Medicare and Medicaid Appeal Deadlines and Procedures: Laws that EVERY Health Care Provider Should Know

If you are a physician, most likely, you are not a lawyer.  And vice versa.  While there are exceptions, generally, the professions of physicians and attorneys are mutually exclusive.  Personally, one reason I went to law school is because I am awful at math.  However, presumably, I would be able to write a killer essay on early Shakespearean comedies, much unlike my primary care physician.

That said, there are things that every physician who accepts Medicare or Medicaid should know: (1) appeal deadlines; and (2) appeal procedures.

Ignoring either appeal deadlines or procedures does not make them go away.

 Appeal deadlines

They exist.  And if you fail to appeal an adverse decision within the required timeframe, you will be barred from appeal.  Knowing the appeal deadline is imperative!

Putting off hiring legal counsel can lead to missing an appeal deadline.

A client came to me a year or so ago.  We will call him Artagnan, or Art, for short.  Art had received a Tentative Notice of Overpayment (TNO) alleging that Art owed the Department of Health and Human Service (DHHS) $1,780,534.15.  Art hired Attorney Richie.  Richie properly appealed the TNO to a reconsideration review and got the amount decreased by approximately $500.

Per NC statute, you have 60 days to appeal a reconsideration review decision to the Office of Administrative Hearings (OAH).  Art asked Richie to appeal the reconsideration review and paid Richie additional money for the appeal.

Art came to me for a consultation over 90 days after the reconsideration review decision, and we found that no appeal had been filed.  Obviously, Art was upset.

I offered to file a motion throwing ourselves on the mercy of the court, asking for an exception due to the former attorney’s failure to appeal and Art’s reliance on Richie to appeal.  I warned Art that this was a longshot and, most likely, we would lose.

And we did.

The Judge determined (accurately, in my opinion) that OAH has no jurisdiction over the matter once the 60 days has lapsed.

Moral of the story: Know the appeal deadlines.  Abide by the appeal deadlines.

Appeal deadlines (in NC) (these are the general rules and exceptions exist, so go to a lawyer for advice as to your particular situation):

For a Medicaid reconsideration review – 15 days

For a Medicaid petition to OAH – 60 days

For a Medicare redetermination – 120 days

For a Medicare reconsideration – 180 days

For a Medicare ALJ Hearing – 60 days

Procedures to appeal

There are different avenues to follow for appeals depending on  the adverse decision that you are appealing.

For example, for a Medicare payment dispute, there are 5 levels of appeal.

The levels are:

  1. First Level of Appeal: Redetermination by a Medicare carrier, fiscal intermediary (FI), or Medicare Administrative Contractor (MAC).
  2. Second Level of Appeal: Reconsideration by a Qualified Independent Contractor (QIC)
  3. Third Level of Appeal: Hearing by an Administrative Law Judge (ALJ) in the Office of Medicare Hearings and Appeals
  4. Fourth Level of Appeal: Review by the Medicare Appeals Council
  5. Fifth Level of Appeal: Judicial Review in Federal District Court

For a Medicaid payment dispute, there are only, generally, 3 levels of appeal.

The levels are:

  1. Reconsideration review
  2. Petition for Contested Case at OAH
  3. Judicial Review at Superior Court

It is imperative that you and your lawyer follow each step without attempting to jump a level.  There is a legal requirement to “exhaust your administrative remedies” prior to going to court.  For example, if a Medicaid provider filed a lawsuit in Superior Court because of a TNO without first going through the reconsideration review and OAH, the Superior Court judge will dismiss the claim for failing to exhaust your administrative remedies.

Therefore, any health care provider who accepts Medicare and/or Medicaid needs to be highly aware of appeal deadlines and appeal procedures.  Allowing too much time to pass before hiring your attorney and filing an appeal can result in a loss of appeal rights.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on February 23, 2015, in Administrative Law Judge, Administrative Remedies, Appeal Deadlines, Appeal Rights, Denials of Medicaid Services, Division of Medical Assistance, Doctors, Federal Law, Health Care Providers and Services, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Legislation, Medicaid, Medicaid Appeals, Medicaid Providers, Medicare, Medicare and Medicaid Provider Audits, Medicare Attorney, Medicare Audits, N.C. Gen. Stat. 150B, NC, NC DHHS, North Carolina, OAH, Office of Administrative Hearings, Petitions for Contested Cases, Physicians, Primary Care, Primary Care Physicians, Regulatory Audits, Tentative Notices of Overpayment and tagged , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 20 Comments.

  1. Bartleby the Scrivener

    YEOWCH! I hope he can sue his prior attorney for negligence! This is particularly true since I remember how extrapolation works! I bet there is little or nothing *actually* owed.

  2. Awesome summary, Knicole! I’m going to print this out and keep it just in case. Thank you very much.

  3. Well in our case it went as follows:

    4/15/15-Proposed final order in provider’s favor

    4/20/15-Order granting reimbursement of $13000 underpayment

    4/27/15-reconsideration requested for further increase in benefits

    5/3/15-CDDP denies reconsideration. CAO issues final agency order affirming ALJ’s proposed order in provider’s favor

    9/1/15-CDDP/APD reaffirm final order in annual reassessment. Annual contract issued through 8/31/16

    12/5/15-provider relocates to new county.

