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Topic: THE MEDICARE APPEAL PROCESS FOR LYMPHEDEMA - Courtesy Bob Weiss

Forum: Lymphedema — Risks, tips for prevention, and info about products that can address the symptoms of lymphedema.

Posted on: Oct 6, 2007 01:27PM - edited Feb 17, 2014 12:55AM by Moderators

LindaLou53 wrote:

The following is a verbatim copy of a recent post written by Robert Weiss, a very dedicated and successful Lymphedema Treatment Advocate. He has won favorable rulings from Medicare Administrative Law Judges for other patients who have been denied Lymphedema services. Bob has written this comprehensive explanation of his approach to making Medicare appeals and describes the actual appeal process, which I believe to be very valuable information for patients and therapists alike.   Bob freely shares his personal contact information and offers his services to patients who have been denied reimbursement for garments, compression bandages and devices.  Personally, I think this would be a great post to be stickied at the top of this forum for quick reference by our members.

PART ONE:

Here is 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. Localadministration is through a network of Medicare Contractors selected by CMSwho either use the national publications or create local policies furtherinterpreting the national policy or creating policy when a national policy does not exist. Every service covered by Medicare must be medically necessary and must fitinto 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 deniedif it is deemed not to be medically required or if it does not meet thecoverability requirements for its benefit category. APPROACH TO AN APPEAL The approach I have taken in appealing Medicare denials of lymphedematreatment are to show that the treatment service or item are medically necessary, that is it is part of a medically recommended treatment guideline and isprescribed by the patient's physician, and that it falls into a benefit categorycovered by the Social Security Act. Specifically, I show that manual lymph drainage (MLD) performed by aspecially-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 bymedical necessity. Furthermore, I show that compression bandages, garments and devices fall intothe "prosthetic devices" benefit category defined by §1861(s)(8) of the SSA.CMS Publication 100-2, Chapter 15, §120 defined a prosthetic device as follows: "A. 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 thelymphatic system and the compression items replace all or part of its function. There are no Medicare coverage determinations or policies dealing withcompression bandages, garments or devices used in the function of treatinglymphedema, 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 aredenied. Compression bandages are denied for home use because the benefit criteriathey are placed into is "surgical dressings", which are non-durable suppliesused 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 theassemblage of these diverse materials every night on the lymphedema patient's arm or leg is a prosthetic device which is assembled to the exact medicalrequirements 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 itswheels 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 movedthe coding of compression stockings from the prosthetic devices category withHCPCS codes Lxxxx to the surgical dressing category with HCPCS codes Axxxx. The criteria for coverage of a compression stocking as a secondary surgicaldressing 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 meetthe prosthetic device requirements of the SSA, and are therefore not subject to the surgical dressing coverage criteria. So far four Medicare AdministrativeLaw Judges have agreed and have ruled that the Medicare patients must bereimbursed for their garments (upper limbs and lower limbs).   Robert Weiss, M.S.Lymphedema Treatment Advocate

PART TWO:

APPEALING AN UNFAVORABLE MEDICARE DECISION Compression is the mainstay of lymphedema treatment and denial of the medicalmaterials which enable the patient to treat their lymphedema is tantamount todenial 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. Thelevels, listed in order, are:o Redetermination by the Fiscal Intermediary (FI), Medicare Contractor orDMEPOS Contractoro Reconsideration by a Medicare Qualified Independent Contractor (QIC)o Hearing by an Administrative Law Judge (ALJ)o Review by the Medicare Appeals Council (MAC) within the DepartmentalAppeals Boardo 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 medicalrecord 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 whichis daily compression. 3. The physician's prescription attests to medical necessity of compressionmaterials for this patient. (The prescription must have the diagnosis oflymphedema 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 bandagesand garments, every 4-6 months as required by wear-out and changes inpatient'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 byMedicare and Medicaid as medically necessary prosthetic devices. They should also be covered in individual insurance contracts which include prosthetics andorthotics (not all contracts do). 8. Therefore, denial of the bandages, garments or devices which areprescribed by your physician for the treatment of diagnosed lymphedema constitutes a breach of contract and law. APPEAL TIMELINES (courtesy of Medicare Rights Center "Dear Marci" Column) Your appeals timeline depends on three different   factors:     1. What type of Medicare you have     2. How long ago the Medicare   Summary Notice (MSN) was filed     3. Why you were "too busy" If you have   traditional Medicare (Part B), your appeal must be submittedwithin 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 planthen has 60 days to make a decision for post-service denials (but only 30days for pre-service denials). If the plan upholds the denial, the case is forwarded to an independentreviewer 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 forcare or 60 days for payment. For more information on CHDR, visit its website listed in the Spotlight on Resources below. Medicare or your Medicare private plan (HMO or PPO) must accept a latefiling of an appeal if you can show "good cause" of why you did not file anappeal 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 wrongaddress;     * A Medicare representative gave you incorrect information about theclaim you are appealing;     * You or a close family member you were caring for was ill, and youcould not handle business matters;     * The person you are helping appeal a claim is illiterate, does notspeak 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 yourappeal 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 patienttherapist 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. ForMedicare 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 AdministrativeLaw 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    Robert Weiss, M.S.Lymphedema Treatment Advocate 

