Not too long ago, in fact, last week, J. Paul Spencer, a regular on Monitor Mondays, posed this question to a group of other Monitor Mondays regulars, hoping to find an answer.

Wrote Paul: 

Usually, I would post this question on the RAC Relief group on Google, but since my employer installed the ever-useful Windows XP on my work laptop, I thought I’d pose the question to the brain trust here. 

Something is bothering me about the time frames for completion of RAC work by the current contractors. CMS has issued information stating that all RAC denials initiated by the current contractors must be completed by December 31, 2015, which is roughly 21 months away from today. Having attended the OMHA Appellant Forum on February 12, I now know, beyond a shadow of a doubt, that the backlog of RAC appeals at the ALJ level alone far outstrips that time frame, and it continues to grow.

I posed this two-part question to CMS a few minutes ago via e-mail, and I’ll pose it here for rumination. If, on December 31, 2015, there are still appeals pending at any level of the Medicare Appeals process that were initiated by a RAC denial, will those appeals be dismissed? If so, will there be a summary judgment for all outstanding RAC appeals in favor of the providers or the expired contractors? 

I’m curious as to what everyone thinks will happen on the Day of Reckoning.   

Emily Evans, also a regular and a partner at Obsidian Research was the first to respond.

Wrote Emily:

That date was actually moved to April 1, 2016 as part of the most recent contract fruit basket turnover.

That said I tend to believe that some portion of pending appeals will have to be resolved thru a blanket default judgment (aha choice) or something similar.  It is just physically impossible to process all these appeals before you and loads of other young people retire.

Ronald Hirsch, MD, vice president at Accretive Physician Advisory Services, had a classic response:

What will really happen, I have no idea. I gave up trying to figure them out. What was it that Shakespeare said about lawyers?

Quipped Paul:

With regard to Shakespeare and RACs, we’re all Cinna the Poet…….

Finally, CMS replied. It was a punt:

Good Afternoon Mr. Spencer,

Thank you for your inquiry. I am unable to confirm that information at the current time. Issues related to claims processing contractor functions (e.g., recoupment, appeals) should be directed to the claims processing contractor (FI, Carrier, Medicare Administrative Contractor).  The CMS Division of Recovery Audit Operations does not have oversight of these contractors and functions related to appeals at the ALJ level are out of our purview.  

Operations at the Administrative Law Judge (ALJ) level are overseen by the Office of Medicare Hearings and Appeals (OMHA).  We agree that collaboration and cooperation between CMS and OMHA is important to ensuring an efficient Medicare appeals process. 

To support this effort, CMS meets regularly with OMHA to discuss programmatic and operational issues and explore opportunities to improve the appeals process, while still ensuring the independence of the ALJs.  In addition, the Secretary recently convened a cross-agency workgroup to look at current appeals processes and regulations to find ways to quickly reduce the backlog and make appeals processes more streamlined and efficient. 

We are working diligently to identify short and long-term solutions that can be implemented expeditiously.  As announced by Chief Judge Nancy Griswold at the OMHA Appellant Forum on February 12, 2014, the Department of Health and Human Services (DHHS) will also be publishing a Federal Register notice to solicit comments on ways to reduce the backlog and improve the claim appeals process. 

I recommend submitting this inquiry to the claims processing contractor in your jurisdiction for follow up. 


Tamara Tate

Region A COR

Centers for Medicare and Medicaid Services


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