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42 C.F.R. §§ 405.931–405.938

5 sections in range

§405.931. Scope, basis, and definitions.

42 C.F.R. § 405.931

(a)
Scope and basis. The provisions in §§ 405.931 through 405.938—
(1)
Implement a federal district court order requiring appeal rights for hospital stays on or after January 1, 2009, for a specified class of beneficiaries under certain conditions (defined in § 405.931(b)) who were admitted to a hospital as inpatients, but were subsequently reclassified by the hospital as outpatients receiving observation services; and
(2)
Apply to retrospective appeals, that is, appeals for hospital outpatient services, and as applicable, post-hospital extended care services in a skilled nursing facility (SNF services), furnished to eligible parties as defined in paragraph (b) of this section before the implementation of the prospective appeal process set forth in §§ 405.1210 through 405.1212.
(b)
Definitions. For the purposes of the appeals conducted under §§ 405.931 through 405.938, the following definitions apply:

Eligible party means a beneficiary who, on or after January 1, 2009, meets the following criteria, and is, thus, eligible to request an appeal under §§ 405.931 through 405.938:

(i)
Was formally admitted as a hospital inpatient.
(ii)
While in the hospital was subsequently reclassified as an outpatient receiving observation services (as defined in § 405.931(h)).
(iii)
Has received an initial determination (as defined in § 405.920) or a Medicare Outpatient Observation Notice (MOON) (as described in § 489.20(y)) indicating that the observation services are not covered under Medicare Part A.
(iv)
(A)
Was not enrolled in the Supplementary Medical Insurance program (that is, Medicare Part B coverage) at the time of beneficiary's hospitalization; or
(B)
Stayed at the hospital for 3 or more consecutive days but was designated as an inpatient for fewer than 3 days, unless more than 30 calendar days has passed after the hospital stay without the beneficiary's having been admitted to a SNF.
(v)
Medicare beneficiaries who meet the requirements of the paragraph (iv)(A) or (B) of this definition but who pursued an administrative appeal and received a final decision of the Secretary before September 4, 2011, are excluded from the definition of an eligible party.

Eligibility contractor means the contractor who meets all of the following:

