Prior to 2013, insurance carriers did not have the same appeal rights as beneficiaries and if Medicare made an incorrect determination as to a primary plan’s responsibility for conditional payments, the primary plan was stuck with the responsibility to pay and without further recourse. However, the SMART Act, promulgated by the MARC Coalition, and signed into law by President Obama in 2013, provided an independent appeal right to insurance carriers that did not exist previously.

The Multi-Level Appeals Process Available to Primary Plans

Once a Final Demand, also known as an Initial Determination, has been issued by one of the Medicare contractors, beneficiaries, providers and suppliers have the right to appeal the recovery amount as outlined in Section 1869 of the Social Security Act and codified in 42 CFR 405, Subpart I.

There are five levels of appeal: Redetermination, Reconsideration, ALJ hearing, Council Review, and Federal District Court Action.

If a party to the Initial Determination does not agree with the Demand amount, that party has 120 days from the date of the Initial Determination to appeal directly with the contractor that issued the Determination (this is called a Redetermination). There is no threshold amount in controversy for the Redetermination to be reviewed. Any evidence to support the request for Redetermination will be reviewed by the contractor.

If the Redetermination is not favorable, the parties have 180 days from the date of the Redetermination to request a Reconsideration. The Request for Reconsideration is reviewed by a Qualified Independent Contractor (QIC), regardless of the amount in controversy. Any evidence that was submitted to the contractor will be reviewed by the QIC in addition to any new evidence the Parties include in the Request for Reconsideration.

If the Reconsideration is not favorable, the parties have 60 days after the receipt of the Reconsideration to request a Hearing in front of an Administrative Law Judge (ALJ), if it meets the amount in controversy requirements outlined in 42 CFR 405.1006. The current amount in controversy required to request an ALJ hearing is $160. The ALJ will review the evidence that is contained in the record of the previous two appeals. The ALJ will consider additional evidence if there is good reason the evidence was previously left out of the previous appeals.

If the decision by the ALJ is unfavorable, the parties have 60 days from the date of the decision to request a Council Review. There is no current amount in controversy needed to request a Council Review. The Council limits its review to the evidence contained in the record of the proceedings before the ALJ, unless the ALJ’s decision included a new issue that the parties were not afforded an opportunity to address previously.

If the decision by the Council is unfavorable, the parties have 60 days from the date of the decision to file an action in Federal District Court, if the file meets the amount in controversy for the appeal. The current amount in controversy that must be met to file an action in Federal District Court is $1,600. This is the last Appeal a party has in the Medicare Appeals Process. The decision by the Federal District Court is final and binding on all parties.

Franco Signor Holds 100% Success Rate on Administrative Law Judge (ALJ) Appeals on Behalf of Primary Plans

Franco Signor has had great success undergoing this multi-level appeals process on behalf of our clients, primary plans. Sometimes, unfortunately the initial levels of appeal come to an incorrect outcome.

On a recent success story, Franco Signor underwent this appeals process with the insurance carrier/primary plan as the appellant. We initiated the appeal with the BCRC arguing that the charges on the Final Demand were not related to the Date of Injury, but unfortunately the BCRC issued an incorrect outcome holding our client liable for the conditional payments. We continued to appeal based on the same position with the QIC, and again, we received an unfavorable Reconsideration. Finally, we appealed the Reconsideration to an ALJ where we were able to verbally express our position to the Judge, whom reviewed the entire file along with the testimony in the hearing and issued a fully favorable determination.

Our perseverance through the appeal process paid off and we were able to save our client over $30,000 in conditional payments that was not their responsibility to pay.


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