ALJ Appeals: Pay attention to details

A. If CMS or a supplier disagrees with an Administrative Law Judge's (ALJ) decision, the matter may be appealed to the Departmental Appeals Board (DAB). But, as many suppliers know, the DAB appellate process is substantially backlogged, although it is not as backlogged as the Office of Medicare Hearings and Appeals. This article will focus on tips and tricks designed to help the DAB efficiently dispose of your matter and render a quick decision (hopefully in your favor).

Make the decision easy

Making a decision easy to render for the DAB is a skill that often requires a sophisticated attorney who routinely handles DAB appeals. Therefore, my first advice is to involve an attorney at this stage of your appeal. Secondarily, focus your arguments into logically structured paragraphs for the DAB, such as: (1) a single sentence conclusion; (2) an explanation of the issue(s) and relevant fact(s); (3) a statement of applicable law(s); and (4) an analysis of the fact(s) under the law. Your ultimate work product will be a paragraph or two with the facts and law intermingled in a manner that tells the DAB exactly how it should resolve the matter.

Know the standard of review

The DAB's authority to review an ALJ's decision is limited. On issues of fact, the DAB can only overrule the ALJ if the ALJ's decision was not supported by substantial evidence on the record. On issues of law, the DAB will only overrule the ALJ if its decision is erroneous. Make sure to focus your arguments on these standards and the DAB's authority.

Focus on winnable issues

A supplier should not attempt to put every single argument it has against the government in its DAB appeal. Instead, a supplier should focus on winnable issues and remove the issues that are more likely to distract than persuade the court. A recent Q3 survey of Recovery Audit Contractor appeals illustrated the winnable nature of audit appeals—60% of appealed denials were overturned through the appeals process.

Keep it Brief

A brief is called a brief for a reason—make it brief! The DAB is already backlogged; longer, more complex, and more difficult to read briefs will be placed at the bottom of the backlog pile. Make your matter easy to resolve by making your brief concise and easy to read.

R. Ross Burris, III and Matthew Agnew, who contributed to this article, are attorneys at Polsinelli, PC. Reach them at rburris@polsinelli.comor magnew@polsinelli.com.