Home Health & Hospice Week

Sweeping restructuring could make Medicare appeals faster but harder. By this fall, your chances of securing an independent ALJ hearing are likely to get slimmer.

Home care providers have had great success getting denied claims paid at the administrative law judge level. Attorney Denise Fletcher of Brown & Fortunato in Amarillo, TX estimates up to 80 percent of her clients see cases overturned by ALJs.

But that could change once the ALJs come under the Department of Health and Human Services umbrella by October, worries attorney Lester Perling with Broad and Cassel in Ft. Lauderdale, FL. Although the ALJs won't be housed directly within the Centers for Medicare & Medicaid Services, CMS still is likely to have a strong influence on them in their new home.

CMS already tries to influence ALJs by furnishing in-services and other "educational" vehicles, Perling says. Now that the ALJs are under HHS' rule, those might become mandatory.

Home care providers have good cause to worry about ALJs' independence, judges Bob Wardwell with the Visiting Nurse Associations of America. "I know how irritating ALJ reversals have been" to CMS, says Wardwell, a former top CMS official. "CMS would like to see these decline through better 'educating' ALJs in how CMS interprets policy," Wardwell tells Eli.

Evidence: One major sign of CMS' intent to exert influence is a provision in the interim final rule on Medicare appeals changes published in the March 8 Federal Register. ALJs and the new qualified independent contractors (QICs) both must give "substantial deference" to local coverage determinations (LCDs), local medical review policies (LMRPs) and Medicare program guidance such as manuals, CMS claims in the regulation.

This requirement "can definitely create new obstacles to fair decisions," warns William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law.

The provision is at least an improvement over the proposed rule, which said QICs and ALJs were "bound" by LCDs, LMRPs and CMS guidance. QICs Could Be Mixed Bag for Appeals The ALJ move is just one of many appeals changes CMS proposed in the interim final rule. The changes required by legislation aim at making the appeals process faster and more efficient, but they could make appeals tougher for providers instead.

One of the biggest changes is implementing the new QICs. These second-level appeals contractors aim to offer a more independent review of provider appeals than the intermediaries or carriers that made the claims determinations in the first place. The QICs will take the place of fair hearing officers at durable medical equipment regional carriers and will create a whole new level of appeals for home health agencies and hospices.

QICs "will not only reassure appellants of the independence of the reconsideration process, [...]