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Medicare Appeal Procedure for Lymphedema

Most of the information on this page has been provided by Robert Weiss, lymphedema activist and advocate.

Appealing an unfavorable ruling or appealing a Medicare denial can be frustrating at the least.

However, you should appeal any denial. using the tips and considerations listed here should be a great assistance and make the appeal process a little less scary or intimidating.

Pat O'Connor

June 21, 2008

Appealing an Unfavorable Medicare Decision

Compression is the mainstay of lymphedema treatment and denial of the medical materials which enable the patient to treat their lymphedema is tantamount to denial 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.

The levels, listed in order, are:

  • Redetermination by the Fiscal Intermediary (FI), Medicare Contractor or DMEPOS Contractor
  • Reconsideration by a Medicare Qualified Independent Contractor (QIC)
  • Hearing by an Administrative Law Judge (ALJ)
  • Review by the Medicare Appeals Council (MAC) within the Departmental Appeals Board

Successful arguments to use in your appeal

I have had success with the following arguments:

1. Lymphedema is a diagnosable medical condition, not a symptom. (The medical record 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 compression materials for this patient. (The prescription must have the diagnosis of lymphedema 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 bandages and 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 by Medicare 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 are prescribed by your physician for the treatment of diagnosed lymphedema constitutes a breach of contract and law.

Appeal Timelines

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 submitted within 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 plan then 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 independent reviewer 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 for care 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 late filing of an appeal if you can show “good cause” of why you did not file an appeal 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 wrong address;
  • A Medicare representative gave you incorrect information about the claim you are appealing;
  • You or a close family member you were caring for was ill, and you could not handle business matters;
  • The person you are helping appeal a claim is illiterate, does not speak 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 your appeal with a clear explanation of why it is late.

(courtesy of Medicare Rights Center “Dear Marci” Column)

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 patient therapist 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. For Medicare 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 Administrative Law 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

Medicare Appeal Procedure

Start by asking your dealer to send in a Medicare reimbursement claim (even though you know that they will deny the request). They may ask you to sign an Advanced Beneficiary Notice of Non-payment (ABN). That's OK.

If your dealer will not file a claim then ask them to help you file a CMS-1490 Beneficiary Claim Form. I am attaching one to this message. Make sure that the bill for the graduated compression garment (Do NOT call it a “support garment” since support garments are not covered) has an L-code and not an A-code. Use L-8220 Gradient Compression Stocking, Lymphedema for a lower limb garment, S-8420-8428 for an upper limb garment. Make sure that Block 4 on the form includes a diagnostic code for lymphedema (e.g. 457.0 post-mastectomy lymphedema, 457.1 lymphedema, other than post-mastectomy or 757.0 congenital lymphedema lower limbs). Please read the instructions on page 2 of the form. Don't forget to send a copy of the invoice for the garment with the other information called for. Also make sure that the provider uses the code numbers above.

Start collecting documentation from your doctor and your therapist that will be used to conduct the appeal after your request for redetermination is denied.

Get letters from your physician and therapist that would include the following:

  • a physician-documented diagnosis of lymphedema with diagnosis code;
  • a statement as to the ability of the patient/caregiver to follow through with the continuation of treatment per the long term home treatment plan;
  • history and physical examination summary which address the cause of the lymphedema, describing any prior treatment. It must also address the symptoms which necessitate treatment and diagnosis of any co-conditions which would complicate lymphedema treatment (e.g. obesity, congestive heart condition, venous insufficiency, peripheral arterial disease, etc.);
  • measurement of body part/extremity prior to treatment;
  • a report showing the progress of the therapy which should contain measurements showing a reduction in size of the extremity. This should also address the response of the patient/patient caregiver to the education and their understanding and ability to take on some of the responsibilities of the treatment. This progress report must also address the expected outcome of the treatment as well as the expected duration of treatment;

Get a copy of the physician's referral to the therapist and a prescription for the compression supplies that are being denied.

After the redetermination requests are denied, I will help you with the next step, a request for reconsideration, which will be sent to a Medicare Quality Insurance Contractor. This request will also be denied, but then enables us to appeal to a Medicare Administrative Law Judge. This is the key level, and is the first point where you will get a fighting chance to win your case. It is unfortunate that we must go through all the other hoops first, just to get to this point.

I will ask you, at some point, to authorize me to be your representative in this matter. I'll send you the form to be filled out at that point. At no time will I ask you for any payment for my services, and I will sign a waiver of all fees or remuneration on the authorization. In the meantime you can send copies of the Medicare Summary Notice (MSN), prescription and your correspondence with Medicare and your provider or insurer to me at:

Robert Weiss 10671 Baton Rouge Avenue Northridge, CA 91326-2905.

Please remember that every great journey begins with a single step. The process is long and tedious, and there is no guarantee that you will ultimately win, but you must be one of the brave ones who fights for your rights and helps change the system.

Looking forward to helping you.

Robert Weiss, M.S. Lymphedema Treatment Advocate

Email: LymphActivist@aol.com Tel: 818-368-6340 Fax: 818-368-6432

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. Local administration is through a network of Medicare Contractors selected by CMS who either use the national publications or create local policies further interpreting the national policy or creating policy when a national policy does not exist. Every service covered by Medicare must be medically necessary and must fit into 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 denied if it is deemed not to be medically required or if it does not meet the coverability requirements for its benefit category.

Approach to an Appeal

The approach I have taken in appealing Medicare denials of lymphedema treatment are to show that the treatment service or item are medically necessary, that is it is part of a medically recommended treatment guideline and is prescribed by the patient's physician, and that it falls into a benefit category covered 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 by medical necessity.

Furthermore, I show that compression bandages, garments and devices fall into the “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 the lymphatic system and the compression items replace all or part of its function.

There are no Medicare coverage determinations or policies dealing with compression bandages, garments or devices used in the function of treatinglymphedema, so Medicare Contractors (and health care 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 are denied. Compression bandages are denied for home use because the benefit criteria they are placed into is “surgical dressings”, which are non-durable supplies used 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 the assemblage of these diverse materials every night on the lymphedema patient's arm or leg is a prosthetic device which is assembled to the exact medical requirements 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 its wheels 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 moved the coding of compression stockings from the prosthetic devices category with HCPCS codes Lxxxx to the surgical dressing category with HCPCS codes Axxxx. The criteria for coverage of a compression stocking as a secondary surgical dressing 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 meet the prosthetic device requirements of the SSA, and are therefore not subject to the surgical dressing coverage criteria. So far four Medicare Administrative Law Judges have agreed and have ruled that the Medicare patients must be reimbursed for their garments (upper limbs and lower limbs).

Robert Weiss, M.S.

Lymphedema Treatment Advocate

External Links

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