October 11, 2018

Important Guidance for Prehearing Conferences Released by OMHA

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OMHA adds Chapter 14 to its case processing manual

The Office of Medicare Hearings and Appeals (“OMHA”) has recently been updating its OMHA Case Processing Manual (“OCPM”). The OCPM was originally released in 2015 to regulate and codify procedures for adjudicative functions by using statutes, regulations, and OMHA directives as guidelines. The OCPM’s purpose is to provide clear guidance and instruction to appellants, adjudicators, and OMHA staff. The OCPM is revised as needed in order to keep up with changes to the Medicare appeals process.

On September 28, 2018, OMHA released a new chapter, Chapter 14, entitled “Scheduling and Notices of Hearing.” Chapter 14 updates and expands on the former Chapter 7, “Scheduling and Notices of Hearing.” Chapter 14 describes the process for scheduling prehearing conferences and hearings, and addresses who the parties and potential parties are, where notices must be sent, how to address responses to these notices, and how objections or requests may be made. Furthermore, the newly-released chapter discusses when a hearing may be rescheduled or cancelled with appropriate notice, and when a supplemental hearing may be necessary.

In general, OMHA updated the format of the OCPM. New chapters, including Chapter 14, and revised existing chapters now contain a “Chapter Overview” section that summarizes the content of the chapter. In addition, OCPM used to be organized by four separate divisions, each addressing a different topic. The divisions were Part A/B Claim Determinations, Part C Organization Determinations, Part D Organization Determinations, and SSA Determinations. The updated OCPM is no longer organized by divisions, but instead, consists of twenty consecutive chapter that address each part (Part A, B, etc.). The purpose of eliminating the divisions was to improve the organization of the manual so that it is more user-friendly.

Chapter 14 contains guidance regarding prehearing conferences, which was not included in the former Chapter 7. As explained in the OCPM, prehearing conferences are held prior to a hearing and are meant to finalize the content of what to expect during the hearing. For example, an Administrative Law Judge (ALJ) may consider objections to the issues to be heard and change the issues if he or she concludes the issues presented in the objections may be considered under the authorities that apply to the appeal. There is no right to a prehearing conference, and the ALJ will be the decisionmaker as to whether one will be held. The notice of a prehearing conference will be sent to all parties who were sent a notice of hearing and to CMS or the Part D sponsor that is participating in the appeal. Prehearing conference orders document the actions and agreements resulting from the prehearing conference, and will generally become binding where the parties do not object to the order within 10 calendar days of receiving the order.

In addition to prehearing conferences, Chapter 14 includes additional new provisions that were not in previous iterations of the OCPM. For instance, the administrative qualified independent contractor (AdQIC) will now be sent notice of hearing. In addition to mail and fax, notice of hearing may be sent by email to the AdQIC or CMS contractor in accordance with OMHA’s electronic notice of hearing protocol, so long as no personally identifiable information is contained in the email. A response to the notice of hearing may also be sent by email now.

CMS, CMS contractors, and Part D plan sponsors need not respond separately to a notice of hearing. The updated chapter also describes what should be done when a party does not respond to a notice of hearing. Responses to notices of hearing, briefs, position papers, or evidence included in such responses must be added to the administrative record by the date of the scheduled hearing. Any new information in responses will be brought to the ALJ’s attention. If new evidence is submitted in a Part A or Part B appeal to an ALJ, the evidence must be examined for good cause before it is considered. The good cause requirement for new evidence reflects the 2017 Final Rule, 82 FR 4974, incorporated as 42 C.F.R. § 405.1018.

In the previous version of the OCPM, in Part A and Part B appeals, objections to the proposed time and/or place of the hearing were required to be submitted in writing. In Chapter 14, although generally an objection to the proposed time and/or place of the hearing must be in writing, there is an exception that allows oral objections when a party is requesting that the hearing be rescheduled the day before the hearing. Oral objections will be documented in a Report of Contact.

Chapter 14 also contains additional information about supplemental hearings. Specifically, it allows a supplemental hearing to be scheduled at the request of a party or on the ALJ’s own motion, whereas the previous version of the OCPM did not authorize a party to request a supplemental hearing. If the appellant requested the supplemental hearing, the applicable adjudication time frame is extended by the period between the initial hearing date and the supplemental hearing date. A supplemental hearing does not impact the adjudication time frame when it is scheduled on the ALJ’s own motion or at the request of a non-appellant party or participant.

The OCPM is an essential resource for both appellants and adjudicators to navigate the Medicare appeals process. Through the reorganized content and more detailed guidance for both appellants and adjudicators, the revised OCPM should improve efficiencies in the Medicare appeals process.

 

Sarah Hillegonds, Esq.

Sarah Hillegonds is an associate attorney at Wachler & Associates, P.C.  Ms. Hillegonds practices in all areas of healthcare law and devotes a substantial portion of her practice to representing healthcare entities in the defense of RAC, Medicare, Medicaid, and third-party payer audits.  Ms. Hillegonds also represents healthcare providers in licensing matters. 

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