Appealing Denial of Medicare Coverage

HNWElder Care Law, Elder Law

Medicare Appeals


There are times when Medicare issues a decision unfavorable to the coverage of your case.  Whether it is classifying you in a hospital as a patient undergoing “observation status” versus being an “in-patient” or terminating rehabilitation services because you are not improving, their decision can be financially devastating.  But their decision is not final.  If handled properly, there are ways in which you can appeal their unfavorable decision.

The Medicare Appeal Process

The first two stages of the appeals process are informal and usually occur hand-in-hand with one another.   Most are also unsuccessful.  Medicare contracts with third-party companies called Medicare Administrative Contractors and Quality Improvement Contractors, or MACs and QIOs respectively (as they are called), which review appeals of unfavorable decisions by Medicare to determine if they were made accurately.  Most times, they will agree with Medicare’s decision.  This is because you do not get a chance to argue your cause and present contrary evidence although they do allow you to supplement the medical records they receive from the hospital with your additional records.  The first stage of appeal is called the “redetermination” stage, where a MAC reviews the records with an independent physician and determines if the action taken was appropriate.  Assuming Medicare’s position is upheld, you get 125 days from the date listed on the unfavorable notice (120 days plus 5 since Medicare presumes you received a notice 5 calendar days after the date it was written, although this presumption is rebuttable).  Should the action taken at this initial appeal phase be unfavorable to you, you can then request a “reconsideration” by a QIC within 185 days of the date of the notice of an unfavorable reconsideration decision.  Here again a different independent physician reviews the matter and determines if the unfavorable reconsideration decision was appropriate.

Medicare Appeal Process, Appealing Denial of Medicare Coverage

Given the limited record in front of these physicians and absence of any expert reports or testimony stating why your denial should not be reversed, it is fairly standard that your appeal is not favorably treated by the QIC or MAC.  But the appeal process does not end there.  The next step is to request a fair hearing within 65 days of the date of denial of reconsideration.  This time the appeal is before an Administrative Law Judge who works directly for the Department of Health and Human Services in the Office of Medicare Hearings and Appeals.  Here, you appear before the Judge via telephone conference (or video conference if it is determined to be appropriate) to argue why you should be entitled to a favorable Medicare decision.  At or prior to the hearing, you can ask the judge to admit into evidence your medical records, any expert reports you may have, and anything you may want to supplement the record with to refute the decision of the QIC or MAC.  The judge takes testimony on the date of the hearing and then issues a written opinion within 90 days of the hearing date based on everything (all evidence) in front of him whether favorable or unfavorable.  Note that the bill for services, minus any copayment, you have incurred must be above $400 for a hearing to occur.  This sounds trivial, but if supplemental insurance picks up the tab and leaves you with an amount due of less than $400, your appeal will likely be dismissed.

Should the Administrative Law Judge also deny your appeal and not rule in your favor, the appeal does not have to end there.  You have 65 days from the date of the ALJ decision to appeal to another MAC- the Medicare Appeals Council.  You can argue why the ALJ incorrectly decided the case and ask for a more favorable ruling.  The Council reviews the decision and issues its own decision on your case.  Note that any new or additional evidence obtained, such as a worsening of your condition or the production of a medical expert’s opinion that concludes that the observation status was inappropriate, is allowed to be submitted here.  The Medicare Appeal Council will issue its decision within 180 calendar days of the hearing.  If you are again denied, your final recourse is to file an action in Federal District Court within 65 days of the date of the Council’s decision.

As you can read, there are multiple layers to the appeal process, and it can get complicated.  It is why you need an experienced Medicare appeals attorney guiding you through this process.  The most important thing for you to remember is to calendar your deadlines, and note every date that you receive a notice from Medicare denying you payment or claim, as that 5 calendar day receipt period can be enlarged if you can show the notice was received after that period.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Frederick P. Niemann, Esq., a Freehold Township, Monmouth County New Jersey Elder Care Attorney



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