(i)
Is identified on the Medicare.gov website for accepting appeal requests.
(ii)
Receives appeal requests and makes determinations regarding eligibility for the appeal under §§ 405.931 through 405.938.
(iii)
Issues notices of eligibility.
(iv)
Refers valid appeal requests to the processing contractor for a decision on the merits of the appeal. Processing contractor means the contractor responsible for conducting the first-level appeal and issuing a decision on the merits of the appeal. Appeals under § 405.932 are conducted by the MAC who, at the time of the referral of the request for appeal under § 405.932(d)(2), has jurisdiction over claims submitted by the hospital where the eligible party received the services at issue.
(c)
Party to an appeal. For the purposes of the appeals conducted under §§ 405.931 through 405.938, an eligible party is the only party to the appeal. The provisions of § 405.906 do not apply to appeals processed under these provisions, and the provider that furnished services to an eligible party may not file a request for an appeal and is not considered a party to any appeal decision or determination.
(d)
Authorized representatives, appointed representatives, or representatives of a deceased eligible party. For the purposes of appeals conducted under §§ 405.931 through 405.938:
(1)
The provisions of § 405.910 apply to an eligible party appointing a representative to assist in such appeal, as appropriate, except as follows:
(i)
A provider of services who furnished items or services to a beneficiary whose claims are the subject of an appeal under the provisions of §§ 405.931 through 405.938 is prohibited from representing the beneficiary or eligible party in such appeal.
(ii)
[Reserved]
(2)
An authorized representative (as defined in § 405.902) may act on behalf of an eligible party and has all of the same rights and responsibilities of an eligible party throughout the appeals process.
(3)
The provisions of § 405.906(a)(1) apply to a deceased eligible party in the same manner in which such provisions apply to a deceased beneficiary.
(4)
The provisions of § 405.906(c) do not apply.
(5)
A beneficiary who is an eligible party is considered unrepresented if the beneficiary meets any of the following:
(i)
Has not appointed a representative under § 405.910.
(ii)
Has an authorized representative as defined in § 405.902.
(iii)
Has appointed as its representative a member of the beneficiary's family, a legal guardian, or an individual who routinely acts on behalf of the beneficiary, such as a family member or friend who has a power of attorney.
(iv)
Is deceased but met the conditions for an eligible party in paragraph (b)(1) of this section and the appeal is filed by an individual who meets the conditions set forth in § 405.906(a)(1).
(e)
Prohibition on assignment of appeal rights. For the purposes of the appeals conducted under §§ 405.931 through 405.938, an eligible party may not assign appeal rights to a provider under the provisions of § 405.912.
(f)
Date of receipt of a notice or decision. For the purposes of the appeals conducted under §§ 405.931 through 405.938, the date of receipt of a notice or decision sent by the eligibility contractor, processing contractor or other appeals adjudicator is presumed to be 5 calendar days following the date on the notice unless there is evidence to the contrary.
(g)
Three or more consecutive days. For the purposes of the appeals conducted under §§ 405.931 through 405.938, when determining if a beneficiary is an eligible party and for the purposes of determining coverage of SNF services under section 1861 of the Act, inpatient hospital days are counted in accordance with § 409.30, that is, a patient must have a qualifying inpatient stay of at least 3 consecutive calendar days starting with the admission day but not counting the discharge day.
(h)
Outpatient receiving observation services. For the purposes of appeals conducted under §§ 405.931 through 405.938 when determining if a beneficiary is an eligible party, a beneficiary is considered an outpatient receiving observation services when the hospital changes beneficiary's status from inpatient to outpatient while the beneficiary is in the hospital and the beneficiary subsequently receives observation services following a valid order for such services.
(i)
Conclusive effect of a Part A coverage determination. For the purposes of appeals under §§ 405.931 through 405.938, the determination with respect to coverage under Part A is conclusive and binding with respect to the services furnished and must be applied to any existing appeals with respect to coverage and payment for hospital services under Part B and SNF services (as applicable).
Notes, amendments, and revision history

Source

Source: 89 FR 83283, Oct. 15, 2024, unless otherwise noted.

Source

Source: 70 FR 11472, Mar. 8, 2005, unless otherwise noted.

Authority

Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).

§405.932. Right to appeal a denial of Part A coverage resulting from a change in patient status.

