Copyright 1992 by the National Clearinghouse for Legal Services. All Rights Reserved.26 Clearinghouse Review 167 (May/June 1992)

The Medicare Limiting Charge: An Issue of Implementation andEnforcement

By Alfred J. Chiplin, Jr.. Alfred J. Chiplin, Jr., is a Staff Attorney with the National SeniorCitizens Law Center, 1815 H St., NW, Ste. 700, Washington, DC 20006, (202) 887-5280.

I. Introduction

This article discusses the Medicare "limiting charge" provision /1/ applicable to charges ofphysicians who do not participate in the Medicare Physician Assignment Program. Manybeneficiaries do not know of this provision, many physicians ignore it, and the Health CareFinancing Administration (HCFA) has failed to implement and enforce it in a manner that willforce physician compliance.

Advocates are concerned about the general lack of beneficiary information regarding thelimiting charge provision, including HCFA's failure (1) to provide limiting charge data on theExplanation of Medicare Benefits (EOMB) form; (2) to provide accurate information bytelephone when beneficiaries and/or their advocates seek information from carriers (insurancecompanies under contract with HCFA to administer the Part B side of the Medicare program);and (3) to institute a program of enforcement designed to ensure physician compliance.

The limiting charge provision is relevant to advocates and their clients who may have beenovercharged for services in 1991 and thereafter, for beneficiaries who have received inadequateinformation about the limiting charge provision, /2/ and for beneficiaries who are in the processof resolving disputes about claims. Implementation and enforcement concerns are particularlyrelevant, since HCFA's position is that it does not have the authority to enforce the "limitingcharge," particularly with respect to getting the physician to refund overcharges. /3/

II. Background

In November 1989, as a part of an on-going effort to hold down the cost of Medicarereimbursed physician services, Congress enacted certain physician payment reforms furtherlimiting what physicians who do not participate in the Medicare Physician AssignmentProgram (nonparticipating physicians) can charge their Medicare patients. /4/ The limitingcharge provision went into effect on January 1, 1991. /5/ It provides as follows:

(1) LIMITATION ON ACTUAL CHARGE FOR UNASSIGNED CLAIMS.--If anonparticipating physician knowingly and willfully bills on a repeated basis for physicians'

services (furnished with respect to an individual enrolled under this part on or after January 1,1991) an actual charge in excess of the limiting charge described in paragraph (2) and forwhich payment is not made on an assignment-related basis under this part, the Secretary mayapply sanctions against such physicians in accordance with section 1842(j)(2) [of the SocialSecurity Act]. /6/

The limiting charge for 1991 was set at a maximum of 125 percent (or 140 percent in the caseof "evaluation and management services") of the prevailing charge for nonparticipatingphysicians. /7/ For 1992, the limiting charge is a maximum of 120 percent of the fee scheduleamount for nonparticipating physicians, /8/ and for 1993 and thereafter, 115 percent of the feeschedule amount. /9/ The difference between the Medicare "approved amount" (which in mostinstances is the Medicare "reasonable charge" amount /10/) and the "limiting charge" amount iscommonly referred to as the "balance billing" amount.

A. Making the Election

Physicians who treat Medicare patients have the option of participating in the MedicarePhysician Assignment Program. /11/ Through this program, physicians agree to accept theMedicare reasonable charge amount as payment in full. Otherwise, physicians may continue tocharge Medicare patients on the basis of an itemized bill subject to the "limiting charge" or feeschedule amount as applicable. /12/ With respect to the participation option, physicians mustmake an annual election whether to participate. Those who elect to participate sign aparticipation agreement. Physicians who elect not to participate are free to accept assignmenton a case-by-case basis. /13/

The Medicare program (through the office of the carrier) reimburses the physician who electsto participate 80 percent of the reasonable charge amount, and the patient is responsible for theremaining 20 percent. /14/

