ALJ Now Dismissing Hospice Appeals For Allegedly Insufficient Service On Beneficiary

In the last few years, we have seen a growing and alarming trend of administrative law judges ("ALJ") dismissing appeals solely based on purported lack of service to the hospice patient (the Medicare beneficiary). A search of recent decisions shows over 150 such cases at the Medicare Appeals Council starting in 2012 and continuing to the present. Administrative law judges appear to increasingly be using these grounds as a basis for dismissal.

These dismissals are akin to the sort of technical denials we have long seen at lower administrative review levels. They are likely a byproduct of the overcrowded ALJ dockets and lack of time to devote meaningful review to appeals.

At bottom, CMS needs to properly fund the ALJ system. And, in turn, ALJs need to continue to ensure, as our courts do in this country, that appellants receive meaningful, substantive review.

Regulations (42 C.F.R. § 405.1014(b)(2)) require that appellants send a copy of the "request for hearing" to other involved parties. Parties is defined to include the beneficiary. See 42 C.F.R. §§ 405.902, 405.906.

Of course this is a general rule that may make more sense in non-hospice context. In the hospice context, we have never seen a beneficiary take an interest in the appeal. Often, they are deceased. And, given the lengthy delays to ALJ hearings, in almost any case, they are no longer even on service. And, in any case, they face no liability regardless of what decision is made. It is, in short, extremely unlikely that the decision would have any conceivable effect on the beneficiary. ALJs apply this rule in the hospice context without considering these issues.

ALJ staff review the appeal letter to determine if the evidence of service of the beneficiary is sufficient, including service of all related papers. If evidence of service is not deemed sufficient, ALJs will issue a warning to the provider that service has not been completed on the beneficiary. If the provider thereafter does not satisfy the ALJ as to service, the appeal is simply dismissed in its entirety.

In dismissing appeals for insufficient service, the ALJs rely upon a set of MAC cases. See e.g. Penn Presbyterian Medical Center, 2013 WL 7815416 (MAC Mar. 21, 2013) (dismissal upheld where providerdoes not provide proof that it has provided a copy of the request for a hearing to all parties); and Virtua West Jersey Hospital Voorhees, 2013 WL 7965726 * 3 (MAC Mar. 29, 2013) (dismissal upheld wherethe appellant has not...