42 C.F.R. § 405.932

(a)
Filing an appeal request related to a change in patient status which resulted in the denial of Part A coverage.
(1)
Only an eligible party, the party's appointed representative, or an authorized representative of an eligible party may request an appeal at any level of the appeals process under §§ 405.931 through 405.938.
(2)
To initiate an appeal under §§ 405.931 through 405.938, an eligible party, the party's appointed representative, or an authorized representative of an eligible party must meet the following requirements:
(i)
Submit a request for an appeal in writing to the eligibility contractor.
(ii)
The request must be received by the eligibility contractor no later than 365 calendar days after the implementation date of the final rule. The eligibility contractor denies the written request if it is not received by the applicable filing timeframe under paragraph (d)(3) of this section, unless the eligible party established good cause for late submission as specified in § 405.942(b)(2) and (3).
(3)
If an eligible party (or the party's representative) misfiles a request for appeal with a contractor or government entity other than the eligibility contractor, then for the purpose of determining timeliness of the request for appeal, the date the misfiled request was received by the contractor or government agency is considered the date of receipt. The misfiled request and all documentation must be forwarded to the eligibility contractor within 30 calendar days of receipt, or as soon as practicable.
(b)
Content of the appeal request.
(1)
The written request filed by an eligible party, the party's appointed representative, or an authorized representative of an eligible party may be made on a model CMS form. If the model form is not used, to be valid, the written request must include all of the following identifying information:
(i)
Beneficiary name.
(ii)
Beneficiary Medicare number (the number on the beneficiary's Medicare card).
(iii)
Name of the hospital and dates of hospitalization.
(iv)
Name of the SNF and the dates of stay (as applicable).
(2)
If the appeal includes SNF services not covered by Medicare, the written request must also include an attestation to the out-of-pocket payment(s) made by the beneficiary for such SNF services and must include documentation of payments made to the SNF for such services.
(i)
Payments for an eligible party's SNF services made by a third-party payer do not constitute out-of-pocket expenses or payment for an eligible party. If a third-party payer made payment for the eligible party's SNF services, then the services are excluded from consideration in the appeal.
(ii)
Payments made for cost sharing (including, but not limited to, coinsurance and deductible) for SNF services covered by a third-party payer are not considered an out-of-pocket payment for the purposes of this provision.
(iii)
Payments made by a family member (including payments made by an individual not biologically related to the beneficiary) for an eligible party's SNF services are considered an out-of-pocket payment for the eligible party.
(3)
In the written request for an appeal, an eligible party (or their representative) may include an explanation of why the hospital admission satisfied the relevant criteria for Part A coverage and should have been covered under the Part A hospital insurance benefit instead of under the Part B supplementary medical insurance benefit.
(c)
Evidence and other information to be submitted with the appeal request.
(1)
Eligible parties (or their representatives) are encouraged to submit all available information and documentation, including medical records related to the hospital stay and SNF services, as applicable, at issue in the appeal with the written request for an appeal.
(2)
If the eligibility contractor determines there is information missing from the request that is needed to establish the beneficiary's eligibility as a party under § 405.931(b) or satisfy other conditions for eligibility for an appeal, the eligibility contractor works with the appropriate MAC and attempts to obtain the information from the provider or the eligible party (or the party's representative) or both, as applicable. The eligibility contractor allows up to 120 calendar days for submission of missing information.
(3)
If the necessary information cannot be obtained from either the provider or the eligible party (or the party's representative), the eligibility contractor makes an eligibility determination based on the information available.
(d)
Determining eligibility for an appeal.
(1)
(i)
The eligibility contractor reviews the information submitted with the appeal request and any additional information it obtains to determine if the individual submitting the appeal request is an eligible party and that the services previously furnished are eligible for an appeal under § 405.931.
(ii)
The eligibility contractor mails or otherwise transmits the notice of its determination to the eligible party (or the party's representative) within 60 calendar days of receipt of the appeal request.
(iii)
