HHS tries to chip away at appeals backlog

Many of proposed changes make sense, few are surprising, stakeholders say
Friday, July 1, 2016

WASHINGTON – The U.S. Department of Health and Human Services on June 28 outlined a number of proposed changes to the Medicare claims appeals process that it believes will help diminish a huge backlog.

Among the changes HHS seeks to make: to allow certain decisions made by the Medicare Appeals Council, the highest level of appeal, to set precedent for lower levels, a move that will eliminate redundancy and resolve inconsistencies in the interpretation of policies, Nancy Griswold, chief law judge of the Office of Medicare Hearings and Appeals, told Kaiser Health News.

“That makes a lot of sense,” said Andrea Stark, a reimbursement consultant with MiraVista. “We’ve been fighting and fighting the same things. Decisions get upheld and it’s not until we get to a higher level that we see a reversal.”

In general, the changes seek to expand the pool of available adjudicators for OMHA; increase decision-making consistency among the levels of appeal; and improve efficiency by streamlining the appeals process so less time is spent by adjudicators and parties on repetitive issues and procedural matters.

Another change cited by Griswold that makes sense, stakeholders say: to allow attorneys, not necessarily the administrative law judges themselves, to handle some of the procedural matters that come before the ALJ, the third level of appeal.

“That would enable the ALJ to move through more cases,” Stark said.

HHS believes that these changes, along with a number of proposed funding increases and legislative actions outlined in the president’s budget for fiscal year 2017, could eliminate the backlog in the appeal process by 2021.

Just how big is that backlog? In the first quarter of this year, the wait for an ALJ hearing was 796 days. By the second quarter, it was 861 days, AAHomecare has previously reported.

It’s a big enough problem that the American Hospital Association has taken HHS to court in an effort to get the government to meet statutory deadlines for timely review of claim denials. Medicare statute requires that ALJ appeals be resolved within 90 days.

Because hospitals and the government are still embroiled in that lawsuit—earlier this month, HHS had to prove to the court that it was making efforts to reduce the backlog—the timing of the proposed rule is suspect, stakeholders say.

“Are they really sincere, or are they meeting the requirements of a court case,” said Wayne van Halem, president of the van Halem Group. “Few of the things they’re suggesting haven’t been discussed before, including in the president’s most recent budget. It will be interesting to see what the details are.”

Stakeholders will have until Aug. 29 to submit comments on the proposed rule.