Appeal bottleneck at ALJ level

Friday, March 23, 2012

Industry attorneys are not surprised that it's taking providers longer to go through the appeals process.

"What we're seeing is that the ALJs are backlogged," said Jeff Baird, chairman of the Health Care Group at the Amarillo, Texas-based law firm Brown & Fortunato. "We're seeing approximately nine to 11 months between the date we file a notice of appeal with the ALJ and the date we receive the ALJ's decision."

The reason for the backlog, says Baird, is that there are a lot of appeals and more of them are going to the ALJ level.

There are four levels in the appeals process: re-determination, reconsideration, ALJ, and finally, appealing to the Medicare Appeals Council. 

The first two steps are rarely successful, Baird said.

"From a practical standpoint, it is very difficult for a DME company to win at the reconsideration or re-determination stage," said Baird. "It's a stacked deck."

Providers who've appealed claim decisions have found that their best strategy to get a denied claim paid or to stop a recoupment is to take their case to the ALJ level, agreed Neil Caesar president of the Health Law Center in Greenville, S.C.

"They're expecting that arguments based on the law, and not the audit parameters, are not going to get a fair hearing until it gets to the ALJ," said Caesar.

Asela Cuervo, a Washington, D.C.-based healthcare attorney, said she advises her clients to take it all the way for another reason: to show CMS their contractors are making mistakes. 

"It's important overall to be able to document that the contractors are incorrect in their audits," said Cuervo. "They are recouping money they should not have recouped, or refusing to take claims that they should have paid."

What should providers do if the ALJ process is taking too long? Get in touch with the ALJ's office, said Elizabeth Hogue, a private practice attorney based in Burtonville, Md.

"I would certainly not hesitate to contact the staff of the ALJ," said Hogue. "Just say, 'This is taking a long time, what's the status?' That's what their staff is for, to handle those kinds of things." 

Providers can also escalate the case to the Medicare Appeals Council. Cuervo doesn't recommend that, since the council's decision relies totally on documentation and providers have no chance to speak for themselves.



You may want to check on some things. Going through the process every step of the way from reconsideration to the pending Circuit Court Appearance April 20 I believe I have a pretty good idea how the system works or doesn&#39;t work. <br />
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First, neither the law or the actual audit is something reconsideration or re-determination has jurisdiction over. The only ruling they have is based on "medical Necessity" and if documents presented substantiate the claim payment is made with no problem. We did it is the easiest way to settle any claim in dispute. Remember HME Providers are NOT insurance carriers in the Medicare Advantage Program. "Lack of medical documentation" for them is a PROBLEM for HME Providers it&#39;s FRAUD. See the article "A Hypocrite And A Telling Comment".<br />
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Second, ALJ&#39;s & The MAC DO NOT I repeat DO NOT have the power and or the authority to stop ANY recoupments once they have begun. I have been their requested such actions and was denied because of lack of Jurisdiction!!!! <br />
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Third, You CAN NOT expedite the process. I have come to learn the laws make it a relatively easy and expeditious process to come after the Provider. The process is encumbered, belabored and extremely slow when in reverse. Their is NO expeditious escalating process to the MAC. Been Their done that!!<br />
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Finally, for everyone involved in RAC, PSC and MAC Audits I can only say this; the road I have had to travel has been encumbered from very angle imaginable by CMS & The DOJ. How, well here is our next hurdle to go over my Third Circuit Appeal as we were informed yesterday is being heard by an ALL STAR cast of Judges. They are as follows; <br />
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Pursuant to IOP Chapter 2, you are hereby advised that your appeal will be argued before the following panel: McKEE, Chief Judge, SLOVITER, Circuit Judges(and former chief Judge of The Court) and O&#39;CONNOR, Associate Justice (Retired), U.S. Supreme Court *Associate Justice (Retired), U.S. Supreme Court, sitting by designation. <br />
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Yes this is The Honorable Sandra Day O&#39;Connor. As you can see the opposition is taking this case very seriously!!! To give it some perspective, for those of you that may remember the "Maximum Comfort Case" heard before California&#39;s 9th Circuit had a panel of A Senior Judge and two Circuit Court Judges and Maximum Comfort lost!!! Their Supreme Court Petition was denied. That is why I have been quoted as saying "This Is No Maximum Comfort Case"!!!!!