B. The Development of Cost Limits for Nonparticipating Physicians

1. Congress

a. The Physician Assignment Program and the Fee Freeze

In 1984, when it created the Physician Assignment Program, /15/ Congress set the Medicarereasonable charge (MRC) rate for participating physicians five percent higher than the rate fornonparticipating physicians. /16/ The 1984 legislation also froze charges for nonparticipatingphysicians. /17/

b. The Maximum Allowable Actual Charge

With the enactment of the Omnibus Budget Reconciliation Act of 1986 (OBRA-86), Congresslifted its freeze on the charges of nonparticipating physicians and instituted further physicianpayment reforms. OBRA-86 introduced the Maximum Allowable Actual Charge (MAAC)system for reimbursing physicians who do not elect to participate in the physician assignmentprogram. /18/ The MAAC system imposed on nonparticipating physicians a cap or limit abovewhich they could not charge their Medicare patients (balance bill). MAACs for each physicianare determined by a complicated formula. /19/

c. The Physician Payment Review Commission (PPRC)

OBRA-86 also established the Physician Payment Review Commission (PPRC) to study waysto reform physician payment. /20/ A major recommendation of the PPRC was the payment ofphysician services according to a fee schedule. /21/ This recommendation was adopted byCongress and was effective for all physician services beginning on a phase-in basis on January1, 1992. /22/

d. Balance Billing Limits

Congress placed additional constraints on the balance billing practices of physicians in 1989.Those constraints include requiring physicians who treat Medicare patients eligible forMedicaid, including Qualified Medicare Beneficiaries (QMBs), to bill for such services on anassignment-only basis. This provision is applicable to services furnished on or after April 1,1990. /23/

e. Physician Submission of Claims

OBRA-89 established the rule, effective September 1, 1990, that physicians must submit allclaims (both assigned and unassigned) for reimbursement for services to Medicare patients.They cannot charge extra for this service, and claims must be submitted within one year of thedate of providing the service(s) for which reimbursement is sought. /24/

f. The Limiting Charge System

OBRA-89 also enacted the limiting charge provision that limits what nonparticipatingphysicians can balance bill their Medicare patients. This system replaces the MAAC system ofcost limits. /25/ It should be noted that the limiting charge provision does not prohibit balancebilling outright. Courts have held that since Congress has not banned balanced billing outright,states are not barred on federal preemption grounds from enacting legislation that wouldprohibit balance billing or that would constrain the balance billing practice more restrictivelythan under the federal law. /26/

2. HCFA Implementation and Enforcement

a. Federal Regulations

The federal regulation /27/ merely restates the statutory provision. Moreover, the effective dateof the regulation is for services furnished beginning January 1, 1992. This delay in regulatorydevelopment (the limiting charge provision was added in OBRA-89) adds to the frustration thatbeneficiaries and their advocates have experienced as they have attempted to have the limitingcharge provision implemented and enforced with respect to charges incurred in 1991.

The regulation, as enacted, provides no regulatory guidance (or cross-references) about thenature of HCFA's oversight responsibilities. Also absent is any direct reference (or cross-reference) to a regulatory framework that establishes the rights of the parties and theprocedures to be used in referring cases to the Office of the Inspector General (OIG) if there isa concern that a physician has knowingly and willfully billed a Medicare patient in excess of thelimiting charge for a particular service. /28/

b. Other HCFA Action

For the most part, HCFA has approached the implementation of the limiting charge provisionfrom the standpoint of developing limiting charge data for physicians (through its carriers),providing general information about the provision to physicians, and preparing its annualmonitoring reports to Congress as required by law. /29/ This initial activity provides noinformation to beneficiaries about the limiting charge provision, nor does it mandate theprovision of specific limiting charge information on the EOMB form.

i. Medicare Carriers Manual

Section 7555 of the Medicare Carriers Manual (MCM) requires carriers to engage in moreintensive monitoring when a sampling of physician charges indicates that charges exceedMAAC limits. The procedure calls for intensive monitoring coupled with sending notificationletters to physicians seeking a clarification of their excess charges and/or the cessation ofovercharges. If this is not successful, the carrier is to contact the physician by telephone, and ifthis is not successful, then the matter is to be referred to the OIG for possible imposition ofsanctions. /30/ It should be noted, however, that the procedures described in sections 7555 and7556 were developed for use in monitoring the MAAC. HCFA is developing procedures andtraining staff for monitoring the limiting charge.

