Updated on: November 29, -0001

We Get What We Pay For

By Bob Soltis
Original story posted on: May 6, 2015

U.S. Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell recently told Congress that the agency’s plans to reduce the growing backlog at the Office of Medicare Hearings and Appeals (OMHA) include charging a refundable filing fee, hiring more administrative law judges (ALJs), and opening more field offices. While bringing more judges aboard is a much-needed step in the right direction, hiring them is just the beginning.

To do their jobs correctly, those new ALJs will need proper training by people who know what an inpatient admission is without having read it from a PowerPoint slide; they’ll also need to be aware of the maze of local coverage determinations and benefit policy manual provisions that govern Medicare payments. As a new appointee in 2006, I received no formal training from OMHA before hearing my first case. Fortunately, three experienced judges took me under their wings, and my 24 years of legal experience were spent on medical matters, including presiding over Article 32 felony preliminary hearings.

Each of the last two cadres of ALJs hired at OMHA received only one week of initial training. An ALJ’s responsibilities call for more than that. By contrast, after completing a week of orientation to the office where they will work, new Social Security ALJs receive four weeks of training on conducting hearings, Social Security law, medicine, and psychology. Even Social Security decision writers have the chance to attend three weeks of training, as I did 10 years ago.

In 2013, Social Security added a session for new ALJs on the scope and limits of an ALJ’s authority under the Administrative Procedure Act (APA). That session covers the standard of conduct applicable to executive branch employees, as well as quality assurance training.

When I started at OMHA in 2006, the budget included training funds for every ALJ, attorney, and paralegal. Those funds allowed us to attend relevant seminars of our own choosing, for example the American Health Lawyers’ Association’s (AHLA’s) annual Institute on Medicare and Medicaid Payment, but they eventually fell prey to budget cuts. Although OMHA holds a half-day judicial education symposium session once a month every summer, more robust and inspiring initial and annual training from people who know their stuff is the key to proper decision-making – and avoiding criticism that ALJ decisions vary too much and, per Center for Medicare Advocacy observations, that their levels of preparation are at times inconsistent. 

How do we help OMHA? New ALJ training must cover what the Administrative Procedure Act allows an ALJ to do, the ALJ’s responsibility to conduct a fair hearing, and the regulations governing ALJ hearings. Because too many Centers for Medicare & Medicaid (CMS) contractors push the envelope in non-party participation, the sessions on the hearing regulations must cover the specific provisions governing the scope of CMS participation – especially the limits on what non-parties can offer. 

The remaining weeks of training should cover medical terms, what evidence can be admitted, how to hold a hearing, and how to write a decision. That would be best done over three or four weeks at the beginning, just like Social Security trains its ALJs, and just like our military trains new recruits, new officers, new judge advocates, and new military judges.

Because OMHA is independent from CMS, and as it has so many knowledgeable employees of its own, OMHA should do its own training and not depend on CMS to provide trainers. From an ethical standpoint, since CMS is a potential litigant before OMHA, it has no business indoctrinating OMHA ALJs about its point of view. OMHA does not allow appellants’ representatives to perform training, and what’s good for the goose should apply to the ganders at CMS.

Since Social Security ALJs heard Medicare cases until 10 years ago, Secretary Burwell can get on the phone with Acting Commissioner Colvin to arrange for SSA ALJs to join OMHA’s training cadre. If the Secretary and Chief Judge Griswold want it to happen, they will find a way – and let’s hope they do that instead of joining the and finger-pointing and excuse-making that has plagued the discussion about OMHA’s case backlog.

Why more training? It’s the right thing to do. Any job worth doing is worth doing well.

Medicare cases involve far more issues than the typical five-step sequential evaluation facing Social Security ALJs, yet new Medicare ALJs now receive less initial training than new SSA ALJs do. Does that pass the common sense test?

What does make sense is giving our people the tools they need to do the job, including the necessary training and the support staff. In addition to funds for initial training, a return to an annual discretionary budget for relevant outside seminars (such as the AHLA’s) for each employee is in order. Finally, on the point of training, a formal training program is needed for docket employees toward the end of establishing screening units to reject deficient hearing requests and pull cases that merit favorable rulings on the record decisions.

You get what you pay for,” the saying goes. The OIG’s report and criticism from the Recovery Auditors (RACs) don’t paint a pretty picture of what we’re getting. If the taxpayers, providers, and suppliers are going to get better results, Congress needs to step up and make sure that the hiring funds include initial, annual refresher, and outside training to help the industrious worker bees of OMHA be the best that they can be.

About the Author

Bob Soltis is a national leading authority on Medicare hearings, hearing strategy, and hearing ethics. A former Navy Judge Advocate and retired ALJ who has taught lawyers and non-lawyers to effectively present their cases, he is the founder of the Advocacy Akademie. Mr. Soltis’ book, “Hurry Up and Wait: How the Time for Your Medicare Hearing Skyrocketed From 3 Months to 3 Years,” will be published in May.

Contact the Author

advocacyakademie@gmail.com

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