(January 21, 2013): Medicare appeals of denied claims for services are somewhat common. In years past, both health care providers and members of their staff have represented themselves or their practice in the administrative process. While the rules of participation are quite lenient, the process has significantly changed over the last decade. Moreover, in recent years, contractors working for the Centers for Medicare and Medicaid Services (CMS) have assumed a much greater role in the Medicare appeals process. Hearings conducted in today’s administrative appeals of alleged Medicare overpayments are likely to be quite different from those conducted even a few years ago. Should you decide to represent yourself in a hearing before an Administrative Law Judge (ALJ), you must be prepared to respond to a number of relatively new challenges. As set out below, the current administrative process is really the result of several consecutive legislative changes to the Medicare appeals process.
I. The Enactment of “BIPA” Was the First of Many Changes to the Medicare Appeals Process:
The “Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000” (also referred to as “BIPA” )amended Section 1869 of the “Social Security Act” (Act), resulting in a number of changes. Several of the changes implemented under BIPA included:
The legislation established a consistent, uniform process for handling both Medicare Part A and Part B administrative appeals;
BIPA introduced a new level of appeal for Part A claims, making it so that it now tracked the Part B claims appeals process;
The legislation revised the appeal deadlines for filing Part A and Part B claims appeals and also applied the same deadlines to both Part A and Part B claims;
The legislation identified “deadlines” for CMS contractors at the first level of appeal (Medicare Administrative Contractors, or “MACs”) to issue a “Redetermination’’ appeal decision;
BIPA also created a second level of appeal which would be heard by a type of CMS contractor known as a Qualified Independent Contractor (QIC) to conduct a “Reconsideration’’ of the MAC’s previously issued redetermination decision;
BIPA established a uniform “amount in controversy threshold” which must be met in order for a health care provider or supplier to appeal a reconsideration denial decision to the Administrative Law Judge (ALJ) level;
Required that each level of appeal conduct a de novo review of the evidence.
II. The MMA Further Refined the Medicare Appeals Process:
Medicare appeals were further changed with the passage of the “Medicare Prescription Drug, Improvement, and Modernization Act of 2003” (MMA). Several of the refinements made to the Medicare appeals process under the MMA included, but were not limited to:
Under the MMA, the ALJ hearing process was transferred from the Social Security Administration (SSA) to an agency reporting directly to the Secretary, HHS, known as the “Office of Medicare Hearings and Appeals” (OMHA).
The legislation established a process for a health care provider to seek and “expedited” judicial review;
The MMA required that health care providers present their evidence to be considered early in the appeals process so that it could be considered at the second level of appeals.
Under the MMA, health care providers could not seek an administrative or judicial review of a determination by the Secretary of a “sustained or high levels of payment errors”; and
These revisions, along with a number of other changes, have dramatically changed the way that Medicare appeals are conducted. Equally significant, CMS contractors (including Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs) and even representative of the QIC now routinely show up at ALJ hearings (as a “participant” not as a “party”)in order to present their reasoning for denying the claims.
While the proceeding is technically “non-adversarial” in nature. The participation in the ALJ hearing of medical and statistical experts working for ZPIC can greatly complicate your handling of a Medicare appeal.
Over the years, our attorneys have represented a wide variety of Part A and Part B providers and suppliers in Medicare hearings before an ALJ. There are no guarantees in litigation. Nevertheless, if you want to maximize your chances of presenting a persuasive case, we recommend that you retain experienced legal counsel to represent you as early in the process as possible.
Robert W. Liles, Esq. serves as Managing Partner at Liles Partner, PLLC. Robert and the firm’s other attorneys have years of experience representing health care providers in the Medicare appeals process. Should you have a question, call Robert for a free consultation: 1 (800) 475-1906.
Medicare Appeals — Filings with the Office of Medicare Hearings and Appeals Switch to a Central Docketing System.
(March 1, 2012): Medicare appeals of denied claims arising out of audits conducted by Zone Program Integrity Contractors (ZPICs) and Recovery Audit Contractors (RACs) has significantly increased as administrative enforcement efforts have expanded around the country. While workloads have generally risen across the board, the number of cases handled from one ZPIC to another has resulted in an enormous disparity in workload for the various Field Offices of the Office of Medicare Hearings and Appeals (OMHA).
I. Medicare Appeals Will Now be Handled Through a “Central Docketing System”:
As a result, OMHA recently switched to a “Central Docketing System” for all pending and new Medicare appeals. Under this new system, all Administrative Law Judge (ALJ) hearing requests will initially be sent to OMHA’s Central Office in Cleveland, OH. Each appeal will subsequently be assigned to one of the Field Offices – Irvine, CA, Miami, FL or Arlington, VA – or to ALJs in the Central Office, depending on the caseload in each office. Despite assigning appeals to different offices, OMHA is not breaking these appeals into their component parts – individual claims – so “big box” cases will still be handled by one ALJ.