The time between the eligibility contractor's request for missing information and receipt of such information (or in the case of information that is requested but is not received, the time allowed by the contractor to submit the information) does not count toward the timeframe for issuing a notice to the eligible party (or the party's representative).
(2)
If the eligibility contractor determines that the individual is an eligible party and the services previously furnished are eligible for an appeal, the eligibility contractor—
(i)
Issues a notice of acceptance to the eligible party (or the party's representative), explaining that the appeal has been accepted for processing; and
(ii)
Refers the appeal to the processing contractor for adjudication under paragraph (f) of this section.
(3)
(i)
If the eligibility contractor determines that the request for appeal is untimely or incomplete, the individual does not satisfy the requirements for an eligible party, or the services previously furnished are not eligible for an appeal, the eligibility contractor issues a denial notice to the individual (or the party's representative) in writing.
(ii)
The denial notice explains that the request is not eligible for an appeal, the reason(s) for the denial of the appeal request, the information needed to cure the denial, and the process for requesting a review of the eligibility denial under paragraph (e) of this section.
(4)
Notices regarding eligibility for an appeal issued by the eligibility contractor are written in a manner to be understood by the eligible party or the party's representative.
(e)
Review of an eligibility contractor's denial of a request for an appeal.
(1)
(i)
An individual (or their representative) may request a review of the eligibility contractor's denial of a request for an appeal by filing a request in writing with the eligibility contractor.
(ii)
The request for review should explain the reason(s) the denial of the request for an appeal was incorrect, and should include additional information, as applicable, to support the validity of the original appeal request.
(2)
The request for review, with any additional information, must be received by the eligibility contractor no later than 60 calendar days from the date of receipt of the denial notice. If the request for review is received after this deadline, the individual (or the individual's representative) must establish good cause for untimely filing. In determining whether good cause for untimely filing exists, the eligibility contractor applies the provisions in § 405.942(b)(2) and (3).
(3)
The review by the eligibility contractor must be conducted by individuals not involved in the initial denial of the request for an appeal.
(4)
The eligibility contractor may issue a decision that affirms or reverses the denial of the request for an appeal or may dismiss the request for review. The notice of the eligibility contractor's decision must meet both of the following requirements:
(i)
Be written in a manner to be understood by the individual or the individual's representative.
(ii)
Be mailed or otherwise transmitted in writing within 60 calendar days of the date of receipt of the request for review.
(5)
If the decision is to affirm the denial, or dismiss the request, the eligibility contractor must explain the rationale for the decision.
(6)
A denial notice under paragraph (d)(3) of this section issued due to receipt of an untimely appeal request must be reversed if the eligible party (or the party's representative) establishes good cause for late filing under § 405.942(b)(2) and (3).
(7)
If the eligibility contractor reverses the initial denial of the request for appeal, the eligibility contractor forwards the request for appeal to the processing contractor under paragraph (f) of this section.
(8)
The eligibility contractor's decision that affirms the initial denial of a request for an appeal is binding and not subject to further review.
(9)
If the eligibility contractor determines that the request for review of the eligibility denial under paragraph (e)(2) of this section was not submitted timely, and the eligibility contractor did not find good cause for the untimely submission, then the eligibility contractor dismisses the request for review, and such dismissal is binding and not subject to further review.
(f)
Processing eligible requests for appeal.
(1)
If the processing contractor determines there is necessary information missing from the appeal case file, the processing contractor attempts to obtain the information from the provider or the eligible party (or the party's representative), as applicable.
(i)
The processing contractor allows the provider or eligible party (or the party's representative), or both, up to 60 calendar days to submit missing information.
(ii)
If the provider or eligible party (or the party's representative) does not submit the missing information within the allotted time, the processing contractor makes a decision on the request for appeal based on the information available.
(iii)
