Last month the U.S. Department of Health and Human Services (HHS) issued a notice of proposed rulemaking known as HHS 2015-49.

This proposed rule revises the procedures that HHS follows at the administrative law judge (ALJ) level of appeal and also revises the procedures that HHS follows at the lower levels of appeal – including the Departmental Appeals Board (DAB) level.

This article discusses one of the proposed changes in particular: the proposal to make certain decisions that come out of the DAB, also known as the Appeals Council and soon to be known only as “the Council,” precedential – meaning that such decisions will have the force of law, will represent a final decision on the matter by HHS, and must be followed by the Centers for Medicare & Medicaid Services (CMS), all of its contractors, and all providers.

So, why is HHS proposing precedential decisions?

HHS is proposing this because it believes it will promote and increase consistency in decisions at all levels of appeal.

Additionally, the goal is to provide clear direction on repetitive legal and policy questions, and in limited circumstances, factual questions, limiting the binding effect to those decisions in which a significant legal or factual issue was fully developed on the record and thoroughly analyzed.

So who has the authority to actually make decisions precedential?

The proposed rule grants authority to the chair of the DAB to designate a final decision of the HHS secretary issued by the administrative appeals judges of the DAB as precedential.

Allowing the authority to remain with the DAB chair respects the continued independence of the Appeals Council as an adjudicative body by allowing it to determine the effect of its own decisions.

So once the DAB chair has decided that a decision will be precedential, how will appellants and other stakeholders such as CMS be made aware of this?

The proposed rule requires notice of precedential decisions to be published in the Federal Register. In addition, the designated precedents would be required to be posted on an accessible website maintained by HHS.

And now for the ultimate question: what effect does a precedential decision have on lower-level appeals?

Decisions of the DAB would bind all lower-level decision-makers from the date that the decisions are posted on the HHS website.

Specifically, these decisions would also be binding on CMS and its contractors in making initial determinations, redeterminations, and reconsiderations. They also would be binding on Office of Medicare Hearings and Appeals (OMHA) ALJs and attorney adjudicators, and on the DAB itself, in future decisions.

In addition, the DAB’s legal analysis and interpretation of an authority or provision that is binding would be binding in future determinations and appeals in which the same authority or provision is applied, as long as it is still in effect.

However, if CMS revises the authority or provision that is the subject of a precedential decision, the DAB’s legal analysis and interpretation would not be binding on claims or other disputes to which the revised authority or provision applies.

Finally, if a decision is designated as precedential by the DAB chair, the proposed rule would also make the DAB’s findings of fact binding in future determinations and appeals – but only to the extent that they involve the same parties and evidence.

As indicated, this is only one of several items addressed in the notice of proposed rulemaking – please be sure to read it.  If you are going to submit comments, they are due by Aug. 29.

About the Author

Mr. Greenspan serves as vice president of regulatory affairs at Optum Executive Health Resources and is responsible for overseeing the firm’s regulatory research and hospital advocacy efforts.  He collaborates closely with the company’s appeals management teams to offer support on complex Medicare, Medicaid, and commercial appeals matters.

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