Secrets of Successful Appeals

The times they are a-changin.' Those Bob Dylan lyrics could herald the changeover affecting reimbursement appeals. As of July 1 this year, the Administrative Law Judges who work for the Social Security Administration no longer hear appeals of reimbursement denials for government programs. Instead, the ALJs are employed directly by HHS.

What will this restructuring mean for medical equipment suppliers? Many advisers fear that, now the ALJs are employed by HHS, they may not bring the same objectivity to their positions as they did when they were part of SSA. Indeed, one ALJ told me that, as of early August, not a single one of the hundreds of ALJs who specialized in health care appeals had been asked to join HHS' team.

So, as we transition into a brave new world of reimbursement appeals, let's identify some of the rules, tips and tricks for appealing claims denials and overpayment demands. These are secrets I have learned over almost 25 years of appeals. No wishful thinking. No platitudes. Just clear, practical insight about what works — and what doesn't.

For this discussion, let's focus on power mobility since the payment rules for this equipment generate so much controversy. In power mobility appeals, I have tried many different arguments, some standard and some creative. Which work? When? What lessons can we learn for successful appeals generally?

Here are six rules, tips and tricks (RTTs) for successful appeals:

RTT#1

It's all about medical necessity

When appealing denials or overpayment demands, it's worthwhile to identify legal arguments that may help sway the ALJ. For power mobility, I have sometimes argued that CMS applied the wrong transitional standard (when, for example, the rules changed between the dates of service and the time of investigation); or, that the Maximum Comfort case from California (Maximum Comfort, Inc. v. Thompson) suggests that only the certificate of medical necessity matters. (By the way, this case is under appeal, and CMS' upcoming changes to mobility assist equipment reimbursement may affect the question anyway.)

But the ALJ's primary mission is to determine whether a specific item of durable medical equipment was medically necessary for a specific patient at a specific moment. That's it. So any legal arguments about poor notice, wrong interpretation of law, statutory intent or whatever must fit squarely within an analysis of medical necessity for each specific denied claim.