The Centers for Medicare and Medicaid Services (CMS) recently issued a Final Rule to streamline and address the substantial backlog of Medicare administrative appeals at the Administrative Law Judge (ALJ) and Departmental Appeals Board (DAB)/Medicare Appeals Council levels.
Among other changes to the appeals process, the Final Rule:
- Permits the designation of Medicare Appeals Council decisions as precedential, in order to provide clarity
- Gives attorney adjudicators certain authority that had been previously reserved to the ALJs, including the authority to decide appeals that can be determined without a hearing, to review dismissals by the Qualified Independent Contractors (QIC) and Independent Review Entities (IRE), to issue remands to CMS contractors, and to dismiss requests for hearing when a request is withdrawn by an appellant
- Limits the number of CMS or CMS contractors that can be a participant or party at the hearings
- Creates efficiencies by, among other things, allowing ALJs to vacate their own dismissals as opposed to requiring the appellants to appeal a dismissal to the Medicare Appeals Council, using telephone hearings, and requiring appellants to provide more information on what is being appealed
- Establishes an adjudication time frame for cases remanded from the Medicare Appeals Council
- Revises remand rules to keep cases moving forward and simplifies the escalation process
- Provides increased specificity on what would be considered good cause for new evidence to be introduced at the ALJ level
The effective date of the Final Rule is March 20, 2017, although due to the Trump Administration’s memorandum Regulatory Freeze Pending Review, it is not clear when – or if –the Final Rule will actually go into effect.
On a parallel track, litigation brought by the American Hospital Association in the United States District Court for the District of Columbia seeking a Writ of Mandamus against the Secretary of the Department of Health and Human Services (HHS) resulted in a Memorandum opinion ordering HHS to meet certain deadlines to reduce the percentage of appeals pending before the ALJ. The decision was appealed recently by HHS. Read more about the litigation here.