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 CMS Updates Expedited Appeal Regulations

A methodical review of all the steps necessary to end the Medicare episode of care will take everyone through the  process smoothly.

 

 
It can be nerve-wracking for nursing home staff and management when a resident contacts the Quality Improvement Organization (QIO) using the expedited appeal process to appeal the nursing home’s decision to end Medicare coverage. Even more frustrating is a mandate of provider liability (non-payment days) because facility staff did not give proper notice to the beneficiary.
 
It happens more often than providers care to admit. Facility staff fail to provide proper notice that Medicare coverage is ending. They might do this by giving less-than-required notice time; notifying the wrong representative; using the wrong forms; delivering incomplete forms; or, worst of all, not giving the notice at all.
 
The expedited appeal process is also known as the Expedited Review or Expedited Determination and the Notice of Medicare Noncoverage (NOMNC). This process was established to allow skilled nursing facility (SNF) Medicare beneficiaries the right to appeal to a QIO regarding a pending discharge from Medicare-covered services. This is a separate and distinct process from the denial letters, or SNFABN (Centers for Medicare & Medicaid Services [CMS] form 10055), which allows the beneficiary to appeal the decision to the Medicare Administrative Contractor (MAC).
 
Although nursing home providers have been grappling with the requirements for a long time, it seems there is still a lot of confusion surrounding the regulations. The “Medicare Claims Processing Manual,” Chapter 30, has been updated (effective date Aug. 26, 2013) with specific instructions for providers on how to manage the expedited appeal process; these are detailed in transmittal 2711. Understanding the instructions is the first step to compliance.

Take The Proper Steps

■ Notify for the right reason. The NOMNC is required when a provider determines that Medicare will no longer pay for skilled services either under traditional Medicare Part A—skilled service provided by managed care—or under Part B when therapy services are ending. It is required regardless of whether the resident is being discharged or is staying in the facility for custodial care. Notice is not required when skilled service is being reduced but is not ending, when the resident exhausts benefits or self-elects to discontinue services, or when the resident transfers to the hospital or another SNF.   
 
■ Use the correct form. The NOMNC is also called the “generic notice.” SNFs should be using CMS 10123-NOMNC with an approval date of 12/31/2011. The same form is issued for traditional Medicare A and for those residents accessing their skilled service through a managed care provider.
 
■ Notify the correct person. The generic notice should be issued to the resident as the preferred option, or, alternatively, to the resident’s appointed or authorized representatives, designated by the resident to act on his or her behalf. If the resident has been deemed legally incompetent, the provider should follow state law for recognizing legal guardianships or properly executed durable medical power of attorney. There are times when the resident experiences “temporary” incapacitation and is not able to understand the facility staff’s explanation of the ending of Medicare benefits. Even if Mrs. Jones can sign that she received notice, if she doesn’t understand what she’s signing, it is an invalid notification. In such circumstances, the regulations state:
 
“A person (typically, a family member or close friend) whom the provider has determined could reasonabl[y] represent the beneficiary, but who has not been named in any legally binding document, may be a representative for the purpose of receiving the notices described in this section. Such a representative should have the beneficiary’s best interests at heart and must act in a manner that is protective of the beneficiary and the beneficiary’s rights. Therefore, a representative should have no relevant conflict of interest with the beneficiary” (CMS, 2013, p. 11).
 
Because the burden of proof for timely notification is on the provider, every effort must be made to provide timely notice to the correct person.
■ Issue the notice in a timely manner. The NOMNC (generic notice) must be issued in person to the beneficiary at least two days prior to the end of covered services. If the notice is being issued to an authorized representative, the facility staff can issue the notice by phone and follow up with a certified, return-receipt-required letter or other verifiable delivery method such as FedEx or UPS. Faxed or emailed notification is allowed when the provider and representatives agree to that communication method, provided it meets the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy and security requirements.
 
Additionally, the “notice delivery should occur within the normal operating hours of the provider;” CMS does not expect providers to “extend their hours or days of business solely to meet the requirements of the expedited determination process” (CMS, 2013, p. 12).
 
Be warned, however, that timely notice is more important than respecting business hours. Even after business hours, facility staff who understand the notice process and can create, issue, and explain the NOMNC to residents or representatives should be available to ensure compliance with notice
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How To Fill Out The Form

■ Provide the correct information. When preparing the NOMNC, facility staff need to follow some specific requirements. The resident’s name, Medicare number, type of coverage (that is, Medicare A in the SNF), last day of coverage, and the QIO’s contact information should be either typed or clearly written on the government-approved form. The NOMNC must be two pages long and either double-sided or on two single pages.
 
There is space on the government form for the provider’s logo and contact information, but the space is limited, and these cannot be placed in a manner that forces the standard information to shift to page two. There is an optional “additional information” section that can be individualized to the resident’s situation in order to explain the reason for ending Medicare services.
 
■ Select the correct effective date. The notice-effective date probably creates the greatest confusion. For a Medicare A beneficiary in a SNF, the last day of coverage or effective date is the day before the discharge date. For example, Mr. Smith is in the facility for rehabilitative therapy following a hip replacement. Therapies will be ending on Friday, Sept. 13, and he is going home on Saturday, Sept. 14. In order to be in compliance, facility staff must issue the notice no later than Wednesday, Sept. 11, with an effective date on the NOMNC of Sept. 13. “Because a SNF cannot bill the beneficiary for services furnished on the day of (but before the actual moment of) discharge, beneficiaries may leave a SNF the day after the effective date and not face liability for such services” (CMS, 2013, p. 9).

Resident’s Responsibility, QIO’s Role

Some providers have erroneously thought that the beneficiary has two days after the notice is given to call the QIO to request a review. In reality, once proper notice is provided, the resident has until noon of the day before the last covered day (the effective date on the notice) to call or write to the QIO and request the expedited review. This is helpful to the beneficiary in cases where the notice is given earlier than two days before the effective date. The QIO will conduct a review and make a determination within 72 hours.
 
The QIO will notify the facility staff that a review of their coverage decision is underway. A facility’s first priority is to complete the “detailed notice” (form CMS-10124-DENC). Staff have until the end of the business day to complete and send the detailed notice, along with proof that the generic notice was provided and pertinent medical record information.

References And Resources

■ Centers for Medicare & Medicaid Services. (2013, May 24.) Pub 100-04 Medicare Claims Processing, transmittal 2711.
■ Centers for Medicare & Medicaid Services. (2012.) Medicare Claims Processing Manual, Chap. 30. 
■ Centers for Medicare & Medicaid Services. (2011, December 31.) Expedited determination notices. 
 
Judi Kulus, NHA, RN, MAT, C-NE, RAC-MT, is vice president of curriculum development for the American Association of Nurse Assessment Coordination. She can be reached at jkulus@aanac.org or (800) 768-1880.
 
 
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