Bob Soltis, Former ALJ
One of biggest news stories coming out of last Thursday’s appellant forum was the announcement that Phase III expansion of the Settlement Conference Facilitation (SCF) pilot program to all Part A providers.
Through a remarkable set of circumstances, RACmonitor has made secured arrangements to publish an excerpt from Chapter 7a (chapter 7 is hearing chapter) on SCF written by former ALJ Bob Soltis’ in his forthcoming book, Objection Sustained! How to Handle Your Own Medicare Hearing.
Chapter 7: The Settlement Conference Facilitation (SCF)
To deal with the hearing backlog, in 2014, OMHA launched a pilot project to mediate pending cases. The second phase of Settlement Conference Facilitation (SCF) began October 1, 2015.
Appellants who are Medicare providers or suppliers and who have a National Provider (NPI) number are eligible to ask for an SCF. You must be appealing a QIC reconsideration decision that did not find the beneficiary liable, and your request for hearing must have been filed before September 30, 2015. You must be appealing at least twenty claims, or if you don’t have twenty claims, the amount in controversy must be at least $10,000. The maximum amount of each claim cannot exceed $100,000.
If you are in bankruptcy or plan to file for bankruptcy, you cannot use the SCF process. The beneficiary cannot have been found liable for the claims you submit for a Settlement Facilitation Conference.
Practice pointer: You must request a SCF for all pending appeals for that item or service. It’s all or nothing. You cannot ask for a SCF for items or services billed under unlisted, unclassified, or miscellaneous healthcare codes.
Although you must have received a Settlement Conference Facilitation Preliminary Notification from OMHA to be eligible to formally request a SCF, you can let OMHA know you are interested in a SCF by completing an Expression of Interest form. You must print out and sign the paper form.
If you get a SCF Preliminary Notification from OMHA, you have fifteen days to file a SCF package. OMHA presumes you received the notification five days after the date printed on the notification.
Beware: The SCF package includes an agreement of participation that precludes you from later seeking fees in federal court under the Equal Access to Justice Act (EAJA). This means that by filing a SCF package, you give up the right to ask for attorneys’ fees later, even if you don’t reach a settlement at the SCF and eventually appeal to federal court. I’m not aware of any other litigant or federal agency that makes a party give up their right to fees before even sitting down at the settlement table.
CMS’ position is: “If you want to talk settlement, you have to let us off the hook for our unreasonable behavior, or you can wait for your money – if you get it at all.”
During the actual settlement conference, an OMHA employee called a facilitator will convey Medicare’s settlement offer to you. As I understand it, CMS doesn’t give you time to think it over. You have to let the facilitator know at the SCF if you agree.
Practice pointer: Settling a case at the SCF does not eliminate potential liability for any monetary or other penalties CMS may separately assess for violating CMS billing and payment policies, e.g. fraudulent reporting. OMHA ALJs don’t hear those cases – another cadre of ALJs at HHS itself hears them.
It’s your choice whether to participate in SCF, but know before you go. If your cases are not strong, then SCF might be the answer. For everyone else, you have to give a lot to get a little.
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