TRICARE Manuals - Display Chap 12 Sect 2 (Change 80, Nov 25, 2020)

Appeals And Hearings

Chapter 12

Section 2

Governing Principles

Revision: C-6, October 20, 2017

1.0 Appealing Party

1.1 Proper Appealing Party

Persons or providers who may appeal are limited to:

• The TRICARE beneficiary (including minors); or

• The non-network participating provider of services; or

• A non-network provider appealing a preadmission/preprocedure denial (when services have not been rendered); or

• A provider that has been denied approval as an authorized TRICARE provider or who has been terminated, excluded, suspended, or otherwise sanctioned.

1.2 Appeals From More Than One Party

An appeal may be accepted from more than one proper appealing party. If more than one party appeals, the contractor and the TRICARE Quality Management Contract (TQMC) contractor shall mail separately addressed appeal determination letters to each appealing party (or representative, if a representative has been appointed).

1.3 Appealing Party/Representative

1.3.1 Appeals On One’s Own Behalf

An appealing party is entitled to file an appeal on his or her own behalf.

1.3.2 Minors And Incompetent Beneficiaries As Appealing Parties

1.3.2.1 A minor beneficiary is a proper appealing party.

1.3.2.2 Generally, the custodial parent of a minor beneficiary and the legally appointed guardian of an incompetent or minor beneficiary shall be presumed to have been appointed representative without specific designation by the beneficiary. The parent of a minor beneficiary shall be presumed to be the custodial parent unless there is evidence to the contrary. If a parent or guardian is pursuing the appeal on behalf of a minor beneficiary and the minor reaches 18 years of age during the appeal, the parent or guardian will be presumed to be authorized to continue the appeal on behalf of the beneficiary unless the beneficiary provides a written statement of his or her desire to pursue the appeal in his or her own behalf, in which case the appeal decision will be mailed to the beneficiary. Once the contractor issues the appeal determination, the beneficiary who reached 18 years of age during the appeal must request all subsequent levels of appeal or appoint a representative to do so. (Refer to paragraph 1.3.3.1 for additional information relating to parents and guardians as representatives.)

1.3.3 Representative

If the proper appealing party cannot or does not wish to pursue the appeal personally, or wishes to have another person directly assist in pursuing an appeal, the appealing party may appoint a representative to act in his or her behalf at any level of the appeal process. The appointment of a representative must be in writing and must be signed by the proper appealing party or an individual must be appointed to act as representative by a court of competent jurisdiction. All correspondence relating to the appeal shall be directed to the representative.

1.3.3.1 Parents Or Guardians As Representatives

The sponsor or custodial parent of a beneficiary under 18 years of age or the guardian of an incompetent beneficiary cannot be an appealing party; however, such persons may represent the appealing party in an appeal. The custodial parent of a minor beneficiary and the legally appointed guardian of an incompetent beneficiary shall be presumed to have been appointed representative without specific designation by the beneficiary; however, this presumption shall not apply if the claim was signed by a minor and the claim is related to abortion, alcoholism, substance abuse, venereal disease, or AIDS. (Refer to paragraph 1.3.2 for additional information relating to minors as appealing parties.) A suggested format for “Appointment of Representative and Authorization to Disclose Information” is included at Addendum A, Figure 12.A-1.

1.3.3.2 Conflict Of Interest

To avoid possible conflict of interest, an officer or employee of the United States (U.S.), such as an employee or member of a Uniformed Service, including an employee or staff member of a Uniformed Service legal office, or a Beneficiary Counseling and Assistance Coordinator (BCAC), subject to the exceptions in 18 United States Code (USC) 205, is ineligible to serve as a representative. An exception usually is made for an employee or member of a Uniformed Service who represents an immediate family member.

1.3.4 Appeal Filed By Attorney

If an attorney files an appeal on behalf of a proper appealing party, the contractor shall assume, absent any evidence to the contrary, that the attorney has been duly authorized to act as the appealing party’s representative in the appeal. Care shall be taken to ensure that the attorney is representing a proper appealing party (e.g., an appeal filed by an attorney as the representative of a nonparticipating provider or as the representative of the spouse of a beneficiary, or parent of an adult beneficiary, shall not be accepted).

1.3.5 Appeal Filed By Provider On Behalf Of Beneficiary

Managers or administrators of facilities or individual providers may enter appeals only as participating providers, acting in their own behalf. A participating provider is not authorized to enter an appeal for a beneficiary unless the provider has been designated by the beneficiary, in writing, to act as his/her representative in the appeal process. A desire to assist the beneficiary is not, in itself, sufficient reason to permit others to act for the beneficiary without specific appointment by the beneficiary.

