Home Health & Hospice Week

Your ALJ success rate should factor into your decision, legal experts advise.

Don't forget that the Low-Volume Appeals route isn't the only way to speed your resolution of Medicare claims appeals. The Centers for Medicare & Medicaid Services also has expanded its Settlement Conference Facilitation option.

"SCF is an alternative dispute resolution process at [the Office of Medicare Hearings and Appeals] that gives certain providers and suppliers an opportunity to resolve their eligible Part A and Part B appeals," the Department of Health & Human Services says on its website.

To be eligible for SCF, the request must come from a Medicare provider/supplier that hasn't filed for bankruptcy; involve request(s) for Administrative Law Judge hearing or Medicare Appeals Council review at the Departmental Appeals Board filed on or before Nov. 3, 2017; involve 500 or more appeals pending or more than $9,000 in billed charges; arise from a Medicare Part A or Part B Qualified Independent Contractor (QIC) reconsideration decision; and have an amount per each individual claim of $100,000 or less.

Plus: "Certain appellants that have or have had False Claims Act litigation or investigations pending against them, or other program integrity concerns, including pending civil, criminal, or administrative investigations will be ineligible," HHS adds.

The program also excludes other types of appeals, including those seeking OMHA review of QIC dismissals or Council review of ALJ dismissals, notes the National Association for Home Care & Hospice in its provider newsletter.

For SCF, "it is not clear what terms will be offered to settle such claims," notes attorney Brian Daucher with law firm Sheppard Mullin in Costa Mesa, California, in online analysis. "But the conference is an opportunity to discuss, and so cannot hurt," Daucher allows.

"CMS' longstanding policy of refusing to negotiate overpayment findings has been a significant factor in clogging the appeals system," Daucher notes. "With no settlement options, each case must be decided on its merits, imposing a huge (indeed unmanageable) burden on the appeals system." The good news is that the SCF and LVAprograms "comprise a decent, if tentative, start," Daucher judges.

Is Avoiding The Delay Worth It?

The SCF program "offers providers an opportunity to potentially expedite a large number of outstanding claims by settling multiple large dollar claims through dispute resolution, rather than through the normal course of Medicare appeals," observe attorneys Amy Hooper Kearbey and Nicholas Francis Alarif with McDermott Will & Emery in online analysis. "Thus, if a provider opts for Settlement Conference Facilitation, in theory, the claims will not be subject to the extraordinary delays usually associated with the traditional Medicare appeals process."

On the other hand: "The claims will not receive review from an ALJ and will not receive an individualized hearing," Kearbey and Alarif point out. "Rather, OMHA acts as a facilitator between the provider and CMS in what amounts to a settlement negotiation."

The "new programs from OMHA may offer some relief, and providers should carefully weigh their strategic options based on the nature of the claims and the associated disputes, the financial implications of waiting years for resolution, and whether the claims at issue are pre-payment denials, overpayments or a combination," Kearbey and Alarif advise. "Ultimately, the optimal strategy for a particular provider requires an individualized approach tailored to their specific circumstances."

Tip: "Providers should carefully analyse their pending appeals and prior success rates at the ALJ level to determine whether the settlement option is more advantageous than waiting for an ALJ hearing," recommend attorneys Anna Grizzle and Julia Tamulis with Bass Berry & Sims in online analysis.

Note: See more details about the SCF option at www.hhs.gov/about/agencies/omha/about/special-initiatives/settlement-conference-facilitation/index.html.