Kristin Walter


The U.S. Department of Health and Human Services recently issued a brief to the federal D.C. District Court related to the American Hospital Association’s case against the agency over the backlog of Medicare appeals. 

The brief makes public new data and sets the record straight regarding misperceptions perpetuated by the AHA about the role of the RAC Program within the Medicare appeals system. HHS clarified yet again that the RAC “program simply was not, and is not, the primary source of the backlog” and shared that RAC claim determinations made up only 9.5% of all appeals filed with the Office of Medicare Hearings and Appeals in FY2016 and only 14.1% in FY2015.

HHS went on to clarify that appeals from State Medicaid agencies make up a significant portion of the backlog and, according to Chief Administrative Law Judge Nancy Griswold, in FY2015 51% of incoming appeals were filed by the same five appellants. The brief also details numerous tactics HHS is employing to reduce the backlog in a timely manner.

HHS has put in place several efforts to address the backlog, which thus far has retired nearly 200,000 cases since litigation began in late 2015. HHS also offered providers two opportunities to settle their backlogged cases, which has decreased the backlog by 288,726 appeals.  

The Settlement Conference Facilitation has also been expanded, adding 11 new facilitators. Most recently, HHS announced a third settlement for providers, which they estimate will remove another 95,000 appeals from the backlog. Because of these changes, the backlog is projected to be eliminated by the end of FY2019 — 2 years earlier than the original projection.

This week, the federal court gave a final ruling ordering HHS to reduce the Medicare appeals backlog at the ALJ level every year and eliminate it by 2021. Based on HHS current plans and new policies aimed at reducing the backlog, they will be able to meet the deadline set by the court.

In addition to the program enhancements put in place by HHS, Congress has been developing important new legislation to address the appeals process – the Audit and Appeals Fairness, Integrity and Reforms in Medicare (AFIRM) Act. Passed by the Senate Finance Committee last year, AFIRM seeks to make additional programmatic changes to further address the cases awaiting review in the OMHA appeals process.

The AFIRM Act would ensure active steps are taken to address the backlog by sending claims back to the first level of appeal when new evidence is introduced later in the process. It would also create Medicare Magistrates to perform reviews and render decisions on certain types of cases, and ensure fairness by requiring that all parties involved be notified in advance of a hearing to allow for participation of all stakeholders.

We must all ask our legislators to champion the fixes needed for the Medicare appeals process and pass the AFIRM Act very early in the new Congress. The actions outlined in the legislation paired with the current HHS policies will quickly help get the appeals process back on track.

However, we must all take note of the program issues and actions that caused the program to be flooded in the first place. The Council for Medicare Integrity recommends that additional safeguards be added to the Program to further promote expediency and prevent future backlogs. 

We recommend adding an appeals filing fee — refundable if a provider wins its appeal — as championed previously by the President’s 2016 Budget, the HHS Secretary, and Chief ALJ; penalties for providers who fail to bill a claim within 3 months of the date of service; requirements recommended by Congress that ALJs make decisions consistently and in accordance with Medicare policy; and expedition of claims where no facts are disputed.

These additional program protections would go far towards preventing a future backlog by assuring an even playing field and allowing for due process for all stakeholders involved.

Kristin Walter is a spokeswoman for The Council for Medicare Integrity.