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Home Health & Hospice Week

Appeals:

ALJ MOVE A MIXED BAG FOR HOME CARE PROVIDERS

Published on Tue Jan 06, 2009

HHAs may be faring better and DME suppliers worse under the new ALJ structure.

Your days of waiting on pins and needles for months to find out the result of an administrative law judge appeal appear to be over.

The ALJs are deciding most cases faster than ever, says the HHS Office of Inspector General in a new report, "Medicare Administrative Law Judge Hearings: Update, 2007��"2008" (OEI-02-06-00111).

For cases subject to the 90-day deadline, the ALJs decided 94 percent on time in 2008, compared to 85 percent three years earlier when the ALJs transitioned from the Social Security Administration to the Department of Health and Human Services. That improvement is despite the ALJs' 37 percent increase in caseload during that time.

Background: Most Part A and Part B appeals are subject to the 90-day deadline set out in the BIPA law of 2000. Exceptions include when providers waive the deadline so they can have an in-person ALJ hearing.

That's in contrast to when the ALJs made the move in 2005, because the BIPA deadline provisions hadn't taken effect yet. In 2005, only 29 percent of cases were subject to the 90-day limit. In 2008, that number was 73 percent.

Under SSA, ALJs didn't have any deadline for decisions.

Receiving decisions faster is a big benefit to home care providers, notes William Dombi, vice president for law with the National Association for Home Care & Hospice. "The turn-around time for decisions is much better," Dombi tells Eli. In fact, "the difficulties in getting a face-to-face hearing may be offset by the value of quick decisions."

Under SSA, the ALJs conducted most hearings in person. Now under HHS, the ALJs conduct on-the-record reviews with no hearings for 28 percent of cases, the OIG says in its report. For those cases that do receive hearings, 85 percent are via telephone, 8 percent via video, and only 7 percent in person.

Big difference: Three years ago, the ALJs conducted on-the-record reviews in only 13 percent of cases, the OIG notes.

The lack of in-person hearings doesn't usually seem to compromise the quality of appeals for HHAs, Dombi believes. "We have received a number of favorable decisions on the merits," he notes. And "the ALJs seems reasonably knowledgeable about the home health benefit."

The exception: "I have reviewed some ALJ decisions that I think are erroneous on issues of medical necessity," Dombi says. That may be because hearings handled on the record or over the of clinical facts, he expects.

ALJs also seem more concerned with technical issues than before the HHS switch, Dombi says. Rules about timeliness of evidence submission and claim reopenings have proven more important than before.

DME Perspective

Durable medical equipment suppliers seem to be having more trouble than HHAs under the HHS ALJs, reports attorney Jeffrey Baird with Brown & Fortunato in Amarillo, Texas. "In the old days, the [SSA] ALJs were trying to find a fair result for the supplier," Baird says. Now under HHS, Baird agrees with Dombi that the ALJs seem more intent on technicalities, and that's tripping up a lot of suppliers' appeals.

While suppliers enjoy the quicker decisions, "it's not a fair trade-off," Baird judges. "I'd rather have a delayed decision and a successful outcome."

In addition to missed deadlines, suppliers are often dinged for missing documentation like physician progress notes and therapist evaluations, he says. And the largely telephone or on-the-record hearing format hurts suppliers' chances when a complicated question like eligibility is on the line. "It's harder to have a thorough review of the facts," Baird says.

Key: Clean, clear, thorough documentation is crucial to winning at the ALJ level today, Baird advises. "Documentation, documentation, documentation," he stresses.

Not all bad: While suppliers aren't as happy with the ALJ changes, the overall Medicare appeals system is working better for them than it did three to five years ago, Baird judges. Contractors can no longer start recouping alleged overpayments immediately and they can't extrapolate from a tiny sample to slap a huge overpayment demand on a supplier based on the claims universe. "That was grossly unfair," Baird remembers. "That's all been cleaned up."

"We are in a better place now than we were four or five years ago," Baird says.

"The sum total, in the end, is an improvement,"Dombi agrees.

Independence: Other fears providers held when the ALJs switched to HHS's purview have not been realized -- at least not yet. Generally, they were concerned that ALJs would have to knuckle under to the Centers for Medicare & Medicaid Services' opinion on issues.

ALJs don't seem unduly swayed by CMS's guidance so far, observers say. Attorney Deborah Randall with Arent Fox in Washington, D.C. notes that providers aren't tying up her phone lines to complain about the problem.

But a rule CMS proposed Dec. 28, 2007, would make ALJs follow CMS policy for certain non-claims appeals, and the agency would surely like to extend that rule to claims appeals as well (see Eli's HCW, Vol. XVII, No. 2, p. 14).

Note: The OIG report is at www.oig.hhs.gov/oei/reports/oei-02-06-00111.pdf.

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