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From Health Law Daily, January 23, 2014

OMHA’s suspension of Medicare claims appeals leads to strong reactions

By Susan Smith, JD, MA

The December 2014 announcement of the temporary suspension of new requests for administrative law judge (ALJ) appeals conducted by the Office of Medicare Hearings and Appeals (OMHA) has brought about some strong reactions. The temporary suspension was the result of an anticipated workload increase from the traditional appeals and the increased workload resulting from Medicare State Agencies appeals and the Recovery Audit program, according to a notice in the Federal Register (79 FR 393) on January 3, 2014. The backlog of appeals began to form in fiscal year 2012, in which more requests for hearing were being filed than could be adjudicated by OMHA. As announced in the Notice, OMHA will hold a Medicare Appellant Forum on February 12, 2014, at 10:00 a.m. to address the issues.

OMHA actions. The OMHA, a staff division within the HHS Office of the Secretary, administers the nationwide ALJ hearing program for Medicare claim and entitlement appeals and serves Medicare providers, suppliers, and beneficiaries. Appeals concern disagreements with Medicare coverage determinations and determinations related to Medicare eligibility and entitlement, and income-related premium surcharges made by the Social Security Administration.

Nancy Griswold, the OMHA chief ALJ sent a letter to appellants and health care associations announcing that effective July 13, 2013, OMHA was temporarily suspending new requests for ALJ hearings to allow OMHA to adjudicate a backlog of nearly 357,000 claims that resulted from the dramatic increase in the number of decisions being appealed to OMHA. Griswold noted that OMHA’s claim and entitlement appeals workload increased 184 percent from 2010 to 2013, while sources to adjudicate the claims remained constant. Griswold explained that while new requests for ALJ hearings would be temporarily suspended, claims filed directly by Medicare beneficiaries would continue to be assigned and processed. In addition, Griswold said that OMHA is working closely with CMS and the Departmental Appeals Board to address its ability to meet the timeliness requirements and “work more smartly and efficiently to address the increased demands for hearings.”

Association’s responses to the announcement. Susan Jaffe reported in a Kaiser Health News (KHN) article dated January 21, 2014, that Judith Stein, executive director of the Center for Medicare Advocacy said that the Center has “elderly or disabled Medicare clients waiting as long as two years for a hearing and nine months for a decision.” In a letter to Marilyn Tavenner, CMS Administrator, Rick Pollack, Executive Vice President of the American Hospital Association, stated that Delays of at least two years in granting an ALJ hearing for an appealed claim are not only unacceptable, they are a direct violation of Medicare statute that requires ALJs to issue a decision within 90 days of receiving the request for hearing.” Pollack added that “Excessive inappropriate denials by Medicare Recovery Audit Contractors (RACs) are a direct driver of the ALJ backlog. Hospitals have been put in an untenable position in which the nearly unfettered ability of RACs to churn out erroneous denials forces them to pursue appeals in order to receive payment for medically necessary care, while the inability of OMHA to manage the appeals process within the timeframes required by the Social Security Act holds that payment hostage.” In his letter, Pollak offered “solutions that would help mitigate the detrimental impact 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 Forum. The Notice in the Federal Register explained that the Forum will provide: (1) updates to OMHA appellants on the status of OMHA operations, (2) relay information on a number of OMHA initiatives designed to mitigate a growing backlog in the processing of Medicare appeals at the OMHA-level of the administrative appeals process; and (3) provide information on measures that appellants can take to make the administrative appeals process work more efficiently at the OMHA-level.

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