While each Medicare appeal will likely be assigned to an office randomly, OMHA will likely base these assignments on current workloads at each of its offices. Therefore, a provider in Texas or Louisiana, who would previously have always gone before an ALJ in the Miami Field Office, may end up before an ALJ in any of OMHA’s four offices. While this may be disconcerting at first, most ALJ hearings are conducted by phone or video-teleconference nowadays, meaning that the ALJ’s location doesn’t substantially affect how a case is handled. While it may be more difficult to ascertain the procedural habits of a single ALJ (such as in what order to present information or how formal each hearing session is) since you and/or your counsel may go before a wider array of ALJs, Medicare appeals and hearings should generally be handled in the same manner.
II. Responding to a Medicare Overpayment Audit / Filing a Medicare Appeal:
Years ago, it was not uncommon for physicians or members of their staff to represent a practice in a hearing before an ALJ. Unfortunately, those days are long past. While representing ones-self in an ALJ hearing may still be an option in hearings involving a limited number of claims, if the amount in controversy is substantial, there is a high likelihood that one or more representative of the ZPIC will show up at the ALJ hearing and give their reasons for denying the claims at issue. Although the ALJ hearing process is not meant to be adversarial, it often feels like a contested hearing when representatives from a ZPIC or another Medicare contractor choose to participate in the proceeding. Are you prepared to respond to their assertions? If not, it is important to retain qualified and experienced legal counsel to assist you in the matter.
Liles Parker is a full service health law firm with several offices around the country. Representing providers in all stages of Medicare post-payment appeals, our attorneys are well-versed in the administrative appeals process and capable of aggressively handling your case. In addition, we conduct compliance program advising and implementation, as well as mock audits, staff training and health care business transactions. Please call Robert W. Liles at: 1 (800) 475-1906 for a complimentary consultation today.
(February 19, 2011): Over the years, we have represented a wide variety of health care providers in the Medicare appeals process. Our duties have regularly included representation before Administrative Law Judges (ALJs) presiding out of the Western, Southern, Midwestern and Mid-Atlantic Field Offices of the Office of Medicare Hearings and Appeals. (OMHA).
In the course of our work, we have routinely been asked by our health care provider clients for our opinion regarding the “independence” of ALJs from the pressures exerted by the Centers for Medicare and Medicaid Services (CMS) and its contractors (including, but not limited to the Qualified Independent Contractors (QICs), Zone Program Integrity Contractors (ZPICs) and Program Safeguard Contractors (PSCs)). The purpose of this brief article is to examine this issue in more detail.
As many of you will recall, prior to the passage of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Medicare appeals of denied claims and services were heard by Judges working for the Social Security Administration’s (SSA’s) Office of Hearings and Appeals. For much of that time, the SSA was an agency of the Department of Health and Human Services (HHS). In 1994, the SSA was officially separated from HHS and was made an independent agency. Despite the fact that the SSA was no longer part of HHS, its Judges continued to hear Medicare administrative appeals.
Despite the fact that SSA used to a part of HHS (and for a short period was independent of HHS), in our opinion, SSA Judges were generally thought to be “independent” adjudicators of the facts, not impacted by, or bowing to, the effects of outside agency pressures.
II. Changes to the Medicare Appeals Process After the Passage of the MMA:
With the enactment of the MMA, the responsibility for hearing Medicare appeals of claims denied by ZPICs and PSCs was transferred over to HHS, with the OMHA reporting solely to the Secretary, HHS. In doing so, the OMHA was placed completely outside of CMS’ organizational structure, ostensibly free from any agency pressures that CMS might informally care to exert. This also placed the OMHA independent of the various contractors working for CMS. As a review of the Congressional Record reflects, the issue of independence was carefully considered by Congress and the separation of the OMHA from CMS was consistent with their concerns. (See Congressional Record, V. 149, Pt. 22, November 20, 2003 to November 23, 2003, Page 30400). As set out in the June 23, 2005 issuance of the Federal Register (70 Fed.Reg. 36386), titled “Office of Medicare Hearings and Appeals; Statement of Organization, Functions, and Delegations of Authority,” the OMHA is under the direction of a Chief Administrative Law Judge who reports directly to the Secretary, HHS. This organizational structure was specifically intended to meet the “independence” requirements of the Section 931(b)(2) of the MMA.
III. What Should You Now Expect When Pursuing a Medicare Appeal Before an ALJ?
In terms of functional authority, ALJs are comparable in many respects, to that of an Article III Judge, who is appointed by the President and confirmed by the Senate.
While ALJ’s are not Article III Judges, it has been our experience that they are strongly independent, adjudicating over Medicare proceedings in a formal, professional fashion, similar to what you would expect to encounter in a Federal District Court proceeding.