ii. Getting Monitoring in Place

HCFA requested that carriers have monitoring staff trained and in place by April 15, 1992.Carriers were to appoint, no later than March 15, 1992, a "limiting charge coordinator," who

will serve as HCFA's contact person with respect to changes in HCFA's approach to limitingcharge monitoring and in its development of limiting charge messages for use on EOMBs. /31/

iii. Responding to Beneficiary Complaints

HCFA letter BPO-013 comprises the current guidelines for responding to beneficiary inquiriesand to complaints about limiting charges violations. HCFA plans to add these guidelines to theMCM at a later time. /32/

Carriers are to have staff who are able to communicate the following information tobeneficiaries who make telephone and/or written inquiries:

At a minimum, carrier inquiry staff must know that the limiting charge rules apply to allunassigned claims for physician services (including incident to services), and that the billedcharge generally cannot be more than 120 [percent] of the fee schedule amount for services in1992. They must also be able to explain in simple terms that services on some claims arecombined (or split apart) or [are] other charges made during processing. /33/

With respect to written inquiries, the same body of information is to be made available tobeneficiaries. With written inquiries, however, carrier staff are not to refer the inquirer to thephysician's office for clarification of the charge. In those cases in which the written inquiriesappear to suggest a violation of the limiting charge provision, the carrier is to send a letter tothe physician stating the amount of the limiting charge and the appropriate adjustment that is tobe made to the billed charge. /34/

HCFA also required carriers to have in place by March 31, 1992, the following: /35/

n Carrier inquiries staff should have access to limiting charge information and training on thecorrect use of that information.

n In response to telephone inquiries, beneficiaries should be informed of the limiting chargefor the unassigned procedure in question. Advise the beneficiary that he or she is notresponsible for billed amounts in excess of the limiting charge for a covered service. /36/

n Do not require beneficiaries who telephone the carrier to submit a written inquiry to obtainlimiting charge information. If limiting charge information for specific physicians orprocedures is not immediately available, the phone inquiry must be documented, theinformation obtained, and call-backs made within 2 workdays. If a written response isnecessary, a final or status reply must be made within 30 days. The beneficiary should beadvised during the telephone conversation of these time frames for responding to theinquiry.

n The beneficiary should be referred to the physician's office regarding adjustment of thebill. Beneficiaries should be told to advise the physician's billing staff to contact the carrierif there are any questions regarding the accuracy of the information that the beneficiary isconveying. If the beneficiary is reluctant to contact the physician about the overcharge or if

he or she subsequently contacts the carrier to report that the physician will not adjust thecharge in question, a notification letter should be sent to the physician.

As the above bulleted paragraphs indicate, much of the implementation of the limiting chargeprovision relies on voluntary physician participation and on the beneficiary's being in a positionto cajole the physician into compliance.

iv. EOMB Limiting Charge Information

As indicated above, HCFA plans to include in the MCM limiting charge information whatshould be on the EOMB. Currently, the EOMB does not provide limiting charge data. HCFA'sBPO-013 letter does not indicate what limiting charge information will be provided, nor does itindicate when that data will begin to appear on the EOMB form.

During the course of 1991, HCFA conducted a number of EOMB focus groups, the subject ofwhich was improving the readability of the EOMB and improving the information provided. Asa result of the focus groups, beneficiaries and their advocates were given the opportunity tosubmit written comments on HCFA's proposed EOMB drafts. Several beneficiary advocatesshared their comments and concerns with the Law Center. A central concern of beneficiarieswas the lack of information about physician limiting charge data.