The time between the processing contractor's request for information and receipt of such information (or in the case of information that is requested but is not received, the time allowed by the contractor to submit the information) does not count toward the timeframe for issuing the processing contractor's decision.
(2)
The processing contractor reviews the information submitted with the appeal request and any additional information it obtains to determine if the inpatient admission satisfied the relevant criteria for Part A coverage at the time services were furnished. If the appeal request also includes a request to review denied SNF services that are eligible for an appeal, the processing contractor also determines if such eligible SNF services satisfied relevant criteria for Part A coverage at the time the services were furnished.
(3)
Subject to the provisions in paragraph (f)(1) of this section, the processing contractor mails or otherwise transmits its written decision on the request for appeal within 60 calendar days of receipt of the request.
(g)
Notice and content of the decision.
(1)
If the processing contractor determines that the inpatient admission, and as applicable, SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the processing contractor issues notice of the favorable decision to the eligible party (or the party's representative). The processing contractor also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)
(i)
If the processing contractor determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the processing contractor issues notice of the unfavorable or partially favorable decision to the eligible party (or the party's representative).
(ii)
The processing contractor issues a notice of a partially favorable decision to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3)
The notice issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i)
A clear statement of the decision made by the processing contractor.
(ii)
The reason the hospital admission, and as applicable, the SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
If a favorable decision, the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amounts of benefits due.
(vi)
If an unfavorable or partially favorable decision, a statement of any specific missing documentation that should be submitted with a request for reconsideration, if applicable.
(vii)
The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(viii)
If an unfavorable or partially favorable decision, information about the procedures for filing a request for reconsideration under § 405.934.
(ix)
Any other requirements specified by CMS.
(4)
As applicable, a notice of a favorable decision issued to the SNF (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of beneficiary's hospitalization), includes all of the following:
(i)
A clear statement of the decision made by the processing contractor.
(ii)
The reason the SNF services satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for covered services.
(vi)
Any other requirements specified by CMS.
(5)
In the case of a favorable decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, notice is issued to the hospital that includes all of the following:
(i)
A clear statement of the decision made by the processing contractor.
(ii)
The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(vi)
Any other requirements specified by CMS.
(6)
In the case of a partially favorable decision issued to a SNF, the notice includes the following—
(i)
A clear statement of the decision made by the processing contractor.
(ii)
The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to a QIC under § 405.934.
(vi)
Any other requirements specified by CMS.
(h)
Effect of a favorable appeal decision.
(1)
(i)
If the processing contractor issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including Part A SNF coverage, if applicable.
(ii)
For the purposes of effectuating a favorable decision by the processing contractor, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2)
In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable:
(i)
The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision.
(ii)
In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision.
(iii)
In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3)
The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(i)
A favorable appeal decision is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986.
(ii)
The provisions regarding reopening of a redetermination in § 405.980(b) and (c) apply in the same manner to favorable decisions issued under this section.
(4)
The notice of a favorable decision issued to a hospital and, as applicable, a SNF does not convey party status to such provider.
(i)
Effect of an unfavorable or partially favorable decision.
(1)
An unfavorable or partially favorable appeal decision is considered binding unless—
(i)
It is reopened and revised under the provisions of §§ 405.980 through 405.986; or
(ii)
An eligible party (or the party's representative) files a request for reconsideration under § 405.934.
(2)
The provisions regarding reopening of a redetermination in § 405.980(b) and (c) apply in the same manner to unfavorable or partially favorable decisions issued under this section.
Notes, amendments, and revision history