Pursuant to 42 C.F.R. § 405.1026, ALJs cannot even conduct a hearing if they are prejudiced or partial to any party, or if they have an interest in the matter pending for resolution. To date, we have not seen an ALJ that has been “prejudiced or partial to any party.”
IV. What Are Your Chances of Winning?
To be clear, health care providers do not always prevail — every case stands or falls based on its merits. Moreover, just because you have experienced a positive outcome with a particular ALJ on one occasion does not mean that you should expect a similar result when you are next in front of the same judge. ALJs are trained to weigh the facts and the evidence.
While in past years it was rare for CMS or its contractors to participate in a Medicare appeals hearing, it is now commonplace for representatives of the Zone Program Integrity Contractor (ZPIC) or the Program Safeguard Contractor (PSC) to now attend the hearing and seek to provide support for their initial denial actions. As a result, the job of ALJ is now more complicated than ever. Although the proceeding is not supposed to be “adversarial,” it can get quite heated when ZPIC representatives are there trying to defend their denial decisions. Be prepared. Have experienced legal counsel represent your interests.
The current administrative Medicare appeals system has been specifically designed to insulate ALJs from the actual and / or implied pressures which could conceivably be exerted by CMS and its various contractors. When appearing before an ALJ, it is important to remember that the process has become significantly more complicated now that CMS contractors are now regularly attending and participating in the process. In light of these changes, it is recommended that you engage experienced legal counsel to represent your interests in an ALJ hearing. Although the system and its Judges are set up to provide a fair opportunity for you to present your case and be heard, it is much more difficult to prevail when up to three representatives of the ZPIC (a lawyer, a statistician and a clinician) are also participating in the proceedings, providing support and explanations for their prior Medicare claim denial decisions.
Robert W. Liles and other Liles Parker attorneys have extensive experience representing both Part A and Part B providers and suppliers in the Medicare appeals process, including hearings at the ALJ stage of appeal. Please feel free to contact Robert for a complimentary consultation. He can be reached at: 1 (800) 475-1906.
National Coverage Determination (NCD) and Local Coverage Determination (LCD) Guidance – How will an ALJ view these coverage guidelines when the Court is assessing whether my Medicare claims should be paid?
(February 1, 2010): When treating patients, it is not uncommon for a physician to prescribe or utilize certain drugs and / or diagnostic treatments in an “off-label” fashion. Depending on the insurance policy at issue, this may or may not be covered and paid by a third-party payor. In the case of Medicare, the Centers for Medicare and Medicaid Services (CMS) has endeavored to better define Medicare’s coverage limits.
National Coverage Determination (NCD) guidelines describe the extent to which Medicare will cover specific services, procedures, or technologies on a national basis. Medicare coverage is limited to:
- Items and services that are reasonable and necessary for the diagnosis or treatment of an illness or injury (and within the scope of a Medicare benefit category).
- Determinations developed through an evidence-based process, with opportunities for public participation. In some cases, CMS’ own research is supplemented by an outside technology assessment and/or consultation with the Medicare Evidence Development & Coverage Advisory Committee (MEDCAC).
Importantly, once an NCD is finalized and published, its coverage guidelines are binding on all Medicare contractors (including Program SafeGuard Contractors, Zone Program Integrity Contractors, Recovery Audit Contractors, Medicare Administrative Contractors (formerly Fiscal Intermediaries and Carriers) and Qualified Independent Contractors). Notably, NCDs are also binding on ALJs and the Medicare Appeals Council.
As set out in the Code of Federal Regulations:
42 C.F.R. § 405.1060 Applicability of National Coverage Determinations (NCDs).
(a) General rule. (1) An NCD is a determination by the Secretary of whether a particular item or service is covered nationally under Medicare.
(2) An NCD does not include a determination of what code, if any, is assigned to a particular item or service covered under Medicare or a determination of the amount of payment made for a particular item or service.
(3) NCDs are made under section 1862(a)(1) of the Act as well as under other applicable provisions of the Act.
(4) An NCD is binding on fiscal intermediaries, carriers, QIOs, QICs, ALJs, and the MAC.
(b) Review by an ALJ. (1) An ALJ may not disregard, set aside, or otherwise review an NCD.
(2) An ALJ may review the facts of a particular case to determine whether an NCD applies to a specific claim for benefits and, if so, whether the NCD was applied correctly to the claim.
(c) Review by the MAC. (1) The MAC may not disregard, set aside, or otherwise review an NCD for purposes of a section 1869 claim appeal, except that the DAB may review NCDs as provided under part 426 of this title.
(2) The MAC may review the facts of a particular case to determine whether an NCD applies to a specific claim for benefits and, if so, whether the NCD was applied correctly to the claim.
