Health Law Daily Administrative decisions granted new precedential authority, adjudicators
Wednesday, June 29, 2016

Administrative decisions granted new precedential authority, adjudicators

By Anthony H. Nguyen, J.D.

Select CMS and Medicare Appeals Council (MAC) decisions would be given precedential authority to increase appellate consistency, under a CMS Proposed rule made available in an advance release and set to officially publish in the Federal Register July 7, 2016. In addition to this precedential authority for certain decisions, CMS would expand the pool of available Office of Medicare Hearings and Appeals (OMHA) adjudicators with attorney adjudicators in order to improve the efficiency of the Medicare appeals process and address the increasing number of backlogged appeals waiting for administrative adjudication. Finally, CMS would make changes throughout the regulations to references about MACs and OMHA.

Comments must be submitted by August 29, 2016.

Background. Despite significant gains in OMHA administrative law judge (ALJ) productivity, as well as CMS and OMHA initiatives to address the increasing number of appeals, requests for an ALJ hearing continue to exceed OMHA’s capacity to adjudicate the requests. As of April 30, 2016, OMHA had over 750,000 pending appeals, while OMHA’s adjudication capacity was 77,000 appeals per year, with an additional adjudication capacity of 15,000 appeals per year expected by the end of fiscal year 2016.

HHS has a three-prong approach to addressing the increasing number of appeals and the current backlog of claims waiting to be adjudicated at OMHA: (1) request new resources to invest at all levels of appeal to increase adjudication capacity and implement new strategies to alleviate the current backlog; (2) take administrative actions to reduce the number of pending appeals and implement new strategies to alleviate the current backlog ; and (3) propose legislative forms that provide additional funding and new authorities to address the volume of appeals.

Precedential authority. Under CMS’ proposal, select MAC decisions would be considered precedential in order to increase consistency in decisions at all levels of appeal for appellants, based on changes to the appeals process since the passage of Medicare, Medicaid, and State Children’s Health Insurance Program Benefits Improvement and Protection Act of 2000 (BIPA) (P.L. 106-554) and Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (P.L. 108-173). CMS’ proposal would provide appellants with a consistent body of final decisions upon which potential appellants could determine whether to seek appeals.

It would also assist appeal adjudicators at all levels of appeal by providing clear direction on repetitive legal and policy questions, and in limited circumstances, factual questions. In the limited circumstances in which a precedential decision would apply to a factual question, the decision would be binding where the relevant facts are the same and evidence is presented that the underlying factual circumstances have not changed since the MAC issued the precedential final decision.

Notice of precedential decisions would be published in the Federal Register, and the decisions would be made available to the public, with necessary precautions taken to remove personally identifiable information that cannot be disclosed without the individual’s consent. Designated precedents would be posted on an accessible website maintained by HHS. The precedential decision would be binding on CMS and its contractors in making initial determinations, redeterminations, and reconsiderations. CMS would not change the non-precedential status and non-binding effect on future initial determinations (and equivalent determinations) or claims appeals of any determinations or decisions except as to MAC decisions designated as precedential by the Departmental Appeals Board (DAB) Chair. CMS would still have ultimate authority to administer the Medicare program and promulgate regulations.

For example, if a MAC decision designated as precedential by the DAB Chair interprets a CMS manual instruction, that interpretation would be binding on pending and future appeals and initial determinations to which that manual instruction applies. However, CMS would be free to follow its normal internal process to revise the manual instruction at issue. Once the revised instruction is issued through the CMS process, the revised instruction would apply to making initial determinations on all claims thereafter.

In 1999, DAB respondents surveyed in an Office of Inspector General (OIG) report responded that the Medicare administrative appeals process having precedent-setting authority would address many inconsistencies in the overall appeals process. After passage of the MMA, HHS and the Social Security Administration (SSA) developed a plan for the transition of the ALJ hearing function for some types of Medicare appeals from the SSA to HHS.

Attorney adjudicators. According to CMS, well-trained attorneys can perform a review of the administrative record and more efficiently draft the appropriate order than ALJs for certain actions. The Proposed rule would allow attorney adjudicators to issue decisions when: a decision can be issued without an ALJ conducting a hearing under the regulations; an appellant withdraws his or her request for an ALJ hearing and the case is dismissed; and a case must be remanded for information that can only be provided by CMS or its contractors or at the direction of the MAC; as attorneys would also conduct reviews of certain dismissals. This would allow ALJs to focus on cases going to a hearing, while still providing appellants with quality reviews and decisions, dismissals, and remands. Decisions and dismissals issued by attorney adjudicators may be reopened or appealed in the same manner as equivalent decisions and dismissals issued by ALJs.

Reference changes. References to OMHA and MAC throughout 42 C.F.R. Part 405 would be clarified to address the entities’ functions within the appeals process. To provide clarity to the public on the role of OMHA in administering the ALJ hearing program, and to clearly identify where requests and other filings should be directed, CMS would define OMHA and reference OMHA or an OMHA office—in place of current references to an unspecified entity, ALJs, and ALJ hearing offices—when a reference to OMHA or an OMHA office provides a clearer explanation of a topic. Additionally, to avoid confusion with the use of "MAC" for Medicare administrative contractors, the words "MAC" or "Board," when used in the regulations to designate the Medicare Appeals Council, would be replaced with "Council."

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