Non-lawyer representatives may have to work a bit harder at an administrative law judge (ALJ) hearing, because medical school and other healthcare curriculums don’t teach you how to represent yourself in such a setting. Healthcare providers aren’t alone, however, as some attorneys don’t understand that although you should prepare for hearings just like you would prepare for a trial and address the ALJ as “your honor” just as you would in court, hearings should be brief and to the point.
The Administrative Procedure Act gives ALJs broad authority to issue orders and to run their hearings. Because OMHA’s notice of hearing does not indicate that failure to appear may result in dismissal without further notice, many ALJs started issuing standing orders remedying that defect. Some went further, limiting faxes because so many faxes get misrouted, and directing pre-hearing brief and position paper submission no later than 10 days before the hearing to insure that those submissions can be properly exhibited before the proceedings begin. To deal with the growing influx of cases, some ALJs started scheduling hearings as early as 8 a.m. – after all, government offices are open from 8 a.m. to 4 p.m.
Some appellants pushed back, noting that “my office doesn’t open until 9 a.m.” Really? See how well an argument like that works next time you get a ticket. And help me understand this: you want to get paid, but you won’t do what it takes? Instead of making excuses, take responsibility. As Larry Evans wrote in his Ten Commandments for Lawyers, “thou shall be prompt. Your responsibility is to be there at the appointed time and place, even if it means waiting hours until the court is ready to hear your case.” While you probably won’t have to wait hours on the day of your hearing, Mr. Evans’s article underscores that it’s your case.
As for pushback, one of the first things I learned as a naval officer was the concept of precedence and deference to seniors. That also applies to the ALJs who hear your cases. They earned their positions by demonstrating their qualifications in administrative law, evidence, and hearing procedures during an examination process that includes making and writing an administrative agency decision, and that can take more than a year. As written above, and like the military judge told Lt. Colonel Jessup in A Few Good Men, “the witness will refer to the court as judge or your honor.”
The ALJ is always “your honor.” When addressing the ALJ or a judge in court, the proper term is “the court,” not “you.” Savvy representatives know these procedures and follow them, and as the San Diego County Bar Association expects, conduct themselves so that they can conclude the case by shaking hands with the other party. This is the gold standard for appearing in any court, before administrative law judges, and even the Department of Motor Vehicles.
After the hearing starts, the ALJ will ask if you have any objections to any of the exhibits. If you’re an appellant and a non-party Centers for Medicare & Medicaid Services (CMS) contractor has submitted opinions that are not allowed – or if hearsay is being offered – that’s the time to object. If you don’t object, the exhibit comes in and the ALJ can consider it. If a non-party attempts to argue or offer opinions during the hearing, you can state: “objection, your honor. ___ is not a party; a non-party can only offer clarification of facts or policy, per 42 CFR section 405.1010 (c).” And again, if someone offers hearsay, you have the right to object.
If you disagree with a ruling about evidence made during the hearing, you can politely ask to be heard. If the ALJ declines, it’s in the record and you can call the Medicare Appeals Council’s attention to it if the ALJ’s decision is unfavorable to you. Arguing with the ALJ accomplishes nothing. Your objection made your point for the record. Thank the ALJ and move on. You’re not thanking the judge for his or her ruling; you’re thanking the court for its time and consideration.
Only witnesses who are going to testify to facts or an expert opinion are sworn in before the court. If you’re going to talk about why the case should be paid, that’s not testimony – that’s an argument, distinguishable from a disagreement.
When the ALJ says the hearing and record are closed, that means the hearing process is over and there will be no further discussion or submissions. If you disagree with the ALJ’s ruling, you can ask the ALJ in writing to reopen the case pursuant to 42 CFR 405.980. Reopening is usually not an option once the decision has been mailed, and since the docket is swamped, that can take time that might be better spent going to the Medicare Appeals Council.
Put another way, the time and place to differ with the ALJ is not during the hearing, nor is it with the ALJ’s legal assistant after the hearing. Please keep in mind that the legal assistant is just the messenger and didn’t make the ruling or decision. Arguing with the ALJ, or telling the ALJ or the ALJ’s staff that you’re going to call the chief ALJ or CMS is never appropriate, and threatening any federal employee while they are performing their duties is a felony. The proper way to differ is an appeal – not an argumentative letter or fax to the ALJ or one expressing your disappointment at the ruling, or even worse, an argumentative letter that is copied to the chief ALJ and/or the Medicare Appeals Council!
If the ALJ’s decision is unfavorable to your cause, submit a written request for review to the Medicare Appeals Council. Politely explain why the record supports a decision in your favor. If the ALJ made an error of law or fact, you can point that out by writing, for example: “although the ALJ concluded ___ , Benefit Policy Manual ___ directs/suggests the (opposite conclusion).” Note that I wrote “the ALJ” without using a name. Because it’s not about a particular ALJ – it’s about whether the documentation supports payment, and there’s no need for names.
Remember, this is business, not personal. Knowing and following these principles will help you help the ALJ decide your case while making a good impression for you and your client.
About the Author
Bob Soltis is a national leading authority on Medicare hearings, hearing strategy, and hearing ethics. A former Navy Judge Advocate and retired ALJ who has taught lawyers and non-lawyers to effectively present their cases, he is the founder of the Advocacy Akademie. Mr. Soltis’ book, “Hurry Up and Wait: How the Time for Your Medicare Hearing Skyrocketed From 3 Months to 3 Years,” will be published in May.
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