The recent announcement by the Office of Medicare Hearings and Appeals (OMHA) that it will delay assigning an administrative law judge (ALJ) to any new audit appeals for two years has significant impact for providers. The December 30, 2013, OMHA memo to Medicare appellants states, “We do not expect general assignments to resume for at least 24 months and we expect post-assignment hearing wait times to continue to exceed six months.” Adding that kind of delay to a system already woefully behind in audit appeals has complicating results.
Likewise, the ALJ has cause for complaint as they never anticipated receiving so many cases. As of AHA’s 3rd Quarter 2013 Survey Results, there are over 150,000 active ALJ cases with over 500,000 cases processed in total since RACTrac reporting began. Needless to say, both sides are equally frustrated.
Here are five key points for providers to consider.
Fairness of deadlines
As part of the Centers for Medicare & Medicaid Services (CMS), OMHA is charged with providing a forum for the fair and timely adjudication of Medicare claim and entitlement appeals. With this announcement, CMS can be more than two years late and not suffer any ramifications. According to OMHA’s website, “Based on our current workload and volume of new requests, we anticipate that assignment of your request for hearing to an Administrative Law Judge may be delayed for up to 28 months.”
Providers certainly want to be able to continue to work nicely together with the government; however, CMS is complying with appeals guidelines initially set forth. The initial rule stated ALJ appeals would be heard in 60-90 days, not 28 months. Conversely, the ALJ infrastructure was never built to withstand the volume of cases they have processed over the years.
Dramatic changes to the process were inevitable. Now they are here.
The announcement raises four questions for providers. Is the delay denying due process? How can providers appeal in a timely fashion? What rights do providers have? What improvements in ALJ infrastructure can be made to expand their bandwidth? The American Hospital Association (AHA) is taking a stand.
On behalf of its nearly 5,000 member hospitals, health systems and other healthcare organizations, and its 43,000 individual members, AHA urged CMS to work with OMHA to remedy this situation immediately. In the memo, AHA suggested to CMS solutions to help mitigate the detrimental impact of hearing requests on hospitals, including postponing recoupment for appealed claims until after the hospital receives an ALJ determination, and enforcing the statutory timeframes to issue appeals decisions.
The AHA memo goes on to state, “It is clear that the RAC program and the resulting volume of inappropriate claim denials are putting significant strain on the appeals process. And hospitals are bearing the financial burden with over a billion dollars caught in a broken appeals process that takes several years to issue a final determination…Action must be taken to address this problem now.”
What you can do
So what can hospitals do to encourage change? Here are some steps to take:
• Discuss with internal appeals department/staff and legal counsel;
• Work with AHA at the state level to lobby for reform.
According to the OMHA’s website, “Although OMHA is processing a record number of Medicare appeals, we continue to receive more requests for hearing than our Administrative Law Judges can adjudicate in a timely manner.” By its own admission, OMHA cannot keep up with the current level of appeals. Delaying the process by more than two years will only make the problem worse.Now’s the time for providers to take a serious look at all appeals currently in process and those cases planned for appeal. Measure your financial risk, consider your options and stay tuned!