    12/19/15-providers Medicare terminated w/o notice.

    12/29/15-providers Medicare reinstated in new state w/o providers knowledge of notice.

    3/14/16-early onsite financial review conducted by agency delegated by agency delegated by single state authority. Demand that provider’s agency must immediately elect authorized financial representative despite no financial violations found. Hearing requested.

    3/22/16-agency delegated by new dual state authority required proposed authorized representative assign itself as providers authorized representative without providers knowledge or consent.

    3/23/16-provider required to “assign” proposed authorized representative all rights and duties under duress via verbal assertion of required compliance pending a verbal 1-day termination notice. Provider filed complaint to agency that delegated authority to agency violating providers agency rights.

    3/24/16-disgruntled case worker filed false written statement of “credible allegation of fraud/abuse” of providers agency’s employee to Medicaid fraud unit. Also filed false written allegation of neglect of provider’s child against provider to CPS.

    3/25/16 (dated 3/21/16)-request for hearing with alj denied as moot due to alleged voluntary compliance with verbal demand to assign authorized financial representative. Disgruntled caseworker removed from case.

    3/26/16-6/3/16-providers identity stolen by new case worker.

    6/4/16-midcontract redetermination of “initial eligibility” conducted in which lead to ORS 411.802 was violated and 42 CFR 441.54(b)(5) which states Natural supports cannot supplant needed paid services unless the natural supports are unpaid supports that are provided voluntarily to the individual in lieu of an attendant.

    6/14/16-notice of termination of provider’s managed care Medicaid benefits. appeal to alj requested but never submitted by agency delegated by agency delegated by single state authority.

    6/16/16-notice of provider’s “optional” Medicaid waiver program termination as of 7/1/16. Hearing requested and continuing benefits pending final order approved.

    6/18/16-Notice of $5200 “reduction” of benefits to $300 State Plan personal care as of 7/1/16. Hearing requested.

    7/2/16-hearing request “received” by agency delegated by agency delegated by single state authority.

    8/14/16-hearing request submitted to ALJ by offending delegated agency.

    8/22/16-pre hearing held. Deadline for witness list and exhibits set for 9/14/16. Deadline for objections set for 9/26/16. Hearing set for 10/14/16.

    9/14/16 – Agency delegated by single state authority attempted to convince provider that deadline was set for 9/26/16. Provider proceeded to timely submit witness list and exhibits. Agency delegated by single state authority did not.

    9/25/16 – Agency designated by single state authority submitted untimely exhibits that only left provider with one day to review and object when they previously stated they had no further exhibits or witnesses during pretrial hearing.

    9/26/16 – Provider timely objected to thick stack of late exhibits and written allegations of fraud on many constitutional claims. Agency delegated by single state authority didn’t object to providers timely exhibits or witnesses list.

    10/12/16 – Agency hearings rep alleges a death in the family and asserts she can’t appear, or appoint any other hearings rep to appear at the hearing, so it must be postponed. ALJ denies agencies request and clerk alleges that the “posted order deadline”? was due 9/28/16 and no more postponements would be permitted.

    10/13/16 – agency delegated by single state authority hearings rep supervisor calls provider late the night before the hearing to allege it was “postponed” afterall and will be rescheduled.

    10/14/16 – Provider failed to appear based on reasonable belief that offending agency would not intentionally lie to him. Offending agency likely appeared to wrongfully usurp summary judgement order.

    1/24/17 – Hearing finally “rescheduled” but heard by same ALJ from the 2015 favorable final order. ALJ denied any constitutional or ADA arguments and striked nearly all of provider’s timely exhibits from the record including a copy of the initial final agency order in his favor. Also denied provider access to an out of state ADA advocate he had retained for $2000 to be present. And ALJ was incredibly rude, much unlike prior hearing in his favor.

    2/3/17 – Final Order issued by ALJ which affirms everything offending agency asserts, lowered SPL from 3 to 18 for the first time in 13 years and approved SPPC eligibility of 20 hours a month. Also on this date, offending agency issued notice cutting off SPPC and Medicaid (again somehow) as of 2/20/17. Same day, conflicting decisions, each contradicting themselves. Final order did NOT grant costs or fees or issue an overpayment against the provider or his employee.

    2/4/17 (approximately) Providers employee obtained a 90-day right to sue certificate from the Regional EEOC against offending agency.

    2/13/17 – provider faxes hearing request directly to offending agency and single state authority and OAH requesting continuing cash benefits pending a decision and a hearing on the contradictory notice of planned action terminating both Medicaid and state plan personal care.

    2/13/17 – provider also calls and emails OAH to clarify sone procedural questions regarding the rehearing/reconsideration process. Clerk somehow interprets his email as his actual motion for rehearing/reconsideration, resulting in an order being issued also on 2/13/17, denying Providers alleged “email request” for a rehearing/reconsideration that never took place.

    3/1/17-providers cash benefits and employees wages were officially terminated by actually being cut off. This created a retaliation claim.