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

Source

Source: 89 FR 83283, Oct. 15, 2024, unless otherwise noted.

Source

Source: 70 FR 11472, Mar. 8, 2005, unless otherwise noted.

Authority

Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

§405.934. Reconsideration.

42 C.F.R. § 405.934

(a)
Filing a request for reconsideration. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the decision rendered by a processing contractor in § 405.932(g)(2) may request a reconsideration with a QIC within 180 calendar days of receipt of the processing contractor's notice. The request for reconsideration must include the elements specified in the processing contractor's notice.
(b)
Applicability of other provisions. The provisions in §§ 405.960 through 405.978 that apply to reconsiderations of initial determinations apply to the extent they are appropriate/in the same manner to reconsiderations performed by a QIC under this section unless otherwise specified.
(c)
Notice and content of a reconsideration.
(1)
If the QIC determines that the inpatient admission, and as applicable, eligible SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the QIC issues notice of the favorable reconsideration to the eligible party (or the party's representative). The QIC also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)
(i)
If the QIC determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the QIC issues notice of the unfavorable or partially favorable reconsideration to the eligible party (or the party's representative).
(ii)
The QIC issues a notice of a partially favorable reconsideration to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3)
The notice of reconsideration must be mailed or otherwise transmitted within 60 calendar days of the QIC's receipt of the request for reconsideration, subject to the exceptions specified in § 405.970.
(4)
The notice of reconsideration issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i)
A clear statement of the decision made by the QIC.
(ii)
The reason the hospital admission, and as applicable, the SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
If a favorable decision, the effect of such decision, including a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amounts of benefits due.
(vi)
If the decision in § 405.932(f) indicated that specific documentation should be submitted with the reconsideration request, and the documentation was not submitted with the request for reconsideration, the summary must indicate how the missing documentation affected the reconsideration.
(vii)
The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(viii)
If an unfavorable or partially favorable decision, information concerning an eligible party's right to an ALJ hearing, including the applicable amount in controversy requirement and aggregation provisions and other procedures for filing a request for an ALJ hearing under § 405.936.
(ix)
Any other requirements specified by CMS.
(5)
As applicable, a notice of a favorable reconsideration issued to the SNF (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization), includes all of the following:
(i)
A clear statement of the decision made by the QIC.
(ii)
The reason the SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(vi)
Any other requirements specified by CMS.
(6)
In the case of a favorable reconsideration for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, notice is issued to the hospital that includes all the following:
(i)
A clear statement of the decision made by the QIC.
(ii)
The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(vi)
Any other requirements specified by CMS.
(7)
In the case of a partially favorable reconsideration issued to a SNF the notice includes the following:
(i)
A clear statement of the decision made by the QIC.
(ii)
The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage.
(iii)
A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv)
An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v)
The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to an ALJ under § 405.936.
(vi)
Any other requirements specified by CMS.
(d)
Effect of a favorable reconsideration.
(1)
(i)
If the QIC issues a reconsideration decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including both Part A hospital coverage and Part A SNF coverage, if applicable.
(ii)
For the purposes of effectuating a favorable reconsideration, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2)
In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i)
The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii)
In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii)
In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3)
The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4)
A favorable reconsideration is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of a reconsideration in § 405.980(d) and (e) apply in the same manner to favorable reconsiderations issued under this section.
(5)
The notice of a favorable reconsideration sent to a hospital and, as applicable, a favorable or partially favorable reconsideration sent to a SNF does not convey party status.
(e)
Effect of an unfavorable or partially favorable reconsideration.
(1)
An unfavorable or partially favorable reconsideration is considered binding unless—
(i)
It is reopened and revised under the provisions of § 405.980(d) or (e); or
(ii)
An eligible party (or the party's representative) files a request for a hearing by an ALJ under § 405.936.
(2)
The provisions regarding reopening of a reconsideration in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
Notes, amendments, and revision history