In the absence of a national coverage policy, an item or service may be covered at the discretion of the Medicare contractors based on a Local Coverage Determination (LCD).
An LCD (as established by Section 522 of the Benefits Improvement and Protection Act), is a coverage decision by a Medicare Administrative Contractor (previously issued by a Fiscal Intermediary (Part A) or Carrier (Part B) contractors). LCDs are drafted to cover a particular service as reasonable and necessary on a contractor-wide basis in accordance with Section 1862(a)(1)(A) of the Social Security Act.
Unlike an NCD, ALJs are not bound to follow an LCD. Nevertheless, ALJs will give LCD coverage guidelines considerable weight. In representing health care providers, we work hard to persuade an ALJ that the services at issue do, in fact, qualify for coverage.
As set out in the Code of Federal Regulations:
(a) ALJs and the MAC are not bound by LCDs, LMRPs, or CMS program guidance, such as program memoranda and manual instructions, but will give substantial deference to these policies if they are applicable to a particular case.
(b) If an ALJ or MAC declines to follow a policy in a particular case, the ALJ or MAC decision must explain the reasons why the policy was not followed. An ALJ or MAC decision to disregard such policy applies only to the specific claim being considered and does not have precedential effect.
(c) An ALJ or MAC may not set aside or review the validity of an LMRP or LCD for purposes of a claim appeal. An ALJ or the DAB may review or set aside an LCD (or any part of an LMRP that constitutes an LCD) in accordance with part 426 of this title.
Liles Parker attorneys have extensive experience representing health care providers in ALJ hearings. Call us to discuss your case. Your initial consultation is complementary. We can be reached at: 1 (800) 475-1906.
(February 1, 2010): Over the years, our attorneys have argued cases before Administrative Law Judges (ALJs) working out of each of the Office of Medicare Hearings and Appeals field offices around the country. Based on our collective experience, we believe that this level of appeal is a health care provider’s best opportunity to present its arguments in support of payment in an administrative overpayment cases. While each ALJ operates his / her hearing in a slightly different fashion, we have found each of the Judges we have practiced before to be highly experienced, fair and more than willing to hear our Client’s side of the story. That’s the good news.
The bad news is that it can take years before a case is finally heard. That’s not the fault of the Judge – it’s just the way the system is structured. In order to meet the jurisdictional requirements, at least $130 (this is a new jurisdictional amount starting in 2010) must remains in controversy following the Qualified Independent Contractor’s (QIC’s) decision. A health care provider (or their representative) must request an ALJ hearing within 60 days of receipt of the QIC’s reconsideration decision. Appellants must send notice of the ALJ hearing request to all parties to the QIC for reconsideration. Always keep in mind that the Court will be conducting a “de novo” review. Moreover, the Court isn’t bound by lower decisions, even if they were in your favor.
It is essential that requests for ALJ hearing be filed in a timely fashion. It is extraordinarily difficult to show “good cause” for a late filing. While the ALJ will assume that the QIC decision was received 5 days after the date of the date decision (effectively giving an appellant 65 days from the date of the QIC decision letter), it is prudent to ignore the 5 day mailing allowance and ensure that a request for ALJ hearing is received within 60 days of the QIC decision letter. Moreover, requests for ALJ hearing should only be sent by mail that can be tracked so that timely receipt can be verified. Don’t forget, FedEx and UPS do not typically deliver to a P.O. Box address. Be prepared to use U.S. Postal Service’s overnight express.
ALJ hearings are generally held by video-teleconference or by telephone. Depending on the size of the case and other factors (such as the ability of your Client to fully explain medical or scientific evidence by teleconference), you may desire to request an in-person hearing. In order to justify the need for an in-person hearing, you will be required to show “good cause.” The decision of whether or not to grant an in-person hearing rests with the ALJ. Whenever possible, we typically present our Client’s arguments in support of payment by teleconference. We have found this approach to be both cost-effective and convenient for our clients and the Court.
In some cases (where no live testimony is needed, the record is well documented and the amount in controversy is low – typically less than $1,000), we have asked the Court to conduct its review on the record, without conducting a hearing.
In the last few years, we have seen a dramatic increase in the number of hearings attended by representatives of the Program SafeGuard Contractor and / or the QIC. More often than not, they identify themselves as “participants” rather than as a “party.” This typically occurs in cases involving the statistical extrapolation of alleged damages.
The Court will usually issue its decision within 90 days, although this time period is often waived in order to give the Court ample time to consider the issues presented.
Should you disagree with the ALJ’s decision, you may appeal it to the Medicare Appeals Counsel.
Should you have any questions regarding these issues, don’t hesitate to contact us. Liles Parker attorneys have represented a wide variety of health care providers around the country in ALJ appeals and hearings. We have the knowledge, skills and abilities to persuasively present your case. For a complementary consultation, you may call us at: 1 (800) 475-1906.