III. Implementation and Enforcement

Implementation and enforcement of the limiting charge provision is sorely lacking. The stepsthat HCFA is taking, as outlined above, are a useful--albeit late--beginning, given that thelimiting charge provision was included in OBRA-89. As most advocates know, the delay indeveloping a regulatory structure for the implementation of Medicare and Medicaid provisionsis legion. /37/ In the context of the limiting charge, HCFA's delay has allowed physicians tocontinue to charge Medicare beneficiaries as if the limiting charge provision did not exist.

A. What the Beneficiary Community Can Do

Beneficiaries should call and/or write to the office of the Medicare carrier that services theirgeographic area for limiting charge information. They should ask for the limiting chargeinformation for their various physicians by name and by the procedure codes for the servicesthat they receive. In instances in which services have already been rendered and the beneficiaryhas received an EOMB from the carrier, the name, address, and telephone number of theMedicare carrier should be on the EOMB form. If the beneficiary has not yet received anEOMB and does not know the name and address of the local Medicare carrier, he or she canobtain this information from the local Social Security Administration (SSA) Office. Procedurecosts for services received are also on the EOMB.

When beneficiaries seek medical services, they should use physicians who, at least on a case-by-case basis, participate in the Medicare Participating Physicians Program (physicians whoaccept Medicare Assignment as payment in full). If the use of participating physicians is not anoption, it is imperative to let the physician and his or her billing office know that the patient isconcerned that he or she is charged no more than the Medicare limiting charge amount for thephysician's services. This is especially true if physicians insist that Medicare patients pay beforeleaving the office. /38/

B. Beneficiary Awareness

Medicare advocates may want to consider developing Medicare handouts that describe theMedicare limiting charge provisions. They may start with a simple restatement of the limitingcharge provision coupled with information from HCFA's BPO-013 letter, as discussed above.Information of this nature will provide beneficiaries with a stronger basis for discussing theirlimiting charge concerns with physicians and/or physicians' billing offices.

Development of such a handout might be done in connection with a local bar association's probono project or similar civic activity. This type of project may lend itself to other joint efforts ofbar groups and medical associations. This type of network building is particularly useful, sincephysician participation is essential to the successful implementation of the limiting chargeprovision. Similar joint projects could involve media departments of colleges and universities,local print media, and local radio and television stations.

C. Medicare Administrative Advocacy

Now that HCFA is taking steps to put in place a structure for monitoring the limiting chargeprovision and for responding to beneficiary limiting charge inquiries, the beneficiarycommunity has a handle for keeping the pressure on HCFA to go forward with theimplementation of the provision. It is important that beneficiary groups contact their localcarriers to see at what point they are in the implementation process. They should also speak tothe public affairs offices of the local carrier and develop joint community education projectsdesigned to disseminate the limiting charge message.

Beneficiaries and their advocates should pay particular attention to the speed and accuracy ofHCFA's efforts to provide limiting charge data and to follow through on beneficiarycomplaints. This will be of particular importance in situations in which carrier staffs have tocall beneficiaries back with the requested information.

A further concern is how HCFA will handle situations in which beneficiaries have attempted touse limiting charge information to get physicians to refund excess charges, and physicians haverefused to do so. Advocates should know whether HCFA establishes a follow-up mechanismthrough which carriers can track the progression of beneficiary requests for limiting chargedata and beneficiary complaints about uncooperative physicians, and what efforts HCFA hasmade to obtain physician cooperation, including OIG referral.

If beneficiaries are dissatisfied with HCFA's efforts to obtain physician compliance with thelimiting charge provisions, they and their advocates should be prepared to send letters, withsupporting affidavits and other documentation, to their regional OIG requesting aninvestigation into whether sanctions against the offending physician are in order. Advocatesshould also monitor the extent to which HCFA's contracts with Medicare carriers makeprovision for the implementation and monitoring of the limiting charge provision. Advocateshave learned that these contracts, along with the MCM and other HCFA transmittals (such asBPO-013) are important HCFA administrative management tools. Furthermore, compliancewith carrier performance standards is essential to HCFA/carrier contract renewals. Complaintsto HCFA about carrier performance can have an impact on renewal decisions.