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

Source

Source: 89 FR 83283, Oct. 15, 2024, unless otherwise noted.

Source

Source: 70 FR 11472, Mar. 8, 2005, unless otherwise noted.

Authority

Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

§405.936. Hearings before an ALJ and decisions by an ALJ or Attorney Adjudicator.

42 C.F.R. § 405.936

(a)
Filing a request for hearing. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the reconsideration rendered by a QIC in § 405.934(c)(2), or a dismissal of a request for reconsideration, may request a hearing before an ALJ within 60 calendar days of receipt of the reconsideration. The request for hearing must include the elements specified in the QIC's reconsideration.
(b)
Applicability of other provisions. The provisions in §§ 405.1000 through 405.1064 that apply to ALJ hearings and decisions by an ALJ or an attorney adjudicator apply to the extent they are appropriate/in the same manner to ALJ hearings and decisions by an ALJ or an attorney adjudicator under this section unless otherwise specified.
(c)
Calculating the amount remaining in controversy for an ALJ hearing or judicial review.
(1)
(i)
A request for ALJ hearing for an appeal under the provisions of §§ 405.931 through 405.938 must meet the amount in controversy requirement in § 405.1006(b).
(ii)
A request for judicial review in federal district court for an appeal under the provisions of §§ 405.931 through 405.938 must meet the amount in controversy requirement in § 405.1006(c), subject to the calculation methodology set forth in this paragraph.
(2)
For appeals under the provisions of §§ 405.931 through 405.938, the amount remaining in controversy for an ALJ hearing or for judicial review in federal district court under § 405.1136 is determined by the sum of the billed charges on the Part B outpatient hospital claim and, as applicable, any billed charges for the SNF claim at issue, if such claims were submitted to Medicare. If no SNF claim was submitted for services furnished to the beneficiary, then the billed charges to the beneficiary as indicated on an itemized statement or evidence of payment made by the beneficiary for such services are used in calculating the amount remaining in controversy.
(3)
In the case of an appeal under the provisions of §§ 405.931 through 405.938 filed by an eligible party who was not enrolled in Part B at the time of hospitalization, and no Part B outpatient hospital claim was billed to Medicare, the amount remaining in controversy is determined by the charges billed to the beneficiary by the hospital for the outpatient hospital stay and billed charges for SNF services, if applicable. An itemized statement from the provider such services, or evidence of the payment made by the beneficiary to the provider is acceptable for the purpose of calculating the amount remaining in controversy.
(4)
Any payments made, including coinsurance and deductible, for the Part B outpatient hospital claim, and as applicable, the SNF claim must not reduce the calculation of the amount in controversy for the purposes of a hearing or judicial review under this paragraph.
(d)
Notice and content of an ALJ or attorney adjudicator decision.
(1)
(i)
If the ALJ or attorney adjudicator determines that the inpatient admission, and as applicable, eligible SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the ALJ or attorney adjudicator issues notice of the favorable decision to the eligible party (or the party's representative).
(ii)
The ALJ or attorney adjudicator also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)
(i)
If the ALJ or attorney adjudicator determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the ALJ or attorney adjudicator issues notice of the unfavorable or partially favorable decision to the eligible party (or the party's representative).
(ii)
The ALJ or attorney adjudicator issues a notice of a partially favorable decision to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3)
The ALJ or attorney adjudicator decision issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i)
A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii)
The findings of fact.
(iii)
The conclusions of law.
(iv)
The reason for the determination that the hospital admission, and as applicable SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, and, to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v)
The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(vi)
If a favorable decision, the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amount of benefits due.
(vii)
If an unfavorable decision or a partially favorable decision, information about the procedures for filing a request for review by the Appeals Council under § 405.938.
(4)
As applicable, a notice of a favorable ALJ or attorney adjudicator decision (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization) issued to the SNF, includes the following:
(i)
A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii)
The findings of fact.
(iii)
The conclusions of law.
(iv)
The reason for the determination that the SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v)
The effect of such decision, including a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(5)
In the case of a favorable ALJ or attorney adjudicator decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of beneficiary's hospitalization, notice is issued to the hospital that includes all of the following:
(i)
A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii)
The findings of fact.
(iii)
The conclusions of law.
(iv)
The reason for the determination that the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v)
The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(6)
In the case of a partially favorable decision issued to a SNF, the notice includes the following—
(i)
A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii)
The findings of fact.
(iii)
The conclusions of law.
(iv)
The reason for the determination that the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v)
The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to the Medicare Appeals Council under § 405.938.
(7)
The timeframe within which notices must be issued under this paragraph are determined under the provisions in § 405.1016.
(e)
Effect of a favorable ALJ or attorney adjudicator decision.
(1)
(i)
If the ALJ or attorney adjudicator issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including Part A SNF coverage, if applicable.
(ii)
For the purposes of effectuating a favorable decision by an ALJ or attorney adjudicator, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2)
In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i)
The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii)
In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii)
In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3)
The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4)
A favorable ALJ or attorney adjudicator decision is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of an ALJ or attorney adjudicator decision in § 405.980(d) and (e) apply in the same manner to favorable ALJ or attorney adjudicator decisions issued under this section.
(5)
The notice of a favorable decision issued to a hospital and, as applicable, notice of a favorable or partially favorable decision sent to a SNF does not convey party status to such provider.
(f)
Effect of an unfavorable or partially favorable ALJ or attorney adjudicator decision.
(1)
An unfavorable or partially favorable ALJ or attorney adjudicator decision is considered binding unless—
(i)
It is reopened and revised under the provisions of § 405.980(d) or (e); or
(ii)
An eligible party (or the party's representative) files a request for Medicare Appeals Council review under § 405.938.
(2)
The provisions regarding reopening of an ALJ or attorney adjudicator decision in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
Notes, amendments, and revision history

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

Source

Source: 89 FR 83283, Oct. 15, 2024, unless otherwise noted.

Source

Source: 70 FR 11472, Mar. 8, 2005, unless otherwise noted.

Authority

Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).

Amendments

[89 FR 83283, Oct. 15, 2024; 89 FR 106363, Dec. 30, 2024]

§405.938. Review by the Medicare Appeals Council and judicial review.