1.3.6 Appeal Filed For Deceased Beneficiary

An appeal may be filed for a deceased beneficiary by a person authorized to sign TRICARE claims on behalf of the deceased beneficiary under the provisions of Chapter 8, Section 4, paragraph 5.0.

1.3.7 Inquiries Made By Members Of Congress On Behalf Of Beneficiaries

Inquiries submitted by Members of Congress regarding a specific appealing party’s claim or claims are not considered requests for a reconsideration. If the letter from the Member of Congress is postmarked or received by the contractor or TQMC contractor before the expiration of the appeal filing deadline and is accompanied by a letter from the appealing party which meets the requirements of a request for reconsideration, the appealing party’s letter to the Member of Congress may be accepted as an appeal. The Member of Congress and the appealing party shall be advised that a reconsideration will be conducted and that the appealing party will be notified of the results. If the Congressional inquiry is not accompanied by a letter from the appealing party which contains all the elements of a request for a reconsideration, the contractor shall explain the procedure for filing an appeal so that the Member of Congress may advise the appealing party. Responses to Congressional inquiries are subject to the provisions of the Privacy Act of 1974 (see Chapter 1, Section 5, paragraph 2.0) and to the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Once an appeal has been accepted, the contractor may tell a Member of Congress inquiring on behalf of an appealing party only that an appeal has been filed and that it would be inappropriate for the contractor to comment on the case unless the appealing party has authorized the Member of Congress, in writing using a HIPAA release form, to receive information on behalf of the beneficiary.

1.4 Participating Providers

A non-network participating provider is entitled to file an appeal of those claims in which the provider participated. For the purposes of filing an appeal of a preadmission/preprocedure denial, a non-network provider is considered a participating provider and is entitled to file an appeal. The non-network participating provider may file an appeal instead of, or in addition to, the beneficiary or beneficiary’s representative. Although a network provider’s input, claims history, medical records, etc., may be used in adjudicating the appeal, a network provider is never a proper appealing party. (A network provider’s disputes are handled under the provisions of the provider’s contract or the state court system.)

1.5 When denial of payment for claimed services is being appealed, a non-network nonparticipating provider is not a party to the determination and would not receive any information regarding the claim or claim determination without the signed authorization of the beneficiary or the beneficiary’s representative.

Exception: Peer reviewer’s comments may be released to non-network nonparticipating providers without the patient’s permission, since these comments are directed toward the provider and the provider’s ability to document treatment. In order for the non-network nonparticipating provider to provide additional information on behalf of the patient, it is necessary for the provider to be aware of the peer reviewer’s comments.

Note: In those cases in which a non-network participating provider files an appeal and the care also involves a network provider (e.g., a non-network participating professional provider renders care to a beneficiary in a network hospital), the non-network participating provider would be considered a proper appealing party.

1.6 Providers Denied Certification

A non-network provider who has been denied certification as an authorized provider under TRICARE is entitled to appeal the initial determination made by either the contractor or Defense Health Agency (DHA). These initial determinations are considered factual initial determinations (see Section 5). When the denial is based on the exclusion of the provider by another Federal or Federally funded program, e.g., Medicare or Medicaid, because of fraud or abuse, the issue is not appealable through the TRICARE appeal system. An amount in dispute is not required for a provider to appeal a denial of certification. A contractor determination denying network provider status to an authorized provider is not appealable. Additional information relating to the appeal process is included in Chapter 13, Section 5.

2.0 Appeal Processing Jurisdiction

The contractor who made the adverse initial determination shall be responsible for conducting the reconsideration. A contractor receiving a request for reconsideration of an initial determination not within its jurisdiction shall send the request to the correct contractor, indicating whether or not it was timely filed, within five working days of receipt and shall notify the appealing party of this action. The contractor shall make no comments on the merits of an appeal not within its jurisdiction and shall direct the appealing party to send any further correspondence relating to the appeal to the appropriate contractor and include the address of the appropriate contractor.

3.0 Appeal Requirements

For all appeals at all levels:

3.1 Must Be Filed In A Timely Manner

The appealing party must comply with the “allowed time to file” requirements established by 32 CFR 199.10 and 199.15 (see Section 3, paragraph 4.0).

3.2 Must Be An Appealable Issue

Services or supplies must have been rendered by a TRICARE authorized provider, the denial of which raises a disputed question of fact which, if resolved in favor of the appealing party, would result in an extension of TRICARE benefits or approval as a TRICARE-authorized provider. Examples of nonappealable issues may be found at Section 3, paragraph 1.3.2.

