Medicare Beneficiaries Sue CMS for not Implementing Mandated Appeals Process

Three Medicare beneficiaries and three senior advocacy groups yesterday filed a lawsuit in a Washington, D.C., federal court against CMS, alleging that the agency violated federal law by failing to implement a Medicare appeals process established by Congress two years ago, the Wall Street Journal reports. The beneficiaries, joined by the American Council of the Blind, the Gray Panthers and the American Association of People with Disabilities, claim CMS is wrongly denying them a chance to appeal its decision to stop covering Visudyne, a drug that treats age-related macular degeneration, the leading cause of blindness in people over 50 (Carroll, Wall Street Journal, 8/7). CMS originally approved coverage for Visudyne in October 2001 but reversed its decision in March 2002, saying the treatment is "experimental" and only "temporarily" effective. Charles Crawford, executive director of the American Council of the Blind, contends that CMS is denying coverage of Visudyne because of the cost, which can total $1,800 per session; treatment may require several sessions (AP/Baltimore Sun, 8/7).

The three beneficiaries said they filed an appeal of the March decision but that CMS did not act on the appeal -- allegedly violating a law passed by Congress in December 2000 that requires CMS to create an appeals process for blanket coverage decisions. Congress mandated that the process be in place by October 2001 (Wall Street Journal, 8/7). The lawsuit asks the court to force CMS to comply with the law (AP/Baltimore Sun, 8/7). CMS officials claim the agency "doesn't have the regulations in place" to accommodate such an appeal. The Journal reports that CMS officials have said in the past that the agency will not implement an appeals process until Congress provides additional money to fund it (Wall Street Journal, 8/7). A CMS spokesperson said that the agency has a coverage appeals process "in the works" but added that "[a] lot of things in the [law] need to be defined" (Fulton, CongressDaily, 8/6). The AP/Sun reports that CMS does have an "administrative process" to appeal coverage decisions, which allows the introduction of new evidence or expert testimony, but that strategy was not employed in this case (AP/Baltimore Sun, 8/7).