On February 12, 2014, the Office of Medicare Hearings and Appeals (OMHA) held a “Medicare Appellant Forum” in Washington, DC. The event was well-attended, with 300 people signed up to be present in-person, and 500 who signed up to listen on-line. The Forum was announced soon after the decision was made to defer for up to 28 months the assignment of cases to Administrative Law Judges (ALJs) until a massive backlog of cases is reduced. Scheduled in response to industry outrage, OMHA seemed to have as its goal explaining the delays and describing future efforts to improve the processing of cases. Unfortunately, there were no immediate remedies offered. The following overview provides highlights from the full-day Forum.
Chief ALJ Nancy Griswold kicked off the Forum and her presentation by seeking to dispel or clarify misconceptions regarding the deferred case policy and the memorandum she issued to appellants in December 2013. (Judge Griswold’s December 2013 memorandum was the topic of a Health Headline article on January 13, 2014.) Judge Griswold stated that the purpose of the memorandum was to foster an environment of transparency, and the deferred case policy is intended to deal with the unanticipated backlog of cases arising the increase in appeal receipts. She stated further that OMHA is committed to addressing the backlog and will not “artificially limit the number of appeals” it has before it. OMHA has not suspended ALJ hearings, these are ongoing, but it has suspended the assignment of cases to ALJ dockets. During this period, OMHA is continuing to process appeals. Judge Griswold also sought to clarify that OMHA is operationally and functionally separate from CMS and its contractors. Finally, she stated that OMHA does not create policy; it processes Level 3 hearings within the policy framework that applies to the claims at issue.
Judge Griswold and other presenters emphasized the scope of the challenges facing OMHA from the increase in appeal volume. Although the increase was attributed to several causes, including the growing Medicare population, and more active Medicaid agencies (increased dual eligible workload), there was recognition that the expansion of post-payment audit programs (RAC audits being the most prominent) have been responsible for the largest increase in appeal volume.
Background and Statistics
It is worth referencing some of the statistics provided by Judge Griswold with regard to the increased appeal volumes. In general, OMHA appeal receipts have increased since FY 2009, however, there were dramatic increases in receipt volume over the course of FY 2013. Judge Griswold stated that in FY 2012, OMHA averaged 1,250 appeal receipts per week. As of January 2014, OMHA receives on average 15,000 appeals per week, and the vast majority of these appeals are Medicare Part A and B claims appeals. The impact of this increased volume can be seen in the average processing times for ALJ cases. For instance, the average processing time (from request for hearing to decision) in FY 2009 was 94.9 days; in FY 2012 it was 134.5; and by FY 2014 (YTD), it is 329.8 days and expected to increase due to the backlog. Judge Griswold also reported that ALJs are more productive now than ever, issuing on average 4.9 decisions per day in FY 2013, compared to 2.2 decisions per day in FY 2009.
OMHA explained that it was the overwhelming increase in appeal receipts that led it to implement the deferred case assignment policy. OMHA views the deferred case assignment policy as a mechanism to gate the deluge of cases and to manage the physical space limitations that exist at the OMHA field offices due to the paper nature of the current ALJ adjudication system. The deferred case assignment policy requires that Central Docketing hold the cases until assigned to an ALJ. Currently, 480,000 cases are awaiting assignment to an ALJ and thus are being held at Central Docketing.
Initiatives to Resolve the Backlog
What Can Providers Do? OMHA invited providers to “help us help you.” The advice from OMHA leadership included filing cleaner and clearer appeals and limiting the materials submitted with appeal. OMHA advised providers not to resubmit the materials submitted at the QIC and below. However, that advice was met with skepticism from the audience several of whom expressed frustration about the incompleteness of records emanating from the QIC, and a lack of clarity regarding whether the QIC even considered the evidence submitted to it. Later, another OMHA executive noted that if critical evidence was not considered, or was missed below, it should be included with the appeal, although perhaps not until the case was assigned to an ALJ.
