appeal because of the short (48-hour) window of time.

I usually file my appeal on the day I receive my Notice of Medicare Non-Coverage. Before calling the phone number, however, I take a few minutes to compose whatever statement I will make to the phone representative. I may write down a few reasons why I think I should remain in the facility and treatment should continue (or conversely, why I couldn’t go home safely at this time). Taking even five minutes to jot down some notes helps ensure I don’t forget something important that I want to include in my verbal statement.

Now what you are not given on this non-coverage document are the reasons the insurance company is giving for cutting off their payment. You are not told these until AFTER you file the appeal. This is so backwards. So you have have to guess the reasons. In the past it was often either you were not making enough progress or you were making too much progress. Now I am seeing on my appeals a highly ambiguous paragraph or two of gobbledygook, which is totally to mostly untrue and makes no sense whatsoever.

It is important for you to find out if you can get the insurance company’s reasons if possible. When I have filed 1st level appeals, I would file the appeal, and then shortly after, the insurance company would send a fax or email to the facility with their reasons. Even if I am not planning to file an upper level appeal, I am always curious about the rationale behind the insurance company’s decision.

When you are notified by phone about the decision on the appeal, the QIO has never given me the reasons for the decision. Instead, Kepro sends me a letter a few days later with the reasons. It is a good idea to keep these letters in case you need to file an upper level appeal. The letters I receive from my QIO, Kepro, have references to Chapter 8, the Medicare Benefit Policy Manual. These citations are given as support for an appeal approval or as “proof” of the reasons for an appeal denial. If you go to the links page, there is a website where you can download Chapter 8 of this manual. Chapter 7 of this same manual deals with home health care. This is another topic that may be of interest to you.

If the first level appeal is approved, there is no need to do anything else other than continue your stay in the rehab facility and your therapy. You won! Congratulations! Case closed. If you get another Notice of Medicare Non-Coverage in a few days, and you still don’t want to leave, you can go through the same level 1 appeal process all over again.

If your level 1 appeal is denied, then you have a decision to make on whether or not to file level 2 (reconsideration) appeal.

To my mind, if you have received a Notice of Medicare Non-Coverage, filing a level 1 appeal is a no-brainer. Of course, you don’t have to file anything if you are fine with leaving the facility. The reason I advise anyone who doesn’t want to go to file is that the process is simple, free (carries no financial risk), takes only a few minutes to do if you have access to a phone, and if you win, you may be able to continue treatment for at least another day or two.

Filing an immediate 48-hour level 1 appeal is easy. To sum up, here’s what you do:

Receive the Notice of Medicare Non-Coverage and sign for it when you are asked to do so.
Take a few minutes to think and write down some notes about why you don’t think you should leave the facility.
Call the phone number that is listed on the Notice of Medicare Non-Coverage anytime before 12 noon on the following business day.
Speak with the phone representative, answer a few simple questions, and make your verbal statement about why you should stay in the facility.
Write down and keep the unique identifying case number that the phone representative gives you.
Then you wait to hear the appeal decision.

While you are waiting to get the phone call notification about the appeal decision, you may also check the QIOs website for your level 1 or level 2 appeal case status. To do so you will need the case number that you were given when you filed the appeal. Here is the link to Kepro’s case status tool: https://www.keproqio.com/casestatus.aspx

This may not be the case for all the QIOs, but with Kepro, if you reach their line after their office is closed, you can leave your message that you want to file an appeal on the voicemail. They date and time stamp the voicemail messages so that your appeal will be counted as being filed on that date. The one time I left a message like that, I called Kepro back the following day so that I could add my verbal statement to my appeal.

You may wonder if the appeal is worth it if all you will gain is 1 or 2 additional days. You may be granted more time than that, but even if you aren’t, I believe it is important to fight back against the insurance companies who deny coverage to people who really need it in the name of profit. Medicare Advantage plans are “big business” to these major insurance companies. If you don’t believe it, just notice the huge number of ads for Medicare Advantage plans aired on TV during the Medicare annual enrollment period.

Level 2 Appeal (Reconsideration)

The process in filing a level 2 (reconsideration) appeal is similar to filing the level 1 (redetermination) appeal. After receiving notification that your first level appeal was denied, you call the same phone number listed on the Notice of Medicare Non-Coverage that you dialed to file the first appeal. The QIO phone representative asks for enough information from you to access your record in the computer system. The representative will give you a chance to make a verbal statement. Before I make my verbal statement, I may make some additional notes about what I want to say to the representative. He or she will assign another case number unique to the second appeal (not the same number that you had for the first appeal). Be certain that you write down this second case number. You may submit letters and other documents in support of your appeal. Be sure you understand the deadlines for submitting evidence to the QIO. Ask them the best way to submit your documents (fax? email?). Remember to write your identifying case number on everything that you send to the QIO so your submissions may be routed properly.

With my recent level 2 appeal, the QIO gave me a submission deadline of 48 hours. It is important to send information as soon as possible.

Although the level 1 and 2 processes are similar, level 1 and 2 appeals are different in one very important aspect: there is financial risk with level 2.

Level 1 immediate appeals are decided within 48 hours while you are still covered by insurance. Level 2 appeals may take between 2 and 14 days to be decided. If the appeal is approved, then insurance will pay for these days. If the appeal is denied, however, you may be financially responsible for paying for up to two weeks (or even more) in the facility.

