ED Coding and Reimbursement Alert

Here’s the latest on how the ALJ backlog will suspend new appeals for two years.

In December and January, the Office of Medicare Hearings and Appeals (OMHA) began notifying providers that it was delaying the assignment of appeals to ALJs that were received on or after April 2013. This can significantly impact your audit appeals progress and may equally impact your cash flow during the delay. Read on to see what you can do to minimize the damage.

 In mid-February 2014, the Chief Administrative Law Judge held an “Appellate Forum” in Washington, DC to explain in detail their decision to delay assignment of appeals, the causes and potential solutions and what appellants should consider doing now in light of these decisions.  OMHA jurisdiction includes all pre- and post-payment Part B claims, including coding and/or claim audits by MACs, RACs, ZPICs and Medicare Advantage, says Ed Gaines, JD, CCP, Chief Compliance Officer Zotec-MMP in Greensboro, NC.

The first two steps in that process, referred to as “Redetermination” and “Reconsideration”, have not been delayed as these steps are taken prior to appeal to the ALJ (Level 3). The assignment of a case to an ALJ and the request for a hearing for appeals received on or after April 2013 have been delayed for up 28 months, confirms Gaines.  Exceptions will be made for appeals by beneficiaries, says Gaines.  

The delay in assignment of an ALJ will then also delay any appeals to the Dept. Appeals Board (Fourth Level) or to the US District Court (Fifth Level).  Once the ALJ is assigned, the wait time until the appeals hearing is currently exceeding six months, says Gaines.  According to OMHA figures, the average total processing time for appeals (Medicare Parts A, B, C and D) is 329.8 days.  “Justice delayed is justice denied” is an old phrase but appropriate for the current state of the ALJ process, he adds. 

Here’s the Lowdown on Causes and Initiatives to Address Delays  

Part B appeals have grown significantly (in addition to those filed under Medicare Parts A, C (Advantage) and D) since 2009 with the largest increases in FY 2012 vs. 2013—with the total for all appeals almost tripling in that one year, says Gaines.  The expansion of post-payment audits by RACs, pre-payment reviews by MACs and expansion of the ZPIC/PSC activity related to suspected “fraud or abuse” are cited as factors.  For example, the Mid-West Regional Office of OMHA has 480,000 appeals awaiting assignment to an ALJ.

Why The Delay?

During its February “Appellate Forum”, the OMHA explained several initiatives to reduce the backlog and to increase efficiency.  The “appellant portal” is under development that would allow appellants to track their appeal status, ALJ assignment and deadlines via secure website and is expected in the spring 2014.  The Office explained that fully operational electronic appeal functionality (the “electronic case adjudication and processing” (ECAPE) will be developed but not fully implemented until spring 2015.  Currently the appeals process appears to be largely a paper-based system with limited electronic filing or tracking capabilities.  Finally, the OMHA explained it is considering “mediation”, e.g. informal and non-binding discussions between appellants and payors, and “fast track” review of simple cases by OMHA attorneys, says Gaines.

What to Do If You Have Grounds for an Appeal   

First, as indicated in the appeals chart,  file your Level 1 appeal (Redetermination) within 30 days of receipt of the RAC or MAC letter informing you of their audit, advises Gaines.  The recoupment process by which the MAC will recoup the claims under appeal against future payments should be suspended by the filing of the request for Redetermination but only if it is filed in the first 30 days.  While this has always been a best practice, it is even more critical now given that if the recoupment occurs the 28 month delay in assignment of the ALJ plus the 6 month backlog could mean waiting over 3 years before the ALJ restores payment back to the provider, he says.  Second, submit all supporting documentation including clinical descriptions of the patient care, narrative descriptions of the E/M code choice, e.g. explain how the differential diagnosis impacted the medical decision making, and any other authoritative support at the Level 1 Redetermination appeal,  Gaines explains. 

Create the file that you would use before the ALJ at the initial stages of the appeal and do not resubmit the same documents at each of next stages of appeal.  According to OMHA, resubmission of case file documents from the lower levels of appeal to subsequent appeals levels is one factor in the delays, so you should simply confirm at each stage of the appeal that the next level appeal has the full case file and supporting materials from the earlier appeal, says Gaines. This should occur anyway, but confirm the same via email or letter.

Finally, OMHA is recommending that multiple beneficiaries may be included on the same appeal where the claims present similar facts or findings (consolidation), e.g. whether CPT® 93010 was appropriately coded based on the documentation and billed, by attaching a spreadsheet of the beneficiaries and dates of service in question, says Gaines.  You should also include a cover letter explaining why you believe that the appeals can be consolidated and your contact information if there are questions.

The bottom line: submit your full supporting materials for the Level 1 appeal to cut off the recoupment and consolidate similar appeals together as noted above.  Communicate with your providers regarding these delays and track the progress of your appeals, even if the process is for the next several years while the OMHA takes steps to resolve the backlog and become more efficient through technology, says Gaines.

Keep in mind: These are complex legal processes and the rules change often. Groups are advised to continuously consult with their attorneys for the latest set of guidance and recommendations.