If you are appealing a reconsideration issued by a Qualified Independent Contractor (QIC) and you have not received a decision within 90 days you may have the right to have your appeal escalated to the next level before the Medicare Appeals Council.
An appellant who has properly filed a request for hearing before an Administrative Law Judge (ALJ) and whose appeal remains pending after 90 days may with certain restrictions, file a request with the Office of Medicare Hearings and Appeals (OMHA), to escalate the appeal to the Medicare Appeals Council. 42 C.F.R. 405.1016. If the request meets the requirements for escalation and the ALJ, or attorney administrator, does not issue a decision, dismissal order, or remand order, within five calendar days, or within 5 days from the end of the 90-day ALJ decision if the request is filed prematurely, the OMHA, will send a notice that the QIC reconsideration decision will be the decision that will be reviewed by the Council. The Council than has 180 calendar days to issue a decision, or dismissal or remand order. 42 C.F.R. 405.1106
The Council may take any of the following action subsequent to an escalation: Issue a decision based on the record before the QIC, and any additional information entered on the record before the ALJ; conduct any additional proceedings that the Council determines are necessary to issue a decision; remand the case back to the OMHA for further proceedings; dismiss the request for review because the appellant does not have the right to escalate the appeal; or dismiss the request for a hearing if the ALJ or attorney adjudicator could have dismissed the request. 42 C.F.R. 405.1108
There is also a regulation which permits a party to request an expedited judicial review. Any party may request expedited access to judicial review (EAJR) if the QIC made a reconsideration determination and the party filed a request for an ALJ hearing, or for Council review, and a decision or order has not been issued. The EAJR request must meet the amount in controversy requirements of 42 C.F.R 405.1006(b) or (c) [$100, or $1000, see C.F.R. for calculation method], each party must concur in writing, there can be no dispute to material fact, and the person requesting the EAJR must allege that a statutory provision, regulation, or national coverage determination is unconstitutional or invalid.
If a request for hearing is not pending before an ALJ or Council, file a request for an EAJR along with a request for an ALJ or Council review, if an appeal is already pending file a request before the HHS Departmental Appeals Board. 42 C.F.R. 405.990. Within 60 calendar days of being received by the review entity, the entity will either issue a EAJR certification or deny the request. If the review entity does not issue a decision in 60 calendar days an action may be brought in Federal District Court within 60 calendar days.
These regulations became effective March 20, 2017.
For more information about escalating an appeal as a provider, or requesting an EAJR, visit Rosenblat Law or contact Mike Rosenblat at 847-480-2390.
The information and articles on this web site are for general information only and are not intended and should not be taken as legal advice.