On December 8, 2015, Senate Finance Committee Chairman Orrin Hatch (R-Utah) and ranking member Ron Wyden (D-Ore.) introduced the Audit & Appeals Fairness, Integrity, and Reforms in Medicare (AFIRM) Act of 2015 (S. 2368). Among other things, the Act would make program improvements to the Recovery Audit Contractor (RAC) program, provide increased resources to the Office of Medicare Hearings and Appeals (OMHA) and Health and Human Services (HHS) Departmental Appeals Board (DAB), as well as create a new program where “Medicare magistrates” would handle certain Medicare appeals with lower amounts in controversy. These measures are intended to help ease the growing backlog of Medicare appeals, which according to HHS number nearly one million claims. The bill was reported out of the Committee by a voice vote.
Specifically, the Act would provide for the transfer of $125 million to OMHA and $2 million to the DAB for fiscal year 2016 and each fiscal year thereafter for the purposes of conducting claims reviews, hearings, and appeals. These amounts would be transferred from the Federal Hospital Insurance Trust Fund and the Federal Supplementary Insurance Trust Fund, and would be in addition to any other amounts that may be available to OMHA and the DAB for such purposes.
With respect to the creation of Medicare magistrates, the Act would increase the minimum amount in controversy from $100 to $150, and provide that Medicare magistrates may review cases meeting or exceeding the $150 minimum threshold, up to a maximum threshold of $1500, which would qualify for hearing by an administrative law judge. Under the current law, amounts in controversy of $1000 or more qualify for judicial review. These provisions would take effect on January 1, 2017.
Other provisions of the Act would: (1) create a Medicare Reviews and Appeals Ombudsman whose duties would include identifying, investigating and assisting in the resolution of complaints and inquiries related to the Medicare audit and appeals process from providers and suppliers; (2) ensure that RAC review guidelines are approved and made public before their implementation; (3) expand, and make permanent, the Settlement Conference Facilitation Program; (4) require the Secretary to establish a process for expedited review; (5) provide the authority to use sampling and extrapolation methodologies, with the consent of the appellant, to consolidate appeals for administrative efficiency; (6) establish a secure Medicare Provider Claim Audit Internet Portal, to enable providers to track the status of a claim through the appeals process; and (7) require the Secretary, in consultation with the HHS Office of Inspector General and U.S. Attorney General, to establish and implement a process under which OMHA and the DAB would be required to refer cases in which there is a credible suspicion of fraudulent activity to appropriate law enforcement agencies and to CMS.