Advice from a panel of sitting ALJs included drafting more succinct briefs and waiving live hearings when the case may be heard on the record. This advice was later undermined somewhat when Judge Griswold suggested that the witness testimony at ALJ hearings may be one reason more claims are paid at ALJ.
What Will OMHA Do? Some of the programmatic initiatives described by Judge Griswold and others presenters included the following:
- In FY 2014, OMHA will create a Central or Mountain Time Zone Office (currently three ALJ offices are on the east coast and one is in Irvine, California.)
- OMHA is drafting an “OMHA Adjudication Manual” to govern internal processing of claims and to create uniform policies across offices. Commenters asked for the ability to comment on the Manual, although OMHA did not embrace that offer.
- To streamline hearings and obtain case processing efficiencies, OMHA is considering offering statistical sampling and extrapolation (with Appellant consent) to adjudicate appeals of claims at the ALJ. The statisticians would be provided by OMHA. An OMHA executive indicated that statistical sampling seems to be the most viable option being considered at the moment. They are also considering alternative dispute models, including OMHA-facilitated mediation of claims, and other initiatives, such as OMHA attorney case reviews for fast-track resolution. OMHA is considering possibly giving attorneys signing authority on claims resolutions. OMHA is assessing its legal authority to engage in these alternative dispute options. It may also seek to make regulatory changes, but this would be a longer term solution, and it is unclear what changes to the regulations are being contemplated.
- Short-term IT initiatives include:
- OMHA’s plan to launch a public portal Website for viewing appeal status online. It is expected that the website will available in late Spring 2014. Importantly, it should be noted that cases will not appear on the website until they are entered into the control system, and this takes (at present) approximately 20 weeks from receipt at Central Docketing.
- OMHA’s plan to pilot the Medicare Adjudication Templates (MATs) system, which will be a document generation system providing fillable fields. This system is also expected to be available in some measure in Spring 2014.
In the long term, OMHA is working on a new e-filing system to be called Electronic Case Adjudication and Processing Environment (ECAPE). It is expected that ECAPE will involve a two-year phased process from RFP (expected to be issued in/around March 2014) to full functionality (Summer 2016).
Comments by Forum Participants
Participant comments in Q&A sessions in the morning and afternoon had several themes. First, commenters consistently stated that OMHA’s volume problems are directly attributable to the fact that the appeal Levels 1 and 2 are not working. Comments referenced “cookie cutter decisions” and failure to consider the record as a whole. Following polite cheering from the participants for comments critical of the QICs, Judge Griswold and CMS representatives acknowledged the need for “holistic” reform of the system.
Comments also focused on the proliferation of technical vs. medical necessity (MN) appeals where the lack of small elements in claims are leading to absurd denials that are upheld until the ALJ uses his or her judicial discretion to rule in favor of the provider. OMHA acknowledged that it does not track, nor does it have the ability to track, technical v. MN denials.
Other commenters asked what, if any, feedback is provided to contractors regarding the problems with their decisions. OMHA stated that while the Administrative Qualified Independent Contractor (AdQIC) reviews ALJ decisions and it believes that CMS is trying to provide feedback, in the short-term the appeals process is the mechanism available to deal with inaccurate denials.
Second, commenters stated that the delays in appeals adjudication were wreaking financial disaster on smaller providers. Other commenters recommend that the stay on recoupment of overpayment be extended to include the ALJ process.
Third, a provider commented that the repetitive and un-coordinated audits by the panoply of auditors have been resulting in duplicative denials. This was acknowledged by a CMS representative who said that CMS was looking into better coordination of its auditors.
Other commentators asked about the legal authority for the delay in scheduling hearings for which no direct response was given. Judge Griswold stated that the delay was not a moratorium but was simply an administrative decision to store the pending claims at the central docketing office rather than assigning them to judges.
OMHA advised participants to utilize its website, www.hhs.gov/omha, for monthly updates regarding the status of case processing and for updates on its various initiatives.
Presentations given during the forum are on the website at http://www.hhs.gov/omha/omha_medicare_appellant_forum_presentations.pdf.