Backlog to the Future? Part 2

Home care agencies who have received additional development requests (ADRs) are experiencing an ever-increasing ALJ backlog. The following is part 2 of a 3-part series on the current state of ADRs and the ALJ backlog. Find Part One here.

As we mentioned last week, a federal judge ruled that OMHA must seek to reduce the ALJ backlog to meet actual hearing requirements (within 90 days of the request being filed).

Why has the dismissal rate increased?

Per the request, the rapid and significant increase in dismissals has been achieved due to  “…the Department’s higher impact initiatives [that] represent one time reductions (such as settlements), and are neither repeatable nor sustainable and therefore OMHA cannot make lasting progress toward resolving the backlog of pending appeals until its adjudication capacity is in line with projected receipt levels.”

Other factors that may also pose challenges to agencies attending their hearings:

  • Gone out of business due to the protracted wait times for hearings
  • Lost interest in actually participating in the hearing
  • Lack adequate knowledge to participate once a hearing is finally scheduled.
  • Low continuity of staff for seeing the appeals process to its conclusion
  • Possibly even retention of the appeals record

These factors can also then increase the dismissal rate.

Are these solutions working?

While settlements (such as the one-time Low Volume Appeals Initiative and the ongoing Settlement Facilitation Conference, as well as the settlement for the Third-Party Liability  cases in New England) have reduced the backlog, these are not long-term solutions due to significant limitations. The budget request states:

First, settlement of appeals without a review of the merits of those appeals undermines the government’s responsibility to protect the Medicare Trust Fund. Moreover, a large percentage of the appeals pending at OMHA were filed by appellants that are currently the subject of program integrity investigations and therefore not eligible for settlements. Second, the settlement of large numbers of appeals without consideration of the merits of the claim encourages the filing of meritless appeals and could increase the number of appeals filed at OMHA.”

Other actions proposed

So, with future large settlements off the table, the actions proposed within the increased OMHA budget to alleviate the backlog include:

  • Doubling ALJ adjudicatory capacity from 92 to up to 198 ALJ teams
  • Adding a Medicare Magistrate program. This provides an independent adjudication for the resolution of appeals having a lower amount in controversy, without a hearing, and at lower cost per claim than the current ALJ adjudication process
  • Providing for a modest increase in senior attorneys to support the OMHA Attorney Adjudicator program and other administrative actions.

Stay tuned next week for more information (and the thrilling conclusion) on the ALJ backlog in Part Three of Backlog to the Future? The State of ALJs with Joe Osentoski, BAS, RN-BC, QIRT Director of Reimbursement Recovery and Appeals.

QIRT Compliance Services

QIRT ADR services are considered the best in the industry.

Joe Osentoski, BAS, RN-BC, is based in QIRT’s Troy, Michigan office. Joe specializes in additional documentation request (ADR) response and appeals and has been a registered nurse for more than 25 years. Joe’s career has included clinical consulting in home health and hospice, with a specialty in clinical quality assurance and regulatory compliance. He also has extensive experience with multiple types of Medicare audits, probes, and reviews from all types of Medicare contractors: MACs, UPICs,RAC, SMRC, OIG, CERT, and Medicare Advantage, as well as private insurers.  Joe has completed over 5,000 ADRs in home care and hospice, filed thousands of appeals, and represented agencies in hundreds of administrative law judge (ALJ) hearings. 

Impressively, Joe has been lauded by retired US Administrative Law Judge Robert Soltis in his book, How to Handle Your Medicare Hearing: “Mr. Osentoski was one of the first non-attorney representatives to appear before me when I was an ALJ, and he stands head and shoulders above every other non-attorney representative. Mr. Osentoski…knows home health law, and prepares thoroughly. His credibility is beyond reproach.”

Joe is most recently the author of Home Health ADR & Appeals Answers, First Edition, available through DecisionHealth. He also is a contributor to Home Health Line and Eli’s Home Care Week. He holds a gerontological nursing certification from the American Nursing Credentialing Center. 

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