A sensible approach to clearing the Medicare appeals backlog

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Elizabeth Newman
Elizabeth Newman

While hospitals and long-term care providers often disagree, providers are united on the thorny topic of backlogs for Medicare appeals.

Specifically, everyone agrees that the backlog of Medicare-related appeals is unprecedented. From fiscal year 2009 to 2014, the number of requests for an Administrative Law Judge hearing through the Office of Medicare Hearings and Appeals rose 1,222%.  At the moment, there are more than 650,000 appeals. The American Hospital Association even took the government to court over how long the appeals process takes. Ultimately, a judge said the Department of Health and Human Services is supposed to clear its backlog by 2020, and achieve a 30% reduction by the end of this year.

In the HHS final rule, published Jan. 17 in the Federal Register, and going into effect March 20, the government lays out a “three-prong approach” for tackling the problem. Namely, that's to request new resources at all levels of appeal to increase adjudication capacity, take administrative actions to reduce pending appeals and the backlog, and to propose legislative reforms to provide additional funding.

That all sounds nice, but what does it really mean?

What's the most promising is the implementation of “attorney adjudicators” at the ALJ level of appeal, which lets these attorneys handle non-hearing decisions such as withdrawals and dismissals. These aren't “rent-a-lawyers” but licensed government attorneys with at least some knowledge of Medicare coverage.

Most of the comments around this idea were favorable, although some balked at the idea of appeals being handled by attorneys rather than the judges. But here's the bottom line: Without a huge influx of funding into the ALJ system, which I would suggest is unlikely to be a priority for the new president or a Republican Congress, there aren't fabulous options to reduce the backlog. It's estimated this change would give “approximately 24,500 appeals per year to attorney adjudicators, who would be able to process these appeals at a lower cost than would be required if only ALJs were used to address the same workload,” the rule states.

It's a start. There's no reason that qualified attorneys shouldn't be able to efficiently draft the appropriate order for certain actions, such as issuing dismissals based on an appellant's withdrawal of a request for an ALJ hearing or conducting reviews of QIC [Qualified Independent Contractor] and IRE [Independent Review Entity] dismissals.

Additionally, the rule includes changes around who has to be at the hearing, which will eliminate delays and redundant testimony. Specifically, contractors can send in their written thoughts. According to the rule, while CMS or a contractor could “elect to participate in the proceedings on a request for an ALJ hearing before receipt of a notice of hearing or when a notice of hearing is not required, if a hearing is then scheduled, the participating entity is not obligated to attend the hearing and if it has not already filed a position paper and/or written testimony, it may do so up to five calendar days prior to the hearing.”

I can't tell you that written testimony from a contractor, rather than him testifying in person, will help your specific case. But the changes should make scheduling hearings easier, allow ALJs to make the most of their time and ultimately let judges hear more cases, which is in everyone's best interests.

It is absolutely true the government has partially itself to blame for this backlog due to the implementation of the Recovery Audit Program. But we can also agree that there are more and more people who qualify for Medicare, which will not change as long as people continue to live longer, and that there is a growth in appeals from states related to dual eligibles. It's also hard to criticize the government for enhancing monitoring of payment accuracy in Medicare Part A and B.

Perhaps, as some have predicted, long-term care is about to enter a golden age of less government regulation, Republicans embracing nursing homes, and reimbursement money flowing like hot lava. Or we may be entering a dire budget season that slashes Medicare. But no matter what the future holds, let's hope this new rule allows at least some providers to find resolution to their disputes so that everyone can move on.

Follow Elizabeth Newman @TigerELN. 


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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Marty Stempniak.