Updated on: November 29, -0001

Retired ALJ’s Take on the RACs’ Ideas for the Medicare Hearing Process

By Bob Soltis
Original story posted on: April 15, 2015

The Recovery Auditors’ (RACs’) primary lobbyist recently changed its name from the American Coalition for Healthcare Claims Integrity to the Council for Medicare Integrity. Despite using the word “integrity,” both the original and the revised monikers are just more of the sophistry so typical of what goes on inside the Beltway. 

The dictionary defines integrity as “the quality of being honest and having strong moral principles” or “moral uprightness.” While the lobbyist’s tweets (from @ProperPayments) and its recent letter to the Office of Medicare Hearings and Appeals (OMHA) chief administrative law judge (ALJ) reek of righteous indignation, they are not (contrary to the Twitter hashtag’s assertion) “RAC facts.”

Many such statements, like the claim that Congress authorized the RAC program, are just unsupported arguments. If Ms. Walter, the principal of the lobbyist group, were a lawyer, she’d know that while everyone is entitled to an opinion, a lawyer has to prove it. So should lobbyists, especially those lacking subject matter qualification. Let’s look at some of her assertions:

“Congress authorized the RAC program.” Let’s keep in mind that Congress tried to legislate more hours of daylight by moving the onset of daylight savings time up three weeks. Because the number of hours of daylight depends on the tilt of the Earth’s axis as it goes around the sun, we all know how that one worked out. 

Contrary to the hashtag description of “#RACfacts,” some of the lobbyist’s statements are, as my 10th-grade chemistry teacher once labeled a classmate’s attempt to produce a four-digit product by multiplying a two-digit number by a three-digit number, prevarication.

For example, consider the statement that “only 9.3 percent of RAC determinations are overturned on appeal.” 

Hearings held at the Office of Medicare Hearings and Appeals are de novo (from the beginning, afresh) hearings. Savvy participants in the Medicare hearing process know that OMHA administrative law judges (ALJs) do not sit in appellate jurisdiction and do not overturn or uphold anything. The Centers for Medicare & Medicaid Services (CMS) offer to settle pending inpatient Part A hearing requests for 68 cents on the dollar was based on a 66-percent ALJ payment rate. So much for Ms. Walters’s reliance on statistics, to paraphrase Mark Twain.

More sophistry on Twitter gave us the news that “another hospital balks at Medicare oversight, trying to strong-arm the OIG http://goo.gl/0kmuCd”) Exercising one’s right to appeal an overpayment allegation is “strong-arming?” Since when? Our country’s founding principles included “liberty and justice for all.” If the RACs and their lobbyist had their way, it would be “liberty and justice except for anyone having the temerity to appeal RAC assertions.” Other tweets accuse hospitals of not complying with Medicare policy, but they are based only on the RAC’s side of the story. Why don’t we wait until all of the facts come out during the hearing?

On Feb. 17, Ms. Walter issued a press release blaming frequent filers for the 750,000-plus case backlog at the Office of Medicare Hearings and Appeals and calling for reforms, including requiring ALJs to rule according to Medicare policy, expedite procedures for claims with no material facts in dispute, and introduce a refundable filing fee. 

The number of filings is only part of the story. The increasingly adversarial nature of ALJ hearings, resulting from increased contractor participation, means that those adversarial hearings often take up to twice as long. As a result, the ALJs and their staffs can’t fit as many hearings into a workday that’s still only eight hours. So it it’s going to take more time to hear all of those appeals.

As for the assertion that ALJs should be required to rule according to Medicare policy, most of them do, especially considering the way the policy is written. Again, the lobbyist’s opinion betrays unfamiliarity with what she’s talking about.

Because administrative law judges exercise decisional independence free from performance review, the agencies cannot require ALJs to rule a certain way. Finally, on this point, the insistence on following “Medicare policy” is hypocritical, because in my experience, CMS and the RACs don’t always play fair and follow CMS policy. During my time on the bench, all too often CMS contractors tried to participate without properly serving the appellant or even the ALJ. And it’s common knowledge among appellants that nonparties try to circumvent.

Expediting cases with no material facts in dispute is an excellent idea that should include rejecting requests for hearings that don’t meet all the requirements of 42 CFR 405.1014, enacting a code of conduct for representatives and allowing ALJs to sanction representatives who repeatedly overstep clearly set boundaries while also limiting the scope of non-party participation. This should also extend to those who misstate facts, allowing motions for summary judgment when there is no issue of triable fact. 

Social Security has had a code of conduct for over 10 years. Summary judgment motions can be handled by brief; one reading of Goldberg v. Kelly indicates that our Supreme Court suggested that an actual hearing is required only where there is a dispute of fact.

A refundable filing fee is not a viable answer. OMHA provides business filers with a business service that those filers should pay for, win or lose. Individual beneficiaries should not have to pay any filing fee. As is the case with the Patent Office, businesses that want expedited service should be able get it by paying for expedited review. Of course, CMS contractors – including for-profit RACs – should also have to pay a filing fee, tiered depending on whether they participate as a nonparty or as party.

Why a nonrefundable filing fee for appellants and CMS contractors? Paying for the service can (as Congress did with the Patent Office) make OMHA self-funding, and will force appellants to think about whether an appeal is cost-effective (and it will force contractors to think about whether they really have a defensible position).

The RACs and their lobbyist are clearly in a defensive crouch. Instead of pointing fingers, it’s time that the RACs and its lobby put their money where their mouth is and show some integrity by doing the right thing, starting with some straight talk.

And it’s time to end RAC information abuse.

About the Author

Bob Soltis is considered to be among America’s leading authorities on Medicare hearings, hearing strategy, and hearing ethics. A retired ALJ who has taught lawyers and non-lawyers to effectively present their cases, he is the founder of the Advocacy Akademie. Bob is a scientist and former U.S. Navy JAG who has represented thousands of clients before administrative agencies including Social Security, medical licensing boards, and Navy Physical Evaluation Boards. 

Contact the Author 

advocacyakademie@gmail.com

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