    3/5/17 – nonetheless, Provider proceeded to timely file an actual motion for rehearing in accordance to the procedure set forth in the “2nd” Final order. And a separate motion for reconsideration in accordance to the instructions in the Final Order. Provider has never received a denial of either of his actual objections. Therefore, they were actually deemed denied by the ALJ as of 5/4/17, not 2/13/17 because an ALJ can’t pre-deny a motion before its actually filed.

    4/3/17-provider and employee had no other option but to file for bankruptcy. The offending agency was well aware of the bankruptcy. It was scheduled to be discharged

    5/4/17 – provider then timely filed a late notice of appeal (within 60 days from the date the motions were actually “denied”), with the court of appeals based on OAHs errors and omissions and intentional destruction of the true record.

    6/7/18-date of meeting with the creditors was held.

    6/9/18-offending agency issued fake overpayment, not authorized by the ALJ in his 2nd Final Order, for backdated termination of cash benefits from 7/1/16-2/28/17, by no fault of the provider. Fake bill was suspiciously just after the meeting with the creditors.

    6/19/18-provider timely requested a post-deprivation hearing to dispute the fake bill, but was verbally denied that right “because of the bankruptcy”.

    7/4/18-provider timely added fake bill to bankruptcy and even motioned to extend the discharge date to ensure that agency had ample time to appear and object. The agency did not object.

    8/19/18 (approx.)-bankruptcy was discharged…

    Can anything be done about any of this now??

    • Are you the provider or recipient?

      • There is no simple answer to that question due to the nature of our case.

        I am the actual provider, but I play the role of a private employee of the “provider of record” which means I am also the Personal Support Worker of the recipient.

      • In our state, there has been a secret program that started out as a 5-year demonstration project under a 1915(j) waiver. It’s a self-directed in-home care program with 2600 slots available. When we were forced to join in 2012 (due to pregnancy and marital discrimination) there were approximately 230 other families enrolled. From 2012 to 2016, that number dropped to less than 30 enrolled. But now, since the $72m fake overpayment purge, it is the main program being offered to new applicants and slots are rapidly filling up under the false guise that it is a “new” 1915(k) plan waiver. CMS has confirmed that the state is still receiving 1915(j) plan funding, but the referene has been scrubbed from statutes and rules and the state makes it appear to be a 1915(k) program.

        The requirements of the program are that the applicant/recipient must establish a sole proprietorship for HCSR purposes. The recipient’s new EIN becomes the provider for billing purposes. Instead of the recipient’s home care worker being paid directly by DHS, CMS issues DHS pays the recipients new “agency” as the “provider” and the entity then manages and issues it’s own payroll to the “provider’s” private employee. It’s a dangerous program that makes disabled care recipients easy marks for vicarious liability should anything go awry with the recipients employment arrangement with the actual care providers providing the care.

        And when the recipient/providers receive a “credible allegation of fraud” determination, they aren’t offered the provider appeal process like other providers and instead must go through the recipient appeal process. Then when they lose, which is inevitable, they are then issued an enormous overpayment in their own name as a sole proprietor. Any property they own will be lined by the state prior to their death. Unless these low-income victims can afford to shell out hundreds of dollars each month for the rest of their life to repay the fake overpayment. This also then triggers inquiry from SSA, and the disabled beneficiaries will likely lose their SSI and Medicare benefits as well…

        Plus the actual providers of services (the private employees) have no rights to assemble or unionize. And the reason the state is doing this is to avoid FLSA requirements thanks to the overtime pay and hours caps requirements imposed as of 1/1/2016. Allegedly, this program is exempt from FLSA laws so they are heavily pushing this program now for the most categorically needy that would otherwise be forced into nursing facilities, who need 24-hour care or at least 496 hours a month during waking hours. This way, instead if actually being held accountable for harming NF level if care victims and violating Olmsted, this new system allows for the state to make fake allegations of fraud, creating fake overpayments for the benefit of the State, steal victims property prior to death, deprive victims of their disability payments, and render them homeless or imprison them instead. So it’s a much more profitable and less-risky option for states with Medicaid expansion projects who are required to violate Olmsted laws and the ADA in favor of Obamacare. It’s also a great way for states to make the masses assume that 60% of disabled people are actually faking it and are fraudulent leeches on the system, when the real leeches are the hoards of people on obamacare… It rather the real leeches are the private CCOs that are profitting off of this fraudulent scheme.

        But yeah, Long story long, The provider IS the recipient. And the real provider is an innocent bystander and a disenfranchised and displaced employee with no Federal labor rights or protections…..

        And that’s why it’s so important for me to find immediate competent legal assistance in my Federal case. Because once my case is lost, it will be the final nail in the coffin that will legally permit this scam through Federal stare decisis…. But sadly, as a result of the harm we’ve endured, we can only pay $1000/month for legal assistance because we have no legal defense fund saved for a retainer… If only more people understood the importance of our case, we’d be able to prevent other victims from future harm. Sadly, I guess the public won’t realize this until it’s too late. Unless there is an attorney as intelligent as you that exists and is able to accept a payment plan… I think the odds of that are next to impossible. Lol.

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