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New Expansion to the Settlement Conference Facilitation Program

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Original story posted on: June 26, 2019

OMHA’s new eligibility requirements are intended to benefit more providers.

The Office of Medicare Hearings and Appeals (OMHA) has expanded its Settlement Conference Facilitation (SCF) program, and it is now open to the appellant community.

By way of background, Settlement Conference Facilitation (SCF) is an alternative dispute resolution process designed to bring the appellant and the Centers for Medicare & Medicaid Services (CMS) together. The goal is to discuss the potential for a mutually agreeable resolution for Medicare Part A and Part B claim denials appealed to OMHA or the Medicare Appeals Council (MAC) level of the Medicare claims appeals process.

As part of the agreement, requests for a hearing or review for the appeals covered by the settlement will be dismissed. If a resolution is reached, a settlement document is drafted to reflect the agreement.

SCF is a mediation, not arbitration. The mediated settlement only becomes binding once both parties agree to the negotiated terms. If the parties cannot come to a mutual agreement, the case goes back in the appeals “lineup.”

The expanded eligibility criterion has the potential to have a significant impact on reducing the administrative law judge (ALJ) appeals backlog. With the expansion into the appellant community, OMHA is hoping to streamline the appeals process and remove a significant burden for both the appellant and CMS. Following the original rollout on June 15, 2018, the newly updated program expands the eligibility criteria for SCF appeals, which will almost certainly lead to an increased number of successful settlements and payment negotiations.

The updated SCF Appellant eligibility criteria include the following:

  • The appellant must be a Medicare provider or supplier that has been assigned a National Provider Identifier (NPI) and Provider Transaction Access Number (PTAN);

  • The appellant cannot have filed for bankruptcy and/or expect to file for bankruptcy; and

  • The appellant may be excluded from participation if there are False Claims Act litigation or investigations pending against them, or other program integrity concerns, including pending civil, criminal, or administrative investigations. 

The updated SCF Appeals eligibility criteria include the following:

  • The appeals must involve request(s) for an ALJ hearing or MAC review filed on or before March 31, 2019;

  • The request(s) for an ALJ hearing and/or MAC review must arise from a Medicare Part A or Part B Qualified Independent Contractor (QIC) reconsideration decision;

  • All jurisdictional requirements for OMHA or MAC review must be met for the eligible appeals;

  • All SCF-eligible OMHA and MAC appeals associated with a single NPI and corresponding Provider Transaction Access Number (PTAN) must be included in the SCF;

  • Appeals must not be scheduled for an ALJ hearing, or an ALJ hearing must not have been conducted;

  • Appeals must not be involved in OMHA's Statistical Sampling Initiative;

  • Appeals must not be actively engaged in another CMS Medicare appeals initiative, including the QIC Demonstration Project and the CMS Serial Claims Initiative;

  • The beneficiary must not have been found liable for the amount in controversy after the initial determination, or participated in the reconsideration;

  • Appeals must not involve items, services, drugs, or biologicals billed under unlisted, unspecified, unclassified, or miscellaneous healthcare codes (e.g., CPT Code 38999 Unlisted procedure, hemic or lymphatic system; K0108 Wheelchair component or accessory, not otherwise specified);

  • Appeals must not involve payment disputes (e.g., the appellant was paid as billed in full by the contractor, but the appellant believes the fee schedule or contractor price amount is insufficient);

  • Appeals arising from downcoding of claims are eligible for SCF; however, please see the Settlement Agreement Template regarding the special payment rate of Diagnosis-Related Group (DRG) downcoded appeals, which requires these claims to be settled at 30 percent of the amount by which the DRG payment was reduced;

  • Appeals must not arise from a QIC or ALJ dismissal order; and

  • Appeals must not be beneficiary-initiated appeals of QIC reconsiderations or arising from Medicare Part C, Medicare Part D, or Social Security Administration decisions regarding entitlement, Part B late enrollment penalties, and Part B and Part D income-related monthly adjustment amounts (IRMAAs). 

Under the expanded program, the requests for an ALJ hearing can now be filed on or before March 31, 2019. This update extends the prior deadline of Nov. 3, 2017 and allows an additional 16 months of cases to be considered. Additionally, the expansion eliminates monetary restrictions altogether. Under the previous criteria, the initial demand had to include at least 25 claims, or include at least one appeal valued over $9,000, but it also had to be valued at under $1,000,000 overall. That is no longer the case. The new program requires claims valued under $10,000 to use SCF Express, expediting the process. However, SCF Express is unavailable if a claim or statistically projected case is worth over $100,000.

Overall, the new guidelines expand the number of cases eligible for SCF by a substantial margin, allowing more providers the opportunity to settle claims, thus further addressing the ALJ backlog.

Andrew Wachler and Kaitlin Nucci

Andrew B. Wachler is the principal of Wachler & Associates, P.C. He graduated Cum Laude from the University of Michigan in 1974 and was the recipient of the William J. Branstom Award. He graduated Cum Laude from Wayne State University Law School in 1978. Mr. Wachler has been practicing healthcare and business law for over 25 years and has been defending Medicare and other third-party payer audits since 1980. Mr. Wachler counsels healthcare providers and organizations nationwide in a variety of legal matters. He writes and speaks nationally to professional organizations and other entities on a variety of healthcare legal topics. Andrew is a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

Kaitlin Nucci is an associate attorney at Wachler & Associates, P.C. Ms. Nucci represents providers in the defense of Medicare, Medicaid, and third party payor audits. She joined the firm in May 2019.

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