In addition, advocates should consider raising limiting charge issues in disputes about theamount of payment in the Medicare Part B administrative review process. /39/ Thedevelopment of accurate data is essential to ensuring that beneficiaries' reimbursements arecalculated on the basis of accurate charge data. Similarly, carriers should be held accountablefor inaccurate physician charge data when carrier compliance with HCFA's performancestandards are reviewed.

Likewise, advocates should continue their efforts to modify the EOMB to include limitingcharge information. As discussed above, HCFA is in the process of revising the EOMB.Advocates should continue to participate in this effort by sending HCFA comments andsuggestions about EOMB problems that their clients are experiencing, particularly commentsabout the limiting charge. /40/ Currently, a major area of concern is what information HCFAwill include in its revised EOMB notices about the limiting charge.

HCFA has often voiced the concern that the EOMB is not a "bulletin board" and thus shouldnot be the source of detailed information about matters beyond how a particular claim has beenpaid. HCFA takes this position when beneficiaries request more details about physiciancharges. The beneficiary community has been concerned that (1) the EOMB is accurate withrespect to the information that is provided, (2) it is easily understood, (3) it providesmeaningful payment information (both for assigned and unassigned claims), and (4) sufficientinformation about appeal rights is provided. /41/

D. Litigation Advocacy

Williams v. Sullivan, /42/ a nationwide class action filed January 2, 1992, seeksimplementation of the limiting charge provision, including the provision of adequate and timelylimiting charge information via telephone and in writing, the provision of limiting chargeinformation on the EOMB, and dissemination of information to beneficiaries about the limitingcharge provision.

As with much of the recent litigation against HCFA, the agency's issuance of BPO-013 followsfairly soon after Williams was filed. Some would argue that this is merely a coincidence.Nonetheless, BPO-013 represents the first set of significant actions that HCFA has taken toimplement the limiting charge provision. As with the Gray Panthers /43/ and David /44/ cases,the quality of information to beneficiaries will be a major concern in Williams. HCFA's

implementation efforts and the steps that it takes to monitor and enforce the limiting chargeprovision will no doubt have an impact on developments in Williams.

E. Legislative Clarification

That OBRA-89 contains a limiting charge provision is good as both a beneficiary protectionand as a Medicare cost control measure. For HCFA, the question of its enforcement authority,particularly the question of its ability to order physicians to refund excess limiting chargeamounts, is unclear. The agency plans to seek legislative clarification of this point. Legislatorsmay also clarify what specific efforts are needed to spell out more fully beneficiary rights ingetting the OIG to move on physician overcharges claims. Many advocates feel that having togo through the process of OIG involvement and the threat of sanctions in order to getovercharge refunds from uncooperative physicians is far too cumbersome. It would be muchsimpler if HCFA, through the carriers, could mandate physician refunds, if appropriate. Apossible solution could be HCFA's decision to hold up future reimbursements until outstandingovercharge issues have been resolved.

IV. Conclusion

It is important that beneficiaries and their advocates continue to push HCFA to implement andenforce the limiting charge provision. Getting information to the beneficiary community aboutthe provision is essential. It is equally important that beneficiary advocates monitor HCFA'sefforts to establish and maintain networks for providing beneficiaries with information on thelimiting charge provision (including information on seeking OIG review of overcharges) aswell as HCFA's efforts to respond to beneficiary concerns about obtaining overcharge refundsfrom uncooperative physicians.

footnotes

1. Note that the limiting charge system is being replaced on a phase-in basis by a physician feescale. See 42 U.S.C. Sec. 1395w-4. The fee scale, while not the subject of this article, will bediscussed below in general terms.

2. 42 U.S.C. Sec. 1395w-4(g)(1), (2). Regulations purporting to implement the limiting chargeprovision were published at 56 Fed. Reg. 59502 (Nov. 25, 1991). They are codified at 42C.F.R. Sec. 415.48.

