Home Health & Hospice Week

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 Howard with the American Association for Homecare. HHS and SSA asked for comments due in August on its transfer plan, and undue influence from HHS on ALJ decisions ranked at the top of providers' concerns, AAH said in its comments.
 
Providers need to know how HHS plans on educating and training these ALJs, as well as whether their evaluation plans will pressure the judges to decide cases in CMS' favor, Howard says.
 
Home care providers are suspicious of the lack of details on the independence element, because their suspicions "have been well warranted over the years," Dombi tells Eli. The lack of specificity may be because CMS is underfunded and understaffed in the face of massive MMA requirements, Wardwell suspects. But providers are reluctant to accept that argument because what they won from Congress in MMA could well be compromised in practice, Dombi worries.
 
"There is such a long-standing feeling of grievance among many CMS and [fiscal intermediary] staff that carefully crafted polices are undermined by free-wheeling ALJs," acknowledges Wardwell, a former CMS official. "I know I was as personally annoyed as any CMS policy person to have an ALJ rule contrary to a policy I developed."
 
That's why the plan needs to focus on preserving the ALJ check and balance system, Wardwell says. That independence "serves to protect the public ... on policies that really move beyond the letter of law and regulation."
 
Home medical equipment suppliers have been very successful at the ALJ level over the years, while seeing a marked lack of success from fair hearing officers, points out attorney Jeff Baird with Brown & Fortunato in Amarillo, TX. The fact that fair hearing officers are basically durable medical equipment regional carrier employees keeps suppliers from succeeding on that level of appeal, Baird believes.
 
The ALJ's independence from CMS "has been a check and balance," Baird says. Once ALJs come under HHS' umbrella, they could lose their independence and objectivity, Baird worries.
 HHS' plan to house the ALJs in the same building with CMS in Baltimore also rankled provider groups. Such proximity would work directly against ALJ independence, they argued.

What HHS Should Do

To fulfill the MMA mandate, HHS and CMS should generate specific policies and procedures that prohibit CMS from placing undue influence on ALJs, Perling suggests. That would be fairly simple in individual cases, by taking basic legal steps such as prohibiting ex parte (off-the-record) communication between CMS and ALJs.
 
But enforcing a policy of no undue influence generally could prove much trickier, Perling expects. Still, "there should at least be a policy to violate," he says.
 
The GAO recommends that HHS and SSA "complete a substantial and detailed transfer plan that includes contingency provisions." HHS says it doesn't need a contingency plan for ALJ independence, but the GAO maintains it should have such a plan.
 
The home care industry should be able to secure evidence of pressure fairly easily, Baird forecasts. If ALJs part from tradition and start upholding DMERC and intermediary positions most of the time, "that's pretty clear evidence of undue influence," he says.
 
Then providers can go back to Congress and ask for an ALJ reorganization, Baird suggests. Or providers might have to resort to pursuing higher-level appeals to the federal district court to obtain an objective hearing.
 
Ray of hope: ALJs are trained attorneys, and Baird and Perling hope the ALJs' professional ethics will help them remain fair and objective, even in the face of pressure. "ALJs take their independence quite seriously," Perling notes. "We'll have to wait and see," Baird adds.
 
Other transfer highlights include: