The United States Department of Health and Human Services (HHS) issued a proposed rule intended to address the significant backlog resulting from an “unprecedented and sustained increase” in Medicare appeals.
According to HHS, the Office of Medicare Hearings and Appeals (OMHA) had over 750,000 pending appeals as of April 30, 2016. OMHA only has an adjudication capacity of 77,000 appeals annually. The proposed rule comes on the heels of criticism from various branches of the federal government regarding the delay in processing Medicare appeals, including a recent Government Accountability Office Report identifying opportunities to improve the appeals process; the District of Columbia Court of Appeals recent reversal and remand in American Hospital Association v. Burwell; and a Senate Finance Committee hearing in April 2015.
The proposed rule outlines a series of reform suggestions to speed up the appeals process, including a provision to expand OMHA’s adjudicator pool by permitting OMHA to reassign a portion of its workload to non-Administrative Law Judge (ALJ) adjudicators. Instead, attorney adjudicators would be permitted to issue decisions when an appellant decides it does not want a hearing or withdraws his or her request for an ALJ hearing; decisions by the attorney adjudicators would be able to be reopened or appealed the same way as if the ALJ had made the decision.
The proposed rule would also designate select Medicare Appeals Council (MAC) decisions to be precedential and binding on CMS and contractors in making initial determinations, redeterminations, and reconsiderations. CMS would provide appellants with a public listing of all such final precedential decisions, in order for the appellant to evaluate whether or not to move forward with the appeals process. While certain precedential decisions may help to curb inconsistent ALJ decisions, it will be important to monitor how (and if) Medicare contractors implement such precedential decisions.
If a precedential decision would apply to a factual question, the decision would be binding where the relevant facts are the same and the evidence is presented that the underlying factual circumstances have not changed since the AMC issued the precedential decision. Many claim appeals tend to turn on evidence of a beneficiary’s condition or care at the time discrete items or services are furnished, and therefore, the proposed rule on precedential decisions “is unlikely to apply to findings of fact in these appeals.”
Other policies in the proposed rule include: creating procedural efficiencies, limiting proceedings in which CMS or its contractors can participate, revising the amount in controversy threshold, and clarifying regulatory language and timeframes.
Chief Administrative Law Judge Nancy Griswold and Departmental Appeals Board Chair Constance B. Tobias note that the President’s fiscal year 2017 proposed budget requests additional funding and legislative reforms to facilitate appeals processing and encourage resolution of appeals earlier in the process. Should Congress grant the Administration’s requests, Griswold and Tobias still believe that the backlog of appeals would not be eliminated prior to FY 2021.
Any comments on the proposed rule must be submitted by 5 p.m. EST on August 29, 2016. As has been typical, comments may be submitted electronically through www.regulations.gov or via U.S. Mail, to Office of Medicare Hearings and Appeals, Department of Health and Human Services, Attention: HHS:2015-49, 5201 Leesburg Pike, Suite 1300, Falls Church, VA 22041.