ALJ Appeals: Be prepared from the start

Q. How can I bolster my chances of success at an ALJ hearing?
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Wednesday, November 30, 2016

A. A supplier that disagrees with a Qualified Independent Contractor’s reconsideration decision is entitled to a hearing before an administrative law judge. But, an ALJ will not review new evidence—evidence that was not presented during previous levels of appeal without the supplier presenting “good cause.” The ALJ will not review any new evidence unless that evidence was unavailable or unknown at the time of the determination.
Oftentimes, suppliers rely on the documentation submitted in response to the original audit request without ever supplementing it to respond to the specific denial reasons. But contractors often make their denial reasons more specific at higher levels of appeal and the documentation initially submitted may not fully explain the supplier’s position or additional information may have become available later.
This ALJ hearing requirement places a substantial burden on suppliers to ensure that it adequately prepares for an ALJ appeal at the beginning of the appellate process. For example, suppose ABC Sleep has several claims denied as not reasonable and necessary because it did not have an order that was signed and dated by the treating physician. Not understanding the confusion, the supplier resubmits the same orders to demonstrate medical necessity at the redetermination and reconsideration stages of the appeal. At the ALJ hearing, ABC involves its legal counsel who informs ABC of the issue; ABC immediately provides copies of the proper orders to its counsel. Unless this new information was unavailable or unknown, it is highly unlikely that ABC’s attorneys can introduce this new
evidence.
R. Ross Burris, III and Matthew Agnew, who contributed to this article, are attorneys at Polsinelli PC. Reach them at rburris@polsinelli.com or magnew@polsinelli.com.