Backlog to the Future? Part One: The State of ALJs

Home care agencies who have received additional development requests are experiencing an ever-increasing ALJ backlog. An additional development request (ADR) is generated to request documentation from a provider to assist with adjudicating a Medicare claim. Since 2010, the number of claims awaiting an Administrative Law Judge (ALJ) hearing has steadily climbed, along with the wait time for a hearing.  Office of Medicare Hearings and Appeals (OMHA) Chief Judge discussed this in a report to Congress in June 2018, related to the 2019 OMHA budget.

Current ALJ Backlog

Judge Griswold states that “between FY 2010 and FY 2014, OMHA experienced an unprecedented 1,222 percent surge in appeals, while funding for adjudication increased by only 16%. Although the exponential growth in appeals has slowed since FY 2014, OMHA continues to receive significantly more appeals than it is able to adjudicate on a yearly basis at historical funding levels. The unfortunate result has been a backlog of appeals that cannot be decided within the 90-­day period as contemplated by the statute. As of November 2017, despite the Department’s best efforts, the number of appeals pending at OMHA was approximately 530,000. Until OMHA is able to process incoming appeals on a timely basis and additional adjudication flexibilities are provided to the appeals process through legislation, processing times will continue to rise. As of November 2017, average appeal processing times for the agency had reached 1,217 days.”

More recently, 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) with three main thresholds.

HHS now has until the end of FY 2022 to clear the backlog:

  • 19% of the appeals must be cleared by the end of FY 2019
  • 49% by the end of FY 2020 and,
  • 75% by the end of FY 2021.

How will OMHA achieve these results?

While this would be welcome news, it remains a significant question just how OMHA will achieve these results.  The recent significant increase in claims dismissals is one way to reduce the caseload: over 75% of claims were dismissed in FY 2018.  This is five times the rate of dismissals in FY 2012 and has shown a steady rise.  This increase in dismissals has also driven down the percentage of all claims with hearing requests and fully favorable decisions to just over 10% (although if dismissals are taken out of the results, there is a small uptick in fully favorable decisions for claims with ALJ results: up from 34.0% in FY 2017 to 46.9% in FY 2018).

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

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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