3.3 Must Be An Amount In Dispute

There must be an amount in dispute before an appeal can be accepted (see paragraph 4.0). This involves the following requirements:

• In a case involving an appeal of preauthorization, the amount in dispute will be the estimated allowable charge for the requested services.

• There must be a legal obligation on the part of the beneficiary, parent, guardian, or sponsor to pay for the service or supply.

• Payment or authorization of TRICARE benefits for the service or supply must have been denied in whole or in part.

• When the Episode Of Care (EOC) involves the services of both network and non-network providers, only the claims submitted by the non-network providers will be considered in determining the amount in dispute.

Note: No amount in dispute is required for a non-network provider to appeal a denial of its authorized TRICARE provider status. Also, the amount in dispute will be considered to have been met in an appeal of a preauthorization of benefits for obtaining services or supplies unless the estimated allowable charge involved in such a request would be less than the required amount in dispute.

Example: A TRICARE beneficiary who had been hospitalized for 10 days was notified by the contractor that benefits would terminate on the 15th day. The beneficiary left the hospital on the 15th day and filed an appeal on the basis that continued hospitalization was medically necessary. In this case, there would be no basis for the appeal. The beneficiary left the hospital on the day TRICARE benefits terminated and expenses were no longer incurred; therefore, there was no amount in dispute. The beneficiary would be advised that there could be no appeal since there was no amount in dispute.

3.4 Must Be A Proper Appealing Party

See paragraph 1.0.

3.5 Must Be In Writing

All appeal requests must be in writing and submitted by a proper appealing party. Requests submitted via e-mail are considered to be in writing. A signature is not required if a determination can be made that the request was submitted by a proper appealing party. If it cannot be determined that the appeal request was submitted by a proper appealing party, the proper appealing party shall be instructed by the contractor that a proper appeal, must be filed within 20 calendar days of the contractor’s letter or by the appeal filing deadline, whichever is later. A verbal request for a reconsideration shall not be accepted. When telephone calls are received or personal visits occur that relate to an adverse initial determination, the contractor shall make every effort to satisfy the inquirer’s complaint, inquiry, or question, including advising the inquirer of his or her right to appeal, if applicable. If an appropriate appealing party or representative submits a letter which includes both an appealable issue and a grievance, the appeal and grievance shall be processed separately under the appropriate appeal and grievance provisions of the TRICARE Operations Manual (TOM).

4.0 Amount In Dispute

An amount in dispute is required for an adverse determination to be appealable. Although some amount must be in dispute for a reconsideration, unless specifically waived (e.g., the appeal involves denial of certification as a TRICARE authorized provider), there is no established minimum dollar amount. If the contractor’s reconsideration determination is less than fully favorable to the appealing party and the remaining amount in dispute is less than $50, no further appeal rights are available (i.e., $50 or more must be in dispute for a reconsideration to be accepted at the TQMC contractor, or a formal review to be accepted at DHA). The determination of “amount in dispute” affects the appealing party’s rights and must be carefully evaluated, including, when appropriate, multiple claims for the same service and related claims. Under TRICARE Prime, if the beneficiary has no liability, other than a nominal per visit copayment, there is no amount in dispute (this does not preclude a Prime enrollee from appealing a preadmission/preprocedure denial determination for services that have not been provided). If the services at issue are not a benefit under TRICARE, and the provider is a network provider, the beneficiary shall be held harmless by the network provider. (Refer to Chapter 5, Section 1, paragraph 3.5 for information regarding “hold harmless”.)

4.1 Calculating The Amount In Dispute

The “amount in dispute” is calculated as the actual amount the contractor would pay if the services and/or supplies involved in the dispute were determined to be payable.

4.1.1 Examples Of Excluded Amounts

Example 1: Amounts in excess of the TRICARE-determined allowable charge or cost are excluded.

Example 2: The beneficiary’s TRICARE deductible and cost-share amounts are excluded.

Example 3: Amounts which the TRICARE beneficiary, parent, guardian, or other responsible person has no legal obligation to pay are excluded.

Example 4: Amounts under the double coverage provisions of the TRICARE Reimbursement Manual (TRM), Chapter 4 are excluded.

4.1.2 Amounts For Preadmission/Preprocedure Appeals

When the dispute involves denial of a request for authorization in advance of actual care or service, the amount in dispute shall be the estimated allowable charge or cost for the service requested.

4.1.3 Amounts For Provider Status Appeals

If the dispute involves the denial of a provider’s request for approval as an authorized TRICARE provider or the determination to terminate a provider as an authorized TRICARE provider, there is no requirement for an amount in dispute. Initial determinations in provider status appeals are considered factual initial determinations (refer to Section 5).