(Edited by Mods to remove personal information)

Life is not measured by how many breaths we take...but by the moments that take our breath away! ...I am a 14/9 yr survivor of 2 Primary BCs, 23/23 Positive Nodes (Zometa x 5 years) Started Paloma-3 Clinical Trial 4-14-14 Dx 7/14/2000, IDC, 1cm, Stage IIA, Grade 1, 2/7 nodes, ER+/PR+, HER2- Surgery 8/10/2000 Lumpectomy: Right; Lymph node removal: Right, Sentinel Chemotherapy 8/29/2000 AC + T (Taxol) Radiation Therapy 2/25/2001 Breast, Lymph nodes Hormonal Therapy 5/9/2001 Dx 11/21/2005, ILC, 5cm, Stage IIIC, Grade 1, 23/23 nodes, ER+/PR-, HER2- Surgery 12/4/2005 Lymph node removal: Left, Underarm/Axillary; Mastectomy: Left, Right Chemotherapy 12/22/2005 Taxotere (docetaxel), Xeloda (capecitabine) Hormonal Therapy 4/6/2006 Aromasin (exemestane) Radiation Therapy 4/6/2006 Breast, Lymph nodes Dx 3/21/2014, ILC, Stage IV, mets, ER+/PR-, HER2- Hormonal Therapy 4/13/2014 Faslodex (fulvestrant)
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Oct 8, 2007 01:18AM - edited Oct 8, 2007 01:18AM by AmryAnn47

Wow LindaLou, 

Thanks so much for the info--I haven't had time to follow through for myself on the link to his website.  We haven't submitted anything to Medicare since we thought it was hopeless to get reimbursed--my LE therapist is an RN not a PT or OT and is independent and not associated with a clinic any longer. 

This looks like it will take a while and I hope that I am still around to collect the reimbursement for my treatmentFrown but if all of us appeal the process then, eventually it will be covered without the all the extra aggravation.

Thanks,

Mary Ann

Mary Ann Dx 4/11/2011, ILC, 1cm, Stage IV, Grade 3, 5/10 nodes, mets, ER+/PR-, HER2-
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Dec 3, 2007 09:03AM - edited Feb 17, 2014 12:57AM by Moderators

Just wanted to add Bob Weiss's latest communication for those of you dealing with Medicare problems. Hope it helps!

Binney 

 Medicare Beneficiaries:

If you paid for compression bandages or compression garments you received from a Medicare Provider or Supplier, and no claim was made for coverage because you were told that it wasn't a covered service, you did not receive a denial from Medicare, and you did not receive reimbursement from a secondary insurance company, you may request that the Provider file a claim for you. It will be denied, but you can then appeal and have some chance of receiving reimbursement after three appeals.

Even if the Supplier tells you that the items are not covered, and asks you to sign a form (ABN=Advanced Beneficiary Notice of Noncoverage) that you understand that it is not covered, a claim should still be filed since you cannot file an appeal unless you have an official Medicare denial. If your Provider or Supplier does not file a claim in your behalf you may file one on your own behalf. Simple forms are available.

The following notice was sent to Medicare Part B Providers:

Mandatory Claim Submission

When Congress passed the Omnibus Budget Reconciliation Act of 1989, it included a requirement that all providers of service and suppliers submit complete, valid claims on behalf of Medicare beneficiaries for services furnished on or after September 1, 1990. Congress believed this would yield more accurate information with which to evaluate Medicare expenditures and other factors such as volume and intensity of services under the Medicare Volume Performance Standard (MVPS). The standard is Congress' primary tool for managing the growth in Medicare Part B expenditures for physician services.
* You must file to the Medicare contractor all claims for services and supplies provided to Medicare beneficiaries.
* The claims filing requirement applies to all providers and suppliers who provide services to
Medicare beneficiaries.
* If you do not accept assignment, you may continue to request payment in full at the time the service is provided.
* You may not charge the beneficiary for preparing and filing a Medicare claim.
* Medicare will monitor providers' compliance with the Medicare claims filing requirements.
Providers who do not submit Medicare claims for Medicare beneficiaries may be subject to a civil monetary penalty of up to $10,000 for each violation.
* You are required to resubmit claims rejected due to incomplete and/or invalid claim data.
* All Medicare claims must be submitted electronically or on an original
CMS-1500 claim form that is printed in red ink. Photocopies of the CMS-1500 claim form cannot be accepted.

Time Limits for Filing Part B Medicare Claims

For Services Rendered: Claims Must be Filed By:
October 1, 2005 - September 30, 2006 December 31, 2007
October 1, 2006 - September 30, 2007 December 31, 2008
October 1, 2007 - September 30, 2008 December 31, 2009

From Bob Weiss

(Edited by Mods to remove personal information)

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