The news that the Office of Medicare Hearing and Appeals (OMHA) is backlogged comes as no surprise to many facilities that have been waiting months for hearing dates and many more months for a decision after a hearing has been completed.
Recently C. F. Moore, the deputy chief administrative law judge (ALJ) of Arlington, Va., shared that due to the volume of new receipts (approximately a 200 to 300 percent increase from 2012 to 2013) and the substantial backlog of current appeals, there is a long delay in the entire process.
This delay includes 8-12 weeks for docketing requests, 24 to 28 months for assignment to an ALJ, and seven months to schedule a hearing date. The hearing dates often are scheduled an additional 8-12 months after assignment to an ALJ. Once the hearing has been held, an average of 10 months passes before a written decision is received. This adds up to a very lengthy process, making it even more important for you to be prepared when you actually arrive at your ALJ hearing.
Here are some helpful suggestions for an upcoming ALJ hearing when the date has finally arrived. Before your hearing date, it is important that you review and prepare specific notes for your case. Keep in mind that at this point it likely has been at least two years since you last reviewed the case, so it is unlikely that you will remember all the pertinent details. Review the medical record and read the decision letters received from the relevant MAC and QIC so you are familiar with the Centers for Medicare & Medicaid (CMS) reasons for denial, as well as the appeal letters written by your facility/vendor. A pretrial hearing can be extremely helpful, allowing you to practice your arguments and to identify who on your team is going to testify. This is also an excellent opportunity to role-play various scenarios that may occur during the hearing.
Once the date has arrived and the hearing has started, you will interact with the administrative law judge, his court staff, and more than likely, participants from a RAC, MAC, or QIC.
Treat all groups and the process with the appropriate degree of respect. The ALJ should always be referred to as “your honor,” “sir,” or “ma’am.” It is helpful to remember that the judge, the scheduling clerks, and the research attorneys have very heavy caseloads and schedules. If you participate efficiently and competently, it will make everyone’s life easier! This judge gets to make his or her decision about which criteria to apply and how to weigh the competing arguments before a final decision is rendered.
It is highly recommended that you have the medical record, the appeal letters/decisions, and the lawyer position paper (if you have legal representation) in front of you during the hearing, because many times the judge will ask questions about where in the medical record some particular piece of information is located. Hearings can last from 20 minutes to over two hours depending on the case, the judge, and the opposing side’s arguments, with the average hearing lasting 45 minutes to an hour.
Taking brief notes during the hearing can be beneficial. Since the decision will come months later, pertinent information from the hearing, such as particular questions or areas that the judge focused on, can be very important.
After the hearing, holding a “debriefing” with your team is helpful. Each judge is different, but many of them are very often predictable. Chances are high that you eventually will have other cases before the same judge. Discuss thoughts and insights of team members, as well as issues that the judge found compelling and relevant during the hearing. When you receive a decision letter, pay close attention to the following sections: principles of law, analysis, and conclusion. Analyzing information contained here can be very useful to your organization and often can prove helpful in filing in future appeal letters.
Finally, take the time to record the appeal outcomes and other details of your experience (such as judge characteristics, questions, etc.). If trended over time, this information and lessons learned are valuable information to incorporate into your appeal strategy and future approaches.
About the Author
Amy Shaffner, RN BSN PHN, is responsible for providing government guidance, support and oversight to acute care facilities at Optum360. She ensures key stakeholders have the tools, knowledge and process to effectively manage the government audit responses and minimize the fiscal impact to the health system. Amy counsels and educates appeal nurse writers in a variety of subjects relating to the denial process and appeals. She performs audits and promotes standardization of the audit process.
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