CMS attempts to crack down on appeals

Sunday, January 20, 2008

WASHINGTON – CMS published a proposal in the Federal Register Dec. 28 that would give it more control over the appeals process.

The proposal, which providers have until Jan. 28 to comment on, would require that the Department Appeals Board (DAB) follow “published” guidance on Medicare rules and regulations. That means the DAB would have less leeway to interpret Medicare policy from a legal perspective, say industry attorneys.

Appeals progress to the DAB if a provider loses at that administrative law judge (ALJ) level and wants so pursue it further.

“It certainly limits your ability to make arguments against whatever the medical policy is,” said healthcare attorney Asela Cuervo. “As long at the policy is consistent with law and regulations, this proposed rule would try to make it binding at the DAB level.”

Added attorney Neil Caesar, president of the Health Law Center in Greenville, S.C.: “This amendment tightens the reigns and CMS’s control over the process, which was the concern people had when the appeals process was brought in-house.”

If there is good news here, it’s that few appeals progress to the DAB level and of those that do, very few involve a legal issue. Most revolve around policy, Caesar said.

Additionally, while CMS might be trying to exert more control over the DAB, officials there are “willing to go against CMS when the facts as proven seem to be different that the facts CMS thought were in place,” Caesar said.