Appeal Rights for CMS’s Prior Authorization Process for Certain Outpatient Department Services

Now that the prior authorization process that CMS put into place for certain outpatient department services is in full swing, some providers have questioned what appeal rights come with denials related to prior authorization. The Code of Federal Regulations (CFR), as well as the documents released by CMS, make clear that the Medicare Administrative Contractor (MAC) will deny a claim submitted with a non-affirmative prior authorization decision, but all appeal rights are then available. What isn’t so clear is whether appeal rights are available if a provider does not attempt to obtain prior authorization before providing and billing for services on the list. Some investigative work involving going down the rabbit hole (following CMS/CFR regulations from one document to another) reveals that appeal rights are available for a denial issued when the provider did not attempt a prior authorization request. 

The CMS website for Prior Authorization for Certain Hospital Outpatient Department (OPD) Services (https://www.cms.gov/research-statistics-data-systems/medicare-fee-service-compliance-programs/prior-authorization-and-pre-claim-review-initiatives/prior-authorization-certain-hospital-outpatient-department-opd-services) holds three documents related to this process: the Open Door Forum Slides, the Frequently Asked Questions, and the Operational Guide. Each document clarifies that the MAC will deny a claim submitted with a non-affirmative prior authorization decision, but all appeal rights are then available. So, if a provider submits the prior authorization request, and the MAC responds with a non-affirmation, and the service is provided and billed for anyway, the MAC will deny payment on the claim, but the provider can appeal. That’s pretty clear. (There are exceptions when an Advanced Beneficiary Notice is in place, but I won’t go into that here.) 

So what happens if the provider doesn’t submit a prior authorization at all? The CMS OPD documents indicate that the MAC will automatically deny claims submitted without a prior authorization determination and a corresponding unique tracking number. However, the documents are silent on whether appeal rights are available in this circumstance. When CMS is not straightforward on policy, turn to the Code of Federal Regulations (CFR) to clarify. CMS policy starts with publication in the CFR. The CFR policy is often easier to read and understand than CMS’s interpretation published on its website. 

The Federal Register Volume 84, Issue 218 (November 12, 2019), https://www.govinfo.gov/app/details/FR-2019-11-12/2019-24138/summary contains the OPD services prior authorization process beginning on p. 61446. Language in the CFR consistently discusses appeal rights in the instance of a claim that is submitted and subsequently denied with a non-affirmed prior-authorization request. The CFR does not indicate if appeal rights are afforded when the claim denies when the provider does not attempt to obtain a prior authorization. However, The Department of Health and Human Services (HHS), the author of the document, indicates that they were proposing to model the OPD prior authorization process on some of the same provisions of the durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) prior authorization program already in place under 42 CFR 414.234, p. 61447. 

Let’s look at the Federal Register publication regarding the DMEPOS prior authorization program, Federal Register Volume 80, Issue 250 (December 30, 2015), https://www.govinfo.gov/app/details/CFR-2019-title42-vol3/CFR-2019-title42-vol3-sec414-234.  This CFR publication clarifies that when a provider does not request (obtain) a prior authorization and the claim denies, full appeal rights are afforded. “A requester who submits a claim for which there was a nonaffirmation decision or for which no prior authorization request was obtained would be afforded full appeal rights on the claim.” (emphasis added) 

So, if the start of your OPD prior authorization process was a little bumpy and you missed requesting prior authorization from your MAC on some services, you should be appealing any denials you receive. Appeal on and please let us know about your successes or struggles so we can share with the community.