Washington Although Congress two years ago gave individuals the right to appeal Medicare's national coverage decisions, the U.S. Department of Health and Human Services is not enforcing that right, according to a complaint filed Aug. 6 in federal court.

The Benefits and Improvement Protection Act of 2000 gave HHS one year to implement an appeals process for individual Medicare beneficiaries who want to challenge national coverage decisions, but the department failed to meet its deadline, the complaint alleged. Consequently, when plaintiffs Lois Jalbert, Robert Kennell and Barbara McAuliffe challenged Medicare's decision not to cover a breakthough treatment for age-related macular degeneration, their appeals fell through the cracks, according to the American Association of People with Disabilities, a co-plaintiff in the case.

“Instead of implementing the required appeals process, [the Baltimore-based Centers for Medicare and Medicaid Services] issued an order to the Departmental Appeals Board to forward any appeals to a CMS employee who was told to docket them and ‘do nothing further,’” AAPD contended.

When CMS decided in January 2002 to reverse an October 2001 decision to cover Visudyne, a drug designed to treat AMD, the federal government crossed a sacred line, according to Charles Crawford, executive director of the American Council of the Blind, another plaintiff in the case. “We're dealing with a very basic bodily function here: sight,” he said. “For Medicare and Medicaid beneficiaries to be denied the opportunity for an appeal is intolerable. This treatment is critical, but what the recent reversal is telling us is that if you can pay for the treatment, fine; but if you cannot afford to pay for the treatment, then go blind.”

Responding to these allegations, a CMS spokesman expressed disappointment that the plaintiffs did not try to settle their grievances outside the courtroom.

“While we have not yet fully reviewed the lawsuit, we much prefer working with the interested individuals and organizations so we can together create benefits and processes that would best serve the interests of our beneficiaries and the Medicare program,” the spokesman told HomeCare.

Choosing a judicial route instead, the plaintiffs are suing HHS and CMS, seeking a writ of mandamus that would require Medicare to implement the appeals process outlined in BIPA.

More information about the case is available at www.aapd.com.

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