The Hospital is Wrongfully Discharging Me or a Loved One! What Can I Do?
By Christian Horde, J.D., LL.M.
Under federal regulations, a Medicare patient (beneficiary) has the right to appeal a hospital discharge if they feel too sick to leave. Their medical symptoms may not be under control, which creates the likelihood of further complications and re-hospitalization. How do you appeal and what does the process entail?
1st Appeal - Expedited Determination (42 C.F.R. § 405.1206):
- To start the appeal, the patient or representative must call the “Beneficiary and Family Centered Care–Quality Improvement Organizations” (BFCC-QIO).
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- You must call the BFCC-QIO “no later than the day of discharge.” The beneficiary, or their representative, must be available to discuss the case and written evidence may be submitted to explain why there should not be a discharge. The BFCC-QIO will then notify the hospital.
- The hospital will issue a “detailed notice” that includes the following information: a detailed explanation why services are either no longer reasonable and necessary or are otherwise no longer covered; a description of any applicable Medicare coverage rule, instruction, or other Medicare policy, including information about how the beneficiary may obtain a copy of the Medicare policy; facts specific to the beneficiary and relevant to the coverage determination that are sufficient to advise the beneficiary of the applicability of the coverage rule or policy to the beneficiary’s case; and any other information required by CMS.
- The hospital must then supply all information that the BFCC-QIO “needs to make its expedited determination”. The burden is not on the beneficiary who is appealing.
- After the BFCC-QIO receives the requested information, it “must make a determination and notify the beneficiary, the hospital, and physician of its determination within one calendar day”.
What about the Hospital Bills?
At this first level of appeal, even if the beneficiary is not successful, so long as the appeal was filed no later than the date of the planned discharge, “the beneficiary is not financially responsible for inpatient hospital services (other than applicable coinsurance and deductible) furnished before noon of the calendar day after the date the beneficiary (or his or her representative) receives notification (either orally or in writing) of the expedited determination by the BFCC-QIO.”
If the beneficiary loses the appeal, but decides to stay in the hospital beyond noon of the following day, exercises more of their Medicare appeal rights, but is not successful, then they will be financially responsible for the continued hospital stay. Beneficiaries should only stay beyond the first level of appeal if it is medically necessary and they understand the potential financial risk.
The truth is the appeal process is very one-sided. The hospital is not required to send the patient’s entire hospital record for review. Typically, the hospital only sends the documentation that helps their position is showing the discharge is appropriate. Most beneficiaries do not have access to helpful written documentation, and have no way to send it to the BFCC-QIO, because they are literally in a hospital bed.
Based on the provided curtailed medical record, the BFCC-QIO issues its decision. This is happening within the one calendar day time limit of receiving the requested information, leaving little time for the patient or the family to provide additional evidence to support their side.
Furthermore, most Medicare beneficiaries and their family are not medical experts, and to overrule the discharge the BFCC-QIO needs medical information contradicting the hospital’s decision. The BFCC-QIO will not send a doctor for your behalf to the hospital to review the record, and your primary care doctor often does not have hospital privileges.
Ultimately, the BFCC-QIO will make its decision solely on the information sent by the hospital, which will be information that specifically supports the hospital’s decision to discharge the patient.
- Success in appealing requires that there must be a medical reason for the continued hospitalization.
- The beneficiary must enlist the support of a physician to contact the hospital’s doctor and the BFCC-QIO to advocate on the beneficiary’s behalf. (Oftentimes the beneficiary’s primary care doctor.)
- The doctor-advocate must make an argument based on their medical expertise as to why the beneficiary continues to need a hospital inpatient level of care.
If all goes well, the doctor-to-doctor conversations and advocacy will result in not discharging the beneficiary.
2nd Appeal - Expedited Reconsideration (42 C.F.R. § 405.1204):
If the beneficiary loses the appeal, and is still an inpatient in the hospital, they have the right to an expedited reconsideration. Reconsideration decisions are issued by organizations called “Qualified Independent Contractors” (QIC).
- The beneficiary must notify the QIC “in writing or by telephone, by no later than noon of the calendar day following initial notification” of the BFCC-QIO’s decision.
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- Once the QIC receives the request, the QIC must issue its decision “no later than 72 hours after receipt of the request for an expedited reconsideration, and any medical or other records needed for such reconsideration,”.
- The QIC’s initial notification may be done by telephone, followed by a written notice including: their decision and the rationale; an explanation of the Medicare payment consequences of the determination and the beneficiary’s date of liability; and information about the beneficiary’s right to appeal the QIC’s reconsideration decision to an Administrative Law Judge (ALJ), including how to request an appeal and the time period for doing so.
Success at any level in the appeals process is dependent on submitting documentation refuting the hospital doctor’s decision that the beneficiary no longer requires or required an inpatient hospital level of care. Further evidence should always be submitted to support the argument that continued care at the hospital is or was medically necessary.
To appeal further, the regulations require that there be a minimum amount in controversy, meaning your case must meet a threshold dollar amount remaining in your dispute.
- 3rd Appeal - Office of Medicare Hearings and Appeals (OMHA):
Your appeal will be reviewed by an OMHA adjudicator, and you may have a hearing before an ALJ. Decisions are not expedited and ALJs have a 90-day period to issue decisions. The period begins on the date the request for hearing is received.
- 4th Appeal - Medicare Appeals Council (MAC):
If you disagree with the OMHA adjudicator's or ALJ’s decision, you may request the MAC to review the decision.
- 5th Appeal - Federal Court:
If you disagree with the MAC’s decision, you may seek a review of your claim in Federal District Court.
The best way to effectively increase the beneficiary’s odds of staying in the hospital to get necessary medical care is to enlist the assistance of a physician. Such a physician can speak as an expert regarding the beneficiary’s need for ongoing hospital care.