After a negative decision on a 1st level appeal, you have 60 days to file the level 2 appeal. I have never waited that long to file a level 2 appeal. Usually I file on the day that I get my level 1 appeal denial.

As with a level 1 appeal, the QIO notifies you via telephone. Also like the first appeal, the QIO (Kepro for me) has never given me any reasons for the decision over the phone. Instead they send me a letter in several days.

Level 3 Appeal (Administrative Law Judge Hearing)

Someone from a Medicare Advocacy non-profit organization once told me that the best chance of winning an appeal comes at the 3rd level, or the ALJ hearing. The reason that this may be so is that with levels 1 and 2 you are not allowed to speak with the person or people who are making the appeal decision. With a Judge hearing, you may argue your case before the person will decide your case. You may submit evidence to support your arguments. You may have witnesses. If you want representation, an attorney, other advocate, family member, or friend, you may have that, too. Through the legal process of discovery, you may also ask to receive whatever documents or evidence the insurance company and QIO have.

In the earlier appeal levels, you could make verbal statements but you are dependent on the phone representative to type in accurately whatever you say. With the level 1 appeal, the tight timeframe makes it more difficult to send written materials. It is possible to win at level 1 and 2, and it necessary to go through these levels to get to level 3.

After you have lost a level 2 appeal, you may choose to file the Administrative Judge hearing appeal. You have 60 days to file the appeal.

You begin the level 3 process by filling out a request form for hearing. You may find the level 3 appeal forms here. The form that you need is Form-OMHA-100. There are large print and Spanish versions of this form if you need them. The form is straightforward to fill out, but there is a phone number to call if you have questions about how to complete the form. I was cautious when I was doing my appeals, kept copies of all forms and documents, and when I mailed items, I sent them certified mail. I wanted to ensure all the documents arrived safely and were delivered to the right office.

After submitting your form, you wait to be assigned a hearing date. You will find out the name of the Judge and how to contact the appropriate office. After you have received your hearing date and the name and location of the Administrative Law Judge, you will need to fill out a form basically confirming this date. You need to decide if you are going to have any witnesses, or if you will have representation (an attorney, family member, friend, or someone else you choose). You don’t have to have either witnesses or representation. If you are getting someone to represent you, you will need to fill out a form for your representative.

In both of my ALJ hearings, I had my husband on the phone also as a representative. This was because I have 55% hearing loss, and I wanted to be certain that I understood the Judge’s comments and questions clearly. We called no witnesses.

After that, it is a matter of preparing for the hearing, which can include reading over any notes or diaries you kept while in the rehab center so that everything is fresh in your mind, studying the therapy notes, gathering medical records, whatever it is that you believe will aid your case. You may also want to get letters of support from doctors.

I began my preparation by (1) getting every record I could from the facility (including all medical and therapy notes); and (2) looking at whatever notes and entries I had made while in the facility.

After I had all my documents together (not only from the facility but also from my doctor’s office), I started putting together a notebook so that I could present my evidence. I typed an introductory letter to the Judge to give him a summary of my case and inform him of what was in the notebook. I placed the letter in the front of the book along with a table of contents. For the notebook, I used a three-ring binder with dividers and plastic sheet covers. I divided the book into several sections that contained the Notice of Medicare Non-Coverage, the insurance company’s list of reasons why they were no longer paying for my treatment in the skilled nursing facility, the Kepro letters, all pertinent medical records, therapy notes and assessments, and financial information. When you file a level 3 appeal there is a minimum dollar amount for which you are required to ask. For 2022 and 2023, that amount is $180. In my financial section of the notebook, I included an invoice that showed what we had paid out of pocket for my treatment after my 2nd appeal was denied. Additionally I included 2 timelines. One timeline was chronological and showed the dates when I entered and left the facility. It demonstrated that my rehab stay didn’t exceed the 100 days that Medicare will potentially cover. The other timeline showed the progress I had made in therapy, especially during the final month of my rehab when we were private pay. My husband and I were asking the insurance company to pay for this last month.

For both of Administrative Law Judge Appeals, I followed the method that I have outlined above. In the first case, the Judge swore everyone in, and after a statement made by the representative of the insurance company, he made a ruling in our favor at the time of the hearing. In the second case, the Judge swore everyone at the hearing in, requested my testimony and then asked several questions. She took a few days to think about the case. We received her decision letter in our favor about a week and a half after the hearing.

Had either of these ALJ appeals been decided unfavorably, we could have filed a 4th level appeal within 60 days to the Medicare Appeals Council for review. The Judge told us that there is currently (as of April 2023) a backlog of appeals at the upper appeal levels (4th and 5th). My husband and I had already to decided to file, if need be. I am glad that we did not have to file another appeal, however.

The Stages of an Appeal (Levels 1 and 2)

Here are the stages that an individual appeal goes through:

Appeal filed date and time
Medical documents requested
Medical documents received
Under clinical review (clincial review may actually start while the documents are still being gathered)
Physician review
Determination of financial liability
Notification of the patient or patient’s representative and the facility of the appeal results (this is a phone call from Kepro for me)
Case complete unless the patient chooses to file another appeal