Updated on: January 19, 2018

The Mills’ Testimony: The Truth About ALJ Delays—Maybe

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Original story posted on: January 17, 2018

The guy either has no idea how the process works or he has mastered the art of lying with statistics.

In May 2014, the American Hospital Association (AHA) sued the Secretary of Health and Human Services (HHS) in an attempt to force the government to do something about the ridiculous backlog of appeals submitted based on Recovery Audit Contractor (RAC) audit reviews and overpayment demands.

In legal terms, the AHA was seeking mandamus relief, which generally means that they were asking a court to order a government official (in this case, HHS) to do their job – which in this case meant hearing appeals within the statutory time frame of 90 days. The Secretary asked the court for a stay of the hearing until 2017 so that HHS might implement changes to reduce the backlog.

Seeing that this was not going to happen (the problem only got worse!), the court agreed to proceed with the case. As background, as of June 2017, the Office of Medicare Hearings and Appeals (OMHA) reported a backlog of 607,402 appeals pending, with a current estimated wait time of three years for the average appeal to be processed by an administrative law judge (ALJ).

On Aug. 11, 2017, the U.S. Court of Appeals for the District of Columbia Circuit sent the matter back to the District Court for further reconsideration. HHS’s argument is that it is all but impossible for them to clear up the backlog, and by abiding by the District Court’s ruling, HHS would end up paying meritless claims, which is a violation of the Medicare statute: a very cumbersome catch-22. In essence, HHS is saying that any action meant to disregard the auditor’s findings would result in paying Medicare claims that auditors deemed as paid in error.

As part of the lawsuit, a subpoena was issued for testimony by Deputy Director of the CMS Center for Program Integrity George G. Mills. In November 2017, Mr. Mills gave testimony regarding HHS’s efforts in dealing with the appeals backlog. In reviewing his testimony, I found a nearly unlimited amount of hogwash and doublespeak that, in my opinion, was designed to create nothing more than a smokescreen for HHS to protect them from ensuring that due process is afforded to medical providers.

Mr. Mills stated that the group he focused on consists of those with 3,000 or more pending appeals, which account for 0.6 percent of all pending appeals. Also, if an “appellant” had more than “3,000 appeals pending,” then he must be defining an appeal as a line item, encounter, or single event – rather than what most of us would consider an appeal, which would be a package, so to speak, of the encounters being appealed as part of a concise audit.

This is important because if there are several hundred thousand appellants with more than 3,000 appeals pending, then there would have to be nearly 100 million appeals before the ALJs, which is simply impossible. Mr. Mills stated that “at least 41.2 percent of pending appeals at OMHA (or approximately 219,200 appeals) were filed by appellants that are the subject of open investigations by DOJ (the U.S. Department of Justice) and HHS-OIG (Office of Inspector General).”

That is a stunning declaration, and one that is simply unbelievable, based on what I read. When Mr. Mills says that “41.2 percent of pending appeals” (or approximately 219,200),” are these individual encounters/events, or are these appellants? Because if 3,000 pending appeals equals 0.6 percent of all pending appeals, that would mean that there are 5 million pending appeals (which, again, is simply impossible to believe). Therefore, I assume that he had to be referring to individual appeals and single events/encounters.

Now, does this mean that there are 219,200 encounters/events/claims pending DOJ and HHS-OIG investigation, or 219,200 appellants under investigation?

But wait, there’s more! Mills also stated that “at least 6 percent of pending appeals at OHMA (or approximately 31,600 appeals) were filed by appellants that have had their Medicare billing privileges revoked within the past five years.”

Again, the issue is that if 31,600 appeals accounts for 6 percent of all pending appeals, then that means that there were 526,667 pending appeals at the time of his testimony. If you follow the logic in another part of his declaration, where we would divide 177,300 appeals (filed by appellants that have settled a False Claims Act, or FCA, investigation with DOJ within the past five years) by 33.3 percent, we come up with 532,132 appeals. So somewhere along the line, this guy is referring to more than half a million appeals, but do these constitute line items or appellants? Do we know how many events/encounters make up all of the appeals waiting to be heard by an ALJ?

In his deposition, which was taken in December 2017, subsequent to his declaration, it appeared that Mr. Mills backtracked by claiming that RAC audits account for only a small portion of the OMHA backlog. In fact, he stated that only 15 percent of the number of cases pending at OMHA are a result of RAC appeals. So once again, are we talking about appellants or encounters/events/claims? In his deposition, he refers to 15 percent of cases, so it’s not easy to decipher.

Here’s the bottom line: HHS is supposed to be bound by a general 90-day rule, which means that these ALJ appeals are supposed to be processed within 90 days. But as was stated above, right now, the average time is three-plus years, so that requirement is obviously not being met. And based on my reading of the Mr. Mills’s declaration and deposition, he is basically saying that there isn’t any viable solution (and, in his words, it’s the providers’ fault).

In trying to decipher what he was really saying, I came to the conclusion that the guy either has no idea how the process works or he has mastered the art of lying with statistics.

 And that’s the world according to Frank.

 

To view the Mills Deposition in the matter of American Hospitals Association VS. Hargan Click here.

Frank D. Cohen, MPA, MBB

Frank Cohen is the director of analytics and business Intelligence for DoctorsManagement, a Knoxville, Tenn. consulting firm. He specializes in data mining, applied statistics, practice analytics, decision support, and process improvement. He is a member of the RACmonitor editorial board and a popular contributor on Monitor Monday.

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