The Centers for Medicare and Medicaid Services (CMS) part of the Department of Health and Human Services (HHS) issued a final rule on January 17, 2017 titled “Medicare Program: Changes to the Medicare Claims and Entitlement, Medicare Advantage Organization Determination, and Medicare Prescription Drug Coverage Determination Appeals Procedures,” (Final Rule), that went into effect March 20, 2017. This Final Rule revised the appeal process before Administrative Law Judges. The Final Rule in its entirety can be found here. The new rule is designed to reduce the number of appeals and the time needed to adjudicate appeals before an ALJ, part of the Office of Medicare Hearings and Appeals, and the next level of appeal held before the Medicare Appeals Council, part of the Departmental Appeals Board. HHS hopes to eliminate the appeal backlog by fiscal year 2020.
The Final Rule will permit a Medicare Appeals Council’s decision to have precedential value to provide consistency, reduce resources need to adjudicate an appeal, and possibly reduce the number of appeals. It also allows attorney adjudicators to decide appeals without a hearing, review dismissals by a Qualified Independent Contractor (QIC), issue remands to CMS contractors, and dismiss a request for hearing when requested by the appellant. These changes will reduce the time that ALJs spend on administrative matters and allow more resources for conducting hearings. The Final Rule will also limit the number of CMS contractors that can participate in a hearing, improve administrative efficiency, by for example allowing an ALJ to vacate its own dismissal, and conduct most hearings via telephone (unless the appellant is an unrepresented beneficiary).
Whether a decision will be made precedential is determined by the Department Appeals Board chair who will consider if the decision addresses reoccurring legal issues or issues of public interest. These precedential decisions will apply to future cases as well as any factual findings involving the same parties and the same relevant facts.
The Final Rule also allows for attorney adjudicators. An attorney adjudicator can issue a decision when an ALJ hearing is not required, for example when an appellant wants to withdraw an appeal, when an appellant appeals a QIC dismissal, or when an appeal should be returned to CMS or the contractor for further information.
The Final Rule also revises the Appointment of Representation regulation to conform with Form CMS 1696, and replaces the “Request for Medicare Hearing by an Administrative Law Judge,” with Form OMHA-100, “Request for an Administrative Law Judge Hearing or Review of Dismissal.”
Another area of importance addressed by the Final Rule regards the inclusion of new evidence before the ALJ. There are now four circumstances identified in the Final Rule as good cause for the introduction of new evidence. Those areas include when new evidence is material to an issue that was not identified in the QIC reconsideration, when the ALJ determines that new evidence is material to a new issue identified after the QIC reconsideration, when a party was unable to obtain the evidence before the QIC issued its reconsideration, and the party made reasonable attempts to obtain the evidence before the QIC issued its reconsideration, 42 CFR 405.1028(a)(2).
The Final Rule also abolished the statement of issues requirement. 42 C.F.R. 405.1022(b)(1). Now all issues raised in prior appeals which were not resolved entirely in favor of the appellant are preserved. The ALJ can also no longer raise new issues with some exceptions. Finally, the Final Rule makes telephone hearings the default hearing method for parties represented. 42 C.F.R 405.1020 (b)(ii)(B)(2).
For more information about filing an appeal as a provider, visit Rosenblat Law or contact Mike Rosenblat at 847-480-2390
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