The Office of Medicare Hearings and Appeals (OMHA) Medicare Appellant Forum held on Feb. 25 provided updates on current efforts and new initiatives to increase efficiency at the administrative law judge (ALJ) and departmental appeal board levels of appeal.

While the Forum focused on context and results from various pilot initiatives, arguably the most important news announced during the event was the Phase III expansion of the Settlement Conference Facilitation (SCF) pilot program to all Part A providers.

The first two phases of the SCF pilot were limited to Part B appeals. Phase I was limited to Part B appeals filed in 2013, including appeals that were not assigned to ALJs. As of this week, OMHA had completed all of the cases pending in Phase I.

Phase I resolved 2,600 appeals, representing the combined work of at least two ALJ teams in one year. Phase II of the SCF pilot centered on Part B appeals filed prior to Oct. 1, 2015. However, unlike in Phase I, Phase II was expanded to include all unscheduled Part B appeals, i.e. those that have not yet received a notice of hearing from an ALJ. 

While Phases I and II have heralded promising developments, Phase III is important, as again, it expands the SCF pilot to include Part A appeals. The eligibility requirements for Phase III differ slightly from those of the Part B expansion. First, while all Part A provider types are eligible to participate, claims that were eligible for the Centers for Medicare & Medicaid Services (CMS) Part A hospital appeals settlement option are ineligible for Phase III, regardless of whether the provider actually participated in the settlement process. In addition to this requirement, the following eligibility requirements apply:

  1. The process is limited to appeals filed prior to Dec. 31, 2015;
  2. All jurisdictional requirements for an ALJ hearing must be met for the request for a hearing;
  3. The request cannot be scheduled for an ALJ hearing;
  4. The amount of each individual claim must be $100,000 or less (if a statistically extrapolated audit, the total extrapolated amount must be less than $100,000);
  5. A minimum of 50 claims at issue and a minimal amount in controversy total of $20,000 shall apply; and
  6. The request must include all of the appellant’s pending appeals for the same item or service that meet the SCF criteria. 

Furthermore, separate providers that are related business entities may combine their multiple provider numbers in the SCF expression of interest to initiate the SCF request process. This includes business entities that include both Part A and Part B providers; the Part A and Part B providers would complete the Part A and Part B expression of interest forms and submit them together in one email. While OMHA indicated that it cannot guarantee that the claims will be combined during one mediation, this issue could be addressed during a pre-hearing settlement conference. 

The Forum also included many updates regarding developments to increase efficiencies at OMHA. However, as mentioned earlier, the SCF Phase III expansion announcement is very important, as it opens the possibility of settlement to an entire category of Medicare providers that have not had access to this process before. Although the SCF expansion on its own will not resolve the delays providers and suppliers experience at the ALJ level of appeal, OMHA is continuing its efforts to decrease the backlog of appeals pending for ALJ hearings. 

For more information regarding the expansion and other developments discussed during the Forum, visit OMHA’s Medicare Appellant Forum website.

About the Authors

Andrew B. Wachler is the principal of Wachler & Associates, P.C.  He graduated Cum Laude from the University of Michigan in 1974 and was the recipient of the William J. Branstom Award. He graduated Cum Laude from Wayne State University Law School in 1978. Mr. Wachler has been practicing healthcare and business law for over 25 years and has been defending Medicare and other third party payor audits since 1980.  Mr. Wachler counsels healthcare providers and organizations nationwide in a variety of legal matters.  He writes and speaks nationally to professional organizations and other entities on a variety of healthcare legal topic

Jessica Forster is an associate at Wachler & Associates, P.C.  Ms. Lange dedicates a considerable portion of her practice to defending healthcare providers and suppliers in the defense of RAC, Medicare, Medicaid and third party payer audits.  Her practice also includes the representation of clients in Stark, anti-kickback, and fraud and abuse matters.

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