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Sunday, April 24, 2005 - Page updated at 12:00 a.m.

Medicare-hearing changes ahead

The New York Times

WASHINGTON — A new federal policy will make it significantly more difficult for Medicare beneficiaries to get hearings in person before a judge when the government denies their claims for home care, nursing-home services, prescription drugs and other treatments.

For years, hearings have been held at more than 140 Social Security offices across the country. The Department of Health and Human Services will take over the responsibility in July, and HHS officials said all judges then would be located at four sites — in Cleveland; Miami; Irvine, Calif.; and Arlington, Va.

Under the new policy, Medicare officials said, most hearings will be held with videoconference equipment or by telephone. A beneficiary who wants to appear before a judge must show that "special or extraordinary circumstances exist," the rules say. But a beneficiary who insists on a face-to-face hearing will lose the right to receive a decision within 90 days, the deadline set by statute.

The policy change comes as administration officials are predicting an increase in the volume of cases, with the creation of a Medicare drug benefit expected to generate many claims and appeals. In a recent study, however, the Government Accountability Office, an investigative arm of Congress, questioned the reliance on videoconferences, saying "beneficiaries are often uncomfortable using videoconference facilities and prefer to have their cases heard face to face."

All beneficiaries are 65 or older or disabled. About 5 million of the 41 million beneficiaries are 85 or older; some are so sick they die while pursuing appeals.

When claims are denied, beneficiaries and their health-care providers can enter an appeals process that has several levels of review. Their best chance to win coverage comes when they appear before impartial, independent adjudicators known as administrative law judges.

Beneficiaries and providers prevailed in two-thirds of 283,000 cases decided by these judges in the past five years.

HHS defended its new policy, saying the videoconference equipment would enable judges to complete more cases within the 90-day deadline, because they would not have to travel. The department said it was "not economically or administratively feasible" to station judges across the country.

"Access to hearings for Medicare beneficiaries will be as good as or better than" what is now available, HHS Secretary Michael Leavitt said. For some beneficiaries, he said, video hearings could be more convenient.

But lawmakers, judges, consumer groups and lawyers for beneficiaries expressed concern.

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Sen. Charles Grassley, R-Iowa, chairman of the Finance Committee, and Sen. Max Baucus of Montana, the senior Democrat on the panel, said four hearing offices were not enough. They were among principal authors of the 2003 Medicare law. The law, they noted, says judges are to be distributed "throughout the United States."

Judith Stein, director of the Center for Medicare Advocacy, which has represented thousands of people in hearings since 1986, said: "The videoconferences are one of many changes that will reduce the beneficiaries' ability to get fair, favorable decisions. Sick, old and disabled people can be much more effective in person because the judge can see their illnesses and infirmities — how they walk, how they get up from a chair, how their hands shake with tremors."

Ronald Bernoski, president of the Association of Administrative Law Judges, said face-to-face hearings were valuable for judges and beneficiaries alike.

"Video teleconferences will undermine the judges' ability to assess the credibility and demeanor of witnesses," said Bernoski, a judge based in Milwaukee. "And it could reduce the beneficiaries' confidence in the proceedings."

The 2003 law shifted the responsibility for hearing Medicare appeals from Social Security to HHS, which is in the process of hiring 50 judges.

Nancy Thompson, director of the transition team at the department, refused to answer questions about the new procedures or the logistical arrangements.

Ronald Osborn of Charlotte, N.C., who has been an administrative law judge since 1974 and has specialized in Medicare cases since 1996, said he had no interest in moving to HHS.

"Under the department's procedural rules," Osborn said, "judges will have less freedom to handle individual cases as they see fit."

Some officials have contended that some judges were favoring beneficiaries improperly. And judges periodically have complained that officials pressure them to approve fewer claims. The tension became so acute in the early 1980s that the judges filed suit against the HHS secretary to preserve their independence.

Copyright © 2005 The Seattle Times Company

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