The Center for Medicare Advocacy recently released an article detailing meaningful changes in a new final rule issued by the Centers for Medicare & Medicaid Services (CMS). The article shares a number of concerns with the new regulations which apply particularly to the Administrative Law Judge (ALJ) level of review.
“The new regulations stated goal is to address the “unprecedented and sustained increase in the number of appeals” in recent years, which has “strained OMHA’s available resources and resulted in delays for appellants to obtain hearings and decisions” due to the enormous backlog of claims waiting to be adjudicated. While the agency’s effort to ease this backlog by streamlining the appeals process is commendable, the Center for Medicare Advocacy (the Center) believes that some of the key revisions do not strike the right balance between efficiency and ensuring beneficiaries’ access to full, fair, and timely hearings and decisions on their claims.”
The Center goes on to discuss the key revisions and their cause for alarm.
On the “Use of Attorney Adjudicators”:
“The revised rules authorize “Attorney Adjudicators,” rather than Administrative Law Judges (ALJs) to perform a portion of OMHA’s workload that does not require a hearing. An Attorney Adjudicator is defined as “a licensed attorney employed by OMHA with knowledge of Medicare coverage and payment laws and guidance”. CMS indicates that Attorney Adjudicators would receive the same training as OMHA ALJs.”
The implementation of Attorney Adjudicators serves as notice to appellants that should they waive their rights to appear at an ALJ hearing; this shall allow an Attorney Adjudicator to issue a decision. While CMS has stated that Attorney Adjudicators will receive the same training as Administrative Law Judges, one would expect experience to play a large part in prudent and impartial decision-making regarding these hearings and reviews. We will have to wait and see how the Attorney Adjudicators perform in this capacity.
Regarding the removal of the 90 day deadline to issue a decision:
“Despite strong objections by the Center and other commenters, CMS removed the word “must” from regulations mandating that ALJs issue a decision no later than 90 days after receiving a hearing request. According to CMS, removing “must” does not “abrogate the general expectation that a decision, dismissal, or remand will be issued within an applicable adjudication time frame, such as the 90 day time frame provided for at section 1869(d)(1)(A) of the Act…”, but “only has the effect of more appropriately setting expectations with regard to whether there is an absolute and unqualified requirement to issue a decision, dismissal, or remand within the adjudication time frame.”
It is curious that CMS has removed the mandatory 90 day deadline provision when it is clear that appellants will not receive an adequate alternative by escalating an appeal from the ALJ to the next level of review, which has no rights to a hearing and has even longer delays than the ALJ level when it comes to reaching a decision.
With the new regulations, telephone hearings are now the default mode for all appellants, except unrepresented beneficiaries:
“The regulation makes telephone hearings the default hearing method for individuals other than unrepresented beneficiaries. Video teleconferencing (VTC) will be retained as the default method of conducting hearings for unrepresented beneficiaries, unless good cause for an in person appearance is shown or the beneficiary requests a phone hearing.
The Center urged the agency to retain VTC as the default method for all appellants or, alternatively, allow appellants to choose a VTC hearing without having to establish good cause. We have found that appearance by VTC affords greater assurance that ALJs fulfill their duty to provide a full and fair hearing. Reliance solely upon listening requires greater mental energy and focus and can prove exhausting. VTC hearings afford a measure of protection against procedural improprieties, particularly in long hearings and those involving multiple parties, large volumes of documentation, or complex arguments.”
The Center presents a valid point that telephone hearings could be an inadequate communication method when dealing with the potentially complex nature of these hearings. This limited form of exchanging information will only increase the burden on appellants that are already being asked to go over and above to prove their case throughout the lengthy appeals process.
CMS also revealed new content and copy requirements for hearing requests in the final rule. Appellants will be required to submit additional information on the hearing request form and also provide OMHA with proof they notified the appropriate parties of the request for hearing:
New Content Requirements:
“The revised rules require appellants, including unrepresented beneficiaries, to provide a telephone number on the hearing request to help ensure that OMHA can make timely contact with them. The Medicare appeal number or document control number, if any, assigned to the QIC reconsideration or dismissal notice being appealed, must also be indicated. The agency also clarified that appellants must provide the “dates of service for the claims being appealed, if applicable.” In addition, appellants will be required to include the “amount in controversy” applicable to the disputed claim in their hearing request, unless the matter involves a disputed termination of Medicare covered items or services, and the beneficiary did not elect to continue receiving the items or services.”
The Office of Medicare Hearings and Appeals (OMHA) has issued an updated “Request for Administrative Law Judge (ALJ) Hearing or Review of Dismissal” form to include these new content requirements. The updated form can be accessed here.
New Copy Requirements:
“The amended rules require an appellant to send a copy of a request for an ALJ hearing or review of a QIC dismissal to the other parties who were sent a copy of the reconsideration or dismissal, along with any additional materials that are necessary to provide the information required for a complete request. If additional evidence (e.g., medical records) is submitted with the request for hearing, the appellant may send a copy of the evidence or briefly describe the evidence pertinent to the party and offer to provide copies of the evidence at the party’s request (subject to authorities that apply to disclosing evidence). Evidence that the required copies were sent to the applicable parties includes: certification on the standard hearing or review request form; an indication such as a “cc” line; an affidavit or certificate of service; or a mailing or shipping receipt.”
It should be noted that CMS will provide an appellant two opportunities to provide evidence that the required copies were sent to appropriate parties. If an appellant still fails to provide this evidence, however, the appellant’s request for hearing will be dismissed.
The new rules also change at what juncture parties can introduce new evidence to OMHA during the hearings process. Previously, appellants could submit evidence with the request hearing, or by the date specified in the request or within 10 calendar days of receiving the notice of the hearing. Now, appellants cannot submit new evidence at the ALJ level without good cause:
“The revised rules establish that new evidence introduced at the OMHA level will not be considered without a statement explaining why the evidence was not submitted prior to the QIC’s reconsideration, and also sets forth additional circumstances for which an ALJ or Attorney Adjudicator could find good cause to accept new evidence.”
These are just a few of the significant changes presented in the final rule which goes into effect on March 20, 2017.
Source: The Center for Medicare Advocacy