WHAT IS HAPPENING AT THE OFFICE OF MEDICARE HEARINGS AND APPEALS?
Q: Ken, what is the OFFICE OF MEDICARE HEARINGS AND APPEALS AND WHAT IS HAPPENING THERE?
A: GRIDLOCK is happening there. The Office of MEDICARE HEARINGS AND APPEALS is the office that handles payment claims for services rendered under traditional Medicare as well as entitlement issues.
DUE to the CMS program of Bounty Hunter Contractors [RACs] which receive payments based upon a percentage of the recoveries that they make, the Medicare Office of Hearings and Appeals has been overwhelmed with appeals. These appeals are by claimants who should never have been denied payments, but for that the Bounty Hunter Contractors known as RACs. That is Recovery Audit Contractor. RACs are anything but fair auditors. They will slap a rejection on anything that they possibly can and then they will do an extrapolation. This means that they have a questionable denial in the first place and then they use that denial and the wonderful world of mathematical extrapolations on your full universe of similar claims [and at times, not so similar] in order to claim an extreme recovery from which they receive a percentage under the CMS program.
A November 2012 OIG report found that of those Part A claims that made it to the third level of review [ie, the ALJ level], the denials have been overturned in favor of the hospital appealing the denial.
Q: How can the Office of Hearings and Appeals fix the problem.
A: OMHA has simply stopped assigning new cases. Effective July 15, 2013, OMHA simply stopped accepting new cases. On December 24, 2013, OMHA’s chief administrative judge in an act of administrative courage, issued a memo confirming that it had stopped accepting new cases and explained that with a backlog of 357K cases with only 65 administrative law judges, OMHA had to close its doors to most new cases. In December 2013, OMHA was receiving 15000 appeals a week.
Q: What is Congress saying about this?
A: Well, Congress which started this phenomena by passing legislation to create the RACs in the first place, is complaining to the Secretary to take steps to fix the situation. The letter had seven pages of Congressional signatures. But, there has been no relief yet. It is a exemplary of the adage of be careful of what you wish for because you just might get it.
Q: How is the Medicare Appeal system supposed to work?
A: Well, there is supposed to be 4 levels of administrative appeals and then the US District Court.
Q: What are the four levels of administrative appeal that you are supposed to have prior to US District Court?
A: Assuming that we are discussing a traditional pay for service program, after an initial denial by a CMS contractor, you are supposed to have an appeal that is called a redetermination by the same contractor but different staff.
After the redetermination by the initial contractor, you are entitled to an appeal called a reconsideration. This is performed by a separate independent review agency called a QIC. That is a Qualified Independent Contractor. I suppose that is to suggest that the initial contractors are not very qualified. However, you must remember that 72 percent of the hospital claims that got to the ALJs were reversed, according to the OIG report. Maybe the QICs are not so qualified either.
Q: What if your QIC appeal is denied?
A: At that point, you are supposed to be able to file for an ALJ hearing but those are closed off as we have seen. After, that comes the Medicare Appeals Council for an appeal of an ALJ decision but if there are no new ALJ cases then you cannot get to the Appeals Council.
Q: What are you to do then, if you cannot get your appeal to an ALJ?
A: For most people, they will wait and someday, if they are alive, they may see an ALJ. Not, likely but possibly.
Q: What can an individual do about this?
A: If you have enough money and enough claims involved, like a medical practice might or a medical network [IPA] might, then it might be worth your money to sue for relief on the basis that the government has denied you your rights under the program by virtue of not having an effective appeal process. It is in essence denying you your property without recourse.
Q: Is there precedence for such a suit?
A: In dealing with other aspects of the government there is. In dealing with Medicare, this is a recent experience without precedence.
Q: What is going to happen?
A: Some enterprising individual who has enough at risk is going to hire an attorney who has enough smarts and they are going to obtain injunctive and declaratory relief that stops all recoupment until an effective appeal process is established.
Q: How is that going to be established with all of the backlog that there is?
A: It might take an Act of Congress but that is what started this whole mess by an Act of Congress creating the RACs.
Fmr. Assistant US Attorney, Senior Attorney Kenneth Haber tells you WHAT IS HAPPENING AT THE OFFICE OF MEDICARE HEARINGS AND APPEALS. Attorney- Fmr. Assistant United States Attorney- Fmr. Senior Attorney OIG Kenneth Haber is a recovery audit contractor rac attorney, healthcare audit lawyers and Medicare Attorney Haberslaw tells you WHAT IS HAPPENING AT THE OFFICE OF MEDICARE HEARINGS AND APPEALS. Attorney- Fmr. Assistant United States Attorney- Fmr. Senior Attorney OIG Kenneth Haber is a recovery audit contractor rac attorney, healthcare audit lawyers and Medicare Attorney