3. See 42 U.S.C. Sec. 1395w-4(g)(6), (7). According to Kathleen Buto, director of the HCFABureau of Policy Development, HCFA plans to seek further congressional clarification of itsenforcement authority and responsibility. See also the Physician Payment ReviewCommission's 1992 Annual Report (1992), discussing HCFA's position that it does not haveenforcement authority with respect to refunding overcharges or demanding physician

compliance beyond referrals to the OIG for possible imposition of sanctions. HCFA also claimsthat it does not have authority to require physicians to refund overcharges and instead relies onvoluntary compliance. See Letter BPO-013 from G.P. Kavanagh, Director of HCFA's Office ofProgram Operation Procedures (BPO), to all Associate Regional Administrators for Medicare(Feb. 27, 1992) (Clearinghouse No. 47,280) [hereinafter Letter BPO-013].

In Williams v. Sullivan, No. Civ-S-92-040-FLJFM (E.D. Cal., filed Jan. 7, 1992)(Clearinghouse No. 47,279), plaintiffs allege that HCFA's inaction amounts to a failure toimplement the "limiting charge" provision.

4. See Omnibus Budget Reconciliation Act of 1989 (OBRA-89), Pub. L. No. 101-239, Sec.6102 (adding Sec. 1848(g) to the Social Security Act, 42 U.S.C. Sec. 1395w-4(g) (limitationon beneficiary liability)).

5. 42 U.S.C. Sec. 1395w-4(g).

6. Id. The sanctions provided in section 1842(j)(2) of the Social Security Act, 42 U.S.C. Sec.1395u(j)(2), allow the Secretary of Health and Human Services (HHS) to exclude a physicianfrom participating in the Medicare program for up to five years or to assess civil monetarypenalties against offending physicians.

7. 42 U.S.C. Sec. 1395w-4(g)(2)(A), (D). A range of Evaluation and Management (E&M)services is listed in the Medicare Carrier's Manual, sections 7555 and 7556, by procedure codeand description. For the most part, E&M services are in-patient physician visits involving caremanagement, the development of patient histories, consultations, hospital discharge caremanagement, and skilled nursing facility physician visits.

8. 42 U.S.C. Sec. 1395w-4(g)(2)(B), (D). The fee schedule amount refers to the ResourceBased Relative Value Scale (RB/RVS), which became effective on a phase-in basis beginningJanuary 1, 1992. See id. at Sec. 1395w-4(a).

9. Id. at Sec. 1395w-4(g)(2)(B), (C).

10. See id. at Sec. 1395u(b)(3). The reasonable charge amount is a complicated calculation. Itis generally the lowest of (1) the physician's actual charge; (2) the physician's customary chargeto other Medicare beneficiaries for similar services as determined by the carrier according to itsprofile of that physician's charges; and (3) the local or geographic prevailing charge recognizedby the carrier for similar services provided by physicians to Medicare patients. Id.

11. Id. at Sec. 1395u(b)(3)(B)(ii); 42 C.F.R. Sec. 410.152.

12. 42 U.S.C. Sec. 1395u(h)(1) (1984).

13. Id. at Sec. 1395u(h)(2)-(6).

14. Id. at Sec. 1395u(B)(3); 42 C.F.R. Sec. 410.152.

15. See Deficit Reduction Act of 1984 (DEFRA), 42 U.S.C. Sec. 1395u(b)(4).

16. Id. at Sec. 1395u(b)(4)(A)(iv) (1984).

17. Id. at Sec. 1395u(j)(1); Whitney v. Heckler, 780 F.2d 963, 970-72 (11th Cir. 1986)(upholding the five-percent cost differential).

18. 42 U.S.C. Sec. 1395u(j)(1)(B)(i).

19. Id. at Sec. 1395u(j)(1). See also AMA v. Bowen, 857 F.2d 267, 268-69 (5th Cir. 1988).

20. 42 U.S.C. Sec. 1395w-1.

