[Congressional Record Volume 151, Number 89 (Wednesday, June 29, 2005)]
[Senate]
[Pages S7634-S7635]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD (for himself, Mr. Kennedy, Mr. Kerry, and Mr. 
        Bingaman):
  S. 1335. A bill to amend title XVIII of the Social Security Act to 
preserve access to appeals before administrative law judges under the 
medicare program; to the Committee on Finance.
  Mr. DODD. Mr. President, I rise today to introduce the Justice for 
Medicare Beneficiaries Act of 2005, legislation that will ensure that 
Medicare beneficiaries who are denied health-related benefits can 
appeal these denials in a meaningful way. Very simply, this initiative 
will ensure that Medicare beneficiaries have access to timely, 
impartial, and in-person hearings before Administrative Law Judges.
  Sec. 931 of the Medicare Prescription Drug, Improvement, and 
Modernization Act requires the transfer of the Medicare appeals process 
from the Social Security Administration (SSA) to the Department of 
Health and Human Services (HHS). A proposed rule recently put forth 
indicates that current HHS plans to bring about this transfer will 
significantly and negatively affect Medicare beneficiaries' ability to 
seek redress from the denial of benefits such as access to prescription 
medicines, home health services, and services provided at skilled 
nursing facilities.
  Specifically, the Administration's proposed transfer plan, slated to 
go into effect in only a handful of days on July 1, will reduce the 
number of sites where these appeal hearings can take place to four from 
the more than 140 sites currently operating nationwide. Today, Medicare 
beneficiaries that have filed coverage appeals are granted a hearing 
before an Administrative Law Judge (ALJ). Under the proposed transfer 
plan, Medicare beneficiaries will now have their hearings heard via 
video- or teleconference (VTC) and will only be allowed to appear in 
person by request and if HHS determines that ``special or extraordinary 
circumstances exist.'' Moreover, beneficiaries granted an in-person 
hearing would not be assured that their cases would be heard within the 
90-day window currently mandated by law. Lastly, the proposed transfer 
plan will endanger the independence and impartiality of Administrative 
Law Judges by requiring them to defer to program guidance provided by 
the Centers for Medicare and Medicaid Services (CMS) rather than on the 
Medicare statute and regulations, as they currently do.
  Central to our system of justice is the right of aggrieved parties to 
appear before an impartial judge in person to have their cases heard. 
Appearing face-to-face before an impartial trier of fact is the best 
way to ensure that a full and fair hearing occurs. In person hearings 
allow parties to fully make their case. At the same time, they allow 
judges to best evaluate the demeanor and condition of the parties, and 
other aspects of a case. The Administration's proposed rule 
transferring the Medicare appeals process from SSA to HHS greatly 
endangers this right by gutting the current practice of guaranteeing 
the right of Medicare beneficiaries to appear in person before an ALJ 
when having their appeals heard and instead will now presume that these 
hearings will be heard via video- or teleconference.
  Often when we talk about the denial of Medicare benefits, we are 
talking about the denial of services that literally have the ability to 
save lives. Medicare provides a critical safety net for millions of 
elderly and disabled beneficiaries and the proposed transfer plan's 
almost wholesale reliance on novel VTC technology may endanger the 
ability of many Medicare beneficiaries to accurately and personally 
portray the severity of their own health conditions.
  The Justice for Medicare Beneficiaries Act of 2005 will ensure those 
Medicare beneficiaries that have filed coverage appeals have access to 
timely, impartial, and in-person hearings before Administrative Law 
Judges. Specifically, this initiative will ensure that Medicare appeals 
will be heard in person before an ALJ, as they presently are. While all 
Medicare beneficiaries will be entitled to appear in person for their 
hearing, any beneficiary may choose to have their hearing heard via 
video- or teleconference.
  The legislation that I introduce today is in no way designed to 
prevent the adoption of the promising technology represented by VTC. 
Rather, this initiative simply seeks to preserve the critically 
important ability of Medicare beneficiaries to appear before the very 
judges charged with hearing their coverage appeals. By preventing the 
great majority of Medicare beneficiaries from appearing in person 
before the judge hearing their Medicare appeals, the Administration's 
proposed plan will greatly harm their ability to accurately and 
completely present all of the facts relevant to their case. And while I 
understand that many Medicare beneficiaries will choose to have their 
appeals heard via either video- or teleconference, I believe that we 
must preserve for Medicare beneficiaries the ability to appear in 
person before a judge when their cases are heard.
  The legislation will also require that all Medicare coverage appeal 
hearings, regardless of whether a Medicare beneficiary appears in 
person or chooses to appear via video- or teleconference, will be heard 
within 90 days as mandated by the Benefits Improvement and Protection 
Act of 2000. All Medicare beneficiaries deserve to have their appeals 
heard in a timely manner regardless of whether their cases are heard in 
person or via utilizing VTC technology.
  The Justice for Medicare Beneficiaries Act will also address the 
Administration's plans to reduce the number of sites where Medicare 
appeal hearings may be heard in person from the more than 140 sites 
currently available to four. This legislation will require at least one 
site for the hearing of in-person Medicare appeals in each state, the 
District of Columbia, and territory, with the nation's five largest 
states featuring two hearing sites geographically distributed 
throughout the state.
  Lastly, this legislation will ensure the independence and 
impartiality of Administrative Law Judges by relieving them of the 
proposed transfer plan's mandate to grant ``substantial deference'' to 
CMS program guidance. Medicare beneficiaries appealing coverage 
decisions should be fully confident that the judges deciding their 
appeals are bound only by the merits of their case and not undue 
pressure from agency of administration interference.
  I want to thank Senators Kennedy, Kerry, and Bingaman for joining me 
in sponsoring this important initiative. The Justice for Medicare 
Beneficiaries Act is also supported by a number of national and local 
organizations dedicated to preserving the continued ability of Medicare 
beneficiaries to access needed health care services. Endorsing the 
legislation that I introduce today are the Center for Medicare Advocacy 
located in my own state of Connecticut, the National Health Law 
Program, the National Senior Citizens Law Center, the Medicare Advocacy 
Project of Vermont Legal Aid, the Medicare Advocacy Project of Greater

[[Page S7635]]

Boston Legal Services, and the Senior Citizens' Law Office of 
Albuquerque, NM.
  In Congress we far too rarely have the opportunity to stave off 
problems before they occur. Rather, too often we are forced to involve 
ourselves in matters only after they have already wreaked havoc on the 
lives of our constituents. With passage of the Justice for Medicare 
Beneficiaries Act of 2005, we have the opportunity to avoid the adverse 
impact that the Administration's proposed transfer plan will likely 
have on Medicare beneficiaries. This legislation will preserve for our 
nation's 41 million Medicare beneficiaries the ability to timely appear 
in person before judges who will impartially determine which health 
care services they're entitled to receive under Medicare. Medicare 
beneficiaries deserve no less than the vital protections offered by 
this act and I ask for the support of my colleagues for this critically 
important initiative.
                                 ______