28-month delay will be disastrous for providers

Friday, December 20, 2013

Referring to the brief “Gov’t delays hearings” (HME Newswire, Nov. 4), I wanted to give you some additional perspective on this situation. During a recent telephone hearing, an administrative law judge made the comment, on the record, that they had “65,000 appeals backed up” in the Central Docketing Department at the Midwestern Field Office in Cleveland and that our decision would take some time to produce.

Gordian Medical Inc. d/b/a American Medical Technologies currently has tens-of-thousands of claims pending at the Office of Medicare Hearings and Appeals. We add several more thousand per month to that pile. When the Office of Medicare Hearings and Appeals (OMHA) was created, Chief Managing ALJ Perry Rhue issued an order requiring that all of our appeals be assigned to the Western Field Office in Irvine, Calif. (about two miles from our headquarters).

There, those appeals were combined into “big box” groups (usually 500 to 1,200 claims), sorted by jurisdiction. The ALJ who was assigned the “big box” appeal would hire an approved statistician, John Adams, PhD., with the Rand Corporation, to create a statistically valid random sample, usually 50 claims, to represent the “universe.” A hearing would be held on the sample claims. The ALJ would render a decision on the sample claims and Dr. Adams would extrapolate that decision against the entire universe of claims. It was a very efficient and inexpensive method to handle a large volume of claims.

When Nancy Griswold became the chief managing ALJ, she revoked Rhue’s order to “even out workload” and our appeals were shifted to the Midwestern Field Office in Cleveland. The Midwestern Field Office, citing budget constraints, found that they could no longer hire a statistician, so they could not “big box” or consolidate the appeals. Our “batches” of 500 to 1,200 claims were broken up in groups of 28 (don’t ask me why 28 was important) and assigned to the individual ALJs. If this is happening to other suppliers, then this is the cause of the “backlog” necessitating the “delay” cited in your article.

In recent negotiations with CMS about this loss of our right to due process, we offered to consolidate the large volume of outstanding claims into “big box” appeals, sort them by jurisdiction, and send them to the Western Field Office in Irvine where a sample would be drawn and a hearing held on the sample claims. We had no response to our offer and then your article was published.

If this 28-month delay in assigning appeals is allowed to stand, it will be disastrous to many, many providers. Given the timeline of each level of the appeals process (and including this 28-month delay) and the time it takes most ALJs to publish their decisions, it will be more than four years between the date of service and the receipt of the ALJ’s decision.

We were so concerned about the information in your article that we sent a copy of it and this explanation to Kimberly Brandt of the Chief Healthcare Investigative Oversight Counsel, Senate Finance Committee, and Veronica Wong, Legislative Health Assistant to Rep. Darrell Issa, R-Calif., as well as staff of the House Oversight and Government Reform Committee.

As this announced delay in assigning the appeals will have a devastating effect on all DMEPOS suppliers, I sincerely recommend the suppliers put their thoughts and experiences down, contact their respective members of Congress (both the House and the Senate) by fax or e-mail, and request oversight and action.

—Mike Watson, vice president of government affairs and corporate compliance officer,  Gordian Medical d/b/a American Medical Technologies, Irvine, Calf.