March 17, 2003 – Bush Pushes Plan to Curb Medicare Appeals

As the United States begins an open-ended conquest and occupation of the
Mid-East to control its oil, it is timely to recall yesterday's NY Times and
SF Chronicle article showing how the war will be financed largely by
depriving the old and disabled of medical care.

Much of the public realizes this war will have terrible effects at home,
draining money needed for health, housing, education, and safe working and
living environments, as well as dragging the economy into a recession like
the first Gulf War, and causing either direct battle casualties or
subsequent illnesses like the tens of thousands of vets disabled by Gulf War
Syndrome. Many others recognize that this war exposes the US to
considerable risk from terrorist retaliation and isolation from former
allies world-wide.

I think we need to be clear on the significance of the price we pay for the
war. It's certainly not the only reason to oppose the war. We would fight
killing hundreds of thousands of Iraqis for control of oil even if it left
the United States entirely unscathed. What the domestic effect of the war
shows is the commonality of interest we have with the Iraqi population. We
who work, or have worked, or will work, or would work if we could, have more
interest in common with our Iraqi counterparts than with "our" own rulers.
We are each having a decent life stolen from us and are part of the same
struggle to gain it.

New York Times, March 16, 2003

Bush Pushes Plan to Curb Medicare Appeals

By ROBERT PEAR

WASHINGTON, March 15 - The Bush administration says it is planning major
changes in the Medicare program that would make it more difficult for
beneficiaries to appeal the denial of benefits like home health care and
skilled nursing home care.

In thousands of recent cases, federal judges have ruled that frail elderly
people with severe illnesses were improperly denied coverage for such
services.

In the last year, Medicare beneficiaries and the providers who treated them
won more than half the cases - 39,796 of the 77,388 Medicare cases decided
by administrative law judges. In the last five years, claimants prevailed in
186,300 cases, for a success rate of 53 percent.

Under federal law, the judges are independent, impartial adjudicators who
hold hearings and make decisions based on the facts. They must follow the
Medicare law and rules, but are insulated from political pressures and
sudden shifts in policy made by presidential appointees.

President Bush is proposing both legislation and rules that would limit the
judges' independence and could replace them in many cases.

The administration's draft legislation says, "The secretary of health and
human services may use alternate mechanisms in lieu of administrative law
judge review" to resolve disputes over Medicare coverage.

Under the legislative proposal, cases could be decided by arbitration or
mediation or by lawyers or hearing officers at the Department of Health and
Human Services. The department recently began testing the use of arbitration
in Connecticut under a law that permits demonstration projects.

Tommy G. Thompson, the secretary of health and human services, said the
proposed legislative changes would give his agency "flexibility to reform
the appeals system" so the government could decide cases in a more
"efficient and effective manner."

The department said there was an "urgent need for improvements to the
Medicare claim appeal system," in part because the number of appeals was
rising rapidly.

Consumer groups, administrative law judges and lawyers denounced the
proposals. Judith A. Stein, director of the Center for Medicare Advocacy in
Willimantic, Conn., said, "The president's proposals would compromise the
independence of administrative law judges, who have protected beneficiaries
in case after case, year after year."

Beneficiaries have a personal stake in the issue. When claims are denied, a
beneficiary often must pay tens of thousands of dollars for services already
received.

In a typical case, an administrative law judge ordered Medicare to pay for
230 home care visits to a 67-year-old woman with breast cancer, heart
disease and arthritis. Medicare officials had said the woman should pay the
cost. But the judge ruled that because the woman was homebound, the services
were "reasonable and necessary."

When federal agencies issue rules or decide cases, they generally must
follow the Administrative Procedure Act, a 1946 law intended to guarantee
the fairness of government proceedings.

Ronald G. Bernoski, president of the Association of Administrative Law
Judges, said: "We see President Bush's proposals as a serious assault on the
Administrative Procedure Act, a stealth attack on the rights of citizens to
fair, impartial hearings. These hearings guarantee due process of law, as
required by the Constitution."

The American Bar Association and the Federal Bar Association, which
represents lawyers who practice in federal courts and before federal
agencies, have expressed similar concerns.

Health care providers, which are involved in many of the appeals, share
those concerns.

Robert L. Roth, a Washington lawyer who has represented hospitals and
suppliers of medical equipment, said: "The interests of providers and
beneficiaries are aligned. Access to an independent decision maker, an
administrative law judge, is quite valuable because it's often your first
opportunity to get a fair review of government action."

Medicare officials could adopt the proposed rules, regardless of whether
Congress accepts Mr. Bush's recommendation for changes in the law.

The proposed rules would require administrative law judges to "give
deference" to policies adopted by Medicare and its contractors, which review
and pay claims for the government. Beneficiaries would have to show why such
policies should be disregarded.

That would be a significant change. Administrative law judges are now
required to follow Medicare statutes and regulations, but not the agency's
policies. As a result, the judges often grant benefits previously denied by
the Medicare agency or its contractors.

In the Connecticut experiment, arbitration will be used to resolve some
claims disputes, and beneficiaries may opt out. If this approach produces
prompt, fair decisions with less paperwork, it could be a model for Congress
in changing the appeals process.

But Matthew L. Spitzer, dean of the University of Southern California Law
School, said that consumers "should think long and hard before they agree to
binding arbitration." It is, he said, extremely difficult to overturn an
arbitrator's decision.

Ms. Stein, who has represented Medicare patients in hundreds of cases,
agreed. "The president proposes replacing administrative law judges with
some form of dispute resolution," Ms. Stein said. "This puts beneficiaries
at a disadvantage, with unequal bargaining power and inadequate expertise to
do battle with the Medicare agency."

The judges are full-time government employees who typically receive salaries
of $95,000 to $140,000 a year.

To ensure that federal agency hearings would be fair, Congress in 1946
protected the decision makers, providing that they could be dismissed or
demoted "only for good cause." The judges who hear Medicare cases have extra
protection because they are employed by the Social Security Administration,
an independent agency.

Congress revamped the appeals process in 2000, to enhance the rights of
beneficiaries and to expedite decisions. The changes were supposed to take
effect in October 2002. But Medicare officials said that without more money,
they could not meet the new deadlines, so they have postponed many of the
changes.

Medicare officials said they wanted to end the arrangement under which
Social Security judges decide Medicare cases. They have announced plans to
transfer responsibility for hearing appeals to the Medicare agency from
Social Security, and they hope to do so by Oct. 1.

A bipartisan bill introduced by Representative Nancy L. Johnson, Republican
of Connecticut, would make the transfer in 2005. The bill requires the
secretary of health and human services to preserve the judges' role as
independent decision makers.

The potential for conflict seems to be inherent in the relationship between
agency officials and administrative law judges, with tensions flaring
periodically. In 1983, the Association of Administrative Law Judges filed a
lawsuit, saying that Social Security officials appointed by President Ronald
Reagan had put improper pressure on them to deny benefits to people with
disabilities.

A Federal District Court found that Social Security had engaged in practices
"of dubious legality," which tended to encroach on the judges' independence.
The agency halted the practices after the lawsuit was filed.