ALJ improvements gaining traction

DALLAS, Nov. 15, 2012—According to Edward L. Vishnevetsky of Munsch Hardt Kopf & Harr, P.C.—who wrote on the subject in his “Case Studies” column in the Aug. issue of HomeCare magazine, later sharing it with several lawmakers—Daniel R. Levinson, inspector general in the Department of Health and Human Services has issued the report “Improvements Are Needed at the Administrative Law Judge Level of Medicare Appeals (OEI-02-10-00340). The following is an excerpt:

Why We Did This Study

Administrative law judges (ALJ) within OMHA decide appeals at the third level of the Medicare appeals system. In 2005, among other changes, ALJs were required to follow new regulations addressing how to apply Medicare policy, when to accept new evidence, and how CMS participates in appeals. This report is the first to assess the impact of these changes of ALJ appeals.

How We Did This Study

We based this study on an analysis of all ALJ appeals decided in fiscal year (FY) 2010; structured interviews with ALJs and other staff; structured interviews with Qualified Independent Contractors (QIC), which administer the second level of appeal, and CMS staff; policies, procedures, and other documents; and data on CMS participation in ALJ appeals.

What We Found

Providers filed the vast majority of ALJ appeals in FY 2010, with a small number accounting for nearly one-third of all appeals. For 56 percent of appeals, ALJs reversed QIC decisions and decided in favor of appellants; this rate varied substantially across Medicare program areas. Differences between ALJ and QIC decisions were due to different interpretations of Medicare policies and other factors. In addition, the favorable rate varied widely by ALJ. When CMS participated in appeals, ALJ decisions were less likely to be favorable to appellants. Staff raised concerns about the acceptance of new evidence and the organization of case files. Finally, ALJ staff handled suspicions of fraud inconsistently.

What We Recommend

We recommend that OMHA and CMS:

1) Develop and provide coordinated training on Medicare policies to ALJs and QICs
2) Identify and clarify Medicare policies that are unclear and interpreted differently
3) Standardize case files and make them electronic
4) Revise regulations to provide more guidance to ALJs regarding the acceptance of new evidence, and
5) Improve the handling of appeals from appellants who are also under fraud investigation and seek statutory authority to postpone these appeals when necessary.

Further, we recommend that OMHA:

6) Seek statutory authority to establish a filing fee
7) Implement a quality assurance process to review ALJ decisions
8) Determine whether specialization among ALJs would improve consistency and efficiency, and
9) Develop policies to handle suspicions of fraud appropriately and consistently and train staff accordingly.

Finally, we recommend that CMS:

10) Continue to increase CMS participation in ALJ appeals.

OMHA and CMS concurred fully or in part with all 10 of our recommendations.

Access the full report here. Also visit www.munsch.com.