Home Health Line

Beginning Feb. 5, home health agencies and other providers with a low volume of pending appeals at the administrative law judge (ALJ) level will have a new option for resolution while avoiding the judges’ massive backlog of appeals. To qualify for the Low Volume Appeals (LVA) option, providers must have Part A or B claim appeals pending at the third and/or fourth levels of appeal, CMS announced during a Jan. 9 MLN call.

CMS will settle eligible appeals at 62% of the net allowed amount. The settlement amount isn’t negotiable,CMS notes in frequently asked questions (FAQs) about the LVA option. Some providers might love the new option, but others might feel they can’t survive on the amount CMS is offering, says attorney Andrew Selesnick of the Buchalter law firm in Los Angeles.

Although taking the deal would amount to a 38% loss, it might make sense for agencies that don’t have a large number of claims awaiting a hearing and agencies that decide against waiting years for resolution before a judge, adds attorney Elizabeth Pearson of Pearson & Bernard in Edgewood, Ky. The average processing time for an appeal decided or dismissed in the 2017 fiscal year at the ALJ level was a little more than three years, HHS data show. For some home health agencies, the wait has been even longer. Joe Osentoski, reimbursement recovery & appeals director for Quality in Real Time (QIRT), says one agency QIRT represents received a notice of hearing date of April 19, 2018 — 1,374 days after the ALJ hearing request was filed. The service at issue occurred from April 19, 2012 to June 17, 2012.

HHS provides settlement option details 

Appellants will qualify for the LVA option if they have fewer than 500 appeals pending at the third and fourth levels of appeal combined as of Nov. 3, 2017, with a total amount of $9,000 or less per appeal, HHS says (HHL 11/20/17).

The settlements will apply to all your agency’s eligible appeals — you can’t settle some but not others.

“There is no specific restriction based on dates of service,” CMS notes in the FAQs.

Neither your agency nor CMS will admit fault or liability by reaching a settlement, the FAQs state. Though appeals will be dismissed, in the Common Working File the claims will remain denied.

If at any point it’s determined that appeals aren’t able to be included in a settlement, those appeals are expected to return to their prior position in the appeals queue.

Steps to reach a settlement

Step 1: View and submit an expression of interest form. The form is available at http://go.cms.gov/2m6hZWL.

When filling out the form, don’t include first or last names of beneficiaries, initials of beneficiaries, addresses of beneficiaries or truncated health insurance claim numbers(HICN). If you provide private data about beneficiaries, you won’t be allowed to participate in the LVA option.

When submitting the form, provide original signatures, use photocopies or use scanned copies. Scan the signed copy into PDF format and send it as an attachment to MedicareAppealsSettlement@cms.hhs.gov.

Examine submission deadlines for the form. The submission window for appellants with a National Provider Identifier (NPI) ending in an even number is Feb. 5 through March 9. The submission window with appellants with an NPI ending in an odd number is March 12 through April 11.

CMS divided the expression of interest period in two “due to the volume of appellants potentially eligible for this settlement process,” the FAQs state.

The short window to submit a form is likely designed for HHS to quickly reduce the ALJ backlog, says attorney Andrew Wachler of Wachler & Associates in Royal Oak, Mich. In December 2016, a district court judge ruled that HHS must reduce the backlog of cases awaiting an ALJ hearing by 60% by Dec. 31, 2018 (HHL 12/19/16).

Appellants with multiple NPIs must submit one expression of interest per NPI with eligible appeals.

When emailing the form, ensure the subject line contains your agency’s name and NPI, as well as noting that you’re expressing interest. For example, a subject line could be “Anytown Memorial-1234567890-Expression of Interest.”

Steps 2 and 3: CMS will verify whether your agency and its appeals are eligible. For claims/appeals to be considered for the LVA option and for a settlement agreement to be reached, several things must be true including:

  • The appeals were filed properly and timely at the third and/or fourth level of appeal as of Nov. 3, 2017, and were pending as of that date.
  • A Medicare contractor denied the claims, which remain in a fully denied status.
  • The claims weren’t part of an extrapolation. If you disagree with CMS’ determination about your eligibility, you can submit an eligibility determination request (EDR) form at http://go.cms.gov/2kBwOjV.

Step 4: Review the spreadsheet and agreement that CMS emails you.

If you agree, sign the agreement and submit it to CMS within 15 days of receipt.

Attach the signed agreement as a response to the email CMS sent or email it to MedicareAppealsSettlement@cms.hhs.gov.

If you disagree, submit an EDR form. Attach that form as a response to the email CMS sent or email it to MedicareAppealsSettlement@cms.hhs.gov.

You abandon the settlement process by not providing CMS a signed agreement or EDR within 15 days.

View a sample settlement agreement at http://go.cms.gov/2D9Kz1p.

Step 5: Work with CMS and your MAC to reach a consensus on EDRs if the forms are necessary. CMS has the right to make final eligibility determinations.

Steps 6 and 7: CMS signs the agreement. Then it sends a copy of the executed agreement to your agency. All associated appeals are pended.

Step 8: Your MAC receives the spreadsheet and completes a final check of eligibility. The MAC will price the claims associated with the agreement.

Step 9: You get paid. CMS will issue payment by check or electronic funds transfer within 180 days of when it signs the settlement agreement. If the payment doesn’t occur by that date, CMS will pay interest.

Step 10: Settled appeals are dismissed. If any appeals contained claims that couldn’t be settled, they are returned to their original position in the appeals queue.

Step 11: CMS sends your agency the fully executed agreement and final settled appeals list.

— Josh Poltilove (jpoltilove@decisionhealth.com)

Related links: View CMS’ FAQs about the LVA option at http://go.cms.gov/2CStagS. View CMS’ slides from the MLN call at http://go.cms.gov/2qP7zAu.