4.2 Combining Claims

Individual claims may be combined to meet the required amount in dispute for referral of the appeal to DHA if all of the following exist:

• Claims involve the same beneficiary (when the EOC involves the services of both network and non-network providers, only the claims submitted by the non-network providers will be considered in determining the amount in dispute);

• Claims involve the same issue; and

• At least one of the claims, so combined, has had a reconsideration determination issued by a contractor.

4.3 Related Claims

When the contractor receives an appeal on a claim which has been denied, the contractor shall retrieve and examine all claims related to the specific service or supply or EOC received by the beneficiary to determine if the claim in dispute was properly denied and if related claims were properly processed. All claims which relate to the same incident of care or the same type of service to the beneficiary shall be processed in the same manner and shall be readjudicated and resolved along with the denied claim in the same reconsideration determination. If one claim which relates to an excluded procedure is denied, all claims which relate to the same procedure shall also be denied. If a procedure is covered and one claim involving that procedure and EOC is paid, other claims relating to the same procedure and/or period of care which have been denied should be examined in conjunction with the paid claim to see if the other claims may be paid or whether all the claims should be uniformly denied. The contractor shall take action in accordance with paragraph 4.4.2 to determine if any claim for the services or supplies was improperly paid or denied. All related claims shall be made part of the appeal file. The file shall contain full documentation pertaining to the issue and the care in dispute, to include a record of actions taken by the contractor on all claims involving the same issue.

Example 1: The contractor receives claims for hospitalization, testing, physician services, and the purchase of a cerebellar stimulator implant device for a TRICARE beneficiary. These claims involve the surgical implant of the cerebellar stimulator in the patient’s skull. The claims for the hospital care, physician’s services, and the stimulator device are denied by the contractor on the basis that the procedure is unproven. The claims for testing are paid. Upon appeal, the contractor shall retrieve all the claims for the EOC. The contractor shall find that the charges for the testing were erroneously paid because they relate to the denied unproven procedure. The contractor shall take action in accordance with paragraph 4.4.2.

Example 2: A beneficiary with out-of-control diabetes is hospitalized, during which time she receives nutrition counseling, an eye examination and insulin therapy. On the last day of the hospitalization, an M.D. performs an abortion. The initial determination denies cost-sharing for all services and the hospital requests a reconsideration. All services must be reviewed to determine which are related to the covered hospitalization for diabetes and which are related to the noncovered abortion.

Example 3: Outpatient psychotherapy sessions are provided to a beneficiary and cost-shared by the contractor for a period of twelve months. All claims for the thirteenth month are denied due to lack of an adequate treatment plan. Upon appeal of the denial of the claim, all previously paid claims shall be retrieved and examined to determine whether all the claims should be paid, all denied, or whether denial is proper for some of the claims.

Example 4: The contractor denies a claim for physical therapy on the basis that the services were not medically necessary. At reconsideration, the contractor discovers that previous claims for the same services and condition were paid in error. Because the erroneously paid claims involve the same issue - medical necessity of the physical therapy - the contractor shall add the erroneously paid claims to the reconsideration and review all claims together.

4.4 Erroneous Payments

In considering an issue under appeal, questions may arise concerning previous payment of services or claims not under appeal. Possible erroneous payments will be reviewed in depth, including medical review if necessary, to determine if, at the time the initial determination was made, there existed any basis for the payment. If the reviewer concludes there was a basis for payment at the time the claim was processed, the payment may stand. When the evidence indicates a payment was erroneous and not supported by law or regulation, the following action will be taken.

4.4.1 Recoupment Involving Separate Issues

The contractor may request a refund and treat the recoupment action as an initial determination. Appeal rights shall be offered to the next level of appeal. Any new appeal must address itself to the benefit issue in dispute and not the fact that a refund has been requested.

4.4.2 Recoupment Involving Issues Under Appeal

When the contractor examines claims which are related to the claim in dispute and determines that one or more of the related claims were improperly paid, the contractor shall explain the erroneous payment in detail and advise the appealing party of any recoupment. If the contractor determines recoupment is appropriate, the amount of the erroneously paid claim(s) will be added to the amount in dispute, and the reconsideration review will consider both the claim(s) in dispute and the erroneously paid related claim(s) which involve the same issue. If the total amount in dispute permits a higher level appeal, the appealing party will be so advised.

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DHA Address: 7700 Arlington Boulevard | Suite 5101 | Falls Church, VA | 22042-5101

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