Suppliers, providers, and other appellants are undoubtedly wondering how the upcoming change in the White House may affect their pending Medicare appeals. The president-elect’s website, www.greatagain.gov, recently announced “help wanted: 4,000 presidential appointees portend changes coming at CMS (the Centers for Medicare & Medicaid Services) and other policy-making positions.”
On Wednesday, acting CMS Administrator Andy Slavitt tweeted that he had just 72 days to do good things for the American people. A new president means a new CMS administrator. Since a new president appoints his own cabinet, we’ll almost certainly see a new secretary at the U.S. Department of Health and Human Services (HHS), as well as some new deputy secretaries.
Since the secretary selects the chief administrative law judge (ALJ), it’s possible we may see a change at the helm of the Office of Medicare Hearings and Appeals (OMHA). While an administrative law judge can be removed only for cause and only after a hearing before another ALJ at the Merit Systems Protection Board, the Administrative Procedure Act (APA) would not prevent the president or the new secretary from reassigning an ALJ from a management position back to a line ALJ position. Put another way, the APA does not stop the president-elect from expressing his displeasure with the three-year backlog by telling the chief ALJ: “you’re fired!”
And what about the worker bees? The Hatch Act protects nonpolitical employees, so the overworked legal assistants, paralegals, staff attorneys, and line ALJs will soldier on.
Will those worker bees get the help they so need and deserve?
That depends on when Congress passes a budget. Right now the federal government is operating under the Sept. 28 continuing resolution (CR) that funds operations until Dec. 9. Until a budget is passed, agencies operating under a continuing resolution may continue at “the current rate of operations,” which cannot not exceed more than the amount appropriated in the prior fiscal year (or the lowest congressional mark). Because it is not a final budget, a continuing resolution (and the Anti-Deficiency Act, Public Law 97-258, 31 U.S. Code § 1341) does not allow an agency to obligate its entire year’s budget while it is under a continuing resolution.
What does this mean for your appeals? Staffing will continue at the present level until a new budget allows OMHA to hire more ALJ teams. The settlement previously announced on RACmonitor should proceed as announced; stay tuned for details.
The upcoming change at the White House is an unprecedented opportunity to give the incoming team your input on what you want from your Medicare appeal system.
Will you savor this adventure and enjoy the change, as Haw wrote on the wall in “Who Moved My Cheese?” by making your voice heard?
About the Author
Bob Soltis is the author of How to Handle Your Medicare Hearing and Hurry Up and Wait: Our Broken Medicare Appeal System,. Mr. Soltis decided over 4,500 cases in eight years as an administrative law judge at the Office of Medicare Hearings and Appeals.
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