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Health Law Alert: Office of Medicare Hearings and Appeals Hosts First-Ever Medicare Appellant Forum

February 24, 2014

On February 12, 2014, the Office of Medicare Hearings and Appeals (“OMHA”) held a Medicare appellant forum where OMHA provided “insight” into its plans for decreasing the ALJ backlog of Medicare appeals. The forum focused on how OMHA will streamline the future appeals process and ways providers can help OMHA decrease the backlog and processing time for appeals. Disappointingly, however, the forum failed to focus on the RACs’ over-zealous denial of claims.

The forum began with an overview of where the appeals process stands today.  As providers already knew, the ALJs have received an increasing number of Medicare Part A appeals over the prior years—from 1,250 appeals per week in 2012 to 15,000 appeals per week as of January 2014.  Currently, OMHA has 480,000 appeals awaiting assignment, and Chief Judge Nancy J. Griswold confirmed that all assignments of appeals have ceased.  In fact, providers can expect a 10 to 20-week delay from the filing of an appeal (receipt at OMHA) until docketing.  And after the appeal is docketed, providers can expect to wait more than 24 months before the appeal is assigned to an ALJ field office—and an additional 6+ months before scheduling of a hearing.  Although Judge Griswold touted a 121% increase in ALJ productivity from 2009-2013, the appeals-to-decisions ratio currently stands at 4 to 1.

OMHA’S PROPOSED SHORT AND LONG-TERM SOLUTIONS

As Judge Griswold reiterated numerous times throughout the day, there is no single fix to this overwhelming burden of appeals at the ALJ level, and she emphasized that a “holistic approach” must be taken.  To that end, she and other OMHA staff members  introduced many ideas available for consideration, including:

  • Opening a New Field Office: OHMA will be opening a new field office (either Central time zone or Mountain time zone) sometime this year.
  • Staffing increases in existing field offices: appropriations increased 18.6% for FY 2014, which allows for additional staff and attorney support in existing offices.
  • OMHA Adjudication Manual: The manual is expected to establish “most effective and uniform processes based on best practices” and address “day-to-day implementation of procedural rules.”  OHMA intends to roll out sections of the manual intermittently in the coming months and will publish the manual on its website.
  • Alternate Adjudication Models: OMHA plans to use pilot programs to determine the viability of additional tools and options for resolving claims. 
    • Statistical Sampling: With provider consent, OMHA statisticians could extrapolate a sample of claims from a designated group and apply the error rate to the group of claims.
    • Alternative Dispute Resolution: An OMHA-facilitated mediation of claims.
    • Attorney Case Review: Use in-house attorneys to fast track potentially favorable claims or narrow issues for hearing.
    • Case Grouping: Although this already is an option available at a provider’s request (see discussion below), OMHA is considering grouping cases by provider and claim type.
  • IT Solutions: OMHA is still a paper-based operation.  Judge Griswold and her team plan to bring its document management systems into the 21st century with three initiatives:
    • ALJ Appeal Status Information System Website (AASIS): Expected to roll out May 2014, appellants will be able to check the status of their level 2 and level 3 appeals. This website is anticipated to provide information on the appeal’s status, field office assignment, ALJ assignment, appeal status, and team phone number.
    • Medicare Appeals Template System (MATS): a document generation system that uses fillable forms and population of data to create individualized decisions.  This would help standardize decisions.
    • Electronic Case and Adjudication Processing Environment (ECAPE):  This system will replace OMHA’s existing case management system and make all aspects of case filing and adjudication electronic.  Providers will be able to file their appeals online and check case status electronically while OMHA’s intake, case assignment, and scheduling functions will become automated.  Exhibits, briefs, medical records, and other supplemental materials will be kept electronically and ALJs will be able to issue decisions and generate documents within this system.  Rollout of this program will happen in stages, but it will not happen immediately.  The request for proposal has yet to be issued, and once the contract is awarded, the program is expected to take 2 years before completion.

OMHA also noted other ways that providers can help streamline the process, including voluntary statistical sampling, grouping cases on their own accord, and waiving their right to a hearing if the provider has no additional information to submit.  Although the previous examples might reduce the amount of time spent on each appeal, providers should consider these options warily and implement a strategy that will be most beneficial for winning the appeal in the most cost-effective way.  As one commenter noted, statistical sampling will not be a viable option for providers if CMS continues to require that providers waive their right to rebill those claims.  And as with the grouping of claims, providers should consider that only one ALJ will be involved with each statistical sample (ALJs have starkly differing overturn rates, ranging from 18% to 85%).

DO’S AND DON’TS FOR FILING YOUR APPEALS AT ALL LEVELS
OMHA supplied the audience with the strategic advice for providers to help streamline the appeals process.  As providers now understand, OMHA will not accept briefs or additional evidence with the initial request for hearing.  OMHA explained that providers should:

  • Limit their requests to the Request for Hearing document, Appointment of Representative form, first page of the QIC decision (for identification purposes), and proof of service to other parties. 
  • Not submit evidence already submitted to the lower levels of appeal, including prior appeals, medical records, and prior decisions (except for the first page of the QIC decision). 
  • Submit additional evidence and briefs directly to the ALJ once the case is assigned or within 10 days of the hearing notice. 

During this session, Providers received inconsistent advice regarding the submission of appeals at the first, second, and third levels.  For example, providers were asked to omit prior decisions from their third level appeals, but they were asked to include the demand letter and any prior decisions in their first and second level of appeals.

Although the forum provided a general overview of upcoming initiatives that OMHA will undertake to reduce the backlog of appeals, CMS had only a limited presence there and provided no hints at an interagency fix to the RACs’ increasing number of denials.  OMHA said that it will issue a Federal Register notice soon with a request for comment on OMHA’s proposed methods to reduce the backlog.  But as one commenter proclaimed, providers would be less worried with the delay if they were the ones “holding the dollars” rather than the RACs.  Thus, we may be forced to await congressional action to stop the RACs from bankrupting providers.  Members of Congress recently issued a letter to Secretary Sebelius acknowledging that “[a]n alternative payment arrangement with auditors should be considered by the Congress and CMS in order to ensure RACS are not improperly incentivized to deny claims for profit and to ensure they focus on prevention of errors.” We will keep you updated on any developments.

For more information on the recent Appellant Forum, please contact Genie Stark Thomas (601-360-9706), Larry McCarty (601-360-9725), or Sara Budslick (601-360-9730).