Appeals:
HHS Transfer Threatens ALJ Independence
Published on Thu Oct 07, 2004
Will you get a fair shake once ALJs are under the HHS umbrella? Details on how administrative law judges will maintain their objectivity once they transfer to the Department of Health and Human Services next year are scanty, and that's making home care providers nervous.
The Government Accountability Office doesn't like the lack of details either, according to a new report, "Incomplete Plan to Transfer Appeals Workload from SSA to HHS Threatens Service to Appellants" (GAO-05-45). HHS and the Social Security Administration have a plan to transfer the ALJs from SSA to HHS, but the plan "omits important details on how each element [mandated by the Medicare Modernization Act] will be implemented," the GAO says.
Providers fought hard to get Congress to require in MMA that ALJs must maintain their independence when adjudicating Medicare appeals, notes William Dombi, vice president for law with the National Association for Home Care & Hospice's Center for Health Care Law. But the transfer plan fails to "discuss the safeguards that will be put in place to ensure ALJs are insulated from undue influence from HHS," the GAO blasts in the report.
"Medicare has long wanted to control the ALJs," Dombi observes. That's because ALJs tend to rule in favor of providers based on interpretation of the law and regulation rather than Centers for Medicare & Medicaid Services policies and procedures.
CMS already tries to influence the ALJs with "training sessions" on controversial topics like statistical sampling, notes attorney Lester Perling with Broad and Cassel in Ft. Lauderdale, FL. "It probably will get worse" after the transition, Perling predicts.
CMS' goal "is to 'train' the ALJs to see the law and regulations the same way CMS and intermediaries do," agrees Bob Wardwell of the Visiting Nurse Associations of America.
"The government has a long history of trying to interfere with the decisional independence of administrative law judges," warns attorney Jim Pyles with Powers Pyles Sutter & Verville in Washington, DC. Congress must exercise careful oversight of this transition so citizens' right to due process is preserved, Pyles tells Eli. Lack of Plan Details Wide-Ranging The transfer plan's lack of specifics isn't limited to ALJ independence. The plan is vague on most of the 12 other elements required in MMA as well, the GAO notes. Of the 13 elements ranging from transition timetable to performance standards, only case tracking has full details and a contingency plan if critical tasks aren't completed on time.
"The 'plan' was not detailed enough to give anyone much assurance about anything," Wardwell criticizes. "There was not even enough to comment on besides the fact that there was not enough to comment on," Wardwell quips.
But ALJ independence is the plan element that most concerns home care providers, notes Ann [...]