21. Id. at Sec. 1395w-4.

22. Id. at Sec. 1395w-4(a).

23. Id. at Sec. 1395w-4(g)(3).

24. Id. at Sec. 1395w-4(g)(4). Some advocates have expressed concern that physicians areslow to submit claims, thus leaving beneficiaries uncertain about the dollar amount for whichthey are responsible. Furthermore, beneficiaries argue that there is little incentive fornonparticipating physicians to submit claims promptly, particularly if they have sought paymentfrom the beneficiary "up-front." These "up-front" payments are usually for the physician'sactual charge amount, a charge that is often in excess of the physician's reasonable chargelimits.

25. Id. at 1395w-4(g)(1-2); Pennsylvania Med. Soc'y v. Marconis, 942 F.2d 842 (3d Cir.1991).

26. See Marconis, 942 F.2d 842; Massachusetts Med. Soc'y v. Dukakis, 815 F.2d 790 (1st Cir.1987); and Medical Soc'y of N.Y. State v. Cuomo, 777 F. Supp. 1157 (S.D.N.Y. 1991).

27. 42 C.F.R. Sec. 415.48 (Limits on Actual Charges of Nonparticipating Physicians).

28. At best, advocates are left struggling to implement a statutory provision that is difficult tocharacterize as self-implementing given the need to (1) notify both the Medicare beneficiaryand provider community about the rights and obligations that relate to the limiting chargeprovision, (2) establish claims monitoring mechanisms, and (3) put in place an accessibleprocedure for referring claims to the OIG. See Patchoque Nursing Center v. Bowen, 797 F.2d1137 (2d Cir. 1986), for a discussion of evaluating whether a statute is self-implementing.

29. 42 U.S.C. Sec. 1395w-4g(6) (monitoring and reporting on charges); and Sec. 1395w-4g(7)(monitoring and reporting on utilization and access).

30. See sections 7555 and 7556 of the Medicare Carriers Manual.

31. Letter BPO-013, supra note 3.

32. Id. at 1.

33. Id. at 2.

34. Id. at 4.

35. Id. at 3.

36. Note that there is documentation of calls in instances in which limiting charge informationis provided at the time of the call. Documentation of calls is also required if the limiting chargeinformation is not available and a carrier staff person has to make a call-back. Of course,documenting the call for purposes of making a call-back is necessary. It would also seemvaluable to have a record made of all limiting charge inquiries.

37. See, e.g., Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284 (D.C. Cir. 1991)(problems of implementing the Nursing Home Reform Law, OBRA-87 and OBRA-90). Alsonote HCFA's continued delay in promulgating final regulations implementing the dischargeplanning provisions of OBRA-86, 42 U.S.C. Sec. 1395x(ee)(2). Proposed regulationsappeared at 53 Fed. Reg. 22508 (June 16, 1988). Final regulations implementing thisimportant protection have not yet been promulgated.

38. Anecdotal information from beneficiaries indicates that physicians who require Medicarepatients to pay the entire bill "up-front" do not always reimburse the beneficiary for the portionof the bill that Medicare has paid, nor do they adjust their bills to reflect their limiting charge.

39. 42 U.S.C. Sec. 1395ff.

40. Comments should be sent to Carol Walton, Deputy Director, BIO, Rm. 311, MeadowsEast Bldg., 6325 Security Blvd., Baltimore, MD 21207. In addition, advocates may wish tospeak to Benta Cooney, National Committee to Save Social Security and Medicare, (202) 822-9459, who has done a lot of work with HCFA on EOMB reform issues.

41. For a history of EOMB notice problems, see Gray Panthers v. Schweiker, 716 F.2d 23, 32-34 (D.C. Cir. 1983); David v. Heckler, 591 F. Supp. 1033, 1042-45 (E.D.N.Y. 1984).

42. See note 3, supra. Plaintiffs' cocounsel are Carol Jimenez, of the Medicare AdvocacyProject of Los Angeles, (213) 614-0991, Diane Archer, Medicare Beneficiaries Defense Fund,New York, N.Y. (212) 869-3850, and Bess Brewer, National Senior Citizens Law Center, LosAngeles, (213) 482-3550.

43. Gray Panthers Advocacy Comm., 716 F.2d 23.

44. David, 591 F. Supp. 1033.