Appeals: Expect longer delays

WASHINGTON - It's gone from bad to worse for providers trying to get on the dockets of Administrative Law Judges (ALJs).

That's because the Office of Medicare Hearings and Appeals (OMHA) recently posted a message saying it would defer assignments for the hearings for possibly as long as 28 months.

“There's no end in sight and it's probably going to get worse,” said Kim Brummett, senior director of regulatory affairs for AAHomecare. “I think all of us need to put pressure on CMS to say 28 months is not OK.”

The backlog at the ALJs—the third level of appeals—is nothing new. Increased levels of audits and appeals have created heavy workloads and there simply aren't enough judges to handle the cases.

“If CMS wants to continue this ferocious cycle of audits, they need more ALJs,” said Brummett.

It would help if the audit contractors, on all levels, were held to consistent standards, say stakeholders. An Office of Inspector General report, released in November 2012, found that 56% of redeterminations were overturned by the ALJs. The report recommended that OMHA and CMS provide more coordinated training on Medicare policies, and that they identify and clarify Medicare policies that are unclear and interpreted differently.

Despite the long wait—and potential cash crunch—industry attorneys still say appealing decisions is the best thing to do.

“It's a business decision whether a claim is too small to go to the trouble,” said Asela Cuervo, a private practice attorney in Washington, D.C. “If you appeal, at least you've got a chance to be paid whereas, if you do not appeal, you definitely won't get paid.”