Appeal bottleneck at ALJ level

Industry attorneys are not surprised that it's taking providers longer to go through the appeals process.

"What we're seeing is that the ALJs are backlogged," said Jeff Baird, chairman of the Health Care Group at the Amarillo, Texas-based law firm Brown & Fortunato. "We're seeing approximately nine to 11 months between the date we file a notice of appeal with the ALJ and the date we receive the ALJ's decision."

The reason for the backlog, says Baird, is that there are a lot of appeals and more of them are going to the ALJ level.

There are four levels in the appeals process: re-determination, reconsideration, ALJ, and finally, appealing to the Medicare Appeals Council.

The first two steps are rarely successful, Baird said.

"From a practical standpoint, it is very difficult for a DME company to win at the reconsideration or re-determination stage," said Baird. "It's a stacked deck."

Providers who've appealed claim decisions have found that their best strategy to get a denied claim paid or to stop a recoupment is to take their case to the ALJ level, agreed Neil Caesar president of the Health Law Center in Greenville, S.C.

"They're expecting that arguments based on the law, and not the audit parameters, are not going to get a fair hearing until it gets to the ALJ," said Caesar.

Asela Cuervo, a Washington, D.C.-based healthcare attorney, said she advises her clients to take it all the way for another reason: to show CMS their contractors are making mistakes.

"It's important overall to be able to document that the contractors are incorrect in their audits," said Cuervo. "They are recouping money they should not have recouped, or refusing to take claims that they should have paid."

What should providers do if the ALJ process is taking too long? Get in touch with the ALJ's office, said Elizabeth Hogue, a private practice attorney based in Burtonville, Md.

"I would certainly not hesitate to contact the staff of the ALJ," said Hogue. "Just say, 'This is taking a long time, what's the status?' That's what their staff is for, to handle those kinds of things."

Providers can also escalate the case to the Medicare Appeals Council. Cuervo doesn't recommend that, since the council's decision relies totally on documentation and providers have no chance to speak for themselves.