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Home Health & Hospice Week

Appeals:

HHS PROPOSES RULE TO GET ALJs IN LINE

Published on Thu Jan 10, 2008

Don't count on an independent hearing from the judges.

Moving the administrative law judges under the Department of Health and Human Services' umbrella may be turning into the bad idea many providers feared when it happened in 2005.

HHS wants to require the Departmental Appeals Board, the ALJs and the Medicare Appeals Council to adhere to HHS policies in making their decisions, according to a proposed rule in the Dec. 28 Federal Register. That would include policy and guidance from the Centers for Medicare & Medicaid Services.

Current "hearing procedures do not provide sufficient safeguards to ensure that the decisions accurately reflect the considered views of the Secretary," HHS argues in the proposed rule. "There is a possibility that decisions of presiding officers and reviewing authorities will not accurately reflect applicable law or policy."

Toeing the line: Thus, HHS proposes that the DAB and ALJs "must follow published guidance issued by the Secretary or relevant component," according to the rule. "It is not the role of the Board to weigh the relative strengths of an interpretation adopted after due consideration of relevant factors by the Department or its components."

And similar to the Provider Reimbursement Review Board, the HHS Secretary would get to review the final decision and overturn it. "This change is intended to ensure consistency in decision making and to ensure that the Secretary's policies are correctly implemented," the proposed rule says. "Such review is essential to ensure the accuracy of DAB decisions in reflecting the proper application of relevant statutes, regulations and interpretive policy."

This rule "would take away a lot of the interpretation--a lot of the leeway," explains attorney Edward Vishnevetsky with Brown & Fortunato in Amarillo, TX. Providers won't be able to successfully make policy-based arguments opposing agency guidance.

HHS and CMS don't want the DAB and ALJs "to make policy or law on their own," Vishnevetsky says. Under this rule, "you definitely won't be seeing any windfalls for providers," he predicts.

Under HHS' thumb: "HHS is trying to get as much control over this process as it can and not leave anything to chance," observes attorney Lester Perling with Broad & Cassel in Ft. Lauderdale, FL.

"From the get-go, ALJ reorganization was designed to get them in line," relates Bob Wardwell with the Visiting Nurse Associations of America. The ALJs moved from the Social Security Administration to HHS in 2005, after much protest from providers.

"I can't tell you how frustrated CMS has been over the years to have ALJs 'off the reservation' on so many coverage decisions," says Wardwell, a former top CMS official.

CMS officials figure, "What's the point of making unilateral, savings-based coverage calls if you can't get them supported on appeal?" Wardwell tells Eli. Current CMS special training of ALJs already is working to diminish ALJs' independent decision-making. "That's certainly what it is designed to do," he notes.

Still protected: But providers won't fall under the full impact of this proposal--at least not yet. The rule won't affect some of the most important appeals, those over claims, Perling points out. Instead, the new requirement would apply to issues such as terminations, grants, civil money penalties, and HIPAA.

"With claims appeals, the standard is governed by some [Medicare Modernization Act] provisions that allow consideration of CMS policy and guidelines by ALJs and the Medicare Appeals Council," explains William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law.

The MMA provisions aimed to secure ALJs' autonomy. "So far, I have seen acceptable independence from the ALJs," Dombi judges.

Watch out: But it may not stay that way for long, Perling worries. He has "no doubt" CMS would like to impose the same policy and review requirements on ALJ claims appeals as well. Once this rule is finalized, the agency may well move onto that next goal.

If so, that could be "really dangerous," Perling warns. It would give rise to politically based decisions from HHS, rubber stamping their own policies. The department's final decision would be made in isolation, like with the PRRB process now. The Secretary can overturn any PRRB decision, forcing providers to go to federal court to argue the case.

The change would "add another layer, more expense and more uncertainty" to the appeals process, Perling adds. "That's always a bad thing."

Note: The proposed rule is online at www.access.gpo.gov/su_docs/fedreg/a071228c.html scroll down to the HHS entry.

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