The Office of Medicare Hearings and Appeals held a forum today in Washington DC on the recently disclosed 460k Administrative Law Judge (ALJ) appealed claims backlog. Chief ALJ Nancy Griswold headlined a day long event which featured updates from OMHA staff on potential remedies to the backlog and also presentations from CMS on the makeup of the current audit system and how they are interpreting the recently disclosed backlog that is affecting thousands of independent orthotic and prosthetic providers across the country.
While OMHA identified several opportunities and new ideas to improve the efficiency of the Medicare appeals system, none of their proposals will provide immediate relief, or even near term relief. I’m left wondering how many independent orthotic and prosthetic providers across the country will be forced to close their doors while OMHA attempts to pick up the pieces of a broken appeals system that is ravaging Medicare providers of all sizes.
In front of a packed auditorium that included representatives from virtually all health care related provider groups and attorneys in Washington DC, leaders of the OMHA and Judge Griswold began the day by distancing the Administrative Law Judge system from CMS, stating emphatically, “I want to make clear, OMHA is functionally and organizationally separate from CMS. We do not make policy. We do not adjudicate CMS policy.” This set the tone for the morning presentations featuring an update on the backlog and what OMHA is trying to do to work their way through it.
After that important caveat, Judge Griswold provided an update relating to the statistics she outlined in her July 2013 memorandum. As of January 24, 2014, in addition to the estimated delay for an ALJ hearing assignment is now 28 months, a delay of 18-22 weeks is likely prior to the OMHA acknowledgement of a request for a hearing. Specifically speaking to the delay, OMHA average processing time has increased from 94days in FY09 to 329 days in FY14. To do a little math, that is atleast three years until providers will be paid.
Judge Griswold went on to identify some of the reasons for the dramatic increase in ALJ appeals receipts. 1. Expansion of all post payment programs across Parts A, B and DMEPOS (specifically the increase in RAC audits). 2. More active state medicaid agencies impacting the dual eligible (medicare and medicaid eligible) workload. 3. The overall increase in medicare beneficiaries. Judge Griswold closed by saying she shares concerns on processing time and looks forward to working together to find greater efficiency.
The most interesting part of the program was the Q&A. The Q&A was dominated by Medicare providers and their allied organizations repeatedly questioning the efficacy and legitimacy of the current appeals system, specifically the first two levels of appeal, which are governed by the DMEMAC’s and the QIC’s (Qualified independent contractors). The QIC’s were repeatedly referenced in discussing the increased focus on clerical rather than clinical errors in appealed claims. The discussion focused so heavily on the focus of the first two levels of appeal that Judge Griswold specifically said “I hear you loud and clear on the issue of fixing clerical errors or questions at the lower level of appeal. I have now made a note, checked it and starred it.” CMS representative then stated that there is a mechanism in place to allow the first two levels of appeal to “reopen” the case if there is a technical issue involved. However, as was the opinion of many in the room, this option is not being allowed to take place. Too often providers hear, “just appeal to ALJ and it will get overturned” — this is not how the system is supposed to function!
Our members, small providers across the country are hurting. If the current appeals system is not reformed soon, many communities will lose local medical providers, including orthotists and prosthetists. Local, independent and accredited orthotists and prosthetists are the backbone of Medicare’s provision of artificial limbs to beneficiaries across the country. However, since they are independent small businesses, they simply cannot withstand the demands and cash flow pressures the current appeals system creates.
This brings us to the next main line of attack during the Q&A — the recoupment policies of the governing the appeals process. Created under the assumption that recoupments would only be made at maximum 60 days prior to an ALJ ruling (ALJ’s are supposed to issue ruling in 90 days), but with the current backlog, providers are now being recouped for nearly three years before they receive adjudication on their appeal. If the ALJ’s have the ability to alter their timeline for assigning hearing dates under the current rules, why doesn’t CMS alter the timeline for recoupments? Between sessions I discussed this issue with one of the CMS representatives present at the forum and she advised that altering the recoupment timeline may be under CMS current regulatory authority but that she was unaware of any discussions on the topic to date. I plan to follow up and see if we can work to facilitate these discussions moving forward.
Following Judge Griswold was Jason Green, OMHA’s director of program evaluation and policy. Mr Green cited several possible ways to quickly deal with the current backlog and additional efforts OMHA is taking to create a more efficient process. 1. Appellants can group large number of cases into one appeal, mostly for large organizations like hospitals who sometimes have 1000’s of pending requests. 2. OMHA has created a national toll free number for appellants to check the status of their appealed cases. 3. Appellants should be sure case files from lower levels are transmitted to ALJ processing and should not include new evidence that was already included in lower levels of appeal. 4. Fast tracking appeals generated by Medicare beneficiaries. 5. Creation of a anonymous, random appellant climate survey. 6. Creation of statistical sampling program and mediation of appeals by attorneys.
The program went on to identify several attempts to modernize and better facilitate electronic management of OMHA appeals. The short term plan includes creating a secure website to allow appellants the ability to file ALJ appeals online, view appeals assignment and status information. The dramatic increase in appeals requests has created a bottleneck of paper requests which are onerous to enter into database and often confusing, which is another cause for the severe backlog. Later stages of this internal plan include 100% electronic filing and allow an authenticated user interface for repeat users to check the status of all pending Level 2 and 3 appeals.
The O&P profession was well represented at the forum with staff representatives from several independent O&P practices, as well as OPGA and AOPA in attendance. The key issue now that the forum has passed is follow up. Independent O&P’s must continue to raise the profile of the audit issue. 111 members of congress recently sent a letter to HHS Secretary Sebellius demanding RAC reform. O&P must be included in these discussions. The only way to do that is to get involved. Contact OPGA and let us help you work through the process of contacting your elected officials; we have the contact information, background materials, sample letters, talking points; virtually everything you need to get involved. Contact Ryan Ball at firstname.lastname@example.org for more information.