Appeals backlog soars, solutions don't appear imminent

WASHINGTON - Less than a year after a massive appeals backlog at the Administrative Law Judge (ALJ) level first came to light, that backlog has nearly tripled.

“They confirmed that there's more than 900,000 appeals in the backlog and they are getting 14,000 a week,” said Kim Brummett, senior director of regulatory affairs for AAHomecare. “Do the simple math: with 72 ALJs, even with no new appeals, they will catch up in 12.5 years.”

Brummett, along with Jay Witter, senior vice president of public policy for AAHomecare, met with staff of Chief ALJ Nancy Griswold on Nov. 12 to discuss the appeals backlog and possible solutions to relieve the burden on HME providers.

“I think they are willing to work with us, but the scope of what they can do is limited,” said Brummett. “We're all screaming, 'stop the audits until you catch up,' but that's not within their purview.”

The industry first learned of the appeals backlog when Griswold said in a Dec. 31, 2013, memo that the Office of Medicare Hearings and Appeals (OMHA) had seen its workload increase 184% since 2010, resulting in a then-backlog of 357,000 appeals. As a result, OMHA has suspended the assignment of hearings for appeals.

At an Oct. 29 forum, OMHA officials suggested, to the dismay of HME stakeholders, that providers need more education on documentation. With approximately 56% of ALJ appeals overturned, that simply doesn't make sense, said Seth Johnson.

“It's extremely frustrating and outrageous,” said Johnson, vice president of government relations for Pride Mobility, who attended the hearing. “The ALJ's return rate indicates that the audit system is broken.”

For now, providers have only two options, neither of them promising for HME providers: the first is a pilot aimed at brokering settlements between the provider and CMS; the second is a statistical sampling initiative in which a payment decision is based on a random sampling of claims. Both options are limited in scope and could place burdens on providers, says Brummett.

OMHA has also issued a request for information, published in the Nov. 5 Federal Register, seeking input on current initiatives being undertaken by the ALJs, as well as suggestions for additional initiatives.

“That's a good start and we are appreciative of the opportunity,” said attorney Steve Azia, counsel at Baker Donelson. “But the bottom line is that the process needs to be fixed. We are seeing a massive amount of denials for claims that should not be denied.”