December 2, 2015

Audit Appellants: A Holiday Wish List for 2015

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Editor’s Note: The holiday season is just around the corner, so RACmonitor.com contributor Bob Soltis has put together a wish list for all providers appealing audit decisions by federal regulators. We hope you enjoy. 

At least 119 more administrative law judge (ALJ) teams – so appellants don’t have to hurry up and wait as long for their hearings. This will bring much-needed relief to the beleaguered worker bees at the Office of Medicare Hearings and Appeals (OMHA).

Courage – in particular, the moral courage for U.S. Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell, Congress, and Centers for Medicare & Medicaid (CMS) management to stand up to the absurd notion that Recovery Auditors (RAs) should get an almost 7-percent increase from the current maximum 12-percent fee because they suffer over 45 days waiting for payment – while appellants wait three years for a hearing and as long as five years for payment on disputed claims.

A total of 82 senior staff attorneys – each empowered to issue favorable “on-the-record” decisions without a hearing, regardless of the amount in controversy. It’s a better alternative to Medicare magistrates, who would have to give up an attorney job for the uncertainty of a temporary contractor gig. The chief ALJ can allay concern about adding more full time equivalents (FTEs) to the federal workforce with a reduction in force (RIF) of 40 in her office.

Electronic folders – long overdue, the electronic case adjudication and processing environment will cap the growing mountains of paper overrunning the field offices and central operations, make everyone’s jobs easier, and allay building engineers’ concerns about whether the floors in Cleveland and Miami will support the weight of all that paper. 

Gold stars – for the industrious worker bees in OMHA’s Cleveland office, and professionals like Dr. Ronald Hirsch; Judith Stein and her staff at the Center for Medicare Advocacy; attorneys Jessica Gustafson, Abby Pendleton, and Debbie Parish; as well as Ernie de los Santos, for standing up to the nonsense and hypocrisy coming out of CMS.

Independence – true decisional independence for ALJs, without concern that provisions of the Audit & Appeal Fairness, Integrity and Reform (AFIRM) Act will require the General Accounting Office (GAO) to identify the frequency with which ALJ and Medicare magistrate decisions differ from Medicare “policy” – or concern about the chief ALJ’s inappropriate discussion of the perceived ALJ payment rate. 

Limits – specifically, on constant CMS encroachment on fundamental notions of fair play and due process. Eliminating the AFIRM Act’s exceptions allowing CMS to submit new evidence to ALJs is a good start. 

More gold stars – to the John A. Hartford Foundation for helping the Center for Medicare Advocacy create the Jimmo Implementation Council

Objections sustained – specifically, rulings from OMHA ALJs standing up to non-party CMS contractor kibitzing. A non-party cannot offer testimony except to clarify facts or policy. 

One less level of appeal – do we really need a redetermination and a reconsideration decision before an ALJ hearing? Why not just go right to the qualified independent contractors (QICs) and eliminate $100 million of unnecessary expense, as well as several unneeded months of extra waiting time? 

One-stop shopping for appellants – the logical next step from the previous wish. CMS contractors’ initial denials must identify all reasons for not paying a claim, thereby eliminating the justifiable frustration providers feel after addressing the initial denial and getting another denial citing a different reason. 

Passage of H.R. 2156 – to rein in the RAs, stop Monday morning quarterbacking, and limit how deep the RAs can dig into the public trough. 

Performance standards for CMS contractors – so the Office of Medicare Hearings and Appeals doesn’t have to clean up CMS’s messes. This also means that instead of serving up the same old excuses, CMS contractors have to correctly decide cases and take responsibility for meeting 42 CFR 405.1010 and -1012 deadlines for hearing participation. 

Reading – that recipients read the notices of hearings and any standing orders the ALJs attach to those notices.

Responsibility – OMHA’s chief judge and her staff need to own up to responsibility for their failure to hire enough worker bees to keep up with the incoming duties they knew were on the way as early as four years ago. 

Straight talk – from CMS and its contractors – in their decisions and during their hearing participation.

Training money – for the ALJ teams, so OMHA’s judges get independent training from real experts instead of indoctrination by an agency that refuses to understand that it’s just a litigant.  

Understanding – that OMHA ALJs hear cases de novo, and do not affirm or reverse anything, contrary to what the RAs’ mouthpiece – the Council for Medicare Integrity – would have you believe. 

About the Author 

Bob Soltis is America’s authority on Medicare hearings, hearing strategy, and hearing ethics. A former U.S. 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, the author of Hurry Up and Wait: Our Broken Medicare Appeal System, and an instructor at the Top Gun Audit School.

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Bob Soltis

Bob Soltis is a success coach and the author of How to Handle Your Medicare Hearing. A former U.S. Navy officer, he decided 4,500 cases during eight years as an ALJ at OMHA. 

 

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