OMHA pilots ALJ workaround

Friday, July 11, 2014

BALTIMORE – A new pilot program seeks to settle appeals that are stuck at the administrative law judge (ALJ) level, but is CMS ready to negotiate?

“I have clients consistently ask me if they can get into a settlement discussion at the very beginning,” said Stephanie Greene, chief consulting officer & general counsel for Acu-Serve. “This is our first opportunity to make CMS come to the table.”

The Office of Medicare Hearings and Appeals (OMHA) launched the pilot to alleviate a massive backlog at the ALJ level. The pilot brings the provider and CMS together with an OMHA employee acting as a facilitator to try and work out a settlement.

The path to settlement won’t be easy, stakeholders say. First of all, the criteria for qualifying for the pilot are strict. Providers must have a minimum of 20 claims or $10,000 stuck at the ALJ level; they must appeal all claims for the same service; and they must have filed the claims, which can’t be already assigned to a judge, in 2013.

“I think from a DME perspective, that’s going to be a challenge,” said Kim Brummett, senior director of regulatory affairs for AAHomecare.

Secondly, the process will likely put the burden of proof on providers, stakeholders say. The OMHA facilitator won’t make official determinations on the merits of the claims, but “may help the appellant and CMS see the relative strengths and weaknesses of their positions,” according to a fact sheet on the program.

“The government has policies that must be followed,” said Wayne van Halem, president of The van Halem Group. “The ALJ, on the other hand, isn’t particularly bound by the policy, so there’s reason in the equation.”

CMS is not required to settle claims and both sides have the discretion to reject offers. If no settlement is reached, the appealed claims will return to the ALJ to await a hearing—which could take years.

“The clients I’ve had who are interested in this don’t want to wait three years,” said Greene.