Legal

Q. What are the most important changes that CMS has made to the appeals process? A. Under the old appeals system, an appeal of an initial determination went first to the DMERC for review and then to a fair hearing. Under the new system, an appeal first goes to a redetermination and then to a reconsideration. A redetermination is analogous to the old DMERC review. However, the reconsideration stage is different than the fair hearing in more than name only. Unlike a fair hearing, the reconsideration is solely an on-the-record review conducted by a Qualified Independent Contractor (QIC). Congress mandates that a QIC is an individual, unaffiliated with the carrier, who has medical, legal and other relevant expertise. Since the QIC is supposed to be an independent adjudicator with actual legal and medical knowledge, it is possible that this level of appeal will be more favorable to suppliers than the old "fair" hearing (this remains to be seen as the process is still new). However, there are some drawbacks to this new reconsideration level that must be fully understood. The most important is that, absent good cause, "failure to submit all evidence... precludes subsequent consideration of that evidence." As a result, new evidence cannot be introduced after the QIC reconsideration (at the administrative law judge level) without a good explanation, and a favorable ruling as to whether that explanation meets the good faith standard. Remember that a federal ALJ may not accept what a supplier thinks is a good explanation. Therefore, it is important to submit all relevant documentation during the reconsideration stage.Under the old system, suppliers could usually submit new evidence right up to the date of the ALJ hearing (and many did). But under the new system, they should collect and submit all relevant information no later than the QIC level. hme Valerie Eastwood is a healthcare attorney with Eastwood & Azia, PLLC. Reach her at 202-296-4100 or vjeastwood@eastwood-azia.com.