Featured in Government News of the Week, July 25, 2016

CMS Aims to Streamline MA Appeals Process by Easing ALJ Workload

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July 21, 2016Volume 22Issue 14

CMS is seeking to streamline the process for hearing and resolving Medicare Advantage and Part D payment and coverage determination appeals at the administrative law judge (ALJ) level through a new proposed rule (81 Fed. Reg. 43789, July 5). By pursuing a “three-prong approach” that would, in part, increase the number of available adjudicators, CMS aims to tackle the rising number of appeal requests and current backlog of claims waiting to be adjudicated at HHS’s Office of Medicare Hearings and Appeals (OMHA).

Appealing to ALJs for a hearing or review is an additional level of the administrative appeal process for MA organization determinations, Part D coverage determinations and Medicare fee-for-service determinations, if certain requirements are met. ALJs within OMHA began adjudicating appeals in July 2005 in accordance with the Medicare Modernization Act following the transfer of that responsibility from the Social Security Administration. But appeals to the agency have exploded in recent years, with the number of requests going through OMHA for an ALJ hearing or review increasing by 1,222% between fiscal year 2009 and FY 2014. As of April 30, 2016, OMHA had more than 750,000 pending appeals, while the agency’s adjudication capacity was at the time 77,000 appeals per year, with an expected additional 15,000 appeals per year by the end of FY 2016, according to the proposed rule.

To address this backlog, CMS intends to pursue a three-prong approach that would:

(1) Request new resources to invest at all levels of appeal to increase adjudication capacity and implement new strategies to alleviate the current backlog;

(2) Take administrative actions to reduce the number of pending appeals and implement new tactics to reduce the backlog; and

(3) Propose legislative reforms that provide additional funding and new authorities to address the volume of appeals.

Some of the specific provisions include easing the workload of ALJs by leaving certain tasks such as issuing a decision when a hearing is not required to attorney adjudicators, allowing select post-ALJ review decisions from the Medicare Appeals Council (MAC) to be precedential, and changing how it calculates the “amount in controversy” required for an ALJ hearing.

For plans, which can appeal ALJ decisions to the MAC, the “most engaging” piece of the rule may be the proposal to make certain MAC decisions precedential, suggests Kelli Back, an attorney with the law offices of Mark Joffe in Washington, D.C. “My sense is that there’s significant variation between the ALJs....This has the potential to not only create some predictability at that level, but to allow [Recovery Audit Contractors] and Medicare Advantage plans to have some additional guidance to use in making determinations (and providers in billing for services) that could potentially cut down on the amount of appeals and overturns,” she tells MAN.

Comments on the rule are due by Aug. 29. View the proposed rule at http://tinyurl.com/hmkd94u.

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