42 C.F.R. § 405.938

(a)
Filing a request for Council review. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the unfavorable decision of an ALJ or an attorney adjudicator in § 405.936(d)(2) may request the Council review the decision within 60 calendar days of receipt of the decision. The request for review must contain the elements specified in the ALJ or attorney adjudicator's decision notice.
(b)
Applicability of other provisions. The provisions in §§ 405.1100 through 405.1130 that apply to Council review apply to the extent they are appropriate/in the same manner to Council review under this section unless otherwise specified.
(c)
Notice of the Council's action.
(1)
After it has reviewed all the evidence in the administrative record and any additional evidence received, subject to the limitations on consideration of additional evidence in § 405.1122, the Council makes a decision or remands the case to an ALJ or attorney adjudicator.
(2)
The Council may adopt, modify, or reverse the ALJ's or attorney adjudicator's decision or recommended decision.
(3)
Notice of the Council's decision or remand order is issued to the eligible party (or the party's representative).
(i)
In the case of a modification or reversal of the ALJ's or attorney adjudicator's decision that is favorable to the eligible party, the Council's decision includes information regarding the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amount of benefits due.
(ii)
If the appeal involves a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, a modification or reversal of the ALJ's or attorney adjudicator's decision that is favorable to the eligible party with respect to hospital services also includes a statement about the obligation of the hospital to refund any amounts collected for the outpatient hospital services, and that the hospital may then submit a new claim for covered inpatient hospital services in order to determine the amount of benefits due.
(iii)
(A)
If the Council adopts or modifies an ALJ or attorney adjudicator decision that is unfavorable or partially favorable to the eligible party, the decision includes information about the procedures for filing a request for judicial review under § 405.1136, including information regarding the amount in controversy requirement in § 405.936(c).
(B)
A partially favorable decision issued by the Council refers to a determination that the inpatient admission satisfied the relevant criteria for Part A coverage but the SNF services did not satisfy the relevant criteria for Part A coverage.
(4)
Notice of a Council decision, favorable or partially favorable to the eligible party, that modifies or reverses the decision or recommended decision by an ALJ or attorney adjudicator, or a remand order that is favorable to the eligible party, is issued to the SNF, as applicable, and to the hospital in the case of an appeal filed by, or on behalf of, a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of hospitalization.
(i)
(A)
Notice issued to the SNF includes information regarding the effect of such decision, including, as applicable, a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(B)
A decision that is partially favorable to the eligible party is sent to the SNF and explains the reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, the reason the SNF services did not satisfy the relevant criteria for Part A coverage and explains that the decision is being sent for informational purposes only.
(ii)
Notice issued to a hospital (in the case of an appeal filed by, or on behalf of, a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of hospitalization) includes information regarding the effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(5)
The timeframe within which notices must be sent under this paragraph are determined under the provisions in § 405.1100.
(d)
Effect of a favorable Council decision.
(1)
(i)
If the Council issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including both Part A hospital coverage and Part A SNF coverage, if applicable.
(ii)
For the purposes of effectuating a favorable decision by the Council, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2)
In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i)
The SNF, that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii)
In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii)
In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3)
The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4)
A favorable Council decision is considered final and binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of a Council decision in § 405.980(d) and (e) apply in the same manner to favorable Council decisions issued under this section.
(5)
The notice of a favorable decision issued to a hospital and, as applicable, notice of a favorable or partially favorable decision issued to SNF does not convey party status to such provider.
(e)
Effect of an unfavorable or partially favorable Appeals Council decision.
(1)
An unfavorable or partially favorable Appeals Council decision is considered final and binding unless it is reopened and revised under the provisions of § 405.980(d) or (e), or a Federal district court issues a decision modifying the Council's decision.
(2)
The provisions regarding reopening of an Appeals Council decision in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
(f)
Judicial review.
(1)
An eligible party (or the party's representative) dissatisfied with a final and binding decision under paragraph (e) of this section who satisfies the amount in controversy requirement in § 405.936(c) may request judicial review in Federal district court under the procedures set forth in § 405.1136.
(2)
An eligible party (or the party's representative) who satisfies the amount in controversy requirement in § 405.936(c) and the requirements to escalate a case from the Council in § 405.1132 may request judicial review in Federal district court under the procedures set forth in § 405.1136.
Notes, amendments, and revision history

Source

Source: 89 FR 83283, Oct. 15, 2024, unless otherwise noted.

Source

Source: 70 FR 11472, Mar. 8, 2005, unless otherwise noted.

Authority

Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).